MILITARY JUSTICE PERSONNEL: Court Members: Challenges for Cause


2011 (September Term)

United States v. Nash, 71 M.J. 83 (a military judge’s determinations on the issue of member bias, actual or implied, are based on the totality of the circumstances particular to a case). 

(actual bias and implied bias are separate legal tests, not separate grounds for a challenge). 

(the right to an impartial and unbiased panel is upheld through military judges’ determinations on the issues of actual bias, implied bias, and the mandatory disqualifying grounds in the RCMs that preclude persons from serving on a panel). 

(in the case of RCM 912(f)(1)(M), which encompasses actual bias, a member must be excused when he or she has informed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged). 

(actual bias is personal bias which will not yield to the military judge’s instructions and the evidence presented at trial).

(the issue of implied bias generally arises during the voir dire phase of a court-martial; however, it is important to keep in consideration that the issue can arise at any time during the trial; therefore, it is incumbent upon military judges to tailor the application of the implied bias test to the context presented). 

(while the military judge is in the best position to judge the demeanor of a member, in certain contexts, mere declarations of impartiality, no matter how sincere, may not be sufficient).

(the military judge abused his discretion when he did not excuse a member for actual bias after that member asked the accused’s wife, who was testifying on the merits in a court-martial involving the accused’s alleged sexual misconduct with children, if she thought a pedophile could be rehabilitated; the member’s question suggested before the close of the evidence that the member believed the accused was a pedophile who committed the crimes he was charged with and that the member might believe that pedophiles cannot be rehabilitated; and after further voir dire of this member, because the member did not state a clear rationale for asking the question, his rationale was inadequate to resolve the question of bias and did not relieve the concern that the member had made up his mind; in addition, the member’s question demonstrated that he had not kept an open mind until the close of evidence as required by the military judge’s preliminary instructions and that he could not yield to later instructions  to keep an open mind). 

2010 (September Term)


United States v. Gooch, 69 M.J. 353 (RCM 912(f)(1)(N) provides that a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; an example of a scenario under subsection (N) that may be grounds for challenge includes where a member has a decidedly friendly or hostile attitude toward a party).


2009 (September Term)


United States v. Bagstad, 68 M.J. 460 (RCM 912(f)(1)(N) mandates that a member be excused whenever he should not sit in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; this rule encompasses challenges based upon both actual and implied bias). 

 

(implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced). 

 

(the test for determining an RCM 912(f)(1)(N) challenge for implied bias is objective, viewed through the eyes of the public, focusing on the appearance of fairness; the hypothetical public is assumed to be familiar with the military justice system). 

 

(challenges for actual or implied bias are contextual judgments, evaluated based on the totality of the factual circumstances).    

 

(there is no per se rule that a military judge must dismiss a member predicated solely on the fact that a senior member of the court-martial is involved in writing or endorsing the effectiveness reports of junior members).   


2008 (September Term)

 

United States v. Martinez, 67 M.J. 59 (in close cases, military judges are enjoined to liberally grant challenges for cause).

 

(an accused is entitled to a fair and impartial panel of members; consistent with that enjoinder, the accused is entitled to have his case heard by members who are not predisposed or committed to a particular punishment, or who do not possess an inelastic attitude toward the punitive outcome). 

 

(in a sentencing case where appellant pleaded guilty to a single specification of drug use, statements of senior member of court-martial panel during voir dire that a sentence of no punishment was not an option and that there would be no room in his Air Force for people who abused drugs cast substantial doubt on that member’s fairness or impartiality, requiring his removal for cause; when questioned by the military judge, the member’s responses were qualified, if not hesitant; although the member later disavowed an inelastic attitude toward a punitive discharge, he did not disavow an inelastic attitude toward punishment; because his response was qualified and inelastic as to the necessity of some punishment, these responses, combined with the fact that he was the senior member of the panel, would lead an objective observer to question whether appellant received a fair sentencing hearing; as such, there was a substantial doubt as to the fairness or impartiality of the member in question, and in light of the cases dealing with implied bias and the liberal grant mandate, the military judge abused his discretion in not granting the challenge for cause). 


2008 (Transition)


United States v. Elfayoumi, 66 M.J. 354 (RCM  912(f)(1)(N) requires an excusal for cause where it appears an individual should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; this rule encompasses challenges based upon both actual and implied bias; implied bias exists when most people in the same position as the court member would be prejudiced). 

 

(as a general matter, moral or religious views are not per se disqualifying where a member otherwise demonstrates a capacity to hear a case based on the four corners of the law and as instructed by the military judge). 

 

(recognizing the human condition, the law gives a military judge the added flexibility, and duty, to err on the side of caution where there is substantial doubt as to the fairness of having a member sit because of that member’s moral or religious views; thus, the military judge need not impugn the integrity or values of the member in finding actual bias, but can in context rely on the implied bias/liberal grant doctrine if substantial doubt arises that the member can put his or her views aside). 

 
(it would not be unusual for members to have strongly held views about lawful conduct involving sex or pornography; indeed, in today’s society it will be hard to find a member who does not hold such views, one way or another; so too, a member might have a strongly held view about unlawful conduct -- murder, shoplifting, forcible sodomy, etc; most, if not all members, would; also, most members would have a natural propensity to be either lenient or punitive depending on their personal views on these subjects; the law anticipates this human condition; thus, the question is not whether they have views about certain kinds of conduct and inclinations regarding punishment, but whether they can put their views aside and judge each particular case on its own merits and the law, such that appellate courts, in applying RCM 912, are not left in substantial doubt as to the fairness or impartiality of the members). 

 

(in this case, the military judge did not abuse his discretion in denying a challenge for cause on the basis of implied bias against a member who expressed a view that homosexuality and pornography were morally wrong, where the military judge tested for the member for personal bias that might manifest itself during the members’ deliberations, regardless of the military judge’s instructions on the law, where the military judge specifically questioned the member on his ability to separate his personal views from the facts of the case and disaggregated the question of homosexuality from the charged criminal conduct, where the military judge permitted defense counsel to question the member without restriction, and where the member’s answers to defense counsel’s questions about his views on pornography revealed that he could distinguish between that which he might find immoral and that which the law might deem criminal). 


United States v. Bragg, 66 M.J. 325 (RCM 912(f)(1)(N) requires that a member be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; while this rule applies to both actual and implied bias, the focus of this rule is on the perception or appearance of fairness of the military justice system). 

 

(implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced [i.e., biased]). 

 

(the purpose of voir dire and challenges is, in part, to ferret out facts, to make conclusions about the members’ sincerity, and to adjudicate the members’ ability to sit as part of a fair and impartial panel; however, the text of RCM 912 is not framed in the absolutes of actual bias, but rather addresses the appearance of fairness as well, dictating the avoidance of situations where there will be substantial doubt as to fairness or impartiality; thus, implied bias picks up where actual bias drops off because the facts are unknown, unreachable, or principles of fairness nonetheless warrant excusal).

 

(in the context of implied bias, a military judge need not doubt the sincerity or veracity of a member’s statements that he could evaluate the evidence with an open mind, in order to nonetheless conclude that the member should not sit; it is not always possible to resolve facts or determine credibility and still remove the perception of doubt as to whether a member should sit; implied bias and the liberal grant mandate allow a military judge to uphold the letter and spirit of RCM 912 without at the same time questioning a member’s statement that he can sit with an open mind; the liberal grant mandate and principles of implied bias also remove the necessity of reaching conclusions of fact that are beyond the capacity of the member to recall). 

 

(military judge erred in denying defense challenge for cause of a senior member on the panel who indicated during voir dire that he was aware of information about the case not available to the other members and from a source not readily available to others, and who suggested that prior to trial, it was likely that he would have been in a position to recommend, and may have recommended adverse administrative action against the accused, for conduct forming the basis of the charges before the court-martial; the liberal grant mandate exists for cases like this; viewing the factual circumstances objectively, a member of the public would have substantial doubt that it was fair for this member to sit on a panel where that member had likely already reached a judgment as to whether the charged misconduct occurred; this perception of unfairness is compounded when that member has likely reached such a conclusion based on information gained prior to trial).  

 
United States v. Townsend, 65 M.J. 460 (RCM 912 encompasses challenges based upon both actual bias and implied bias; RCM 912(f)(1)(N) provides a challenge where it appears an individual should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; implied bias exists when, despite a disclaimer, most people in the same position as the court member would be prejudiced).

 

(to test whether there is substantial doubt about the fairness of the trial, one evaluates implied bias objectively, through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system; the inquiry is to determine whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high).

 
(military judges should apply a liberal grant mandate in ruling on challenges for cause asserted by an accused). 

 
(there is no basis for the application of the liberal grant policy when a military judge is ruling on the government’s challenges for cause).


(it might be possible that a particular member of a court-martial would require rehabilitation to such an extent that the rehabilitation itself would give rise to reasonable questions about the fairness of the proceeding if that member were to remain on the panel; the need to engage in extensive rehabilitation of a potential court member may present the very type of close situation that supports application of the liberal grant mandate; however, in this case, disqualification of a court member for implied bias was not warranted on the ground that the member required extensive rehabilitation, where each side questioned the member only once, and there was no extensive back and forth effort to undermine and then rehabilitate the member’s qualifications to sit as a member of the court).    

 
(in this case, the military judge did not abuse his discretion in denying appellant’s challenge for cause to a member on the basis of implied bias, where based on the facts of this record, none of the reasons offered in support of the challenge – that the member had a close relationship with his law enforcement father, was a law student at the time of trial with a career goal of being a criminal prosecutor, was disposed to give a law enforcement officer’s testimony more credibility than he would give to other witnesses, and did not hold defense attorneys in high regard -, either alone or cumulatively, served to disqualify the member from serving or would result in the public perceiving that appellant received less than a court of fair, impartial members; the record reflects that the member understood his role as a court member and that he would follow the instructions of the military judge; examining the cumulative impact of the member’s disclaimers in light of the liberal grant mandate, this is not a close case where failure to apply the liberal grant mandate is fatal; nothing in the record suggests that the member was hardened in his views on criminal law by virtue of his respect for his father or his father’s background in law enforcement; even though the voir dire reflected that the member had respect for law enforcement, that respect did not translate into any objectively discernable bias; in addition, although the member indicated that he would afford a certain amount of credibility to a police officer with a good record, his view was not so inflexible that it would not yield to the military judge’s instructions on credibility; with respect to the member’s enrollment in law school and his desire to become a prosecutor, the record shows that he was aware of the proper role of a court member and would adhere to that role and that he would cast aside any legal notions he developed from his legal education and would strictly follow the instructions of the military judge; finally, the claim that the member did not like defense lawyers or did not hold defense lawyers in high regard was not an accurate reflection of his responses during individual voir dire; his remarks could not be reasonably interpreted to imply that he disliked licensed, professional defense counsel, military or civilian; the record reflects that the factors asserted as a basis for implied bias were not disqualifying or egregious and would not, individually or cumulatively, result in the public perception that appellant received something less than a court-martial of fair and impartial members; in fact, a dispassionate, objective review of this record reflects quite the opposite; the member understood and appreciated the role of a court member, including his obligation to apply the law as instructed upon by the military judge and his obligation to remain unbiased; a reasonable observer, considering the record as a whole, would have harbored no questions about the member’s neutrality, impartiality, and fairness). 

 

2007


United States v. Albaaj, 65 M.J. 167 (challenges under RCM 912(f)(1)(N) –- i.e. where a member should not sit in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality -- encompass both actual and implied bias; these are separate legal tests, not separate grounds for challenge). 

 

(in the case of actual bias, an appellate court is generally deferential to a military judge’s ruling because such challenges involve judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire).


(the test for implied bias is objective, and asks whether, in the eyes of the public, the challenged member’s circumstances do injury to the perception of appearance of fairness in the military justice system; in making this objective evaluation, an appellate court asks whether most members in the same position as the challenged member would be prejudiced or biased; because of this objective test and the nature of the inquiries, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo). 


United States v. Hollings, 65 M.J. 116 (RCM 912(f)(1)(G) provides that a court member shall be excused for cause whenever it appears that the member has acted in the same case as convening authority or as the legal officer or staff judge advocate to the convening authority; Article 1 of the UCMJ defines legal officer as any commissioned officer designated to perform legal duties for a command). 

 

(in this case, a challenged court member who, in his capacity as personnel officer for appellant’s squadron, reviewed the squadron’s weekly legal report and certified unit diaries recording legal actions on days that the legal officer was unavailable, did not meet the Article 1 definition of legal officer, did not act as a legal officer, and thus was not subject to challenge as a legal officer under RCM 912(f)(1)(G)). 

 

(in this case, there was no evidence of bias, actual or implied, that would support the removal for cause of a court member who, in his capacity as the personnel officer for appellant’s squadron, reviewed the squadron’s weekly legal report and had seen appellant’s name and the charges against him represented on that report; the court member was not a career legal officer nor was he a legal officer at the time of appellant’s court-martial; also, there was no indication that he knew appellant, and the only information he received in the weekly legal report about the case pertained to appellant’s name and the charges against him, facts of record immediately evident to anyone attending appellant’s court-martial).   


(military judges are enjoined to follow the liberal grant mandate in evaluating challenges for cause; a military judge who, in determining whether a court member should be removed for implied bias, addresses the concept of the liberal grant mandate on the record, is entitled to greater deference than one who does not).

 

(the liberal grant mandate recognizes the military judge’s responsibility to prevent both the reality and the appearance of bias involving potential court members; RCM 912(f)(1)(N) requires the removal of a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality).


United States v. Terry, 64 M.J. 295 (the liberal grant mandate applicable to challenges for cause exists not just to protect an accused’s right to a fair trial, but also to protect society’s interest, including the interests of the government and the victims of crime, in the prompt and final adjudication of criminal accusations). 

 

(a prior connection to a crime similar to the one being tried before the court-martial is not per se disqualifying to a member’s service). 

 

(the fact that a member was close to someone who had been a victim of a similar crime is not grounds for per se disqualification; likewise, mere distaste for certain offenses is not automatically disqualifying). 

 

(a military judge’s determinations on the issue of member bias, actual or implied, are based on the totality of the circumstances particular to a case; such determinations are guided by the longstanding and often-stated holding that challenges for cause are to be liberally granted).

 

(the test for actual bias is whether any bias is such that it will not yield to the evidence presented and the judge’s instructions). 

 

(regardless of a member’s prior exposure to a crime, it is often possible for a member to rehabilitate himself before the military judge by honestly claiming that he would not be biased; even in light of a member’s extensive exposure to the same sort of crime that the member is being asked to adjudge at court-martial, appellate courts have regularly found the absence of actual bias when the military judge reported that following voir dire that judge was satisfied with the honesty of the member and convinced that the member was neither “inflexible” nor resistant to the evidence or the judge’s instructions). 

 

(appellate courts have found actual bias when members have been victims of similar, particularly violent or traumatic crimes, or if other unique circumstances pertained). 

 

(the military judge in a rape case did not err in finding an absence of actual bias in members who indicated during voir dire that they knew family and friends who had been victims of sexual assault, where there were no exacerbating circumstances present and where  the military judge’s assessed the members’ demeanor and truthfulness during voir dire and concluded that they exhibited no actual bias and would be impartial).


(the military judge in a rape case did not err in denying a challenge for cause of a member who indicated during voir dire that his wife had been the victim of some form of sexual assault by her stepfather, where there were a number of factors that tended to ameliorate that member’s exposure to the crime, dispelling the appearance of implied bias; first, the crime took place at least ten years prior to the court-martial and before the member even knew his wife; second, it was never reported to law enforcement, nor did it cause his wife to receive any counseling, and as a couple, they had not discussed the incident for over five years; third, the member’s wife had somewhat reconciled with her stepfather; and finally, the military judge’s interpretation of the member’s initial discomfort in speaking about his wife’s abuse was justifiably described as emanating from his concern for his wife’s reputation in the community, rather than any distress he personally suffered due to his wife’s experiences).

 

(the military judge in a rape case erred in not granting a challenge for cause against a member whose longtime girlfriend who he might have married was raped, became pregnant, ended their relationship as a result of the experience, and later named the child after the member; most persons in the member’s position would have difficulty sitting on a rape trial, even given the passage of six years since the event; further, an objective observer might well have doubts about the fairness of the accused’s court-martial panel; under the liberal grant mandate, the military judge erred in not eliminating such doubts from the accused’s court-martial at the outset; the member’s experience with rape was too distinct to pass the implied bias muster).


United States v. Briggs, 64 M.J. 285 (RCM 912(f)(1)(N) requires removal for cause when a court member should not sit in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; RCM 912 (f)(1)(N) encompasses both actual and implied bias; the concepts of actual and implied bias are separate legal tests, not separate grounds for challenge). 


(because a challenge based on actual bias is essentially one of credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility on voir dire, a military judge’s ruling on actual bias is afforded deference).


(implied bias is viewed through the eyes of the public, focusing on the appearance of fairness). 

 

(implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced, that is, biased). 

 

(since implied bias is an objective standard, a military judge’s ruling on implied bias, while not reviewed de novo, is afforded less deference than a ruling on actual bias; however, deference is warranted only when the military judge indicates on the record an accurate understanding of the law and its application to the relevant facts).

 

(the military judge erred when he denied a challenge for cause for implied bias against a member who was the spouse of the accused’s flight commander where the accused was charged with stealing and later re-selling survival vests from aircraft he was responsible for maintaining; the flight commander’s safety might have been implicated by the theft of survival vests and his performance evaluation might have been affected by criminal conduct regarding critical squadron equipment; in addition, the immediate commander is often responsible for the initial inquiry into potential misconduct occurring within his command and the initial decision as to disposition; the intent of the drafters of the UCMJ was to prevent courts-martial from being an instrumentality and agency to express the will of the commander, or to appear to be such an instrumentality; the decision to retain the spouse of the accused’s immediate commander unnecessarily raised the perception of improper command bias).


United States v. Clay, 64 M.J. 274 (it is settled law that a military judge should grant a challenge for cause not only where a court member demonstrates an inelastic disposition concerning an appropriate sentence for the offenses charged, but also where the presence of that member on the panel would create an objective appearance of unfairness in the eyes of the public). 

 

(RCM 912(f)(1)(N) requires the removal of a court member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; this rule encompasses both actual and implied bias; actual and implied bias are separate legal tests, not separate grounds for challenge).  

 

(in light of the role of the convening authority in selecting courts-martial members and the limit of one peremptory challenge per side, military judges are enjoined to be liberal in granting defense challenges for cause). 

 

(military judges must follow the liberal grant mandate in ruling on challenges for cause asserted by an accused; an appellate court will overturn a military judge’s ruling on an accused’s challenge for cause where he clearly abuses his discretion in applying the liberal grant mandate). 

 

(the liberal grant mandate is part of the fabric of military law; the mandate recognizes that the trial judiciary has the primary responsibility of preventing both the reality and the appearance of bias involving potential court members). 

 

(in close cases, military judges are enjoined to liberally grant challenges for cause). 

 

(the military judge erred in denying a challenge for cause against the senior member of the court-martial panel and abused his discretion by not applying the liberal grant mandate to the challenge, where the member stated during voir dire that he would be “merciless” on sentencing to someone he found guilty of raping a young female and where all his answers, taken together, created the perception that if he were convinced of the accused’s guilt, he would favor the harshest sentence available, without regard to the other evidence).  


(because a challenge to a court member based on actual bias involves judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire, a military judge’s ruling on actual bias is afforded great deference).


(implied bias is an objective test, viewed through the eyes of the public, focusing on the appearance of fairness; accordingly, a military judge’s ruling on implied bias, while not reviewed de novo, is afforded less deference than a ruling on actual bias). 

 

(challenges based on implied bias and the liberal grant mandate address historic concerns about the real and perceived potential for command influence on members’ deliberations).

 

(a military judge who addresses implied bias by applying the liberal grant mandate on the record will receive more deference on review than one who does not; an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted). 

 

(in the absence of actual bias, implied bias should be invoked rarely; taken at face value, that statement could be construed to be at odds with the liberal grant mandate; the statement, however, is not a reflection of a legal doctrine expressing judicial reticence or disdain for the finding of implied bias; instead, the statement reflects that where actual bias is found, a finding of implied bias would not be unusual, but where there is no finding of actual bias, implied bias must be independently established).

 

(in the absence of actual bias, where a military judge considers a challenge based on implied bias, recognizes his duty to liberally grant defense challenges, and places his reasoning on the record, instances in which the military judge’s exercise of discretion will be reversed will indeed be rare; in such circumstances, what might appear a close case on a cold appellate record, might not appear so close when presented from the vantage point of a military judge observing members in person and asking the critical questions that might fill any implied bias gaps left by counsel).


2006


United States v. Rodriguez-Rivera, 63 M.J. 372 (there is no basis for application of the liberal grant policy when a military judge is ruling on the government’s challenges for cause on court members).


(if a potential member states he would require the government to produce more evidence than the testimony of one witness in order to find any element beyond a reasonable doubt, then he is holding the government to a higher standard than the law requires and should not be allowed to sit on the panel). 

 

(the military judge did not abuse his discretion in granting the government’s challenge for cause against a member who indicated during voir dire that he would want a little bit more than just the testimony of one witness in order to conclude that the government had met its burden in a child sexual abuse case). 

 

United States v. Leonard, 63 M.J. 398 (RCM 912(f)(1)(N) provides that a member should not sit where his service would raise substantial doubt as to the legality, fairness, and impartiality of the proceedings; this rule includes challenges based on actual bias as well as implied bias; the two purposes of RCM 912(f)(1)(N) are to protect the actual fairness of the court-martial and to bolster the appearance of fairness of the military justice system in the eyes of the public). 

 

(the test for actual bias is whether any bias is such that it will not yield to the evidence presented and the judge’s instructions).
 

(while actual bias is reviewed through the eyes of the military judge or the court members, implied bias is reviewed under an objective standard, viewed through the eyes of the public; the focus is on the perception or appearance of fairness of the military justice system; the test for implied bias also carries with it an element of actual bias; thus, there is implied bias when most people in the same position would be prejudiced; when there is no actual bias, implied bias should be invoked rarely).

 

United States v. Quintanilla, 63 M.J. 29 (under RCM 912(f)(1)(N), a panel member shall be excused for cause when the member should not sit in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; under this provision, a member who has an inelastic opinion concerning an appropriate sentence for the offenses charged may be challenged). 

 

(when the issue of an inelastic opinion arises in a capital case with respect to the imposition of the death penalty, the applicable legal standard for determining whether a prospective member could be excluded for cause because of his views on capital punishment is whether the member’s views would prevent or substantially impair the performance of his duties as a member in accordance with his instructions and his oath).

 

(in this case, the military judge erred in granting a government’s challenge for cause on a member in a capital case who indicated that as a religious person, he would pray in the course of making an important decision, but repeatedly emphasized that no restrictions on voting for the death penalty flowed from his religious affiliation; the military judge focused erroneously on the religious beliefs of the member and failed to find that the member’s views would prevent or substantially impair the performance of his duties as a member in accordance with his instructions and his oath; the member’s statement that he would pray in the course of making an important decision contains no suggestion that his religious beliefs would preclude him from following and applying the instructions of the military judge in accordance with his oath as a panel member).

  

United States v. Moreno, 63 M.J. 129 (implied bias under RCM 912(f)(1)(N) provides a basis for challenge when it appears an individual should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality).

 

(the test for implied bias is objective; viewing the circumstances through the eyes of the public and focusing on the perception or appearance of fairness in the military justice system, the question asked is whether, despite a disclaimer of bias, most people in the same position as the court member would be prejudiced; considering a claim of implied bias, a court looks to determine whether there is too high a risk that the public will perceive that the accused received less than a court composed of fair, impartial, equal members). 

 

(implied bias should be invoked sparingly). 

 

(a military judge erred in not granting a challenge for cause based on implied bias against a member of the court-martial panel who became its president, where the member conducted an extensive personal, pretrial investigation of the case, weighed facts, made recommendations based on his conclusions, and continued to follow both the accused’s case and the case of his co-accused in the press, where an objective observer would have perceived that the member possessed an excessive level of pretrial knowledge of the case to sit as an impartial panel member, and where the member would exert influence over the other members arising from his personal knowledge of facts rather than from evidence presented in court; the presence of this member on the panel created a substantial doubt about the fairness and impartiality of the court-martial).           

 

(a court does not accept as conclusive a challenged member’s perfunctory disclaimer of personal interest or his assertion of impartiality).  


2005


United States v. Sonego, 61 M.J. 1 (an inelastic predisposition toward a particular punishment is a valid basis for a challenge for cause).

United States v. James, 61 M.J. 132 (a member of a court-martial panel may be removed for cause if it is shown that he or she has an inelastic opinion concerning an appropriate sentence for the offenses charged). 
 
(an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel; a member may be removed for cause if it is shown that he or she should not sit in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; an inelastic opinion concerning an appropriate sentence for the offenses charged may be grounds for challenge; the party that makes the challenge for cause has the burden of proving that grounds for a challenge exist). 
 
(in evaluating challenges for cause based on claims of inelastic attitude, this Court has held that an unfavorable inclination toward an offense is not automatically disqualifying; the test is whether the member’s attitude is of such a nature that he will not yield to the evidence presented and the judge’s instructions).
 
(in the context of challenges brought by an accused, military judges must liberally grant challenges for cause; the liberal grant policy supports the UCMJ’s interest in ensuring that members of the military have their guilt or innocence determined by a panel composed of individuals with a fair and open mind).
 
(given the convening authority’s broad power to appoint the panel, there is no basis for application of the liberal grant policy when a military judge is ruling on the government’s challenges for cause).     
 
(the military judge did not abuse his discretion in granting the government’s challenge for cause of a court-martial member on the basis of that member’s inelastic predisposition toward sentencing in a drug case; the military judge found that the member wavered when asked if she could consider the entire range of punishments and expressed her concerns regarding punishments in drug cases both verbally and nonverbally, and his conclusion that she would have trouble considering the entire range of punishments was not clearly erroneous).

United States v. Richardson
, 61 M.J. 113 (RCM 912(f)(1)(N) provides that a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; in furtherance of this rule, military judges are required to test the impartiality of potential panel members on the basis of both actual and implied bias). 


(actual bias tests the expressed views of members; challenges for actual bias are evaluated based on a totality of the circumstances).


(implied bias is reviewed under an objective standard, viewed through the eyes of the public, and it is intended to address the perception or appearance of fairness of the military justice system; challenges for implied bias are evaluated based on a totality of the circumstances).


(implied bias review is more than a question as to whether members were honest when they said they would be fair; in the context of implied bias, this case is not about the members’ integrity; taking into account the military judge’s determination that the members were truthful in their responses, the question is would the public nonetheless perceive the trial as being less than fair given the nature of the prior and existing relationships between trial counsel and certain panel members).


(in this case, the appellate record does not demonstrate grounds for removing two court-martial members on the basis of implied bias based on their prior professional contacts with the trial counsel where the record only reflects that they knew the trial counsel from his provision of legal services to their commands and they stated that their prior contact with counsel would not affect their deliberations at appellant’s court-martial).


(in this case, the prior professional contacts between trial counsel and three of the six seated members at appellant’s court-martial, including conversations related to criminal law matters, warranted further inquiry in light of defense counsel’s challenges for implied bias and his request to conduct further voir dire; moreover, counsel in this case sought to ask additional questions while voir dire was still ongoing; accordingly, this Court concludes that the military judge abused his discretion by failing to apply the correct legal standard for implied bias to the challenges of these members; there was a further abuse of discretion in the denial of counsel’s request to reopen voir dire in a case raising implied bias considerations).


2004


United States v. Strand, 59 MJ 455  (this Court has generally found that when there is no actual bias, implied bias should be invoked rarely; due process does not require a new trial every time a juror has been placed in a potentially compromising situation; instead, this Court has observed that implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced [i.e. biased]; in making judgments regarding implied bias, this Court looks at the totality of the factual circumstances).

           

(based on the totality of the circumstances, we hold that a military judge should not have sua sponte dismissed the acting convening authority’s son from the panel pursuant to the doctrine of implied bias in order to ensure public confidence in the legality, fairness, and impartiality of appellant’s court-martial where (1) the familial relationship was openly discussed during voir dire, (2) counsel were afforded ample opportunity to explore any potential concerns regarding the member’s presence on the panel, (3) defense counsel demonstrated the capability to identify matters of potential conflict regarding other members along with his ample use of the challenge mechanism, and (4) appellant did not make a showing of actual bias, nor argue that the familial relationship influenced the panel’s deliberations).

 

(a member’s unequivocal statement of a lack of bias can carry weight when considering the application of implied bias).


2003

United States v. Miles, 58 MJ 192 (R.C.M. 912(f)(1)(N) requires that a member be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; this rule includes actual bias as well as implied bias; actual bias and implied bias are separate tests, but not separate grounds for a challenge.

(military judges are enjoined to be liberal in granting challenges for cause).

(because a challenge for cause for actual bias is essentially one of credibility, the military judge’s decision is given great deference because of his or her opportunity to observe the demeanor of court members and assess their credibility during voir dire).

(the focus of the implied bias rule is on the perception or appearance of fairness of the military justice system; there is implied bias when most people in the same position would be prejudiced; implied bias is viewed through the eyes of the public, focusing on the appearance of fairness).

(implied bias is reviewed under an objective standard; the military judge is given less deference on questions of implied bias; issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo).

(a member is not per se disqualified if he or she or a close relative has been a victim of a similar crime; where a particularly traumatic similar crime was involved, however, the Court has found that denial of a challenge for cause violated the liberal-grant mandate).

(applying the test for implied bias, the Court holds that the military judge abused his limited discretion and violated the liberal-grant mandate where, in a court-martial for drug abuse, the challenged member’s 10-year-old nephew died as a result of his mother’s prenatal use of cocaine and the member described this tragedy in an article for the base newspaper that was scheduled to be published shortly after the accused’s court-martial; trial counsel’s comment that the event evidently was a very traumatic experience reflects the trial counsel’s awareness, notwithstanding the member’s sincere disclaimer during voir dire, that the member had been personally affected by another person’s drug abuse; the Court concludes that asking the member to set aside his memories of his nephews’ death and to impartially sentence the accused for illegal drug use was asking too much of him and the system; furthermore, apart from the member's personal experience with the effects of drug abuse, the scheduled publication of his self-experience four days after his participation in this court-martial would have added to the serious doubts in the minds of a reasonable observer about the fairness of the trial).
 

2002

United States v. Wiesen, 56 MJ 172 (Recon. at 57 MJ 48 ) (the test for actual bias is whether any bias is such that it will not yield to the evidence presented and the judge’s instructions).

(members shall be excused in cases of actual bias or implied bias, and military judges must follow a liberal-grant mandate in ruling on challenges for cause).

(a senior-subordinate/rating relationship does not per se require disqualification of a panel member).

(availability of a peremptory challenge does not remove the prejudice arising from an erroneous ruling on a challenge for cause; the erroneous denial of a challenge for cause prejudices an accused’s right to exercise a peremptory challenge against another member of his choice).

(implied bias is reviewed under an objective standard, viewed through the eyes of the public; the focus is on the perception or appearance of fairness in the military justice system and the test carries with it an element of actual bias; thus, there is implied bias when most people in the same position would be prejudiced).

(where the president of the panel and his subordinates comprised the two-thirds majority sufficient to convict, an intolerable strain is placed on public perception of the military justice system; this factual scenario is outside the margin of tolerance reflected in case law, and there is simply too high a risk that the public will perceive that the accused received something less than a jury of ten equal members).

(the government failed to demonstrate that operational deployments or needs precluded other suitable officers from reasonably serving on a panel where the president of the panel and his subordinates comprised the two-thirds majority sufficient to convict; thus, there was no necessity for the president/Brigade Commander to participate).

(implied bias undermines public confidence in the military justice system regardless of the offense).

(court expresses "no doubt" that viewed through the eyes of the public, serious doubts about the fairness of the military justice system are raised when the senior member of the panel and those he commanded or supervised commanded a two-thirds majority of members that alone could convict the accused).

United States v. Wiesen, 57 MJ 48 (Recon.) (the burden of establishing grounds for a challenge for cause rests upon the party making the challenge).

(Court of Appeals for the Armed Forces did not improperly established a per se rule requiring disqualification of a senior member who writes or endorses an efficiency report for a junior member; it is well settled that a senior-subordinate/rating relationship does not per se require disqualification of a panel member).

(a defense challenge of a panel member for cause based on implied bias met its burden of establishing grounds for a challenge by referencing the member's supervisory position over six of the other nine panel members, a fact established during voir dire).

(Recon.)(implied bias is defined in terms of a bias viewed through the eyes of the public).

(Recon.)(in a case involving a court member with a supervisory position over six of the other nine panel members, implied bias is appropriately viewed in the context of public perceptions of a system in which the commander who exercises prosecutorial discretion is the official who selects and structures the panel that will hear the case).

United States v. Downing, 56 MJ 419 (the burden of persuasion remains with the party making a challenge for cause against a potential court member).

(military judges are afforded a high degree of deference on rulings involving actual bias).

(issues of implied bias are reviewed under an objective standard, viewed through the eyes of the public, addressing the perception or appearance of fairness of the military justice system; the standard is less deferential than abuse of discretion, but more deferential than de novo).

(the military judge’s voir dire and ruling did not reflect that he applied the correct legal standard to appellant’s challenge for implied bias where:  (1) the military judge stated that “folks are friends with folks,” an analysis falling qualitatively short, if indeed it was intended to address implied bias at all; (2) it framed but does not squarely address the essential question -- was the military judge satisfied that an objective public observer would find this level of friendship between the prosecutor and a member of the court-martial panel consonant with a fair and impartial system of military justice?; (3) there was no indication that the military judge considered the effect, if any, that the liberal-grant mandate should have on his ruling).

(appellant did not met his burden of establishing that grounds for challenge against a member based on implied bias existed; applying the liberal-grant mandate, the military judge could have granted appellant’s challenge for cause, but he was not required to do so on the following facts:  (1) the member and trial counsel were company grade friends based on professional assignment to the same installation; (2) they knew each other for six months; (3) that they had cause to speak by telephone approximately ten times in the two weeks preceding trial, and that this contact occurred during duty hours; (4) the member’s duties necessarily required such contact during duty hours; (5) this friendship extended beyond professional hours to social settings; (6) the member indicated she went to a beach house that trial counsel shared with other officers, but not necessarily to see trial counsel; (7) trial counsel at some point bought a car from the member; and (8) the military judge observed a look of incredulity when it was suggested to the member that her friendship with trial counsel might affect her impartiality, a fact relevant to an objective observer’s consideration).

United States v. Humpherys, 57 MJ 83 (when a panel member fails to disclose information during voir dire, the defendant must make two showings in order to receive a new trial:  (1) that a panel member failed to answer honestly a material question on voir dire; and (2) that a correct response would have provided a valid basis for a challenge for cause).

(a senior-subordinate/rating relationship does not per se require disqualification of a panel member).

(the test for actual bias is subjective and asks whether any bias is such that it will not yield to the evidence presented and the judge's instructions).

(military judge is given great deference when deciding whether actual bias exists because it is a question of fact, and the judge has observed the demeanor of the challenged member).

(on a question of actual bias, the judge’s findings on actual bias are reviewed for an abuse of discretion).

(as to actual bias, a full hearing made clear that superior did not improperly influence rated subordinate during deliberations, and that subordinate felt no threat or influence on him and his vote was his own).

(implied bias is reviewed objectively, reflecting a concern with public perception and the appearance of fairness in the military justice system, and exists when most people in the same position would be prejudiced).

(issues of implied bias, which entail both factual inquiry and objective application of legal principle, are reviewed under a less deferential standard).

(no member of the public would reasonably suspect the fairness of this trial where the record made clear that the relationship between superior and rated subordinate court members was entirely professional, did not involve any negative aspects between them, and would not hamper subordinate's independent thinking and fulfillment of his responsibility as a panel member).

2001

United States v. New, 55 MJ 95 (the burden of establishing that grounds for a challenge exist is upon the party making the challenge).

(the test for actual bias in each case is whether any bias is such that it will not yield to the evidence presented and the judge’s instructions).

(actual bias is a question of fact, which is reviewed subjectively, through the eyes of the military judge of the court members).

(there was no actual bias supporting challenge for cause against court member who indicated that he had ordered subordinates to deploy on the very same mission that was involved in appellant’s trial for disobedience; member gave no indication that he would be unable to yield to the evidence and instructions, and in fact indicated that he would base his decision on the evidence and instructions of the military judge).

(implied bias is viewed through the eyes of the public, and the focus is on the perception or appearance of fairness of the military justice system).

(it is unlikely that the public would view all officers or all enlisted personnel who have ever given an order as being disqualified from cases involving disobedience of orders that are similar to any they may have given in the past; there was no implied bias supporting a challenge for cause).

 
2000

United States v. Napolitano, 53 MJ 162 (although member’s comment on pretrial questionnaire expressed a negative perception of attorneys, the entirety of the member’s responses in court made it clear that he did not have an actual bias against appellant’s civilian defense counsel).

(implied bias focuses on the perception or appearance of fairness in the military justice system and exists when, despite a member’s disclaimer of bias, most people in the same position would be prejudiced; implied bias should be invoked rarely).

(no implied bias existed despite member’s pretrial questionnaire indicating disapproval of one civilian defense counsel (not appellant’s) where, after proper instructions from the trial judge, the member retracted this disapproval and stated that he held no bias against civilian defense counsel in general or appellant as a result of his civilian counsel of choice).

United States v. Rolle, 53 MJ 187 (under RCM 912(f)(1)(N), a member should be removed for cause if that member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; that member should be removed if he or she has an inelastic opinion concerning an appropriate sentence for the offense charged).

(an inflexible member is disqualified, but a predisposition to impose some punishment is not automatically disqualifying; the test is whether the member’s attitude is of such a nature that he will not yield to the evidence presented and the judge’s instructions).

(neither side is entitled to a commitment from a member during voir dire about what that member will ultimately do; court is reluctant to hold that members who are not evasive and admit to harboring an opinion on sentence that many others share must be automatically excluded if challenged for cause).

(military judge did not abuse his discretion by denying challenge for cause against a member who expressed an inclination toward imposing some punishment, but who had no predisposition to impose a punitive discharge, confinement, or reduction in grade based on the nature of the offense, and who indicated he would follow the instructions of the military judge and would never exclude the possibility of no punishment).

(military judge did not abuse his discretion by denying challenge for cause against a member who allegedly expressed that he could not vote for a sentence of no punishment where:  (1) the member agreed that a federal conviction was itself punishment; (2) the member expressed a willingness to follow the judge’s instructions; (3) it was unclear what the member considered to be punishment; and (4) the member’s responses were given to artful, sometimes ambiguous inquiries).

(military judge did not abuse his discretion by denying challenge for cause against a member who allegedly expressed that he could not vote for a sentence of no punishment where the record reflected that all parties considered no punishment to be outside the range of reasonable and even remotely probable sentences).

United States v. Henley, 53 MJ 488 (impartiality is largely concerned with whether the member can judge the case on the evidence and the law, and not on preconceived notions of how the case should be decided; military judge did not abuse her discretion in denying challenge for cause against member who had friends who were victims of related offenses as opposed to having a family member who was the victim of such an offense).

United States v. Armstrong, 54 MJ 51 (although appellant did not specifically articulate a challenge based on implied bias, Court of Criminal Appeals was not constrained by plain error doctrine in reviewing claim on appeal under Article 66, UCMJ).

(a challenge for cause under RCM 912(f)(1)(N) encompasses both actual and implied bias which are separate legal tests, not separate grounds for challenge).

(implied bias is viewed through the eyes of the public, focusing on the perception or appearance of fairness of the military justice system, and asking whether most people in the same position as the challenged member would be prejudiced; military judges are given less deference on questions of implied bias, but where there is no actual bias, implied bias should be invoked rarely).

(where the Court of Criminal Appeals could not determine from the record whether the military judge tested a challenged member for implied bias, the Court of Criminal Appeals was empowered to make its own judgment if it believed that implied bias warranted granting the challenge for cause).

(in reviewing decision of Court of Criminal Appeals on implied bias, the question is whether that court abused its discretion by making findings of fact that are clearly erroneous or unsupported by the record, or by basing its decision on an erroneous view of the law; this is not a de novo review, but is a review under a somewhat less deferential standard than actual bias).

(exercise of peremptory challenge against a member who was the subject of unsuccessful challenge for cause does not preclude appellate review of challenge for cause where RCM 912(f)(4) preserves that right and that right is not in conflict with any higher authority).

1999

United States v. Thompson, 50 MJ 57 (rulings on challenges for cause are reviewed for abuse of discretion, giving great deference to military judge on issues of actual bias and less deference on questions of implied bias).

(while a liberal standard for ruling on challenges for cause might have avoided issue in this case, the entirety of the voir dire and evidence that the member could follow the judge’s instructions supported finding that member was not bias, prejudice, or impartial despite member’s statements indicating that a noncommissioned officer must accept responsibility for what happens within his or her area of control or presence).

United States v. Warden, 51 MJ 78 (actual bias is reviewed subjectively through the eyes of the military judge or the court members to determine whether any bias is such that it will not yield to the evidence presented and the judge’s instructions).

(actual bias is a question of fact, upon which the military judge is given great deference recognizing the he has observed the demeanor of the challenged party; the military judge’s denial of a challenge for cause based on actual bias will not be overturned unless there is a clear abuse of discretion in applying the liberal grant mandate).

(implied bias is viewed through the eyes of the public, focusing on the perception or appearance of fairness in the military justice system, and determining whether most people in the same position as the court member would be prejudiced).

(the military judge is given less deference on questions of implied bias, recognizing that where there is no question of actual bias, implied bias should be invoked rarely).

(court member’s prior professional relationship with witness was not disqualifying per se; nor did comment that court member would have faith in what potential witness said disqualify that member where the statement reflected that member would put no greater confidence in this witness than any other witness and record reflected that this “faith” flowed from fact that witness performed military duties just as is expected from any soldier).

(record failed to reflect implied bias where:  (1) the member initiated the inquiry into his relationship with the witness; (2) relationship between senior member and enlisted witness was purely official rather than personal; (3) time between professional relationship and trial attenuated any impact from the relationship; and (4) member’s candor, forthright responses, and obvious concern about being fair enhanced the perception that appellant received a fair trial).

United States v. Gray, 51 MJ 1 (the standard for determining whether a member should be removed from a capital court-martial because of opposition to the death penalty is whether the member’s views would prevent or substantially impair the performance of the member’s duties in accordance with his instructions and his oath).

(military judge did not abuse his discretion in sustaining challenges for cause against members of capital court-martial who indicated that the chances of voting for a death penalty were very remote or stated he could never vote for the death penalty).

United States v. Schlamer, 52 MJ 80 (RCM 912(f)(1)(N)’s requirement that a court member be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality includes challenges based on both actual bias and implied bias).

(the test for actual bias is whether it is such that it will not yield to the evidence presented and the judge’s instructions, and determinations of actual bias generally involve issues of credibility and demeanor; a military judge enjoys great deference in his determinations of actual bias because he has observed the demeanor of the potential member during the voir dire and challenge process).

(implied bias is viewed objectively through the eyes of the public, focusing on the perception or appearance of fairness in the military justice system; less deference is given to a military judge’s determinations under this objective standard than is given on questions of actual bias).

(military judge did not abuse discretion denying challenge for cause where:  (1) although member’s questionnaire indicated that she believed an accused should testify or produce evidence, her answers during voir dire indicated only that she thought the accused should have an opportunity to be heard and that she would not draw adverse inferences if the accused elected not to testify; (2) although member had a tough sentencing philosophy, her answers indicated willingness to follow instructions, keep an open mind, and consider all the facts; (3) the member’s responses were not simply acquiescing to leading questions; (4) the member was not pushed into “correct” answers by the military judge or trial counsel; and, (5) the military judge found the member to be credible).

(as to whether a member was disqualified for implied bias, the military judge did not abuse his discretion where record reflected that member’s responses on questionnaire did not accurately reflect her views, and member’s responses on voir dire as well as the entire record would not cause a reasonable person to question the fairness of the proceedings).

(mere distaste for certain offenses is not automatically disqualifying).

(an inflexible member is disqualified; a tough member is not).

(military judge did not abuse his discretion in granting challenge for cause of member who had received prior nonjudicial punishment; the military judge was in the best position to hear the member’s responses, observe that member’s demeanor, and judge whether the experience of nonjudicial punishment would cause the member to be other than fair and impartial).

United States v. Rockwood, 52 MJ 98 (military judge did not abuse his discretion in denying challenges for cause against all remaining court members where he based his ruling on his personal assessment of each member, and the totality of the circumstances indicated that each member was genuinely open to considering all mitigating and extenuating factors which were relevant to a just sentence before arriving at a fixed conclusion).


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