TRIAL STAGES: Merits: New Trial

2008 (September Term)


United States v. Von Bergen, 67 M.J. 290 (the effect of ordering a rehearing is to place the United States and the accused in the same position as they were at the beginning of the original trial; as one of the first steps in a general court-martial proceeding is an Article 32, UCMJ, investigation, unless the accused waives it, one of the first steps at a rehearing in a general court-martial proceeding should likewise be an Article 32, UCMJ, investigation if not previously afforded to the accused). 

 

2007


United States v. Albaaj, 65 M.J. 167 (in determining whether a new trial is warranted when there is an allegation that a juror failed to disclose information during voir dire, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause).


2005

 

United States v. Sonego, 61 M.J. 1 (to obtain a new trial due to an incorrect voir dire response, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause).
 
(where a party asserts juror nondisclosure during voir dire as a ground for a new trial, the normal procedure is to remand the issue to the trial court for resolution; an evidentiary hearing is the appropriate forum in which to develop the full circumstances surrounding each part of the new trial test).
 
(although an evidentiary hearing is the usual procedure for resolving claims of juror dishonesty, the measure of proof required to trigger such an evidentiary hearing is a colorable claim of juror bias; the “colorable claim” test eliminates frivolous claims but keeps the door open for claims that may prove valid upon further examination). 
 
(a colorable claim of juror dishonesty was made in this case where an officer of the court declared under penalty of perjury that a panel member provided a contradictory voir dire response on a critical issue less than one month after appellant’s trial).


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