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).