TRIAL STAGE: Merits: Trial Procedures


2015 (September Term)

United States v. Bess, 75 M.J. 70 (under RCM 921(b), court members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced; the military judge may, in the exercise of discretion, grant such request). 

2014(September Term) 

United States v. Piren, 74 M.J. 24 (MRE 611(b) provides that cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness). 

(a military judge is given broad discretion to impose reasonable limitations on cross-examination). 

(an accused who exercises his right to testify takes his credibility with him to the stand, and it may be assailed by every proper means; this is reflected in MRE 611(b), which allows cross-examination into the subject matter of the direct examination and matters affecting the credibility of the witness).    

(when an accused takes the stand, the privilege against self-incrimination is waived; an accused is not required to testify in his defense and his failure to do so may not be the basis for any inference against him; but where he does elect to testify, his credibility may be impeached like that of other witnesses; hence, though he may not be cross-examined as to his general character, he may be so examined as to his credibility).

(MRE 611(b) authorizes cross-examination into matters affecting the credibility of the witness; when appellant elected to testify, he placed his credibility at issue and the government’s cross-examination as to the statements he had made to a sexual assault nurse examiner was designed to explore that credibility; as such, the government could properly test appellant’s credibility on cross-examination; when appellant then testified on cross-examination as to what he had told the nurse during the sexual assault examination, his credibility remained at issue, and his testimony was opened to impeachment by contradiction by having the nurse testify to the contrary; although appellant’s statements were unwarned, MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction; therefore, the military judge did not abuse her discretion in overruling the defense objection that the government’s cross-examination exceeded the scope of direct examination and by subsequently allowing impeachment by contradiction).

(impeachment by contradiction is a line of attack that involves showing the tribunal the contrary of a witness’s asserted fact, so as to raise an inference of a general defective trustworthiness or that the accused is capable of error).   

(MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction). 

2013 (September Term)

United States v. Moss, 73 M.J. 64 (an accused has the ultimate authority to determine whether to waive a jury). 

(an accused has the ultimate authority to determine whether to testify in his or her own behalf). 

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (the normative method for challenging a military judge’s legal ruling is to seek an appeal of that ruling; this might be done on an interlocutory basis, and generally the appeal will be given precedence by an appellate court; the normative method for addressing a military judge’s substantive ruling is not to seek a military judge’s disqualification and get a new ruling from a replacement military judge; and, it is not to have the government communicate in an ex parte manner with the military judge’s judicial supervisor and express displeasure with the ruling). 

United States v. Brown, 72 M.J. 359 (a military judge did not abuse his discretion under MRE 611(a) when he allowed a victim advocate acting as a support person to sit next to a 17-year-old witness during her testimony in a rape prosecution; first, although the witness was not a child of tender years, the military judge found that she was not just crying during testimony, she was completely unintelligible and unable to speak because she was crying; moreover, the record reflects an effort on behalf of the military judge to proceed without the accommodation of a support person; when the witness first took the stand, she answered trial counsel’s questions in one-word or one-sentence answers; after the sixteenth question, the witness burst into tears; when trial counsel asked the witness if she would be okay, the witness continued crying; after the twenty-first question, the record notes the witness crying and saying, “I can’t do this;” after a pause, the trial counsel asked the victim if she wanted a break, and she indicated that she wanted a break; the military judge then recessed the court until the next morning; while he might have again determined following this overnight break whether or not the witness could now testify, he did not abuse his discretion in not doing so given the prior efforts to do so as well as his observations of the witness the prior day; second, the military judge minimized the risk of prejudice to the accused by instructing the advocate not to communicate with the witness and by instructing the members to disregard the presence of the advocate; moreover, there was no evidence, such as an admonition by the military judge or objection by defense counsel, suggesting that the advocate failed to follow the military judge’s instructions; nor is there any evidence that defense counsel’s ability to cross-examine the victim’s was negatively affected by the advocate’s presence; in this case, the witness was physically overtaken by sobbing and could not provide information to the court; where the military judge took reasonable steps to test the witness’s capacity to continue as well as steps to mitigate the risks of prejudice to the accused, it was within the military judge’s discretion to conclude that further attempts to proceed with a witness in such a state would needlessly consume time and not aid in the ascertainment of the truth). 

United States v. Jasper, 72 M.J. 276 (while trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination, an accused’s Confrontation Clause rights are violated when a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination; whether sufficient cross-examination has been permitted depends on whether the witness’s motivation for testifying has already been exposed and further inquiry would be marginally relevant at best and potentially misleading). 

2010 (September Term)

United States v. Jones, 69 M.J. 294 (it is better practice for the substance of an RCM 802 conference to be placed on the record at the next Article 39(a), UCMJ). 

2008 (Transition)


United States v. Bartlett, 66 M.J. 426 (in Article 36, UCMJ, 10 USC § 836, Congress has delegated to the President the authority to prescribe by regulation procedures for the trial of courts-martial, insofar as such regulations are not inconsistent with the UCMJ; such regulations are also to be uniform insofar as practicable). 

United States v. Ortiz, 66 M.J. 334 (in all criminal prosecutions, the accused shall enjoy the right to a public trial; a public trial ensures that judge and prosecutor carry out their duties responsibly and discourages perjury).


(the right to a public trial is not absolute; however, there is a strong presumption in favor of a public trial, grounded in the belief that it is critical to affording an accused a fair trial, as judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings; this presumption is overcome only where the balance of interests is struck with special care). 


(recognizing the importance of the right to a public trial, not only to an accused, but to the public and the integrity of the criminal process, prior to closing a trial, it is required that: (1) the party seeking closure must advance an overriding interest that is likely to be prejudiced; (2) the closure must be narrowly tailored to protect that interest; (3) the trial court must consider reasonable alternatives to closure; and (4) the trial court must make adequate findings supporting the closure to aid in review).


(in this case, the military judge abused her discretion and denied the accused his right to a public trial by closing the courtroom to spectators during the testimony of a minor victim, where the military judge failed to correctly apply the legal Waller test (Waller v. Georgia, 467 US 39 (1984)) necessary to overcome the presumption in favor of a public trial and did not even identify the relevant Waller factors to consider or articulate the reason for her decision to clear the courtroom, let alone make findings). 


(where only some spectators are required to leave the courtroom, and some spectators can or do remain, the Constitution’s public trial guarantee, which ensures that participants perform their duties more responsibly and discourages perjury, is only moderately burdened as certain spectators remain and are able to subject the proceedings to some degree of public scrutiny; consequently, several circuits have found no erroneous deprivation of the right to a public trial despite limited findings by the trial court or the absence of findings in the context of a partial closure).   


(while the Sixth Amendment does not dictate a formalistic approach as to the manner in which a judge delivers findings supporting the closing of a trial, a military judge must make some findings from which an appellate court can assess whether the decision to close the courtroom was within the military judge’s discretion). 


(trial closure that occurred when the military judge completely closed the courtroom to spectators and locked the door during the substantive testimony of the key government witness, which was essential to, and comprised the bulk of, the government’s case, was a complete closure for purposes of the Sixth Amendment, albeit less than complete in a temporal sense). 


(in this case, the record does not support a conclusion that the military judge struck the balance of interests necessary to overcome the presumption in favor of the right to a public trial, and the complete deprivation of the right was erroneous). 



United States v. Moran, 65 M.J. 178 (the law generally discourages trial counsel’s presentation of testimony or argument mentioning an accused’s invocation of his constitutional rights unless, for example, an accused invites such testimony or argument in rebuttal to his own case; such comments may serve to hinder the free exercise of such rights -- rights that carry with them the implicit assurance that their invocation will carry no penalty; the constraint against mentioning the exercise of constitutional rights does not depend on the specific right at issue).



United States v. Doty
, 51 MJ 464 (in order for an accused to be brought to trial within the meaning of RCM 707, he must be called upon to plead, the process known as arraignment; even where conducted “in the nick of time” on the 119th day, the arraignment was proper and not a sham).

(there was no reason to question appellant’s arraignment based on the fact that the government was unprepared to present its case on the merits immediately following arraignment; arraignment serves to protect an accused’s rights because judicial authority over an accused’s case is enhanced while a convening authority’s ability to affect the case decreases, and the accused remains free to make a motion for a speedy trial).

Forum election:

2013 (September Term)

United States v. Moss, 73 M.J. 64 (an accused has the ultimate authority to determine whether to waive a jury). 

2011 (September Term)

United States v. St. Blanc, 70 M.J. 424 (within the military justice system, an accused has a right to trial before a panel of military members; an accused also has a choice: prior to trial, an accused has the right to elect to be tried by members or by a military judge alone). 

(in the military context, RCM 903 protects the forum selection right codified in Article 16, UCMJ, by ensuring that an accused’s waiver of the right to trial by members is knowing and voluntary; to this end, the request for trial by military judge alone must be made in a signed writing by the accused or made orally on the record; if the accused requests trial by military judge alone, the military judge must further ensure that the accused has: (1) consulted with defense counsel about the choice; (2) been informed of the identity of the military judge; and (3) been informed of the right to trial by members; in this way, RCM 903 ensures that an accused understands the nature of the choice before waiving the right to trial by members).  

(appellant should be correctly informed by his defense counsel of the maximum punishment he faces before making fundamental decisions in his case).

(appellant’s decision to seek trial by military judge alone was knowing and voluntary even though his defense counsel misadvised him of the maximum punishment that he faced; the right to be properly informed of the sentence maximum is not encompassed within the right to elect the forum for trial, Article 16, UCMJ; that right is protected and implemented by RCM 903, which requires that the election be knowing and voluntary; nothing in the MCM or UCMJ suggests any reason to part ways with the federal courts, which treat erroneous advice as to sentence in a contested case as potential ineffective assistance of counsel and do not analyze it as potential involuntary waiver of a forum selection right; nor is there any textual or practical reason to do so; while there are myriad reasons an accused may choose one forum over another, RCM 903 does not require that a military judge inquire into any non-enumerated factors or collateral matters that may have influenced the accused’s election; moreover, the difference between an accused’s potential maximum punishment prior to arraignment, when forum selection is made, and the actual maximum sentence after findings - impacted by dismissal of a charge or specification, merger of specifications, findings of guilty only to a lesser included offense, or findings of not guilty - can be significant; thus, it would create an insoluble conundrum if failure of pretrial sentencing advice in this regard in a contested case were assessed under any standard other than ineffective assistance of counsel; in this case, under the terms of RCM 903, appellant made a knowing and voluntary election of trial by military judge alone).

United States v. Gray, 51 MJ 1 (appellant knowingly and intelligently elected trial by enlisted members where:  military judge twice explained rights to appellant; appellant twice acknowledged his understanding; and appellant orally and in writing requested enlisted members – military judge’s decision to give defense counsel an opportunity to clear up any confusion on the part of appellant was not error).



United States v. Washington, 63 M.J. 418 (MRE 603 provides that before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so; MRE 603 also requires that a witness swear or affirm that he will tell the truth, but it establishes no specific colloquy to be used in carrying out this requirement; any process that is sufficient to awaken the witness’s conscience is satisfactory). 

(MRE 603 is designed to afford the flexibility required in dealing with children, and affirmation is simply a solemn undertaking to tell the truth; MRE 603 requires no special verbal formula, but instead requires that the oath be meaningful to the witness, including a child witness, and impress upon the witness the duty to tell the truth). 

(the law is clear, both in the text of MRE 603 and its analysis, and in federal circuit case law, that a particular formula is not required in administering an oath or affirmation, although adherence to the benchbook formula will minimize dispute; this is particularly true in the case of children, where oaths and affirmations may be specially tailored to impress on the particular child the importance of telling the truth; this can be accomplished, as it has been accomplished for many years, without imparting to the child the perils of perjury).

(the failure to administer the oath before a child witness’s testimony was error, and the error was obvious; the plain text of MRE 603 required the child witness, by oath or affirmation, to declare that she would testify truthfully before testifying; the initial colloquy between the child witness and trial counsel fell short of this requirement; however, appellant’s plain error claim fails because he cannot show he was materially prejudiced by the error where the trial counsel asked if the child witness knew the difference between the truth and a lie, and she indicated that she understood, where at the end of her testimony, the child witness stated that she had told the whole truth and nothing but the truth, where she then swore that everything she said had been the truth, and where after the child witness was recalled, she also stated that she had told the truth the previous day; although the colloquy between the trial counsel and the child witness was not a formal oath or affirmation, the witness demonstrated that she understood her duty to tell the truth; in short, consistent with the purpose of MRE 603, but not its temporal requirement, the record of trial reveals that the child witness was alert to the necessity of telling the truth both at the beginning of her testimony and at the outset of the second day of her testimony).




United States v. Matthews, 53 MJ 465 (the scope of rebuttal is defined by the evidence introduced by the other party; a broad assertion by an accused on direct examination that he or she has never engaged in a certain type of misconduct may open the door to impeachment by extrinsic evidence of the misconduct).


Voir dire:

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (the normative method for addressing potential issues of judicial disqualification is voir dire; RCM 902 provides the substantive framework, and RCM 802 provides a procedural vehicle; accessing a military judge’s official personnel file to verify rumors regarding his family is not a normative method for testing and validating the impartiality of a military judge; it is not sanctioned by the UCMJ).  

2010 (September Term)

United States v. Gooch, 69 M.J. 353 (voir dire is the principal legal instrument used to ensure that those members who qualify for service as panel members can do so free from conflict and bias). 


(voir dire as provided for in Article 41, UCMJ, and regulated by the President under RCM 912, is the codal method for identifying and screening members based on potential bias, not categorical exclusion; voir dire provides an accused (and the government) with the necessary safeguards in the form of unlimited challenges for cause based on actual or implied bias and the liberal grant mandate on the record and supervised by the military judge).  


(the mechanism for addressing bias, the potential for bias, or the appearance of bias among panel members, is through voir dire and the use of causal and peremptory challenges).

2008 (Transition)


United States v. Bragg, 66 M.J. 325 (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). 

United States v. Nieto, 66 M.J. 146 (voir dire provides an opportunity to explore whether a member possesses partiality or otherwise is subject to challenge, and the military judge has broad discretion in the conduct of voir dire).


(as a general matter, hypothetical questions provide a permissible means of exploring potential grounds for challenge). 


(a number of courts have held that certain hypothetical questions during voir dire are impermissible if they seek to obtain a commitment from jurors to agree to decide the case in a particular way upon a hypothetical set of facts; a number of other courts have adopted a broader prohibition, precluding questions that ask jurors to commit themselves to resolving a particular aspect of the case in a specific way based upon a hypothetical set of facts; however, there are no decisions from the federal civilian courts that would indicate a generally applicable standard for considering hypothetical voir dire questions in the trial of criminal cases in federal district courts). 



United States v. Albaaj, 65 M.J. 167 (voir dire examination serves to protect the right to a fair trial by exposing possible biases, both known and unknown, on the part of potential members; demonstrated bias in the responses to questions on voir dire may result in a member being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges; the necessity of truthful answers by prospective members if this process is to serve its purpose is obvious; where a potential member is not forthcoming, the process may well be burdened intolerably).

(complete candor is expected from court members during voir dire; anything less undermines the purpose of the member selection process at trial and, in turn, potentially deprives an accused of an impartial determination of guilt and a fair trial). 

(if a court member learns of information during the trial which makes an earlier response to a voir dire question inaccurate, the member should so advise the court; the duty of candor does not stop at the end of voir dire but is an obligation that continues through the duration of the trial; it makes no difference whether the member knew during voir dire that his response to a question was incorrect or whether he later realized, or reasonably should have realized, that his initial response was incorrect -- the duty to honestly inform the court is the same). 

(a panel member is not the judge of his own qualifications; the duty to disclose cannot be dependent upon the court member’s own evaluation of either the importance of the information or his ability to sit in judgment; just as honest disclosure must be made in response to direct questions on voir dire, honest disclosures must be made throughout the trial regardless of the members’ own belief as to their ability to sit as court members). 

(there can be no doubt that a question as to a potential member’s knowledge of a witness is material to an accused’s right to expose potential biases in order to ensure an impartial jury). 



United States v. Sonego, 61 M.J. 1 (voir dire is critical to the fairness of a court-martial; a defendant’s right to a fair trial is undermined if panel members fail to answer material questions honestly during voir dire). 
(an inelastic predisposition toward a particular punishment is a valid basis for a challenge for cause).
(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).

United States v. Richardson, 61 M.J. 113 (the procedural vehicle for testing for member bias is voir dire; voir dire examination serves to protect the right to a fair trial by exposing possible biases, both known and unknown, on the part of potential jurors; generally, the procedures for voir dire are within the discretion of the trial judge; RCM 912(d) provides that the military judge may permit the parties to conduct the examination of members or may personally conduct the examination; in the latter event, the military judge shall permit the parties to supplement the examination by such further inquiry as the military judge deems proper or the military judge shall submit to the members such additional questions by the parties as the military judge deems proper).  

(when it occurs to counsel conducting the voir dire that further inquiry was omitted on a critical issue, judges should be patient and allow that inquiry to be conducted). 

(in a close-knit system like the military justice system, situations will arise and may at times be unavoidable where members might have had previous or current official contact with the trial participants; where such situations are identified, military judges should not hesitate to test these relationships for actual and implied bias; and a factual record should be created that will demonstrate to an objective observer that notwithstanding the relationships at issue, the accused received a fair trial; member voir dire is the mechanism for doing so).

(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). 


United States v. Humpherys, 57 MJ 83 (impartial court-members are a sine qua non for a fair court-martial, and voir dire is an important method for identifying a member whose impartiality might be questioned).

(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).

(an evidentiary hearing is the appropriate forum in which to develop the full circumstances surrounding a panel member’s failure to disclose information during voir dire; the hearing enables the military judge to investigate and resolve allegations, by interviewing the challenged panel members, while the details of trial are still fresh in the minds of all participants, so that the judge can assess first-hand the demeanor of the panel members as they respond to questioning from the bench and counsel).


United States v. Dewrell, 55 MJ 131 (claim that military judge erred by refusing to allow the defense to conduct any group voir dire is reviewed for abuse of discretion).

(neither the UCMJ nor the Manual for Courts-Martial gives the defense the right to individually question the members).

(military judge did not abuse his discretion in refusing to permit defense counsel to question members where the questions posed by the military judge properly tested for a fair and impartial panel, allowed counsel to intelligently exercise challenges, and were adequate to cover the statutory qualification of the members).

United States v. Lambert, 55 MJ 293 (neither the UCMJ nor the Manual gives the defense the right to individually question the members, and this includes questioning the members concerning their conduct during the proceedings and deliberations).


United States v. Belflower, 50 MJ 306 (1999) (military judge has discretion to allow individual or group voir dire, and party seeking individual voir dire must show that it is necessary because certain questions could not be covered in group questioning).

(questions which appear to have nothing inherent in them which would be likely to produce a response which would poison the remainder of the panel can be asked in group voir dire; but, even if there is a risk to the remainder of the panel, it is within the discretion of the military judge to take that risk).

Withdrawal of charges:

2011 (September Term)

United States v. Easton, 71 M.J. 168 (under RCM 604(b), if the convening authority withdraws charges for an improper reason, they cannot be re-referred for trial; charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal was necessitated by urgent and unforeseen military necessity). 


United States v. Underwood
, 50 MJ 271 (withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial did not clearly thwart military judge’s ruling denying government motion for a continuance where:  (1) new trial date was four months after that requested in government’s motion for continuance; (2) re-investigation and re-referral were not matters addressed by the military judge’s ruling denying the continuance; and (3) military judge stated that his ruling did not preclude the new preferral and burdensome procedural course of action selected by the convening authority to bring the charges to trial again).

(withdrawal of charges, de facto dismissal, preferral anew, a new Article 32 investigation, and referral to another court-martial after military judge’s ruling denying government motion for a continuance did not constitute illegal interference with the exercise of the judicial function because the convening authority’s actions did not violate any procedural rules of the Manual for Courts-Martial and thus did not constitute “illegal” interference with the judicial function).

(withdrawal and re-referral of charges was proper under RCM 604(b) when done to further the legitimate command objective of accommodating a victim’s schedule and avoid the issuance of a subpoena).

(appellant was not substantially prejudiced by withdrawal and re-referral of charges where:  (1) re-referral was to the same level of court-martial; (2) trial was before the same military judge as first trial; (3) appellant lost no benefits from a favorable trial ruling as denial of a continuance created no legally cognizable right to a trial without a prosecution witness; (4) appellant was not in pretrial confinement; and (5) appellant made no pretrial motion at second court-martial alleging prejudicial trial delay).

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