2023 (October Term)

United States v. Hasan, 84 M.J. 181 (ordinarily, an accused waives a ground for challenge if the accused knew of or could have discovered by the exercise of diligence the ground for challenge and failed to raise it in a timely manner).

(notwithstanding the absence of a challenge or waiver of a challenge by the parties, a military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie; under this rule, a military judge has the discretionary authority to sua sponte excuse a member but has no duty to do so).

(absent evidence to the contrary, it is presumed that the members understood and followed the military judge's instructions).

2022 (October Term)

United States v. Harrington, 83 M.J. 408 (at courts-martial, panel members must sentence the accused based solely on the facts in evidence and the military judge’s instructions).

United States v. King, 83 M.J. 115 (court members are, unless properly waived, an indispensable jurisdictional element of a general court-martial).

(military law distinguishes between the excusal of detailed members before and after assembly; prior to assembly of the court-martial, the convening authority has unfettered power to excuse any member of the court from participating in the case; however, after assembly, no member of a general or special court-martial may be absent or excused unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the convening authority for good cause). 

(after assembly, new members may only be detailed to a court-martial panel if the panel has fallen below quorum due to lawful excusals; and if the court-martial is below quorum, the trial may not proceed unless the convening authority details new members sufficient in number to provide a quorum). 

(jurisdictional error in the convening of a court-martial occurs when a court-martial is not constituted in accordance with the UCMJ; a court-martial composed of members who are barred from participating by operation of law, or who were never detailed by the convening authority, is improperly constituted and the findings must be set aside as invalid because such error is jurisdictional). 

(administrative errors in the drafting of a convening order are not necessarily fatal to jurisdiction, and may be tested for prejudice under Article 59(a), UCMJ). 

(in this case, the error arising from the government’s failure to document at trial the convening authority’s reason for excusing a member was an administrative error and not jurisdictional in nature; and the member’s unanticipated assignment to a professional military school was a military exigency, not a temporary inconvenience, and a proper reason and good cause for excusal). 

(an accused is not entitled to a specific panel member). 

2017 (October Term)

United States v. Riesbeck, 77 M.J. 154 (courts-martial are not subject to the jury trial requirements of the Sixth Amendment, and, therefore, military members are not afforded a trial in front of a representative cross section of the military community). 

2016 (October Term)

United States v. Commisso, 76 M.J. 315 (as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel; indeed, impartial court-members are a sine qua non for a fair court-martial). 

United States v. Bartee, 76 M.J. 141 (Article 25, UCMJ, details who may serve on a court-martial, and the list includes commissioned officers, warrant officers, and, when specifically requested by the accused, enlisted members may serve on a court-martial of another enlisted member; if it can be avoided, members should not be junior in rank to the defendant; in addition, when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament).

(an accused must be provided both a fair panel and the appearance of a fair panel).

(systemic exclusion of otherwise qualified potential members based on an impermissible variable such as rank is improper). 

2014 (September Term)

United States v. Woods, 74 M.J. 238 (in the military justice system, panel members are chosen by the same individual, the convening authority, who decides whether to bring criminal charges forward to trial). 

(under the UCMJ, the convening authority is charged to select members who, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament).    

(members are not and should not be charged with independent knowledge of the law; this is not just any principle of law, however; it is one of the fundamental tenets of U.S. criminal law that predates the founding of the republic). 

United States v. McFadden, 74 M.J. 87 (absent evidence to the contrary, court members are presumed to comply with the military judge’s instructions). 

2013 (September Term)

United States v. Knapp, 73 M.J. 33 (it is the exclusive province of the court members to determine the credibility of witnesses). 

2012 (September Term)

United States v. Vazquez, 72 M.J. 13 (in a members trial, after five of six government witnesses had testified on the merits, the accused chose to challenge a member for cause, knowing it would drop the panel below quorum; rather than request a mistrial or any other alternative, trial defense counsel affirmatively stated that they had no objection to new members being detailed, participated in voir dire and the discussion about how to present the record to the new members, and stated that they had no objection to the procedure used (allowing counsel to give opening statements and then having counsel read the verbatim transcripts of testimony of the five witnesses to the new members); appellate defense counsel identified no errors related to this procedure before the CCA, and the accused did not allege that trial defense counsel’s tactical decisions to challenge the original member for cause and continue the trial with two new members constituted ineffective assistance of counsel; ordinarily, an appellate court would conclude that the accused had affirmatively consented to the application of the procedure established in Article 29(b), UCMJ, and implemented by R.C.M. 805(d)(1), and waived his right to object to them at this juncture, particularly when he failed to raise them before the CCA; however, given that the application of these procedures in this context has not previously been addressed by CAAF, and that CAAF harbors a presumption against waiver of the fullest expression of rights under the Confrontation Clause, it will treat the failure to object as forfeiture and review for plain error; to reverse the military judge’s application of the procedures established in Article 29(b), UCMJ, and RCM 805(d)(1), when the court-martial dropped below quorum mid-trial for plain error, any error had to materially prejudice the substantial rights of the accused). 

(in Article 29(b), UCMJ, Congress provided for a contingency procedure in the event of a loss of quorum:  (1) whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below five members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than five members, and (2) the trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused, and counsel for both sides; the President has implemented this statute in RCM 805(d)(1) as follows:  when after presentation of evidence on the merits has begun, a new member is detailed under RCM 505(c)(2)(B), trial may not proceed unless the testimony and evidence previously admitted on the merits, if recorded verbatim, is read to the new member, or, if not recorded verbatim, and in the absence of a stipulation as to such testimony and evidence, the trial proceeds as if no evidence has been presented).

(Article 29(b), UCMJ, specifically authorized the procedures used in this case and represented Congress’ view of what process is due in the event a panel falls below quorum; while it was within the military judge’s discretion to either (1) recall witnesses who had testified prior to panel went below quorum mid-trial, or (2) declare a mistrial under RCM 915(a), the military judge did not abuse his discretion in deciding to proceed in accordance with the statute and RCM 805(d)(1) by having new members detailed and having transcripts of previous witness testimony read to the new members, particularly when defense counsel affirmatively stated that they did not object to the procedures that were actually used; it was accused’s burden to develop a record at trial establishing that the procedures permitted by statute were unconstitutional as applied to him; however, the accused’s acquiescence and complicity in every aspect of the procedures used did not create a record upon which to support an as-applied challenge; nor did they afford the military judge either a reason to declare a mistrial or a reason or opportunity to craft alternative procedures short of a mistrial, such as recalling witnesses, to obviate the Confrontation Clause complaints the accused raised for the first time on appeal). 

(the military judge did not abuse his discretion by not invoking RCM 915(b) when the court-martial dropped below quorum in this case; RCM 915(b) requires the military judge to inquire into the views of the parties when grounds for a mistrial may exist and then decide the matter as an interlocutory question; a mistrial is a drastic remedy that is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice; because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action; where, as here, (1) the military judge diligently followed the procedures established under Article 29(b), UCMJ, and RCM 805(d) when the court-martial was reduced below quorum mid-trial, and (2) the accused failed to establish that the application of these procedures deprived him of his due process right to a fair trial under the facts of his case, the military judge could not have possibly abused his discretion in determining that this remedial action alleviated any potential grounds for a mistrial, and, thus, a duty to turn to RCM 915(b)’s procedures). 

(there is no military due process right to have all members be presented with all evidence in the same way or the right to have the same jury present for the entire trial). 

(as applied in this case, Article 29(b), UCMJ, sufficiently satisfied the central concern of the Confrontation Clause, where each witness testified under oath and in the presence of the accused and four of the final panel members, where the accused had the opportunity to cross-examine each witness, and where the verbatim transcript read to the two new panel members was subject to rigorous testing in the context of an adversary proceeding and would be admissible under the former testimony hearsay exception if the witnesses were found to be unavailable in a subsequent proceeding, even over defense objection; while the importance of the trier of fact observing witness demeanor cannot be discounted to the central concerns of the Confrontation Clause, absent a defense objection, or in the event of witness unavailability, the presentation of written witness testimony, without any of the members seeing the witness’s demeanor, is both an accepted practice and constitutionally unremarkable; stipulations of expected testimony, Article 32, UCMJ, testimony, and deposition transcripts are routinely presented to members and, absent objection, pose no dangers to the integrity of the courts-martial or the fairness of the members; as such, the accused has failed to show that the factors militating in favor of his interest were so extraordinarily weighty as to overcome the balance struck by Congress, or that his rights under the Confrontation Clause were violated). 

United States v. Clifton, 71 M.J. 489 (Article 46, UCMJ, gives panel members the opportunity to obtain witnesses and other evidence; under RCM 921(b), members may request that the court-martial be reopened and that additional evidence be introduced; the military judge, may, in the exercise of discretion, grant such request; in addition, MRE 614(a) allows members to request to call or recall witnesses to testify at a court-martial).

2011 (September Term)

United States v. Easton, 71 M.J. 168 (excused members of a court-martial need not be replaced unless failing to do so would cause the number of members to fall below quorum). 

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). 

(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).  

(the Rules for Courts-Martial provide that military judges must remove any member who has formed or “expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged).   

(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 requirement for an impartial panel provides that all members follow the military judge’s jury instructions). 

2010 (September Term)

United States v. Savala, 70 M.J. 70 (issues of witness credibility and motive are matters for the members to decide).

United States v. Gooch, 69 M.J. 353 (as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel).

United States v. Mullins, 69 M.J. 113 (absent evidence to the contrary, court members are presumed to comply with the military judge’s instructions). 

United States v. Green, 68 M.J. 360 (courts in the military justice system may not consider members’ testimony about their deliberative processes). 

United States v. Ashby, 68 M.J. 108 (absent evidence to the contrary, the members are presumed to follow the military judge’s instructions). 

United States v. Martinez, 67 M.J. 59 (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).

United States v. Elfayoumi, 66 M.J. 354 (as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel).

United States v. Adams, 66 M.J. 255 (a court-martial composed of members who are barred from participating by operation of law, or who were never detailed by the convening authority, is improperly constituted and the findings must be set aside as invalid).

(the convening authority’s failure to transfer members named in previous special convening orders to the final special order convening appellant’s court-martial was administrative error, rather than jurisdictional error, that did not materially prejudice the substantial rights of appellant, where none of the members who participated in the court-martial was an interloper, where each member was selected by the convening authority to consider the charges against appellant, where there was no evidence that the convening authority excused any of the members who sat on appellant’s court-martial, where there was also no evidence that the convening authority withdrew the charges in order to refer them to a new court-martial, and more important, where the record reflects that the members named in final special order were selected to bring the court-martial up to quorum and were not selected to serve as a separately constituted court-martial). 

United States v. Townsend, 65 M.J. 460 (an accused is entitled to a trial by members who are qualified, properly selected, and impartial). 

 
(law enforcement personnel are not per se disqualified from service as court members; if status as a law enforcement officer is not a disqualification, it follows that a mere familial relationship with a member of the law enforcement community creates no greater basis upon which to disqualify a member than law enforcement status itself). 

 
(lawyers are not per se disqualified as court-martial members unless they have served in one of the capacities explicitly set forth as a disqualification in the UCMJ; it follows that one who only aspires to become a lawyer is not disqualified and presents no greater threat to the fairness of a proceeding than does a court member who is a fully trained and licensed attorney). 

United States v. Brown, 65 M.J. 356 (military criminal practice requires neither unanimous panel members, nor panel agreement on one theory of liability, as long as two-thirds of the panel members agree that the government has proven all the elements of the offense). 

2007

United States v. Harrow, 65 M.J. 190 (court members are presumed to follow the military judge’s instructions). 

(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. Terry, 64 M.J. 295 (the impartiality of members is a core principle of the military justice system, and the sine qua non for a fair court-martial). 

2006

United States v. Leonard, 63 M.J. 398 (the cornerstone of the military justice system is the right to members who are fair and impartial; indeed, this right to fair and impartial members is so important that the process of selecting a court-martial panel enjoys protections under the Constitution, statute, regulations, and case law). 

(RCM 912(f)(4) states that when a challenge for cause has been denied, failure by the challenging party to exercise a peremptory challenge against any member shall constitute waiver of further consideration of the challenge upon later review; however, when a challenge for cause is denied, a peremptory challenge by the challenging party against any member shall preserve the issue for later review, provided that when the member who was unsuccessfully challenged for cause is peremptorily challenged by the same party, that party must state that it would have exercised its peremptory challenge against another member if the challenge for cause had been granted; the analysis to RCM 912(f)(4) explains that the requirement of preserving the objection for the record is designed to prevent a windfall to a party which had no intent to exercise its peremptory challenge against any other member; when the requirements of RCM 912(f)(4) are met, an appellate court will not apply waiver).  

(when counsel unsuccessfully challenges a member for cause and then peremptorily challenges that member, the issue is waived, unless counsel states on the record that the peremptory challenge would have been used against another member if the challenge for cause had been granted).

(where trial defense counsel used his sole peremptory challenge to remove a court member from the panel, and did not state on the record that the peremptory challenge would have been exercised against another member if the challenge for cause had been granted, any error as to that removed member was waived). 

(trial defense counsel preserved for appellate review the issue whether the military judge abused his discretion in denying a defense causal challenge to a court-member where the defense counsel had previously used his single peremptory challenge against another member; the issue was not waived for failure to state on the record that the challenge would have been used elsewhere; the waiver provision could not apply to the challenged member because the defense counsel had used his single peremptory challenge against another member and did not have an additional peremptory challenge to use; trial defense counsel could not be required to state that he would have used a nonexistent peremptory challenge against another member). 

(the military judge abused his discretion and violated the liberal grant mandate in denying defense challenge of a court member for cause where that member revealed that the alleged rape victim’s responsibilities for his flight gear included packing his parachute and servicing his flight helmet; in an acquaintance rape case where the credibility of the alleged victim was the linchpin of the case, the member’s significant relationship of trust with the alleged victim would diminish the public perception of a fair and impartial court-martial panel, undermine the appearance of fairness in the military justice system, and give rise to implied bias). 

United States v. Moreno, 63 M.J. 129 (an accused is entitled to a trial by members who are qualified, properly selected, and impartial). 

(military judges must follow the liberal-grant mandate in ruling on challenges for cause asserted by an accused; the liberal grant mandate recognizes the unique nature of military courts-martial panels, particularly that those bodies are detailed by convening authorities and that the accused has only one peremptory challenge).  

 
United States v. Dobson, 63 M.J. 1 (a general court-martial panel consists of not less than five members appointed by the convening authority; if an enlisted accused requests that the panel include enlisted members, the membership must include enlisted members in a number comprising at least one-third of the total membership of the court, subject to an exception for physical conditions or military exigencies; whenever a general court-martial panel is reduced below five members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than five members; the prohibition against proceeding, however, is subject to the procedure for making and ruling on challenges under Article 41, UCMJ; Article 41 authorizes challenges for cause and permits each party to exercise one peremptory challenge; under Article 41(a)(2), if the exercise of a challenge for cause reduces the court below the total composition requirement of a general court-martial, all parties shall either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court; however, peremptory challenges shall not be exercised at that time; under Article 41(b)(2), if the exercise of a peremptory challenge reduces the court below the total composition requirement of a general court-martial, the parties shall either exercise or waive any remaining peremptory challenge (not previously waived) against the remaining members of the court before additional members are detailed to the court).

(under Article 41(a)(2), when challenges for cause reduce panel membership below the minimum total number of members required under Article 16, the military judge is not required to halt the proceedings until new members are appointed; instead, the parties proceed with any remaining challenges for cause before additional members are detailed to serve on the panel; the rule then provides that peremptory challenges shall not be exercised at that time; there is no mention in the statute of applying a similar procedure when the total number is adequate under Article 16 but the percentage of enlisted membership is deficient under Article 25; there is a rational basis for distinguishing between a deficit under Article 16 and a deficit under Article 25; the quorum requirement for a general court-martial under Article 16 involves an absolute number -- there must be at least five members; once membership drops below the total required by Article 16, new members will have to be detailed regardless of the exercise of peremptory challenges; by contrast, the enlisted representation requirement in Article 25 employs a percentage, not an absolute number; as a result, there are circumstances in which an enlisted representation deficit under Article 25 can be corrected through exercise of a peremptory challenge against an officer; because it is possible that exercise of a peremptory challenge could preclude the need for appointment of new members under Article 25, the omission of Article 25 from Article 41 is not a drafting error and does not otherwise warrant an interpretation of Article 41 to include Article 25).

(the military judge properly ruled that the parties could still exercise peremptory challenges when the panel contained sufficient members to meet the total composition requirements of a general court-martial under Article 16, but the proportion of enlisted members fell below the one-third representation requirement of Article 25, because the composition of the court-martial under Article 25 is not a pertinent factor for the purposes of determining the timing of peremptory challenges under Article 41).

(after the court-martial panel had fallen below the required enlisted representation under Article 25, the addition of officer members to the court-martial panel in addition to enlisted members was not improper under RCM 505(c)(2)(B), which permits additions when the total number of members has been reduced below quorum or the number of enlisted members has been reduced below one-third of the panel’s membership, notwithstanding the accused’s objection that such action unfairly diluted his right to enlisted representation). 

(an enlisted accused who requests enlisted membership on a court-martial panel under Article 25(c)(1) is entitled by the statute only to a minimum proportion -- at least one-third of the total membership of the court; RCM 505(c)(2)(B) limits the circumstances under which a convening authority may add members to the panel, but it does not require the authority to add only the minimum number and type necessary to address any deficit under Articles 16 or 25; neither the statute nor the rule entitles an enlisted accused to maintain the proportion of officer and enlisted members that was contained in the initial convening order or at any other point during trial).

2005

United States v. Richardson, 61 M.J. 113 (as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel).  

2004

United States v. Strand, 59 MJ 455 (an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel; 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 thrust of this rule is implied bias and the perception or appearance of fairness of the military justice system; the rule reflects the President’s concern with avoiding even the perception of bias, predisposition, or partiality).

(it is clear that a military judge may excuse a member sua sponte).

United States v. Dowty, 60 MJ 163 (In Article 25, Congress has provided members of the armed forces with a valuable protection by requiring that the convening authority personally select those members of the armed forces best qualified to serve as court members by reason of judicial temperament and related statutory criteria).

2003

United States v. Dugan, 58 MJ 253 (long recognized and very substantial concerns support the protection of jury deliberations from intrusive inquiry; as a result, deliberations of court-martial members ordinarily are not subject to disclosure; the purpose of this rule is to protect freedom of deliberation, protect the stability and finality of verdicts, and protect court members from annoyance and embarrassment).

(under Mil.R.Evid. 606(b), there are three circumstances that justify piercing the otherwise inviolate deliberative process to impeach a verdict or sentence: (1) when extraneous information has been improperly brought to the attention of the court members; (2) when outside influence has been brought to bear on a member; and (3) when unlawful command influence has occurred; appellant’s case involves the first and third of these categories).

(the general and common knowledge a court member brings to deliberations is an intrinsic part of the deliberative process, and evidence about that knowledge is not competent evidence to impeach the members’ findings or sentence).

(even if one member did tell the others that appellant would receive substance abuse counseling if sentenced to confinement, and even if the others did factor that into their sentence determination, it would not involve extraneous prejudicial information; to the contrary, it would fall squarely within the deliberative process which is protected by Mil.R.Evid. 606(b); thus, it cannot be considered by this or any other court as impeaching the validity of appellant’s sentence).

United States v. Mack, 58 MJ 413 (the responsibility for the composition of a court-martial panel rests with the convening authority; when a service member exercises the right to request a panel that includes enlisted members, the convening authority must ensure compliance with the statutory requirement that enlisted members compose at least one-third of the panel; the convening authority may accomplish this through a variety of actions, including orders that automatically add specific members to the panel upon the occurrence of well-defined triggering events).

(when a convening authority refers a case for trial before a panel identified in a specific convening order, and the convening order identifies particular members to be added to the panel upon a triggering event, the process of excusing primary members and adding the substitute members involves an administrative, not a jurisdictional matter; absent objection, any alleged defects in the administrative process are tested for plain error).

United States v. Diaz, 59 MJ 79 (there are limits to what a panel can be expected to disregard; the human mind of a member is not a blackboard where the judge, by a curative instruction, can irrevocably erase powerful inadmissible evidence).

2002

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).

2000