2019 (October Term)
United States v. Hennis, 79 M.J. 370 (the burden of establishing that grounds for a challenge exist is upon the party making the challenge).
(courts generally recognize two forms of bias that subject a juror to a challenge for cause: actual bias and implied bias).
(actual bias is defined as bias in fact; it is the existence of a state of mind that leads to an inference that the person will not act with entire impartiality; actual bias is personal bias which will not yield to the military judge’s instructions and the evidence presented at trial; whether a prospective juror is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the prospective juror’s state of mind; such a finding is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province; it is plainly a question of historical fact; did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed; the trial court’s resolution of such questions is entitled, even on direct appeal, to special deference; although the CAAF has recognized that the legal question of actual bias approximates a factual question, it reviews actual bias claims for an abuse of discretion).
(implied bias is bias conclusively presumed as a matter of law; it is bias attributable in law to the prospective juror regardless of actual partiality; the CAAF has taken a broader view of implied bias based on its interpretation of RCM 912(f)(1)(N), which 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; the question to ask with respect to implied bias is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; and to answer this question, the totality of the circumstances are reviewed and it is assumed that the public is familiar with the unique structure of the military justice system; implied bias challenges are reviewed pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review).
(holding an inelastic attitude toward the appropriate punishment to adjudge if the accused is convicted is grounds for an actual bias challenge under RCM 912(f)(1)(N); however, a mere predisposition to adjudge some punishment upon conviction is not, standing alone, sufficient to disqualify a member; rather, 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 this murder case, the military judge did not abuse his discretion in denying challenges for cause for actual and implied bias against three court members – two for not being impartial by stating the they believed that death was the appropriate punishment for an accused charged with the premeditated murder of a child and one who had prior experience as a police officer and distrusted defense counsel; in follow-up questioning, the two members both agreed that the death penalty was not an automatic punishment for the premeditated murder of a child and that in adjudging a sentence, they would consider all the extenuation and mitigation evidence presented; and with respect to the other member, he explained that he did not view all defense counsel in a negative light, and the judge noted as well that being a former police officer was not a per se basis to challenge a member for cause).
2016 (October Term)
United States v. Commisso, 76 M.J. 315 (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; such substantial doubt arises when, in the eyes of the public, the challenged member’s circumstances do injury to the perception or appearance of fairness in the military justice system).
(failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause).
(a panel member is dishonest when he fails to exhibit complete candor).
(the test for member dishonesty is not whether the panel members were willfully malicious or intended to deceive; it is whether they gave objectively correct answers).
(because a panel member is not the judge of his own qualifications, each member must answer fully and correctly on voir dire regardless of his own subjective evaluation of either the importance of the information or his ability to sit in judgment; it is therefore settled law that a panel member has an ongoing duty to advise the court of any answers he or she realizes, or reasonably should have realized, were incorrect or have become incorrect before the close of trial).
(under RCM 912(f)(1)(N), a member shall be excused for implied bias 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; substantial doubt exists where the presence of a member on the panel would cause the public to think that the accused received something less than a court of fair, impartial members, injuring the public’s perception of the fairness of the military justice system).
United States v. Dockery, 76 M.J. 91 (Batson v. Kentucky (476 US 79 (1986)) is not applied to challenges for cause).
(RCM 912(f)(1)(N) provides that a court-martial member shall be excused for cause whenever it appears that the member should not sit as member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; RCM 912(f)(1)(N) applies to both implied and actual bias).
(implied bias challenges stem from the historic concerns about the real and perceived potential for command influence in courts-martial; implied bias exists when most people in the same position as the court member would be prejudiced; it is evaluated objectively under the totality of the circumstances and through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial).
(a court member simply making a reference to race does not create either the reality or appearance of racial bias, and the military judge erred when he excused that member on the basis of implied bias).
(in a typical case involving actual bias, an appellant appeals the denial of a challenge for cause and argues the challenged member’s participation on the court resulted in material prejudice; when implied bias is the basis for an appeal of a denied challenge, the appellant similarly argues that the challenged member should have been removed; however, instead of arguing prejudice, the appellant asserts that, because the member remained on the court, a reasonable member of the public would question the fairness of the court-martial).
(a military judge’s error in improperly excusing a court member for implied bias was not materially prejudicial and did not entitle appellant to any relief, where appellant neither alleged that any of the court members who ultimately tried him were biased nor suggested that their presence on the court created a substantial doubt as to the court’s legality, fairness, or impartiality).
2015 (September Term)
United States v. Rogers, 75 M.J. 270 (the core of the implied bias test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel).
(it has never been incumbent upon a member to sua sponte assert that he or she would not consider a military judge’s instruction and failure of a member to do so does not provide positive support for a finding that the member is fair or impartial).
(RCM 912(f)(1)(N) sets forth the basis for an implied bias challenge; the focus of this rule is on the perception or appearance of fairness of the military justice system; 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; in reaching a determination of whether there is implied bias, the totality of the circumstances should be considered).
(in this case involving allegations of sexual assault, the military judge abused her discretion when she denied a defense challenge to a member for implied bias where that member’s misunderstanding of about an intoxicated person’s ability to give consent and her inferred burden-of-proof shift from the government to the defense would cause an objective observer, under the totality of the circumstances, to have substantial doubt about the fairness of the court-martial panel; under the facts of this case, the member’s understanding of the law on intoxication and consent was critical, and the military judge never issued a curative instruction despite the member’s strongly held opinion that it was not possible for an intoxicated person to give consent to sexual activity if that person was too drunk to remember having sex and that the government would have to prove otherwise; furthermore, when the member asked for a definition of a “competent” person with regard to a person who could give consent, the military judge instructed her that there was no further definition of “competent” available and advised her to rely on her understanding of the common definition of the word; as such, not only did the military judge fail to instruct the member to disregard her personally held incorrect belief, the response effectively endorsed her erroneous understanding, both as to whether an intoxicated person can give consent and as to which party had the burden of proof on that issue).
2014 (September Term)
United States v. Akbar, 74 M.J. 364 (it is clear that a military judge may excuse a member sua sponte under RCM 912(f)(4); that rule permits a military judge to, in the interest of justice, excuse a member against whom a challenge for cause would lie even if neither party has raised such a challenge; although a military judge has the discretionary authority to sua sponte excuse a member, he has no duty to do so).
(it is not an infrequent occurrence in the military for a panel member to know a witness in a court-martial, and without more, implied bias is not found in such a circumstance).
(it is not an infrequent occurrence in the military to have panel members who have a supervisory relationship with another panel member, and without more, that is an insufficient basis to remove them from the panel; a senior-subordinate/rating relationship does not per se require disqualification of a panel member).
(an 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).
(a member must be excused when he or she has formed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged).
(panel members are not automatically disqualified simply because they have learned facts about an accused from outside sources).
(a member is not disqualified just because he has been exposed to pretrial publicity or even has formulated an opinion as to the guilt or innocence of an accused on the basis of his exposure as long as he will set aside any initial impressions and preconceived beliefs and follow the court’s instructions).
United States v. Woods, 74 M.J. 238 (in this case, the military judge erred in denying a defense challenge for cause on grounds of implied bias to the senior member of the panel where (1) on her preliminary member’s questionnaire, the senior member stated her belief that “the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission;” (2) during voir dire, she elaborated on this response, but reasonable observers could interpret her responses as confusing rather than clarifying her views; and (3) given the specific facts of this case and the unique structure of the military justice system, a reasonable member of the public might well question the fairness of including this member on the panel; the defense challenge to this member’s participation on the panel presented, at minimum, a close question, and particularly in view of the liberal grant mandate, the military judge erred in denying the defense challenge for cause on grounds of implied bias, and that error prejudiced appellant’s substantial rights).
(with respect to challenges for cause, actual bias is personal bias that will not yield to the military judge’s instructions and the evidence presented at trial).
(with respect to challenges for cause, the test for implied bias is, ultimately in the military context, one of public perception; it is an objective test, and at the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel; in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered).
(a panel member’s mistake as to the proper burden of proof in a criminal trial, without more, does not necessarily requires a finding of implied bias).
(if, after weighing the arguments for the implied bias challenge, the military judge finds it a close question, the challenge should be granted).
United States v. McFadden, 74 M.J. 87 (the parties have the right to challenge court members for cause; a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having a court-martial free from substantial doubt as to legality, fairness, and impartiality; a party may challenge a member for cause during trial when it becomes apparent that a ground for challenge may exist, and a hearing may be held to resolve the issue).
(the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie; a military judge has the discretionary authority to sua sponte excuse the member but has no duty to do so; the discretionary authority of a military judge to excuse a member sua sponte in the interest of justice may be characterized as a drastic action).
United States v. Castillo, 74 M.J. 39 (RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; unlike the test for actual bias, a military judge looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel; in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well).
(there is no per se rule that a panel member must be excused because he or she has been the victim of a similar crime; however, a panel member’s experience as a victim similar in theme or close in time to the charged offense may, in some cases, present an issue of implied bias).
(it is well settled that a senior-subordinate/rating relationship does not per se require disqualification of a panel member).
(where appellant did not raise the issue of panel members being drawn exclusively from his brigade at trial, as a result, this issue was waived as a discrete ground for challenge).
United States v. Peters, 74 M.J. 31 (there is no per se rule of disqualification when a member knows or has worked with trial counsel or defense counsel; rather, such relationships are evaluated through the lens of RCM 912(f)(1)(N) and the doctrines of actual and implied bias).
(whereas a military judge can observe the demeanor of the court members in order to determine credibility in the case of actual bias with respect to the challenge of a court member, cases of implied bias are based upon an objective test and therefore the military judge is given less deference in such cases).
(the military judge is mandated to err on the side of granting a challenge of a court member; this is what is meant by the liberal grant mandate; because the interests of justice are best served by addressing potential member issues at the outset of judicial proceedings, in close cases military judges are enjoined to liberally grant challenges for cause; in other words, if after weighing the arguments for the implied bias challenge, the military judge finds it a close question, the challenge should be granted; this mandate stems from a long-standing recognition of certain unique elements in the military justice system including limited peremptory rights and the manner of appointment of court-martial members that presents perils that are not encountered elsewhere; it also serves as a preventative measure because it is at the preliminary stage of the proceedings that questions involving member selection are relatively easy to rapidly address and remedy).
(although an appellate court does not expect record dissertations from the military judge’s decision on implied bias, it does require a clear signal that the military judge applied the right law; incantation of the legal test without analysis is rarely sufficient in a close case).
(where a military judge determines not to grant the challenge, additional analysis on the record will better inform appellate courts in their review and determination as to whether there was an abuse of discretion; a military judge is afforded less deference if an analysis of the implied bias challenge on the record is not provided).
(RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; unlike the test for actual bias, a military judge looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel).
(in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well).
(at times, appellate courts have cast the test for implied bias as one asking whether most people in the same position would be prejudiced; that may well inform the implied bias analysis, but this question is better oriented to objectively evaluate actual bias than to serve as the test for implied bias).
(a military judge tests for implied bias not on the subjective qualities of the panel member, but on the effect that panel member’s presence will have on the public’s perception of whether the appellant’s trial was fair; thus, although a panel member’s good character can contribute to a perception of fairness, it is but one factor that must be considered in the context of the other issues raised concerning that individual’s panel membership).
(the well-settled law that requires military judges to consider on the record whether to grant causal challenges exists not merely to have the words of the test preserved on the record, but to show that the grounds for the challenge were given serious and careful consideration in the first instance).
(MRE 912 generally, and the Military Judges’ Benchbook specifically, direct counsel and military judges to explore relationships among panel members and others involved in the case, to ensure that they are not qualitatively of a sort that reflects the kind of bond that would undermine the fairness of a proceeding or raise the prospect of appearing to do so).
(in this case, the military judge’s reasoning for denying the challenge for cause was problematic for two reasons; first, he did not engage the specific grounds for challenge of the member’s panel membership – the member’s professional relationship with trial counsel, special court-martial convening authority, and the investigating officer; rather, his reasoning relied solely on the member’s demeanor and thoughtfulness in answering the voir dire questions; in testing for implied bias, the judge should not have focused on the subjective qualities of the panel member, but on the effect that panel member’s presence would have on the public’s perception of whether appellant’s trial was fair; second, although the military judge here said he was considering the liberal grant mandate, the record does not provide further analysis as to why, given the specific factors in this case, the balance tipped in favor of denying the challenge).
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).
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).
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).
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).
(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
(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)).
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).
(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 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).
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).
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).
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).
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).
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).
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).
(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).
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).
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).
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).
(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).
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).
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).
(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).
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).
(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).
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).