MILITARY JUSTICE PERSONNEL: Court Members: Interrogation by Members


2014 (September Term)

United States v. McFadden, 74 M.J. 87 (after appellant testified on her own behalf, a court member asked if she was aware of the concept of lying by omission by exercising her right to remain silent; after the defense moved for a mistrial, the military judge denied the motion and provided the following curative instruction to the members: “You may not consider the accused’s exercise of her right to remain silent in any way adverse to the accused.  You may not consider such exercise as lying by omission.”; in this case, the member’s question was not so prejudicial that a curative instruction was inadequate, and there is no evidence the members did not follow those instructions; as such, the military judge did not abuse his discretion by denying the motion for mistrial and he did not have a sua sponte duty to excuse the court member). 

(to avoid issues with questions posed by members, the military judge should review and rule on the member’s questions before permitting them to be asked). 

2012 (September Term)

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).


United States v. Gray, 51 MJ 1 (practice of permitting court-martial members to ask questions of witnesses is of long-standing and recognized, and CAAF was not convinced that this procedure rendered the members partial or biased as a matter of law).  

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