TRIAL STAGE: Merits: Trial Procedures

Generally:

2020 (October Term)

United States v. Thompson, 81 M.J. 391 (RCM 914 (production for statements of witnesses) requires the government to make available to the defense, after a witness has testified, any statement possessed by the United States that the witness has made). 

(the Jencks Act requires the trial judge, upon motion by the accused, to order the government to disclose prior statements of its witnesses that are related to the subject matter of their testimony after each witness testifies on direct examination; RCM 914 tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused; given the similarities in language and purpose between RCM 914 and the Jencks Act, CAAF’s Jencks Act case law and that of the Supreme Court informs the analysis of RCM 914 issues). 

(if the government, as the opposing party, fails to produce a qualifying statement, RCM 914(e) provides the military judge with two remedies for the government’s failure to deliver the qualifying statement:  (1) order that the testimony of the witness be disregarded by the trier of fact, or (2) declare a mistrial if required in the interest of justice). 

(not every failure to produce a qualifying statement invokes a RCM 914 remedy; good faith loss or destruction of Jencks Act material and RCM 914 material may excuse the government’s failure to produce statements; a finding of sufficient negligence may serve as the basis for a military judge’s conclusion that the good faith loss doctrine does not apply). 

(the relevant language of RCM 914 requires the government to produce any pertinent statement of a prosecution witness in the possession of the United States; RCM 914 does not apply if the statement is not in the possession of the United States; RCM 914 concerns preservation and disclosure of statements in the government’s possession, not the collection or creation of evidence). 

(in this case, where law enforcement chose not to take possession of a government witness’s timeline during a pretrial interview with the witness, this decision did not violate RCM 914 because there was no obligation for law enforcement to create an RCM 914 qualifying statement during its interview of the witness). 

(federal circuit courts have generally concluded that the Jencks Act applies only to statements possessed by the prosecutorial arm of the federal government; the prosecutorial arm of the federal government may, in certain cases, include nonfederal entities when the nonfederal entity is acting in concert or at the behest of the federal government as its agent; where the statements are physically held by someone other than a federal prosecutorial agency, such statements are generally not considered in the possession of the United States unless the holder serves as an arm of the United States government).  

(RCM 914 applies only to statements possessed by the prosecutorial arm of the federal government or when a nonfederal entity has a joint investigation with the United States; in this case, the party in control of the timeline was a third-party private citizen, not the United States, and therefore the timeline was not subject to RCM 914 production even though the government investigator had access to the timeline during a pretrial interview with the private citizen and avoided collecting it).

2018 (October Term)

United States v. Bodoh, 78 M.J. 231 (when examining witnesses, trial counsel cannot seek to introduce, either overtly or surreptitiously, inadmissible evidence and cannot misstate legal principles).

United States v. Nicola, 78 M.J. 223 (in a criminal trial, the accused has a right to testify; but one risk of testifying, recognized long ago, is that the trier of fact may disbelieve the accused’s testimony and then use the accused’s statements as substantive evidence of guilt in connection with all the other circumstances of the case; in other words, false testimony, knowingly and purposely invoked by the accused, may be used against him). 

2016 (October Term)

United States v. Reese, 76 M.J. 297 (RCM 603(d) provides that changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew; the plain language of RCM 603(d) does not discuss prejudice; rather, if a change is major, it provides that such change cannot be made over defense objection unless the charge is preferred anew; the practical effect is that if a change is major and the defense objects, the charge has no legal basis and the court-martial may not consider it unless and until it is preferred anew, and subsequently referred; to the extent that past precedent has required a separate showing of prejudice under these circumstances, it is overruled; absent preferral anew and a second referral there is no charge to which jurisdiction can attach, and Article 59(a), UCMJ, is not implicated). 

(whether a change made to a specification is minor is a matter of statutory interpretation and is reviewed by an appellate court de novo). 

(RCM 603(a) provides that minor changes in charges and specifications are any except those which add a party, offenses, or substantial matter not fairly included in those previously preferred, or which are likely to mislead the accused as to the offenses charged; minor changes include those changes] necessary to correct inartfully drafted or redundant specifications, to correct a misnaming of the accused, to allege the proper article, or to correct other slight errors; a change is minor so long as no additional or different offense is charged and if the substantial rights of the accused are not prejudiced; the first prong usually is satisfied if the charge is altered to allege a lesser-included offense, and the second prong is satisfied if the amendment does not cause unfair surprise; the evil to be avoided is denying an accused notice of the charge against him, thereby hindering his defense preparation). 

(a change to a specification of a charge of sexual abuse of a child was a major change and thus without a legal basis where the specification changed during trial, over defense objection, from alleging that the accused licked the penis of a child to the accused touched the child’s penis with his hand; not only did the change alter the means of committing the offense, but the change was not fairly included in the original specification; while changing the means by which a crime is accomplished may constitute a slight error under the appropriate circumstances, those circumstances were not present here; the accused was not on notice that he would need to defend against a touching charge because it was not alleged, and a touching with the hand could have readily been argued as accidental while there is no such defense to the charge as initially alleged; given the different nature of the two offenses and the dissimilar defenses available for each, the change was not minor). 

2015 (September Term)

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

2014(September Term) 

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

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

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

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

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

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

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

2013 (September Term)

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

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

2012 (September Term)

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

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

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

2010 (September Term)

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


2008 (Transition)

 

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


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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

2007

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


Arraignment:


1999

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

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


Forum election:

2013 (September Term)

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

2011 (September Term)

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

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

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

(appellant’s decision to seek trial by military judge alone was knowing and voluntary even though his defense counsel misadvised him of the maximum punishment that he faced; the right to be properly informed of the sentence maximum is not encompassed within the right to elect the forum for trial, Article 16, UCMJ; that right is protected and implemented by RCM 903, which requires that the election be knowing and voluntary; nothing in the MCM or UCMJ suggests any reason to part ways with the federal courts, which treat erroneous advice as to sentence in a contested case as potential ineffective assistance of counsel and do not analyze it as potential involuntary waiver of a forum selection right; nor is there any textual or practical reason to do so; while there are myriad reasons an accused may choose one forum over another, RCM 903 does not require that a military judge inquire into any non-enumerated factors or collateral matters that may have influenced the accused’s election; moreover, the difference between an accused’s potential maximum punishment prior to arraignment, when forum selection is made, and the actual maximum sentence after findings - impacted by dismissal of a charge or specification, merger of specifications, findings of guilty only to a lesser included offense, or findings of not guilty - can be significant; thus, it would create an insoluble conundrum if failure of pretrial sentencing advice in this regard in a contested case were assessed under any standard other than ineffective assistance of counsel; in this case, under the terms of RCM 903, appellant made a knowing and voluntary election of trial by military judge alone).
 
1999

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


Oaths:

2006

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

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

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


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



Rebuttal:

2000

 

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

 


Voir dire:

2019 (October Term)

United States v. Hennis, 79 M.J. 370 (voir dire should be used to obtain information for the intelligent exercise of challenges; it is, however, subject to limitations). 

(generally, hypothetical questions provide a permissible means of exploring potential grounds for challenge; however, neither side is entitled to a commitment during voir dire about what the members will ultimately do with respect to the sentence). 

(in this murder case, the military judge did not abuse his discretion by preventing the defense during voir dire from asking court members to express opinions as to whether the death penalty would be appropriate by referencing aggravating actors without reference to extenuation and mitigation; the military judge permitted a scope of voir dire broad enough for appellant to challenge members who would not be able impartially to follow the court’s instructions and evaluate the evidence and to ascertain whether the prospective panel members would impose the death penalty regardless of the facts and circumstances of the conviction). 

2018 (October Term)

United States v. Bodoh, 78 M.J. 231 (voir dire is a valuable tool to determine whether potential court members will be impartial; thus, voir dire should be used to obtain information for the intelligent exercise of challenges; it is, however, subject to limitations). 

(trial counsel’s references to SHARP training during voir dire were not error and did not constitute prosecutorial misconduct; although it is unclear why trial counsel inquired into whether the members believed that the SHARP program made it easier for soldiers to report sexual assaults than civilians, this question was facially benign and therefore not erroneous; the remaining questions posed about the SHARP program were designed to assess whether the members’ SHARP training would improperly influence their deliberations, and this was an appropriate line of inquiry for voir dire).

2016 (October Term)

United States v. Commisso, 76 M.J. 315 (voir dire is a critical tool for ensuring that the accused is tried by an impartial trier of fact, the touchstone of a fair trial; voir dire protects an accused’s right to an impartial trier of fact by exposing possible biases, both known and unknown, on the part of potential jurors; the necessity of truthful answers by prospective members if this process is to serve its purpose is obvious). 

(voir dire case law with respect to the civilian right to an impartial jury under the Sixth Amendment holds equally true with regard to servicemember rights under the Fifth Amendment and the Rules for Courts-Martial).

(without honest disclosures during voir dire, an accused is hamstrung in challenging potentially biased members for cause). 

(not every contretemps during voir dire rises to the level of a constitutionally unfair trial). 

(responses to voir dire need not be pristine to satisfy the constitutional minimum of a fair trial or even RCM 912’s requirement that a court-martial appear fair to the observing public). 

(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 voir dire question is material if it has some logical connection with the consequential facts of the case, or is of such a nature that knowledge of the item would affect a person’s decision-making).   

(voir dire is a valuable tool for determining how to exercise peremptory challenges; dishonesty during voir dire prevents the accused from exercising this important right).

2012 (September Term)

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

2010 (September Term)


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

 

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

 

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


2008 (Transition)

 

United States v. Bragg, 66 M.J. 325 (the purpose of voir dire and challenges is, in part, to ferret out facts, to make conclusions about the members’ sincerity, and to adjudicate the members’ ability to sit as part of a fair and impartial panel). 


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

 

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

 

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

 

2007


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


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


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


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


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


2005

 

United States v. Sonego, 61 M.J. 1 (voir dire is critical to the fairness of a court-martial; a defendant’s right to a fair trial is undermined if panel members fail to answer material questions honestly during voir dire). 
 
(an inelastic predisposition toward a particular punishment is a valid basis for a challenge for cause).
 
(a colorable claim of juror dishonesty was made in this case where an officer of the court declared under penalty of perjury that a panel member provided a contradictory voir dire response on a critical issue less than one month after appellant’s trial).

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


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


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


(in this case, the prior professional contacts between trial counsel and three of the six seated members at appellant’s court-martial, including conversations related to criminal law matters, warranted further inquiry in light of defense counsel’s challenges for implied bias and his request to conduct further voir dire; moreover, counsel in this case sought to ask additional questions while voir dire was still ongoing; accordingly, this Court concludes that the military judge abused his discretion by failing to apply the correct legal standard for implied bias to the challenges of these members; there was a further abuse of discretion in the denial of counsel’s request to reopen voir dire in a case raising implied bias considerations). 


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).

(When a panel member fails to disclose information during voir dire, the defendant must make two showings in order to receive a new trial: (1) that a panel member failed to answer honestly a material question on voir dire; and (2) that a correct response would have provided a valid basis for a challenge for cause).

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

2001

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

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

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

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

1999

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

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


Withdrawal of charges:

2011 (September Term)

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

1999

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

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

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

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


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