By Jeffrey Frederick, Ph.D.
IN A WORLD...
Where the convening authority selects the entire panel of potential panel members...
Where the defense and prosecution have potentially only one peremptory challenge, even in a death penalty case...
Where challenges for cause are the only realistic method for removing potentially biased members...
No this is not a recent movie by the same name, IN A WORLD, that opened in movie theaters last month. This is the world of general courts-martial under the Uniform Code of Military Justice (UCMJ).
The military courts-martial system is something with which our members and many legal officials may not be familiar with but is worth knowing about. Recently, trial consultants have been appointed to assist in courts-martial. While this post does not offer space to fully address all the differences between the military panel selection and civilian jury selection systems, here are a few basics of member selection in general courts-martial.
The Member/Jury Selection Process in Military Courts
When a service member is accused of a crime, an Article 32 hearing is held to determine whether a general court-martial (or other action) is warranted. The Article 32 hearing is presided over by an investigating officer appointed by a convening authority (Commanding Officer). Both trial counsel (prosecutor) and defense counsel can examine and present witnesses. At the end of the Article 32 hearing, the investigating officers decides whether there is sufficient evidence to support the charge(s) and makes a recommendation to the convening authority for disposition of the matter, including referring the charges to a court-martial. After consultation with the convening authority's legal advisor, the convening authority makes the final decision.
A general court-martial is usually reserved for serious charges. The convening authority selects the service members from a pool of panel members who will hear the case. This is a condition unique to the miltary and deviates drastically from civilian courts. The convening authority has great discretion in selecting the pool. While all panel members must be superior in rank to the accused, there is no requirement that those selected by randomly drawn from all eligible service personnel. In essence, the convening authority handpicks those members serving in the pool for courts-martial panels.
At the general court-martial, member or panel selection procedures may vary between judges in terms of direct party participation in voir dire. A minimal written questionnaire is completed by members after they have been notified about their service. At the discretion of the trial judge, this questionnaire may be supplemented with an additional questionnaire much like what is allowed in civilian courts. The general selection procedure at trial starts with group voir dire conducted by a judge, followed by group voir dire conducted by the parties. The judge may or may not allow follow-up questioning in the group format, but individual questioning of members out of the presence of other members may occur in response to answers given during group voir dire, and in some cases, may be entirely new areas of inquiry.
Once the entire panel has been questioned or a certain number of individual members have been questioned, challenges for cause (depending on the judge) are often exercised. If quorum has been reached, the parties can exercise their one peremptory challenge. If the remaining panel members fall below the minimum number needed (5 members for non-capital offenses and 12 members for capital offenses), additional members are placed in the box and questioning resumes. This situation is called "busting quorum" since the necessary quorum of members is no longer present. If the parties have used their peremptory challenge during the process and additional members are placed in the box, the parties are allowed one additional peremptory challenge to be applied to the new members of the panel. The process continues until a panel is seated that contains at least the minimum number of members and alternates needed for trial, and may contain more than the mimimum number.
Issues and Recommendations for Member Selection
The process of member selection highlights three major issues. First, how can you maximize the information you obtain from the various information sources available (e.g., written questionnaires, group and individual voir dire)? The goal is to address these sources in an integrated approach, considering what information is more effectively obtained from each source and how to do so under the constraints imposed by the trial judge so as to maximize information disclosure. This, of course, is not an unfamiliar issue for our readers.
Second, and related to the first issue, what constraints are placed on a party's ability to prevent members from sitting on the panel? As noted above, all panel members are hand-selected by the convening authority and the defense (and trial counsel/prosecution) has only one peremptory challenge. This leaves the challenge for cause as the only significant tool with which to affect the composition of the court-martial panel. As such, meaningful voir dire conditions and practices are a necessity to enable parties to uncover a basis for a challenge for cause as specified in Rule for Courts-Martial (R.C.M.) 912 (f)(1)(A)(N) which lie in (a) actual bias (which corresponds to many of the features of challenges for cause in the civilian jury system) and (b) implied bias (which is unique to the military and addresses the perceptions of fairness by outside observers of the outcome of a court-martial that included the member(s) at issue).
The military justice system tries to compensate for these unique circumstances (i.e., the convening authority choosing the panel member pool and the constraint of one peremptory challenge) through what is called the "liberal grant mandate." The liberal grant mandate directs the trial judge to be generous or liberally grant the accused's challenges for cause based on actual or implied bias. However, the liberal grant mandate only applies to the accused and does not extend to challenges for cause raised by trial counsel.
A final issue in member selection concerns the decision rule. With the exception of the death penalty, a two-thirds majority is needed to convict the defendant. In death penalty cases, while an accused can be convicted with a two-thirds majority, a unanimous decision is required in the guilt phase on a capital charge in order for the death penalty to be an option in the sentencing phase. Thus, the numerical size of the majority needed to obtain a conviction will vary on the overall panel size. The decision to exercise a peremptory challenge or seek a challenge for cause rests not only on the desirability of the membe, whether the removal of the member would affect the quorum status, and whether refilling the panel will be disadvantageous to the party, but whether, in total, the number of members needed for a two-thirds majority changes as a result of the total panel sizes under consideration.
Over the past couple of years that I have participated in member selections, I have come to the opinion that the military member selection process would benefit adopting certain procedures found in its civilian counterpart. A critical procedure is the use of random selection procedures for establishing the pool of members. Random selection procedures could be applied in two areas. First, given the highly automated structure of today's military, eligible members can be randomly assigned for service without too much difficulty. the convening authority need not handpick the pool. Second, the primary and alternative members can be randomly assigned on a per court-martial basis, even if the pool serves on a designated time basis. With the addition of random selection procedures (and the removal of convening authority selection), a set number of peremptory challenges could be adopted using the civilian criminal jury system as a model. While such an approach does not entirely eliminate the issue of undue command influence, it would strike at the heart of the problem and the measures currently in place to address it.
While the above discussion is not exhaustive of all the issues and differences between the military system of courts-martial and civilian jury trials, it hopefully provides a basis for those interested in military courts-martial to begin their consideration of this area.
1For a general discussion of military justice system procedures, see Mason, R. Chuck. Military Justice: Courts-Martial, An Overview, Congressional Research Service, March 14, 2012. The author would like to thank LTC Kris Poppe for his invaluable comments and suggestions in the development of this post.
2This is roughly equivalent to a preliminary hearing in the civilian justice system.
3See LTC Carpenter, Eric R., Rethinking Voir Dire, Feb, The Army Lawyer 5, 2012.
4These basic issues are not exhaustive. There are many other issues, e.g., undue command influence, that, while intertwined with some of the concerns discussed here, are beyond the scope of this blog.
5See Jeffrey Frederick, Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury, 3rd Ed. (2011).
6United States v. Moreno, 63 M.J. 129, 134 (CAAF 2006). While appellate courts have suggested that the liberal grant mandate partially makes up for the presence of one peremptory challenge, in practice, it is a poor substitute. The decision for granting such a challenge is in the discretion of the Military Judge (and his/her interpretation of what qualifies for such challenges) and subject to appellate review based on an abuse of discretion standard (thank you to LTC Poppe for this observation). Peremptory challenges by their very nature are not subject to such interpretation and review, provided they do not violate the prohibition of their discriminatory use arising out of Batson and its successors. For a discussion of the prohibition on the discriminatory use of peremptory challenges, see Frederick, supra note 5 at 288.
7United States v. James, 61 MJ 132 (CAAF 2005)
8The conclusions and recommendations are those of this author and do not represent position statements of the American Society of Trial Consultants.
9This is not a new suggestion but it is controversial. See Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice (May 2001) also referred to as the Cox Commission Report. It is important to recognize that the military justice system is unique when compared to the civilian system and has special needs and goals not present in the civilian justice system, e.g., the need to maintain discipline, operate efficiently, and not employ procedures that adversely affect performance of military operations. As such, there would be challenges faced in implementing changes and adjustments in the scope of random selection procedures may be necessary.
10This would avoid the tendency for pools serving over multiple courts-martial having the same primary members serving more frequently on courts-martial as compared to alternatives. Currently, alternatives serve in the order they are listed and only replace primary members when such members are excused or otherwise not available for service. See Huestis, Bradley J. Anatomy of a Random Court-Martial Panel, Oct., The Army Lawyer 22 (2006).
11I am proposing considering what may be viewed as a radical approach and there are still other changes that could be made in the selection process as well. However, I am not unsympathetic to potential concerns over the implications of the liberal grant mandate and the need for the accused to have sufficient peremptory challenges to counter any deterimental effects caused by its potential loss. Traditional challenges for cause (e.g., actual bias) would remain and be unaffected by this approach. It is the "gray" area currently addressed by the liberal grant mandate that must be considered carefully.
Jeff Frederick is Director of the Jury Research Services Division of the National Legal Research Group, Inc., based in Charlottesville, VA. He has consulted with attorneys since 1975 and is the author of two books, The Psychology of the American Jury (1987) and Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury, 3rd Ed. (2011). You can contact Dr. Frederick at email@example.com and learn more about his firm at http://www.nlrg.com/jury.