Challenging the Entire Panel in a Court Martial
In a case where a party feels the entire venire has been improperly selected by the convening authority, the party may challenge the entire panel – but only before voir dire begins. R.C.M. 912(b) governs this process. The party must move to stay the proceedings on the grounds that the panel was improperly selected. The party must then make an offer of proof that could constitute improper selection. At this point, the party is entitled to present evidence. If the military judge determines that the panel was improperly selected, he/she stays proceedings until the members are properly selected.
A party waives its rights to challenge the entire panel if the motion is not timely except (a) when the issue relates to the required minimum number of members under R.C.M. 501(a) (See Footnote below); (b) when the member does not have the required qualifications to serve on the panel; or (c) when the accused has requested a panel comprised of one-third enlisted members, and either they are not present or there is not an adequate explanation for their absence.
After the challenged members are excused, the trial proceeds.
Footnote: R.C.M. 501(a) states that general courts-martial shall consist of a military judge and not less than five members in non-capital cases. In capital cases, general courts-martial shall consist of a military judge and at least 12 members, unless 12 members are not reasonably available because of physical conditions or military exigencies. If 12 members are not reasonably available, the convening authority shall detail the next lesser number of reasonably available members under 12 but in no event fewer than five. In such a case, the convening authority shall state in the convening order the reasons why 12 members are not reasonably available.