Challenging Panel Member for Cause

military-defense-lawyers58856After questioning is complete, counsel asserts challenges for cause. Each side in a court-martial has an unlimited number of challenges for cause against panel members.

See UCMJ, Article 41. Trial counsel issues its challenges for cause first then defense counsel does so. R.C.M. 912(f)(1) outlines the reasons for dismissal based on cause. These reasons are when it appears that the member:

  1. Is not competent to serve as a member under UCMJ, Article 25(a), (b), or (c)[1] (See Footnote 1 below);
  2. Has not been properly detailed as a member of the court-martial;
  3. Is an accuser as to any offense charged;
  4. Will be a witness in the court-martial;
  5. Has acted as counsel for any party as to any offense charged;
  6. Has been an investigating officer as to any offense charged;
  7. Has acted in the same case as convening authority or as the legal officer or staff judge advocate to the convening authority;
  8. Will act in the same case as reviewing authority or as the legal officer or staff judge advocate to the reviewing authority;
  9. Has forwarded charges in the case with a personal recommendation as to disposition;
  10. Upon a rehearing or new or other trial of the case, was a member of the court-martial which heard the case before;
  11. Is junior to the accused in grade or rank, unless it is established that this could not be avoided;
  12. Is in arrest or confinement;
  13. Has informed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged;
  14. Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.

Footnote 1: UCMJ, Article 25(a) states that any commissioned officer on active duty is eligible to serve on courts-martial. UCMJ, Article 25(b) states that any warrant officer on active duty is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer. UCMJ, Article 25(c) states that any enlisted member on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial, but he shall serve as a member of a court-martial only if the accused personally has requested orally on the record or in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special courts-martial if the membership does not include at least one-third enlisted members, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court-martial may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.

Military judges are ordered to liberally grant challenges for cause from the defense. United States v. James, 61 M.J. 132 (C.A.A.F. 2005). This order does not apply to government challenges.

bestmilitarydefensedefenseattorneys10.06.47PMIf a member gives a response that may result in the member being challenged, counsel or the military judge may question the member in an attempt to rehabilitate him/her. See United States v. Napolitano, 53 M.J. 162 (C.A.A.F. 2000). When attempting to rehabilitate a member, counsel should ask the following questions:

  1. Can you follow the judge’s instructions regarding the law?
  2. Will you base your decision only on the evidence presented at trial, rather than your own personal experience?
  3. Have you made your mind up right now concerning the type of punishment the accused should receive if convicted?
  4. Can you give this accused a full, fair, and impartial hearing?

Of course, counsel should tailor these questions to the facts of the case and to get clear, unequivocal answers. However, repeated attempts to rehabilitate a member may be seen as bias or unfairness. See United States v. Townsend, 65 M.J. 460, 465 (C.A.A.F. 2008).

The standard to determine actual bias is whether the bias is such that the member will not yield to the evidence presented and the military judge’s instructions. United States v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007); United States v. New, 55 M.J. 95, 99 (C.A.A.F. 2001); United States v. Warden, 51 M.J. 78, 81 (C.M.A. 1999).

[1] UCMJ, Article 25(a) states that any commissioned officer on active duty is eligible to serve on courts-martial. UCMJ, Article 25(b) states that any warrant officer on active duty is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer. UCMJ, Article 25(c) states that any enlisted member on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial, but he shall serve as a member of a court-martial only if the accused personally has requested orally on the record or in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special courts-martial if the membership does not include at least one-third enlisted members, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court-martial may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.

Is in arrest or confinement;

Article 41.