Court members’ testimony and affidavits cannot be used after the court-martial to impeach the verdict except in three limited situations. RCM 923; MRE 606. See United States v. Loving , 41 M.J. 213 (C.M.A. 1994).
- Outside influence ( e.g., bribery, jury tampering).
- Extraneous prejudicial information.
- United States v. Witherspoon , 16 M.J. 252 (C.M.A. 1983). Improper court membervisit to crime scene.
- United States v. Almeida , 19 M.J. 874 (A.F.C.M.R. 1985). No prejudice where courtmember talked to witness about Thai cooking during a recess in the trial.
- United States v. Elmore , 33 M.J. 387 (C.M.A. 1991). Blood expert witness haddinner with the members. Extensive voir dire established the lack of taint.
- Unlawful command influence.
- United States v. Carr , 18 M.J. 297 (C.M.A. 1984). Unlawful command control forpresident to order a re-vote after a finding of not guilty had been reached. MJ should build a factual record at a post-trial Article 39(a) session.
- United States v. Accordino , 20 M.J. 102 (C.M.A. 1985). President of court canexpress opinions in strong terms and call for a vote when discussion is complete or further debate is pointless. It is improper, however, for the president to use superiority of rank to coerce a subordinate to vote in a particular manner.
- Possible voting irregularity not enough. United States v. Brooks , 42 M.J. 384 (1995).Deliberative privilege precludes MJ from entering a finding of not guilty when he concludes that members may have come to guilty finding as a result of improperly computing their votes. 10. United States v. Hardy , 46 M.J. 67 (1997). “[T]he protection of the deliberative process outweigh[s] the consequences of an occasional disregard of the law by a court- martial panel.” Id . at 74.