One of the most consequential changes for trial is the new member panel ("jury") size and voting numbers (the jury).
The UCMJ started with a requirement of a minium of three persons on the jury for a special court-martial and five for a general court-martial.This contrasts with the minimum of six that had been set by the United States Supreme Court.
In cases like Ballew v Georgia, 435 U.S. 223 (1978), and Burch v Louisiana, 441 U.S. 130 (1979), the Supreme Court decided that at least six jurors was required.The Court looked at research into jury and small group dynamics that show the smaller the jury the less discussion and therefore an increased likelihood of conviction.The Court admitted that empirical studies "raise significant questions about the wisdom and constitutionality of a reduction below six."The findings that raised significant questions were:
(1) smaller juries have less effective group deliberation, so they are more error-prone (in part because jurors exhibit greater reluctance to make important contributions and, as a group, the likelihood increases that they will fail to overcome members' biases);
(2) smaller juries produce less accurate results and greater variability. In criminal cases, the risk of convicting an innocent person grows;
(3) as juries become smaller, verdict consistency diminishes, in part because people with minority viewpoints tend to abandon them (again, in criminal cases, this harms the defense);
(4) minority groups have much reduced chances of being represented in smaller juries; and
(5) as the Court finally conceded, some scholars (like Zeisel and Saks) exposed "methodological problems tending to mask differences in the operation of smaller and larger juries."
See Jill P. Holmquist, Does Jury Size Still Matter? An Open Question. The Jury Expert, 1 May 2010.
The military and military appellate courts consistently resisted this Supreme Court law that the Sixth Amendment required at least six persons voting unanimously.They have done so without any showing of any special need for an exception.
The other problem is that the military jury only required three-quarters of the jury for a vote of guilty, compared to unanimity in the civilian jury.We spent years challenging those numbers in litigation and politicking.All without success.
In 2019 that will change--still not right--but better.
The new jury will be:
- At four for a special court-martial.
- At eight for a general court-martial.
- At 12 for a trial in which the death penalty is authorized.
- We first have voir dire. This is the process where the judge and the lawyers question the members about a number of things about themselves, their service, or anything that might impact their ability to be a fair and neutral decider in the case.
- After the question and answer sessions each side can object to a member sitting because of actual or implied bias. The military judge rules on the requests made by the prosecutor and the military defense lawyer.
- After that, there's a random selection of each member. The first eight are the panel. However, if either side uses their one peremptory challenge, the next person in rank rises up to sit on the panel.
A vote of at least three-quarters will be required for a guilty finding.
There are many factors that go into a recommendation to have a jury or judge trial: what type of case do you have, what are the strengths and weaknesses, what are the defenses, and what is the track record of the judge or of juries at a particular installation.(For example, Fort Bragg is notorious for a high conviction and sentence rate.)
I'll be interested to see if more accused's are encouraged to elect a jury trial.
For those wanting some basic information about the military justice process and the new laws, the Army TJAGSA Criminal Law Deskbook 2019 is now online. The DB is for military lawyers, but that should not stop a client or potential client from reviewing the materials. As I always tell clients: the case is about you and potential significant consequences--be involved and help yourself and your civilian military defense counsel.