The appellant, a specialist in the U.S. Army, was charged with multiple sexual assault offenses and a false official statement. During voir dire at his court-martial, he challenged the selection of Sergeant First Class (SFC) Bravo as a panel member, arguing actual and implied bias based on SFC Bravo’s statements regarding soldiers who retain civilian defense counsel. The military judge denied the challenges, and SFC Bravo participated in the panel that convicted the appellant.

On appeal, the United States Army Court of Criminal Appeals (CCA) affirmed the conviction. However, the Court of Appeals for the Armed Forces (CAAF) reviewed the case and determined that while the military judge did not abuse discretion regarding actual bias, SFC Bravo’s responses during voir dire created a close case of implied bias. Under the liberal grant mandate, which requires excusing panel members in close cases to maintain public confidence in the fairness of military justice, CAAF held that the military judge erred. Consequently, the CAAF reversed the CCA’s judgment.

This case is a good primer for military defense counsel.

1. Actual Bias
The court holds that the military judge did not abuse his discretion in rejecting the challenge for actual bias. Military judges are given “great deference” in these determinations, as they are best positioned to assess the demeanor and credibility of potential panel members during voir dire. In this case, despite the absence of explicit findings on SFC Bravo’s demeanor and credibility, the military judge’s decision was based on Bravo’s assurance of fairness. The precedent cases (United States v. Youngblood and United States v. Terry) support the conclusion that a military judge’s assessment of a panel member’s sincerity carries substantial weight. Since there is no evidence in the record that significantly undermines the military judge’s ruling, the appellate court finds no abuse of discretion.

Analysis

The court’s reasoning is grounded in established military jurisprudence, which prioritizes the firsthand observations of the trial judge during voir dire. The deference given to the military judge aligns with prior case law, reinforcing the principle that appellate courts should not overturn a trial judge’s credibility determinations absent clear error.

However, the absence of explicit findings on demeanor could be seen as a weakness in the ruling. While precedent acknowledges that implicit credibility findings are permissible, a more detailed record would have strengthened the decision’s defensibility on appeal. Nonetheless, the ruling underscores the judiciary’s trust in trial-level assessments of impartiality, absent compelling contradictory evidence.

2. Implied Bias Determination

1.  Failure to Explain Implied Bias Reasoning – The military judge did not distinguish between actual and implied bias and failed to provide a clear record of legal analysis.
2. Mistaken View of Facts – The judge incorrectly concluded that SFC Bravo only noted an “outside perception” of civilian defense counsel, whereas Bravo actually expressed a personal belief.
3. Lack of Proper Inquiry – The judge did not sufficiently probe SFC Bravo’s potentially prejudicial views or clarify his statements.
4. Failure to Instruct or Rehabilitate – Unlike United States v. Napolitano, where a biased panel member was properly educated on the law and recanted their views, no such effort was made here.
5. Inadequate Rehabilitation – SFC Bravo’s assertions of impartiality were in response to leading questions, and he never recanted his belief that hiring civilian counsel was “unusual.” 

Because the military judge did not apply the liberal grant mandate, the court concludes that the failure to excuse SFC Bravo undermines the fairness of the court-martial panel.

Legal and Analytical Evaluation

The appellate court’s ruling reinforces the principle that implied bias is assessed based on how an objective observer would perceive fairness in the proceedings. This decision is grounded in case law (Keago, Clay, Rogers) and highlights several key legal considerations:

1.  Distinction Between Actual and Implied Bias – The military judge conflated the two standards, which require separate legal analyses. While actual bias focuses on subjective impartiality, implied bias is about public confidence in the fairness of the system. The judge’s failure to recognize this distinction weakened his ruling.
2. Liberal Grant Mandate – Military judges must err on the side of excusing panel members in “close cases” to preserve the integrity of courts-martial. The failure to do so constitutes reversible error (Keago, 84 M.J. at 375).
3. Insufficient Inquiry and Rehabilitation – The judge’s failure to clarify or challenge SFC Bravo’s statements left room for doubt about his impartiality. The absence of proper judicial questioning and instructional guidance meant that potential biases remained unaddressed. Unlike in Napolitano, where rehabilitation was successful, the lack of intervention here allowed bias to persist.
4. Impact on the Fairness of the Court-Martial – The ruling emphasizes that SFC Bravo’s views could have led an objective observer to doubt the impartiality of the panel. This is critical because military justice requires heightened scrutiny to ensure fairness and avoid even the appearance of impropriety.

Conclusion

The appellate court’s decision is well-reasoned and aligns with military legal principles regarding voir dire and panel member impartiality. The ruling highlights the necessity of a clear record, proper legal analysis, and the liberal grant mandate in implied bias cases. The military judge’s failure to excuse SFC Bravo constitutes reversible error, underscoring the importance of procedural rigor in ensuring fair trials in courts-martal.

Do you have this issue at trial or on appeal. The military defense counsel at Cave & Freeburg, LLP, have the knowledge and experience to analyse your jury / Members problem.

Military judges in the various military services play a crucial role in defining reasonable doubt to their panels (juries). For instance, the Army and the Coast Guard judges instruct the panel that a “reasonable doubt is a fair and reasonable hypothesis other than that of guilt.” Soldiers and Coasties are guided to acquit if there is another rational, innocent explanation for the facts. On the other hand, the Air Force, Navy, and Marine Corps use different language, telling the panel that they must be “firmly convinced” or similar language to convict.

The highest standard of legal proof in criminal trials is beyond Reasonable Doubt. This means that the prosecution must present evidence strong enough to convince a reasonable person that there is no other logical explanation for the facts except that the defendant committed the crime. This demanding standard makes it less likely that someone will be convicted based on weak or insufficient evidence. The evidence must firmly convince the jury of the defendant’s guilt. If there is any reasonable uncertainty, the jury is instructed to acquit. This standard recognizes the gravity of depriving someone of their freedom, or worse, their life, and requires that the evidence be overwhelmingly convincing.

See our video for more, presented by Nathan Freeburg, our lead trial attorney.

The reason for the high burden of reasonable doubt on the prosecution is the severe consequences of a court-martial conviction. If you are convicted at a court-martial, the implications are grave. You could lose your retirement and practically all benefits of your military service, go to prison for years, have to register as a sex offender, and, in a capital trial, lose your life.

The reasonable doubt standard ultimately unites with the presumption of innocence to create a sound defense at a court-martial. The presumption of innocence means that no matter how many bad things are said about you, you remain innocent until (and only if) the court-martial president says “Guilty.” The court-martial panel can only say “Guilty” if the prosecution has presented evidence proving your guilt beyond a reasonable doubt. Our job as your military defense attorney is to persuade the jury that the prosecution didn’t and couldn’t meet their burden.

Sometimes I see military prosecutors proudly proclaim to the panel: “I’m Major or Lieutenant Commander so and so, and we represent the United States.” When this happens, I get up and say to the panel, “actually it is you that represents the United States and it is your job to apply the presumption of innocence and the reasonable doubt standard that our country requires.”

In a court-martial, the stakes are incredibly high. However, the reasonable doubt standard is everything when it comes to protecting your innocence. This standard, upheld by the legal system, provides a sense of reassurance and security in the face of such high stakes.

As military defense counsel, we at Cave & Freeburg, LLP, have the experience to help ensure the best opportunity for the jury to have some doubt that can lead to a not guilty finding. Visit our court-martial and court-martial appeal pages for some of our many successes. As military defense attorney’s we follow several key strategies to introduce reasonable doubt and challenge the prosecution’s case, here are some examples:

1. Attacking the Evidence:

• Highlighting inconsistencies: Discrepancies in witness testimonies, conflicting forensic evidence, or gaps in the timeline can all raise doubts about the prosecution’s narrative.
  Challenging the reliability of evidence: The defense can question the methods used to collect and analyze evidence, suggesting potential contamination, errors, or biases in the process.
  Presenting alternative explanations: Offering alternative interpretations of the evidence that are consistent with the defendant’s innocence can create doubt about the prosecution’s version of events.

2. Undermining Witness Credibility:

• Impeaching witnesses: The defense can cross-examine witnesses to expose inconsistencies in their statements, biases, or motives that might affect their testimony.
• Presenting evidence of prior misconduct: If a witness has a history of dishonesty or criminal behavior, the defense can use this information to cast doubt on their credibility.
• Introducing alibi witnesses: Witnesses who can place the defendant at a different location at the time of the crime can create doubt about their involvement.

3. Focusing on the “Burden of Proof”:

• Reminding the jury of the presumption of innocence: The defense emphasizes that the defendant is innocent until proven guilty and that the burden of proof rests entirely on the prosecution.
• Highlighting gaps in the prosecution’s case: If the prosecution fails to address key elements of the crime or leaves unanswered questions, the defense can argue that this creates reasonable doubt.
• Emphasizing the high standard of proof: The defense reminds the jury that the prosecution must prove guilt “beyond a reasonable doubt,” not just show that the defendant is probably guilty.

4. Presenting an Alternative Narrative:

• Offering a different version of events: The defense may present a theory of the case that is consistent with the evidence but points to a different perpetrator or suggests that the defendant acted in self-defense or under duress.
• Providing a plausible motive for someone else: If the defense can suggest a motive for another individual to commit the crime, it can raise doubts about the defendant’s guilt.

5. Utilizing Expert Testimony:

• Challenging forensic evidence: Defense experts can offer alternative interpretations of forensic evidence or highlight limitations in the techniques used.
• Providing alternative explanations for the defendant’s behavior: Experts in psychology or other fields can offer explanations for the defendant’s actions that are consistent with innocence.

The update is that the Court of Appeals for the Armed Forces has decided United States v. Anderson. The unanimous court decided that there was still no constitutional requirement for a unanimous court-martial verdict, despite the Supreme Court decision in Ramos v. Louisiana.

That means we must now wait until the issue gets presented to the Supreme Court for a final ruling on the issue. It can take time for the Supreme Court to decide to take on an issue. That was our experience as appellate military defense counsel in United States v. Weiss, 36 M.J.224 (C.M.A. 1992) aff’d Weiss v. United States. 510 U.S. 163 (1994). So,

Unanimous verdicts at court-martial are not currently required by law. Under UCMJ, a guilty verdict in a general court-martial, which is the most serious type of court-martial, can be reached by a two-thirds majority of the members of the panel. This means that a defendant can be convicted of a crime even if one-third of the panel members do not believe that they are guilty.

However, there is a growing movement to require unanimous verdicts in courts-martial. In 2023, the House of Representatives passed a bill that would have required unanimous verdicts in courts-martial. However, the bill was not passed by the Senate.

There are several arguments in favor of requiring unanimous verdicts in courts-martial. One argument is that it would protect the rights of service members and ensure that they are not convicted of a crime unless all members of the jury agree that they are guilty. Another argument is that it would promote fairness and accuracy in the military justice system.

There are also some arguments against requiring unanimous verdicts in courts-martial. One argument is that it would make it more difficult to convict service members of crimes. Another argument is that it would be more difficult to reach a verdict in some cases, which could lead to hung juries. If the principle of innocent until proven guilty beyond a reasonable doubt is to be maintained, then appropriate “difficulties” in getting a conviction ought to be followed.

The debate over unanimous verdicts in courts-martial is likely to continue. It is an important issue that has implications for the rights of service members and the fairness of the military justice system. Unfortunately, there is betting that the Supreme Court will give deference to Congress as it usually does when Congress acts under its “Make Rules” authority to govern military discipline and justice.

Congress is subject to the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings. But in determining what process is due, courts “must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U. S. Const., Art. I, §8.”

In the meantime, Congress has been paying some attention to the issue, as noted by the bloggers at Save Our Heroes.

Rebecca Kheel reported that Court-Martial Convictions Would Need Unanimous Jury Verdicts Under a Measure Added to Defense Bill. Military.com, 17 July 2023. Indications are that proposal won’t be adopted. UCMJ, court-martial, air force court, navy court, army court

Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

What should the military defense counsel being doing now at trial? One step is easy, but there may be other steps that should be considered.

Step One: file a motion with the trial judge that the members should be instructed that they must have a unanimous vote for any finding of guilty. Most military are already doing this. The military judge will almost certainly deny the motion, but you have put the issue on the record for appeal. Because the voting is a constitutional issue, an Appellant whose case is still under review might benefit from a favorable change in the law while the case is still on appeal.

The Supreme Court has previously held that an appellant might benefit from the change in the law. Griffith v. Kentucky, 479 U.S. 314 (1987). The Court of Appeals for the Armed Forces (CAAF) has followed that rule in, for example, United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). There is some suggestion that the retroactivity principle need not always apply–this is fact specific and adds uncertainty. Your military appellate defense lawyer is able to help navigate this problem. CAAF has looked at the issue in United States v. St. Blanc, 70 M.J. 424 (C.A.A.F. 2012) in relation to what remedy to apply.

But,

Step Two. It seems to me that there is an earlier point in the trial where the military defense lawyer needs to object to the nonunanimous verdict rule. At the arraignment, the judge advises the accused of their forum rights–officer members, officer-enlisted members, or judge alone. Here the judge tells the accused about the voting requirement. Perhaps, at this stage, the military defense counsel should object and ask the accused to be advised that the voting will be unanimous. The judge will not do that because, again, under current law, she doesn’t have to.

Why Step Two?

Forum choice is always difficult–some cases are usually best tried by a judge alone most others should be a jury (members) trial. What we don’t know is whether a case that might be best by judge alone would be better as a jury (members) trial if a unanimous verdict is required. It’s a combination of numbers and intuition about who the members are. Some of us more experienced military defense counsel are familiar with the old numbers game of how many members to have on the jury.

So, one of the new issues we’ve been raising has been the denial of a proper forum choice based on the judge’s initial forum and voting advice. This becomes important on appeal where the accused has elected trial by judge alone but would have elected members if the voting had to be unanimous for guilt. It’s rather simple–it might be easier to convince one member to vote not guilty than three.

At Cave & Freeburg, LLP, we try to be creative and thoughtful about your defense and consider all options that might work in your favor.

I have a standard sex offender registration motion that I use in all cases in which a sex offense is charged and if convicted the client will have to register as a sex offender.

Few appellate courts have been willing to agree that SOR is a punishment and hold that to be a collateral consequence. Some state supreme courts have held new amendments to their state law are “punishment” for ex post facto analysis, but they are few. Despite that, I continue to argue that SOR is more than a collateral consequence. As the second part of my motion, I argue admissibility of SOR as “evidence” under the principles for giving punishment, on which the members are instructed: particularly rehabilitation and deterrence.

Mr. Murray argues that we should reconsider the definition of collateral consequences and how they affect sentencing and most importantly recidivism and reintegration. Here is the abstract.

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release. Because collateral consequences involve the state infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, their roots stem from utilitarian justifications for criminal punishment, such as incapacitation. Legislative justifications relating to creating and reforming collateral consequences and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system. Unfortunately, these philosophical roots inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility. The result is extra punishment run amok and in desperate need of constraints. This Article pivots to a novel, but perhaps counterintuitive, approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints, emphasizing dignity and autonomy, blameworthiness, proportionality, a concern for restoration, and the obligations and duties of the authority tasked with inflicting punishment, suggest many collateral consequences are overly punitive and disruptive of social order. Viewing collateral disabilities in this fashion aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.

Take a look, I am looking for ways to bolster my trial motion on SOR.

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

It is not obvious from the Issue that nullification is central to the case. But, Ilya Shapiro, The Right to Hope for Jury Nullification, CATO Institute, 9 February 2017, explains.

It should be noted that the case arises because of a Padilla/Denedo issue, the context of IAC.

More here.

When last we wrote about the statistics of relists a little over a year ago, it was to report on what was then a new trend: the court’s practice of routinely relisting petitions that are under serious consideration for review at second or subsequent conferences prior to entering orders granting or denying certiorari. The practice is by now an accepted feature of the certiorari process, and at least one relist is generally viewed as a necessary step on the way to a grant of further review. Here, we offer an update on the statistics of relists. Focusing on October Term 2015, we highlight some emerging trends in what appears to be an evolving practice.

Regrettably, on 3 October 2016 the court declined to take Captain Sullivan’s petition.

This article has appeared in Task & Purpose as a result of United States v. Woods, decided by the Court of Appeals for the Armed Forces on 18 June 2015.

Incredibly, a senior naval officer was appointed to be the president of a court-martial panel when in a questionnaire prepared when first told she’d be a court-martial member in the future, the member answered thus about the presumption of innocence.

In this case, the convening authority selected [x] as the senior member of the panel that would try Appellant for sexual assault, despite having access to her preliminary member’s questionnaire, in which [x] stated her belief that “enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission.” During voir dire, [x] elaborated on this response, but reasonable observers could interpret her responses as confusing rather than clarifying her views (emphasis added).

On the surface, this looks bad for the line officer convening authority. Although I’m sure there are many out there cheering for the member who in their minds got it right on the presumption. Once you understand how the naval service selects members for a panel, you can see that they lawyers and the legally trained staff were more at fault than the convening authority.

So—I disagree with The Weirick that the existence of MJIA would have prevented United States v. Woods from happening. Or at least, I disagree with The Weirick’s or Mr. Christensen’s implication that Woods would not have happened if MJIA were in place. That is because it was likely the indifference or negligence of the very legal professionals running the system at best or their hubris.

In all of the Services, the staff judge advocate office (SJA) under the supervision of the SJA and the senior prosecutor, collect nominations for service as a court-martial member. Only in the naval services do they also obtain a fairly detailed questionnaire. The other Services include a brief summary of the person’s record. These documents are collected into a binder and a “standing” court-martial order prepared for the SJA. Most general court-martial convening authorities will appoint a panel for six months or a year. Once the panel documents are prepared, they are taken to the convening authority for review, discussion, and then appointment (been there done that). The appointing documents and the supporting questionnaires then sit in the binder for the term of those members appointment, for all to see. The problem would not likely have arisen in the Army or Air Force because they don’t bother with questionnaires.

So the legal personnel failures are:

• Someone didn’t read the questionnaires; the staff only collected, copied them, and put them in the binders.
• The SJA didn’t read them.
• The chief of justice or MOJO didn’t read them.
• The TC didn’t read them.

Or worse.

• The SJA read them but ignored them.
• The chief of justice or MOJO read them but ignored them.
• The TC read them but ignored them.

Either way, if the legally trained staff had done what the defense counsel did . . . ?

OK, so the commander failed to catch the error that his fully trained legal staff failed to catch. That does not now justify saying that if MJIA were in place the Woods case would not have happened. That’s silliness to be expected of some.

I am in favor of the MJIA and enactment of the O.’Callahan / Relford factors for jurisdiction. But I cannot in good conscience use Woods to argue for those changes. This convening authority was failed by his staff.

A military accused does not have the same “jury” right as a civilian accused, but he does have the right to a panel (jury) that is fair and impartial. United States v. Roland, 50 M.J. 66, 68 (1999); United States v. Nash, 71 M.J. 83 (C.A.A.F. 2011). Oddly, and unlike the civilian case, it is the person who orders the trial who gets to select who will decide the case he has referred to trial. The commander cannot systematically or for bad motive select a panel likely to be biased in some way toward an accused. For example, a person who believes that all convicted accused’s must be punitively discharged. The primary engine for challenging members once appointed is through voir dire, and then showing actual or implied bias. United States v. Gooch, 69 M.J. 353 (C.A.A.F. 2010).

This is the second Coast Guard panel challenge case in just a short period. United States v Riesbeck has been examined here, by colleague Sam Adams. Riesbeck may be viewed as a “normal” issue of panel stacking. Panel stacking questions often arise with rank or gender of the selected members. There is the anomalous case of volunteerism in United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004), [1] which joins Sullivan as being an oddity – serious, but odd.

In Sullivan, the claim is that the client was prejudiced “by the improper exclusion of flag officers from service on his court-martial.” Slip op. at 3. The Appellant was a captain (O-6). The court found that it was error to exclude flag officers from potential selection, but found the error to be harmless.

I anticipate a petition to CAAF. It will be interesting to see what approach the appellant takes.

—————-

[1] For what it is worth, I was the Article 32, UCMJ, investigator in Dowty, in 1998. The case had a somewhat tortuous six year appellate history, and is also significant for treatment of the Right to Financial Privacy Act’s impact on the statute of limitations in courts-martials.

Of course we can never know what the members are really thinking. During the occasional after court talk it becomes clear that what we thought the members were thinking was not what they were thinking, etc., etc., etc.

So, it’s a worthwhile effort in situational awareness to try and monitor the members. But what happens if their thinking becomes more obvious or blatant – or possibly so. At times, I have addressed the issue of the members having already decided the case or evidenced a bias because of a question one of them has asked.

At what point do you make an issue of the perception either with the individual member or the panel as a group?

Another area of concern is when you hear about comments made by one or more members outside the courtroom. Perhaps something overhead in the passageway or in the head.

At what point do you make an issue of the perception either with the individual member or the panel as a group?

As with all things this is a matter of judgment. Do you upset the members about something that is nothing, do you draw something to the attention of the members you’d rather they not focus on. Or do you have a problem and it needs to be addressed now!

I had a case at GitMo some years ago where there was in court wrangling over a particular legal definition. After a break we found out one of the members was looking the definition up in a legal text book. The members deliberation was the SJA law library. We dealt with that on the record. This would be extraneous information. See e.g., United States v. Lambert, 55 MJ 293 (C.A.A.F. 2001), about inquiry into members conduct. Lambert is not “the” case, but it’s worth the read. Check out, United States v. Dugan, 58 MJ 253 (C.A.A.F. 2003).

I am reminded of this piece of trialcraft by the case of United States v. Axsom, _ F.3d _ (8th Cir. Aug. 4, 2014) (No. 12-3703), brought to us by our friends at federal evidence review blog. In that case the defense claimed that two members had come to a premature decision on guilt.Two items got the attention of the parties and the judge.

“[D]uring voir dire, “A prospective juror reported that banter between a Court Security Officer and an FBI case agent in the courtroom, while the judge and attorneys were in the jury room conducting individual voir dire, may have affected her outlook about the trial.” o[O]n one morning during the trial, when the jurors were lining up to enter the courtroom, an alternate juror overheard one juror state: “It looks like this is going to be a long day today and tomorrow. Today may be the bulk of it.” A second juror replied, “Yeah . . . But I don’t know how much more they could say. It looks like we already know where it’s headed.”

To address the issue the judge took testimony from each of the two jurors, under oath. While the judge concluded there were premature deliberations he declined to excuse the whole panel or either of the two jurors. The jurors agreed not to have further discussions and also to keep an open mind. The Eighth disagreed there were premature deliberations. And in context of the overall trial there was no prejudicial effect on the right to a fair trial. Essentially the evidence was insufficient on the issue. But that doesn’t mean there would have been no meritorious issue if the evidence showed more, especially expressions of actual opinion on guilty or innocence.

So a caution for military judges as they go through the common preliminary instructions to members. The Eighth found the trial judge’s actions effective to address the issue. A different result maybe if the trial judge had done nothing?

Military appellate courts are not enthused with deviations from the MJBB, even though it is quite possible to do that. Oddly, the military court of criminal appeals allow for minor deviations and don’t actually require exacting compliance with the MJBB. See for example, United States v. Bigelow, 57 M.J. 64 (C.A.A.F. 2002). On the other hand the Court of Appeals for the Armed Forces {CAAF) has cautioned against significant deviations from the MJBB, unless adequately explained on the record. United States v. Rush, 54 M.J. 313 (C.A.A.F. 2001). That’s what happened with the litigation over challenges to Article 120, when a military judge ignored the law and also the MJBB, and advised the members that the accused did not have any burden to prove consent.

It may not matter if the judge does not follow the MJBB when instructing the members. For example in a recent case the Court of Appeals for the Armed Forces (CAAF) decided that the judge had made a mistake in not instructing on a defense, but that the error was harmless. We don’t need to go too deep into this area of trial practice; this is something your appellate military defense lawyer and trial military defense lawyer should know about and discuss with you.

However, there are times when it is necessary to go outside the MJBB to look for an appropriate instruction. Usually this happens when the prosecution is seeking to assimilate a federal or civilian crime under Articles 133 or 134, UCMJ. I have done this, for example by referring to the Eleventh Circuit instructions is CP cases.

So, it is helpful for your military defense lawyer to know that there is a good resource for civilian, primarily federal members (read jury) instructions. One of my favorite daily reads is the Federal Evidence Review blog. The blog is an excellent resource on federal evidence. They have two posts relevant to instructions: a main “page,” and an “update” for several circuits.

It appears one of the primary updates is intended to counter a growing problem – social media, cellphones in court, and the like. Thankfully this does not seem to be a problem at court-martial or other actions under the UCMJ.

The chief judge of the United States Army Trial Judiciary is responsible for publishing and updated the MJBB. You can find a copy here. If you are a military defense lawyer and practice at court-martial, you can also download an electronic version which works in MSWord, but unfortunately not WordPerfect.

And to digress a little, there is a presumption that members follow the instructions. That’s a nice social and legal “policy,” but if research is to be believed the presumption doesn’t work. Check out an article by one of my favorite resources, The Jury Verdict. Can members put aside their pride and prejudices? Can jury members ‘forget’ the inadmissible evidence they just heard? Can . . . . . .?

When does the introduction of evidence constitute an indirect comment on a defendant’s silence, violating the defendant’s Fifth Amendment right against self incrimination? In a tax fraud case, the Seventh Circuit examined evidence how the government focused the the jury on the defendant’s lack of response. Even though the admission of the evidence was a harmless error, the circuit found that questions to the case agent regarding the alleged fraudulent scheme, though “subtle,” were no less in violation of the defendant’s Fifth Amendment rights than more direct comments on a defendant’s silence, in United States v. Phillips, __ F.3d __ (7th Cir. March 14, 2014) (No. 12-2532) It is coming up on fifty years since the Supreme Court clarified as part of Fifth Amendment jurisprudence that a defendant’s right against self-incrimination is violated by introduction of evidence that only indirectly comments on a defendant’s failure to respond to government charges. See, e.g., Griffin v. California, 380 U.S. 609, 615 (1965) (“We … hold that the Fifth Amendment … forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.”) The normal test of the violation of this requirement is that the evidence would “naturally and necessarily” be construed as a comment on the defendant’s silence. The Seventh Circuit recently examined this exclusion, explaining and describing a standard approach to dealing with evidence that possibly strays into this type of constitutional violation.

Key Evidence Issues During 2013

1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence

2. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Salinas v. Texas: Splintered Ruling Fails To Provide Guidance On Prearrest Contacts With Law Enforcement

3. Supreme Court Watch: Fourth Amendment (Search and Seizure Clause): Maryland v. King: Divided Court Upholds DNA Sample Collection From Arrestees For A “Serious” Crime Without A Search Warrant

4. Supreme Court Watch: Fifth Amendment (Due Process Clause): Smith v. United States: Unanimous Conspiracy Withdrawal Ruling

5. Certification (a civil case).

6. Supreme Court Watch: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct): Nevada v. Jackson: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes

7. Addressing Juror Internet Research During Trials

8. Electronic And Internet Evidence Issues

9. FRE 706: Encouraging The Use And Consideration Of Court-Appointed Experts

10. Rule Amendments: FRE 803(10) (Absence of a Public Record)

Each of the above issues had something of value and interest to military justice practitioners. For example:

In Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), the Supreme Court held unanimously that the burden of proof to establish withdrawal from a conspiracy, is on the accused, and the prosecution has no burden to disprove withdrawal under the Fifth Amendment Due Process Clause.

And now, “we look forward at some key evidence issues that may arise in 2014.”

Key Evidence Issues for 2014

1. Supreme Court Watch: Sixth Amendment (Confrontation Clause): Continuing Confusion On Expert Testimony Following Williams v. Illinois

2. Circuit Split: Sixth Amendment (Confrontation Clause): Division under the Confrontation Clause on “Language Conduit” Theory for Interpreters

3. Supreme Court Watch: Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence?

4. Open Issue (civil case):

5. Circuit Splits: Challenging A Verdict Based On Claims of Juror Racial Bias During Deliberations Or Claims of Juror Dishonesty During Voir Dire

6. Legislation: Will Congress Enact a New Media Shield Privilege?

7. Rule Amendment: Sixth Amendment (Confrontation Clause): More Notice and Demand Rules?

8. Rule Amendment: FRE 801(d)(1)(B): Encouraging the Use and Consideration Of Court-Appointed Experts

9. Rule Amendment: FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records)

10. Considering the Role of Cameras in the Courtroom

Professor Friedman, a frequent litigator on confrontation issues hasn’t blogged recently, but here is one related to post-Williams issues.

[T]he second petition for certiorari in Turner v. United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court’s conference on Friday but the Court did not take any action. (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.) It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take. There are several others pending. The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State’s response is not due until February 3. Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644, on Nov. 22.

(Note: I have one case pending at a CCA on issue 5 – impeaching a verdict.)

Here is an interesting piece on federal evidence review:

Motion for new trial on criminal extortion and bribery case denied, despite juror’s statement to newspaper after the verdict that because the defendants did not testify, the juror reasoned that “[if] they were innocent, they would have testified.’”; since members of the jury did not learn of the defendant’s failure to testify through improper channels, the evidence of their discussions was not admissible under FRE 606(b) as it was not an extrinsic influence, inUnited States v. Kelley, 461 F.3d 817 (6th Cir. Aug. 31, 2006) (Nos. 05-1361, 05-1435)

Two weeks ago, the Federal Evidence Blog reported a recent Ninth Circuit case in which the circuit remanded a conspiracy and arson conviction because the trial judge failed “to make adequate inquiries regarding news stories” that appeared during deliberations and their impact on juror’s deliberations; the judge erroneously failed to explore “whether any juror heard any of the information” and its impact on the jury. See “Trial Court’s Duty To Make ‘Adequate Inquiries’ About Extrinsic Influences On Jury” (Oct. 6, 2010). A contrasting and much more usual case is one in which a party learns of the influence of news reports after the trial concludes. For example, in United States v. Kelley,

In conspiracy and arson trial, reversing and remanding when trial court failed “to make adequate inquiries regarding news stories” that appeared during deliberations and their impact on juror’s deliberations; the judge erroneously failed to explore “whether any juror heard any of the information” and its impact on the jury, in United States v. Waters, __ F.3d __ (9th Cir. Sept. 15, 2010) (No. 08-30222)

The Ninth Circuit recently considered the trial court’s responsibilities to make specific inquiry of jurors when “adverse publicity occurs during deliberations” of the jury. The case can help clear up confusion about the role of the trial court, particularly in light of FRE 606(b) limiting inquiry into a verdict.

I would imagine the media access and media impact issues are going to have a continuing interest in court-martial cases under the UCMJ – Hasan, the Stryker Brigade cases, Wikileaks and Manning, to name a few.

Title: NIBCO, Inc. v. Rivera Docket: 10-383 Issue(s): (1) Whether a court of appeals must conduct a comparative juror analysis when reviewing a claim under Batson v. Kentucky, even though the comparative analysis was neither raised before nor considered by the trial court below; and (2) whether a court of appeals that identifies a suspected Batson problem based on a comparative juror analysis never considered by the trial court can vitiate a trial without remanding to allow the trial court to consider the new arguments and evidence in the first instance.

Title: Dunn v. Louisiana Docket: 10-386 Issue(s): Whether a court’s modification of the three-step Batson v. Kentucky analysis, requiring the defense to prove that its strikes were not motivated by race, while simultaneously requiring it to prove that the state’s strikes were motivated by race, violates the Sixth and Fourteenth Amendments.

Member: Sir I’m the unit victim advocate. Individual voir dire continues blah, blah, blah.

Def: The defense objects on implied bias and liberal grant mandate.

MJ: Explain why please.

Def: Blah, blah, blah.

TC: The government objects to the defense challenge. There is no evidence of bias or potential bias, the member won’t be an expert in the deliberation room, and the public won’t have a warped perception of the system with an advocate for sexual assault victims being a member in a case of multiple sexual assaults.

MJ: Challenge denied.

And yes, under the current prosecution extremely favorable pro-government (made by and for the government, even though they have unlimited preemptory challenges in the initial selection process) rule the member was pre-empted and the challenge can’t be preserved.

From my trial notebook.

Sine qua non for a fair court-martial is members free of bias. A member shall be excused in cases of actual bias or implied bias. United States v. Napoleon, 46 M.J. 279, 282-83 (C.A.A.F. 1997); United States v. Minyard, 46 M.J. 229, 231 (1997); United States v. Daulton, 45 M.J. 212, 217 (1996); United States v. Harris, 13 M.J. 288, 292 (C.M.A. 1982). Implied bias. Implied bias when “most people in the same position would be prejudiced.” United States v. Armstrong, 54 M.J. 51, 53-54 (2000), quoting United States v. Warden, 51 M.J. 78, 81 (1999); United States v. Smart, 21 M.J. 15, 20 (C.M.A. 1985). Implied bias is viewed through the eyes of the public, focusing on the appearance of fairness. United States v. Townsend, 65 M.J. 460 (C.A.A.F. 2008), is newest case on implied bias, which again seems to cut back on the concept; as well as the liberal grant mandate. This is a good 2008 article on implied bias, Colonel Louis J. Puleo, Implied Bias: A Suggested Disciplined Methodology, Army Law., Mar. 2008, at 34.

Ultimately the issue wasn’t preserved because of an acquittal on the two sexual assault charges.

This court has recognized that the standard of review in non-custodial collateral attacks on court-martial proceedings is “tangled.” United States ex rel. New v. Rumsfeld, 448 F.3d 403, 406 (D.C. Cir. 2006) (“New II”).

Sanford had been arguing that the government had the burden to demonstrate reasons why there should not have been at least six members on his court-martial panel, in accordance with Ballew v. Georgia, 435 U.S. 223 (1978). The district court dismissed Sanford’s case, and he appealed. The circuit court ultimately concluded that the burden was on Sanford to show reasons why there was a constitutional violation and that because he’d not done so, dismissal was proper. Thus, a special court-martial can still have less than six members. It is uncertain if Sandford will appeal.

The military appellate history of the case is:

United States v. Sanford, 2006 WL 4571896 (N-M. Ct. Crim. App. Nov. 6, 2006); pet. denied 64 M.J. 428 (C.A.A.F. 2007).