Juror testimony or misconduct

(b) During an Inquiry into the Validity of a Finding or Sentence.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.

(2) Exceptions. A member may testify about whether:

(A) extraneous prejudicial information was improperly brought to the members’ attention;

(B) unlawful command influence or any other outside influence was improperly brought to bear on

any member; or

(C) a mistake was made in entering the finding or sentence on the finding or sentence forms.

But what if there is a problem? What happens if you or your military defense counsel hear about something wrong or odd happening during deliberations that might mean your court-martial trial was not fair. What does the rule really mean and what do the exceptions cover--those are questions most likely to be dealt with by your appellate defense counsel.

I have one personal example for you and some discussion of some court cases that may be helpful.

I represented an Army officer some years ago at trial who was ultimately convicted of one of five charges by a "jury."

After trial one of the Members said something interesting in a conversation with a military defense lawyer who was helping the client post-trial.

(Remember, the military calls the jury a Members Panel.)

On appeal we litigated whether the two senior (O-6) members had influenced the decision with comments like "politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or "based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault." The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations--the client was acquitted at retrial.

What if the issue is racial bias exhibited by one or more of the members during deliberations. There is one military case that is worth checking which cites and considers the U.S. Supreme Court case in Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869, 197 L. Ed. 2d 107 (2017).

In Robertson, the Air Force Court of Criminal Appeals made clear that

"where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee." We perceive no reason why this concern would not apply equally to trial by court-martial.

United States v. Robertson, 77 M.J. 518, 526 (A. F. Ct. Crim. App. 2017) aff’d in part rev’d in part on other grounds, 77 M.J. 365 (C.A.A.F. 2020) (the AFCCA found insufficient evidence to believe racial bias or animus influenced the trial members panel decision. Another case to consider is United States v. Leal, __ M.J. ___ (C.G. Ct. Crim. App. May 3, 2021), petition pending CAAF. In Leal, the issue became whether to senior member, an O-6, had influenced the enlisted members to vote for guilt. The CGCCA found insufficient evidence to overturn the conviction because of the senior member's alleged influence.

In Iowa v. Spates, 

the The court applied Pena-Rodriguez and said that appellate review had to apply an objective not subjective standard and so they remanded the case.

[W]hether to receive juror testimony and whether to grant a new trial—should be based on objective circumstances, e.g., what was said; how and when it was said; what was said and done before and after; whether and how the statements relate to evidence in the case; whether and how the statements relate to the issues the jury will decide when reaching a verdict. Conversely, neither determination should depend on the jurors’ subjective evaluations of their own motives—or the motives of other jurors—in voting to convict.

We now have Missouri v. Gilbert, which says a jury verdict cannot be impeached when there is evidence the jurors held the accused's silence against him. 

The court emphazised the limited exceptions in their state law making it only possible to have testimony about juror misconduct that happened outside the jury room or testimony about jury misconduct that occurred during deliberations where a juror makes statements evincing ethnic or religious bias or prejudice during deliberations.

Gilbert was trying to create a new Missouri court made exception for "improper consideration of a defendant's failure to testify in reaching its verdict." The Missouri court said it would not create this new exception.

In doing so, they referenced Pena-Rodriguez where the U.S. Supreme Court "warned that creating further exceptions to the general rule could create havoc: “[t]o attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. It is not at all clear ... that the jury system would survive such efforts to perfect it.” Id. at 868 (internal citations and quotations omitted).

Presented with a potential jury / members panel misconduct problem at court-martial, the military defense lawyer has some room to work in developing the issue, especially when it relates to racially biased actions. One significant difference from civilian practice is the ability to find out about unlawful command or similar influences.