U.S. v. Warden, 51 M.J. 78

Military Justice Personnel: Court Members: Challenges for Cause

1. actual bias is reviewed subjectively through the eyes of the military judge or the court members to determine whether any bias is such that it will not yield to the evidence presented and the judge’s instructions
2. actual bias is a question of fact, upon which the military judge is given great deference recognizing the he has observed the demeanor of the challenged party; the military judge’s denial of a challenge for cause based on actual bias will not be overturned unless there is a clear abuse of discretion in applying the liberal grant mandate
3. implied bias is viewed through the eyes of the public, focusing on the perception or appearance of fairness in the military justice system, and determining whether most people in the same position as the court member would be prejudiced
4. the military judge is given less deference on questions of implied bias, recognizing that where there is no question of actual bias, implied bias should be invoked rarely
5. court member’s prior professional relationship with witness was not disqualifying per se; nor did comment that court member would have faith in what potential witness said disqualify that member where the statement reflected that member would put no greater confidence in this witness than any other witness and record reflected that this “faith” flowed from fact that witness performed military duties just as is expected from any soldier
6. record failed to reflect implied bias where: (1) the member initiated the inquiry into his relationship with the witness; (2) relationship between senior member and enlisted witness was purely official rather than personal; (3) time between professional relationship and trial attenuated any impact from the relationship; and (4) member’s candor, forthright responses, and obvious concern about being fair enhanced the perception that appellant received a fair trial

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. actual bias is reviewed subjectively through the eyes of the military judge or the court members to determine whether any bias is such that it will not yield to the evidence presented and the judge’s instructions
2. actual bias is a question of fact, upon which the military judge is given great deference recognizing the he has observed the demeanor of the challenged party; the military judge’s denial of a challenge for cause based on actual bias will not be overturned unless there is a clear abuse of discretion in applying the liberal grant mandate
3. implied bias is viewed through the eyes of the public, focusing on the perception or appearance of fairness in the military justice system, and determining whether most people in the same position as the court member would be prejudiced
4. the military judge is given less deference on questions of implied bias, recognizing that where there is no question of actual bias, implied bias should be invoked rarely