U.S. v. Schlamer, 52 M.J. 80

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912(f)(1)(N)’s requirement that a court member be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality includes challenges based on both actual bias and implied bias
2. the test for actual bias is whether it is such that it will not yield to the evidence presented and the judge’s instructions, and determinations of actual bias generally involve issues of credibility and demeanor; a military judge enjoys great deference in his determinations of actual bias because he has observed the demeanor of the potential member during the voir dire and challenge process
3. implied bias is viewed objectively through the eyes of the public, focusing on the perception or appearance of fairness in the military justice system; less deference is given to a military judge’s determinations under this objective standard than is given on questions of actual bias
4. military judge did not abuse discretion denying challenge for cause where: (1) although member’s questionnaire indicated that she believed an accused should testify or produce evidence, her answers during voir dire indicated only that she thought the accused should have an opportunity to be heard and that she would not draw adverse inferences if the accused elected not to testify; (2) although member had a tough sentencing philosophy, her answers indicated willingness to follow instructions, keep an open mind, and consider all the facts; (3) the member’s responses were not simply acquiescing to leading questions; (4) the member was not pushed into “correct” answers by the military judge or trial counsel; and, (5) the military judge found the member to be credible
5. as to whether a member was disqualified for implied bias, the military judge did not abuse his discretion where record reflected that member’s responses on questionnaire did not accurately reflect her views, and member’s responses on voir dire as well as the entire record would not cause a reasonable person to question the fairness of the proceedings
6. mere distaste for certain offenses is not automatically disqualifying
7. an inflexible member is disqualified; a tough member is not
8. military judge did not abuse his discretion in granting challenge for cause of member who had received prior nonjudicial punishment; the military judge was in the best position to hear the member’s responses, observe that member’s demeanor, and judge whether the experience of nonjudicial punishment would cause the member to be other than fair and impartial

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. a military judge had broad discretion to prevent a party from smuggling inadmissible hearsay into the case under the guise of testing the basis for expert testimony; thus, military judge did not abuse his discretion by preventing defense counsel from asking one expert what his opinion was of another, non-testifying expert’s opinion

Core Criminal Law Subjects: Evidence: Relevance

1. a “poem” glorifying heavy consumption of beer and violent acts against women, and descriptions of photographs depicting deceased women displayed in the accused’s room at the time of murder, were relevant on the issue of premeditation

Trial Stages: Appeals: Preservation of Error / Plain Error

1. objection that testimony was “speculation, ultimate issue” was not sufficient to preserve objection that testimony was a violation of the prohibition against human lie-detector testimony
2. it is well settled that an expert may not opine that an out-of-court statement is true; however, where defense suggested during cross-examination of law enforcement agent that he had obtained a “false confession” by creating intimidating environment, using leading questions, and suggesting facts to appellant during interrogation, trial counsel’s question, asking agent if he had obtained a “false confession”, did not rise to the level of plain error

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

1. military judge’s ruling on a challenge for actual bias will be reviewed for clear abuse of discretion, giving great deference to the credibility determinations of the military judge; rulings on challenges for implied bias are reviewed for abuse of discretion, but under a somewhat less deferential standard
2. military judge has wide discretion in applying MRE 403, and appellate courts exercise great restraint in reviewing a military judge’s decisions under MRE 403
3. military judge’s determination that evidence is relevant will not be overturned unless there is a clear abuse of discretion
4. military judge’s ruling on the admissibility of evidence is reviewed for clear abuse of discretion