U.S. v. Armstrong, 54 M.J. 51

Military Justice Personnel: Court Members: Challenges for Cause

1. although appellant did not specifically articulate a challenge based on implied bias, Court of Criminal Appeals was not constrained by plain error doctrine in reviewing claim on appeal under Article 66, UCMJ
2. a challenge for cause under RCM 912(f)(1)(N) encompasses both actual and implied bias which are separate legal tests, not separate grounds for challenge
3. implied bias is viewed through the eyes of the public, focusing on the perception or appearance of fairness of the military justice system, and asking whether most people in the same position as the challenged member would be prejudiced; military judges are given less deference on questions of implied bias, but where there is no actual bias, implied bias should be invoked rarely
4. where the Court of Criminal Appeals could not determine from the record whether the military judge tested a challenged member for implied bias, the Court of Criminal Appeals was empowered to make its own judgment if it believed that implied bias warranted granting the challenge for cause
5. in reviewing decision of Court of Criminal Appeals on implied bias, the question is whether that court abused its discretion by making findings of fact that are clearly erroneous or unsupported by the record, or by basing its decision on an erroneous view of the law; this is not a de novo review, but is a review under a somewhat less deferential standard than actual bias
6. exercise of peremptory challenge against a member who was the subject of unsuccessful challenge for cause does not preclude appellate review of challenge for cause where RCM 912(f)(4) preserves that right and that right is not in conflict with any higher authority

Military Justice Personnel: Court Members: Peremptory Challenges

1. exercise of peremptory challenge against a member who was the subject of unsuccessful challenge for cause does not preclude appellate review of challenge for cause where RCM 912(f)(4) preserves that right and that right is not in conflict with any higher authority

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. although appellant did not specifically articulate a challenge based on implied bias, Court of Criminal Appeals was not constrained by plain error doctrine in reviewing claim on appeal under Article 66, UCMJ
2. when a Court of Criminal Appeals reviews a military judge’s rulings, it has the awesome plenary, de novo power of review to substitute its judgment for that of the military judge
3. where the Court of Criminal Appeals could not determine from the record whether the military judge tested a challenged member for implied bias, the Court of Criminal Appeals was empowered to make its own judgment if it believed that implied bias warranted granting the challenge for cause

Trial Stages: Appeals: Preservation of Error / Plain Error

1. although appellant did not specifically articulate a challenge based on implied bias, Court of Criminal Appeals was not constrained by plain error doctrine in reviewing claim on appeal under Article 66, UCMJ
2. exercise of peremptory challenge against a member who was the subject of unsuccessful challenge for cause does not preclude appellate review of challenge for cause where RCM 912(f)(4) preserves that right and that right is not in conflict with any higher authority

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

1. a military judge’s ruling on a challenge for cause is reviewed for abuse of discretion
2. in reviewing decision of Court of Criminal Appeals on implied bias, the question is whether that court abused its discretion by making findings of fact that are clearly erroneous or unsupported by the record, or by basing its decision on an erroneous view of the law; this is not a de novo review, but is a review under a somewhat less deferential standard than actual bias