U.S. v. Alexander, 61 M.J. 266

First Principles: Jurisdiction: In Personam

1. questions of jurisdiction are not subject to waiver; jurisdiction over the person, as well as jurisdiction over the subject matter, may not be the subject of waiver; a jurisdictional defect goes to the underlying authority of a court to hear a case; thus, a jurisdictional error impacts the validity of the entire trial and mandates reversal

First Principles: Jurisdiction: Subject Matter

1. questions of jurisdiction are not subject to waiver; jurisdiction over the person, as well as jurisdiction over the subject matter, may not be the subject of waiver; a jurisdictional defect goes to the underlying authority of a court to hear a case; thus, a jurisdictional error impacts the validity of the entire trial and mandates reversal

Military Justice Personnel: Court Members: Enlisted Members

1. in plain language, both the Art. 25(c)(1), UCMJ and RCM 903(b)(2) require that an accused personally elect to be tried by a panel including enlisted members, either orally on the trial record or in writing
2. depending on the facts of a particular case, the failure to comply with the provisions of Article 25(c) may be nonjurisdictional and tested for prejudice under Article 59(a)
3. the failure to obtain an accused’s enlisted forum selection through an explicit oral or written election on the record constitutes error; however, when the record provides evidence that an accused personally requested enlisted members, the failure to record the members selection as prescribed by Article 25 amounts to a procedural error, subject to prejudice review
4. in this case, where (1) the military judge presented the accused with his forum options on the record; (2) the accused acknowledged his options and deferred election; (3) the military judge subsequently stated on the record that an election had been made for a panel including enlisted members, without comment or correction by counsel or the accused; and (4) the accused proceeded through voir dire and trial with a panel of one-third enlisted members, without objection, the record reflects that the accused chose trial by members with one-third enlisted members; as a result, this Court finds that the error in failing to obtain the accused’s enlisted forum selection through an explicit oral or written election on the record is a procedural error and not jurisdictional, and it concludes that the accused did not suffer material prejudice to a substantial right

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where an error is procedural rather than jurisdictional in nature, this Court tests for material prejudice to a substantial right to determine whether relief is warranted

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

1. this Court reviews jurisdictional questions de novo; however, where an error is procedural rather than jurisdictional in nature, this Court tests for material prejudice to a substantial right to determine whether relief is warranted

Trial Stages: Appeals: Waiver

1. questions of jurisdiction are not subject to waiver; jurisdiction over the person, as well as jurisdiction over the subject matter, may not be the subject of waiver; a jurisdictional defect goes to the underlying authority of a court to hear a case; thus, a jurisdictional error impacts the validity of the entire trial and mandates reversal