U.S. v. Briggs, 64 M.J. 285

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912(f)(1)(N) requires removal for cause when a court member should not sit in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; RCM 912 (f)(1)(N) encompasses both actual and implied bias; the concepts of actual and implied bias are separate legal tests, not separate grounds for challenge
2. because a challenge based on actual bias is essentially one of credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility on voir dire, a military judge’s ruling on actual bias is afforded deference
3. implied bias is viewed through the eyes of the public, focusing on the appearance of fairness
4. implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced, that is, biased
5. since implied bias is an objective standard, a military judge’s ruling on implied bias, while not reviewed de novo, is afforded less deference than a ruling on actual bias; however, deference is warranted only when the military judge indicates on the record an accurate understanding of the law and its application to the relevant facts
6. the military judge erred when he denied a challenge for cause for implied bias against a member who was the spouse of the accused’s flight commander where the accused was charged with stealing and later re-selling survival vests from aircraft he was responsible for maintaining; the flight commander’s safety might have been implicated by the theft of survival vests and his performance evaluation might have been affected by criminal conduct regarding critical squadron equipment; in addition, the immediate commander is often responsible for the initial inquiry into potential misconduct occurring within his command and the initial decision as to disposition; the intent of the drafters of the UCMJ was to prevent courts-martial from being an instrumentality and agency to express the will of the commander, or to appear to be such an instrumentality; the decision to retain the spouse of the accused’s immediate commander unnecessarily raised the perception of improper command bias

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

1. because a challenge based on actual bias is essentially one of credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility on voir dire, a military judge’s ruling on actual bias is afforded deference
2. since implied bias is an objective standard, a military judge’s ruling on implied bias, while not reviewed de novo, is afforded less deference than a ruling on actual bias; however, deference is warranted only when the military judge indicates on the record an accurate understanding of the law and its application to the relevant facts