U.S. v. Terry, 64 M.J. 295

Military Justice Personnel: Court Members: Generally

1. the impartiality of members is a core principle of the military justice system, and the sine qua non for a fair court-martial

Military Justice Personnel: Court Members: Challenges for Cause

1. the liberal grant mandate applicable to challenges for cause exists not just to protect an accused’s right to a fair trial, but also to protect society’s interest, including the interests of the government and the victims of crime, in the prompt and final adjudication of criminal accusations
2. a prior connection to a crime similar to the one being tried before the court-martial is not per se disqualifying to a member’s service
3. the fact that a member was close to someone who had been a victim of a similar crime is not grounds for per se disqualification; likewise, mere distaste for certain offenses is not automatically disqualifying
4. a military judge’s determinations on the issue of member bias, actual or implied, are based on the totality of the circumstances particular to a case; such determinations are guided by the longstanding and often-stated holding that challenges for cause are to be liberally granted
5. the test for actual bias is whether any bias is such that it will not yield to the evidence presented and the judge’s instructions
6. regardless of a member’s prior exposure to a crime, it is often possible for a member to rehabilitate himself before the military judge by honestly claiming that he would not be biased; even in light of a member’s extensive exposure to the same sort of crime that the member is being asked to adjudge at court-martial, appellate courts have regularly found the absence of actual bias when the military judge reported that following voir dire that judge was satisfied with the honesty of the member and convinced that the member was neither “inflexible” nor resistant to the evidence or the judge’s instructions
7. appellate courts have found actual bias when members have been victims of similar, particularly violent or traumatic crimes, or if other unique circumstances pertained
8. the military judge in a rape case did not err in finding an absence of actual bias in members who indicated during voir dire that they knew family and friends who had been victims of sexual assault, where there were no exacerbating circumstances present and where the military judge’s assessed the members’ demeanor and truthfulness during voir dire and concluded that they exhibited no actual bias and would be impartial
9. the military judge in a rape case did not err in denying a challenge for cause of a member who indicated during voir dire that his wife had been the victim of some form of sexual assault by her stepfather, where there were a number of factors that tended to ameliorate that member’s exposure to the crime, dispelling the appearance of implied bias; first, the crime took place at least ten years prior to the court-martial and before the member even knew his wife; second, it was never reported to law enforcement, nor did it cause his wife to receive any counseling, and as a couple, they had not discussed the incident for over five years; third, the member’s wife had somewhat reconciled with her stepfather; and finally, the military judge’s interpretation of the member’s initial discomfort in speaking about his wife’s abuse was justifiably described as emanating from his concern for his wife’s reputation in the community, rather than any distress he personally suffered due to his wife’s experiences
10. the military judge in a rape case erred in not granting a challenge for cause against a member whose longtime girlfriend who he might have married was raped, became pregnant, ended their relationship as a result of the experience, and later named the child after the member; most persons in the member’s position would have difficulty sitting on a rape trial, even given the passage of six years since the event; further, an objective observer might well have doubts about the fairness of the accused’s court-martial panel; under the liberal grant mandate, the military judge erred in not eliminating such doubts from the accused’s court-martial at the outset; the member’s experience with rape was too distinct to pass the implied bias muster

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Carnal Knowledge Pre-2019 offenses

1. it has long been the law with respect to the offense of rape that where intimidation or threats of death or physical injury make resistance futile, it is said that constructive force has been applied; further, constructive force may consist of expressed or implied threats of bodily harm

Trial Stages: Merits: Instructions › Generally

1. generally, a military judge is granted considerable discretion in deciding which instructions to give; the military judge will generally instruct on matters that are in issue; a matter is in issue when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose
2. the military judge did not abuse her discretion in giving a constructive force instruction on a rape charge where the record contained some evidence that the accused intimidated the victim into sexual intercourse without consent and that the victim’s perception of this intimidation and her attendant fear were reasonable; among other things, there was some evidence that the accused, acting under the guise of an E-5 medical technician in order to gain the victim’s trust for the purported test, lured the victim to an isolated part of the hospital at off-duty hours, that he told the victim not to scream, and that the victim was really scared

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

1. where military judges consider implied bias and apply the liberal grant mandate on the record, deference is warranted
2. the existence of actual bias is a question of fact, and an appellate court consequently provides the military judge with significant latitude in determining whether it is present in a prospective member; that the military judge, rather than the reviewing court, has been physically present during voir dire and watched the challenged member’s demeanor makes the military judge specially situated in making this determination
3. in analyzing implied bias, appellate courts provide less deference to the military judge; here, the military judge’s privileged position at trial is less important because the test for implied bias is objective, and asks whether, in the eyes of the public, the challenged member’s circumstances do injury to the perception of appearance of fairness in the military justice system; in considering this question, courts also consider whether most people in the same position would be prejudiced, that is, biased; consequently, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo