U.S. v. Albaaj, 65 M.J. 167

First Principles: Constitutional Matters: Right to a Jury Trial

1. a touchstone of a fair trial is an impartial trier of fact; where a potential member is not forthcoming, the process may well be burdened intolerably

Military Justice Personnel: Court Members: Generally

1. a touchstone of a fair trial is an impartial trier of fact; where a potential member is not forthcoming, the process may well be burdened intolerably
2. complete candor is expected from court members during voir dire; anything less undermines the purpose of the member selection process at trial and, in turn, potentially deprives an accused of an impartial determination of guilt and a fair trial
3. if a court member learns of information during the trial which makes an earlier response to a voir dire question inaccurate, the member should so advise the court; the duty of candor does not stop at the end of voir dire but is an obligation that continues through the duration of the trial; it makes no difference whether the member knew during voir dire that his response to a question was incorrect or whether he later realized, or reasonably should have realized, that his initial response was incorrect -- the duty to honestly inform the court is the same
4. a panel member is not the judge of his own qualifications; the duty to disclose cannot be dependent upon the court member’s own evaluation of either the importance of the information or his ability to sit in judgment; just as honest disclosure must be made in response to direct questions on voir dire, honest disclosures must be made throughout the trial regardless of the members’ own belief as to their ability to sit as court members
5. there can be no doubt that a question as to a potential member’s knowledge of a witness is material to an accused’s right to expose potential biases in order to ensure an impartial jury

Military Justice Personnel: Court Members: Challenges for Cause

1. challenges under RCM 912(f)(1)(N) –- i.e. where a member should not sit in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality -- encompass both actual and implied bias; these are separate legal tests, not separate grounds for challenge
2. in the case of actual bias, an appellate court is generally deferential to a military judge’s ruling because such challenges involve judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire
3. 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 making this objective evaluation, an appellate court asks whether most members in the same position as the challenged member would be prejudiced or biased; because of this objective test and the nature of the inquiries, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo

Trial Stages: Merits: Trial Procedures › Voir dire

1. voir dire examination serves to protect the right to a fair trial by exposing possible biases, both known and unknown, on the part of potential members; demonstrated bias in the responses to questions on voir dire may result in a member being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges; the necessity of truthful answers by prospective members if this process is to serve its purpose is obvious; where a potential member is not forthcoming, the process may well be burdened intolerably
2. complete candor is expected from court members during voir dire; anything less undermines the purpose of the member selection process at trial and, in turn, potentially deprives an accused of an impartial determination of guilt and a fair trial
3. if a court member learns of information during the trial which makes an earlier response to a voir dire question inaccurate, the member should so advise the court; the duty of candor does not stop at the end of voir dire but is an obligation that continues through the duration of the trial; it makes no difference whether the member knew during voir dire that his response to a question was incorrect or whether he later realized, or reasonably should have realized, that his initial response was incorrect -- the duty to honestly inform the court is the same
4. a panel member is not the judge of his own qualifications; the duty to disclose cannot be dependent upon the court member’s own evaluation of either the importance of the information or his ability to sit in judgment; just as honest disclosure must be made in response to direct questions on voir dire, honest disclosures must be made throughout the trial regardless of the members’ own belief as to their ability to sit as court members
5. there can be no doubt that a question as to a potential member’s knowledge of a witness is material to an accused’s right to expose potential biases in order to ensure an impartial jury

Trial Stages: Merits: New Trial

1. in determining whether a new trial is warranted when there is an allegation that a juror failed to disclose information during voir dire, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause

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

1. in the case of actual bias, an appellate court is generally deferential to a military judge’s ruling because such challenges involve judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire
2. 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 making this objective evaluation, an appellate court asks whether most members in the same position as the challenged member would be prejudiced or biased; because of this objective test and the nature of the inquiries, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo

Trial Stages: Petition for a New Trial: Generally

1. in determining whether a new trial is warranted when there is an allegation that a juror failed to disclose information during voir dire, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause
2. when a panel member failed to disclose that he knew the accused’s brother, who was a defense witness on both the merits and sentencing, this failure to disclose constituted juror misconduct and warranted a new trial; by failing to correct the misinformation he had given earlier during voir dire, the member violated his duty of candor; as a result of the panel member’s nondisclosure, appellant’s defense counsel was unaware of the relationship between the panel member and the accused’s brother during the trial when he could have made further inquiry into the nature of the relationship; as a result of that inquiry, he could have moved for a mistrial or asked that the panel member be removed from the panel prior to deliberations, either for cause or on the basis that he would have exercised his peremptory challenge against the member had he been aware of the relationship; therefore, the member’s failure to disclose information was material to the conduct of a fair and impartial trial; in addition, the evidence from the DuBay hearing reflected that the panel member had prior work-related contact with the accused’s brother and had made critical statements about him and questioned his honesty; also in dealing with a witness who is a brother of the accused, there is a risk that the member might impart his feelings about the witness to the accused; when viewed objectively, the circumstances of the relationship combined with the member’s failure to disclose it to the military judge injure the perception of fairness in the military justice system; most members in the same position would be prejudiced or biased; therefore, a valid basis for an implied bias challenge of the member was established; accordingly, the two-prong new trial test has been satisfied