U.S. v. Nieto, 66 M.J. 146

Trial Stages: Merits: Trial Procedures › Voir dire

1. voir dire provides an opportunity to explore whether a member possesses partiality or otherwise is subject to challenge, and the military judge has broad discretion in the conduct of voir dire
2. as a general matter, hypothetical questions provide a permissible means of exploring potential grounds for challenge
3. a number of courts have held that certain hypothetical questions during voir dire are impermissible if they seek to obtain a commitment from jurors to agree to decide the case in a particular way upon a hypothetical set of facts; a number of other courts have adopted a broader prohibition, precluding questions that ask jurors to commit themselves to resolving a particular aspect of the case in a specific way based upon a hypothetical set of facts; however, there are no decisions from the federal civilian courts that would indicate a generally applicable standard for considering hypothetical voir dire questions in the trial of criminal cases in federal district courts

Trial Stages: Appeals: Preservation of Error / Plain Error

1. to establish plain error, appellant bears the burden of demonstrating that (1) an error was committed, (2) the error was plain, clear, or obvious, and (3) the error resulted in material prejudice to appellant’s substantial rights
2. in this case, the military judge did not commit plain error in permitting trial counsel to ask hypothetical questions during voir dire using facts from the accused’s case concerning urinalysis testing; at the time of trial, the case law from CAAF did not preclude the trial counsel’s questions, generally applicable federal criminal law did not provide guidance on point, and only a handful of state cases addressed this matter; in that context, appellant failed to carry his burden of demonstrating that the military judge committed an error that was plain or obvious in permitting the trial counsel to ask the hypothetical questions

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

1. where there was no objection by the defense to hypothetical questions asked by the trial counsel during the voir dire of panel members, an appellate court applies a plain error standard of review to the defense allegation that the prosecution improperly sought to obtain from the panel members a commitment to convict appellant based upon a hypothetical set of facts
2. to establish plain error, appellant bears the burden of demonstrating that (1) an error was committed, (2) the error was plain, clear, or obvious, and (3) the error resulted in material prejudice to appellant’s substantial rights