U.S. v. Bragg, 66 M.J. 325

First Principles: Constitutional Matters: Right to a Jury Trial

1. an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel

Military Justice Personnel: Military Judge: Generally

1. an appellate court gives a military judge great deference when deciding whether actual bias exists because it is a question of fact, and the judge has observed the demeanor of the challenged member; a military judge is afforded less deference when an appellate court reviews a challenge for cause based on implied bias because the issue is objectively viewed through the eyes of the public, focusing on the appearance of fairness; thus, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo; however, a military judge who addresses implied bias by applying the liberal grant mandate on the record will receive more deference on review than one that does not; an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted
2. in the context of implied bias, a military judge need not doubt the sincerity or veracity of a member’s statements that he could evaluate the evidence with an open mind, in order to nonetheless conclude that the member should not sit; it is not always possible to resolve facts or determine credibility and still remove the perception of doubt as to whether a member should sit; implied bias and the liberal grant mandate allow a military judge to uphold the letter and spirit of RCM 912 without at the same time questioning a member’s statement that he can sit with an open mind
3. military judge erred in denying defense challenge for cause of a senior member on the panel who indicated during voir dire that he was aware of information about the case not available to the other members and from a source not readily available to others, and who suggested that prior to trial, it was likely that he would have been in a position to recommend, and may have recommended adverse administrative action against the accused, for conduct forming the basis of the charges before the court-martial; the liberal grant mandate exists for cases like this; viewing the factual circumstances objectively, a member of the public would have substantial doubt that it was fair for this member to sit on a panel where that member had likely already reached a judgment as to whether the charged misconduct occurred; this perception of unfairness is compounded when that member has likely reached such a conclusion based on information gained prior to trial

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912(f)(1)(N) requires that a member be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; while this rule applies to both actual and implied bias, the focus of this rule is on the perception or appearance of fairness of the military justice system
2. implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced [i.e., biased]
3. the purpose of voir dire and challenges is, in part, to ferret out facts, to make conclusions about the members’ sincerity, and to adjudicate the members’ ability to sit as part of a fair and impartial panel; however, the text of RCM 912 is not framed in the absolutes of actual bias, but rather addresses the appearance of fairness as well, dictating the avoidance of situations where there will be substantial doubt as to fairness or impartiality; thus, implied bias picks up where actual bias drops off because the facts are unknown, unreachable, or principles of fairness nonetheless warrant excusal
4. in the context of implied bias, a military judge need not doubt the sincerity or veracity of a member’s statements that he could evaluate the evidence with an open mind, in order to nonetheless conclude that the member should not sit; it is not always possible to resolve facts or determine credibility and still remove the perception of doubt as to whether a member should sit; implied bias and the liberal grant mandate allow a military judge to uphold the letter and spirit of RCM 912 without at the same time questioning a member’s statement that he can sit with an open mind; the liberal grant mandate and principles of implied bias also remove the necessity of reaching conclusions of fact that are beyond the capacity of the member to recall
5. military judge erred in denying defense challenge for cause of a senior member on the panel who indicated during voir dire that he was aware of information about the case not available to the other members and from a source not readily available to others, and who suggested that prior to trial, it was likely that he would have been in a position to recommend, and may have recommended adverse administrative action against the accused, for conduct forming the basis of the charges before the court-martial; the liberal grant mandate exists for cases like this; viewing the factual circumstances objectively, a member of the public would have substantial doubt that it was fair for this member to sit on a panel where that member had likely already reached a judgment as to whether the charged misconduct occurred; this perception of unfairness is compounded when that member has likely reached such a conclusion based on information gained prior to trial

Trial Stages: Merits: Trial Procedures › Voir dire

1. the purpose of voir dire and challenges is, in part, to ferret out facts, to make conclusions about the members’ sincerity, and to adjudicate the members’ ability to sit as part of a fair and impartial panel

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

1. an appellate court gives a military judge great deference when deciding whether actual bias exists because it is a question of fact, and the judge has observed the demeanor of the challenged member; a military judge is afforded less deference when an appellate court reviews a challenge for cause based on implied bias because the issue is objectively viewed through the eyes of the public, focusing on the appearance of fairness; thus, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo; however, a military judge who addresses implied bias by applying the liberal grant mandate on the record will receive more deference on review than one that does not; an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted
2. in making judgments regarding implied bias, an appellate court looks at the totality of the factual circumstances; implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced [i.e., biased]