U.S. v. Elfayoumi, 66 M.J. 354

First Principles: Constitutional Matters: Due Process

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

First Principles: Constitutional Matters: Right to a Jury Trial

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

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the duty of judges is to uphold the law in constitutional context; this includes the constitutional and statutory duty to ensure that an accused receives a fair trial; that means, among other things, that where a court-martial is conducted with members, deliberations will be based on the four corners of the law and not the personal views of members; to accomplish this end, the military judge has a number of tools, including the authority to oversee and conduct voir dire and to instruct members on the law and their deliberations
2. recognizing the human condition, the law gives a military judge the added flexibility, and duty, to err on the side of caution where there is substantial doubt as to the fairness of having a member sit because of that member’s moral or religious views; thus, the military judge need not impugn the integrity or values of the member in finding actual bias, but can in context rely on the implied bias/liberal grant doctrine if substantial doubt arises that the member can put his or her views aside

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge did not abuse his discretion in denying a challenge for cause on the basis of implied bias against a member who expressed a view that homosexuality and pornography were morally wrong, where the military judge tested for the member for personal bias that might manifest itself during the members’ deliberations, regardless of the military judge’s instructions on the law, where the military judge specifically questioned the member on his ability to separate his personal views from the facts of the case and disaggregated the question of homosexuality from the charged criminal conduct, where the military judge permitted defense counsel to question the member without restriction, and where the member’s answers to defense counsel’s questions about his views on pornography revealed that he could distinguish between that which he might find immoral and that which the law might deem criminal

Military Justice Personnel: Court Members: Generally

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

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912(f)(1)(N) requires an excusal for cause where it appears an individual should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; this rule encompasses challenges based upon both actual and implied bias; implied bias exists when most people in the same position as the court member would be prejudiced
2. as a general matter, moral or religious views are not per se disqualifying where a member otherwise demonstrates a capacity to hear a case based on the four corners of the law and as instructed by the military judge
3. recognizing the human condition, the law gives a military judge the added flexibility, and duty, to err on the side of caution where there is substantial doubt as to the fairness of having a member sit because of that member’s moral or religious views; thus, the military judge need not impugn the integrity or values of the member in finding actual bias, but can in context rely on the implied bias/liberal grant doctrine if substantial doubt arises that the member can put his or her views aside
4. it would not be unusual for members to have strongly held views about lawful conduct involving sex or pornography; indeed, in today’s society it will be hard to find a member who does not hold such views, one way or another; so too, a member might have a strongly held view about unlawful conduct -- murder, shoplifting, forcible sodomy, etc; most, if not all members, would; also, most members would have a natural propensity to be either lenient or punitive depending on their personal views on these subjects; the law anticipates this human condition; thus, the question is not whether they have views about certain kinds of conduct and inclinations regarding punishment, but whether they can put their views aside and judge each particular case on its own merits and the law, such that appellate courts, in applying RCM 912, are not left in substantial doubt as to the fairness or impartiality of the members
5. in this case, the military judge did not abuse his discretion in denying a challenge for cause on the basis of implied bias against a member who expressed a view that homosexuality and pornography were morally wrong, where the military judge tested for the member for personal bias that might manifest itself during the members’ deliberations, regardless of the military judge’s instructions on the law, where the military judge specifically questioned the member on his ability to separate his personal views from the facts of the case and disaggregated the question of homosexuality from the charged criminal conduct, where the military judge permitted defense counsel to question the member without restriction, and where the member’s answers to defense counsel’s questions about his views on pornography revealed that he could distinguish between that which he might find immoral and that which the law might deem criminal

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

1. to test whether there is substantial doubt about the fairness of the trial, an appellate court evaluates implied bias objectively, through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system; this review is based on the totality of the circumstances; although an appellate court reviews issues of implied bias for an abuse of discretion, because it applies an objective test, it applies a less deferential standard than it would when reviewing a claim of actual bias