U.S. v. McFadden, 74 M.J. 87

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. after appellant testified on her own behalf, a court member asked if she was aware of the concept of lying by omission by exercising her right to remain silent; after the defense moved for a mistrial, the military judge denied the motion and provided the following curative instruction to the members: “You may not consider the accused’s exercise of her right to remain silent in any way adverse to the accused. You may not consider such exercise as lying by omission.”; in this case, the member’s question was not so prejudicial that a curative instruction was inadequate, and there is no evidence the members did not follow those instructions; as such, the military judge did not abuse his discretion by denying the motion for mistrial and he did not have a sua sponte duty to excuse the court member
2. to avoid issues with questions posed by members, the military judge should review and rule on the member’s questions before permitting them to be asked
3. a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings
4. a mistrial is an unusual and disfavored remedy; it should be applied only as a last resort to protect the guarantee for a fair trial; it is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice
5. because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions; a curative instruction is preferred to granting a mistrial, which should only be granted when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members
6. the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie; a military judge has the discretionary authority to sua sponte excuse the member but has no duty to do so; the discretionary authority of a military judge to excuse a member sua sponte in the interest of justice may be characterized as a drastic action

Military Justice Personnel: Military Judge: Discretion

1. abuse his discretion by denying the motion for mistrial
2. a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings
3. a mistrial is an unusual and disfavored remedy; it should be applied only as a last resort to protect the guarantee for a fair trial; it is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice
4. because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions; a curative instruction is preferred to granting a mistrial, which should only be granted when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members
5. an appellate court will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion
6. the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie; a military judge has the discretionary authority to sua sponte excuse the member but has no duty to do so; the discretionary authority of a military judge to excuse a member sua sponte in the interest of justice may be characterized as a drastic action

Military Justice Personnel: Military Judge: Instructions

1. after appellant testified on her own behalf, a court member asked if she was aware of the concept of lying by omission by exercising her right to remain silent; after the defense moved for a mistrial, the military judge denied the motion and provided the following curative instruction to the members: “You may not consider the accused’s exercise of her right to remain silent in any way adverse to the accused. You may not consider such exercise as lying by omission.”; in this case, the member’s question was not so prejudicial that a curative instruction was inadequate, and there is no evidence the members did not follow those instructions; as such, the military judge did not abuse his discretion by denying the motion for mistrial and he did not have a sua sponte duty to excuse the court member
2. because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions; a curative instruction is preferred to granting a mistrial, which should only be granted when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members

Military Justice Personnel: Court Members: Generally

1. absent evidence to the contrary, court members are presumed to comply with the military judge’s instructions

Military Justice Personnel: Court Members: Challenges for Cause

1. the parties have the right to challenge court members for cause; a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having a court-martial free from substantial doubt as to legality, fairness, and impartiality; a party may challenge a member for cause during trial when it becomes apparent that a ground for challenge may exist, and a hearing may be held to resolve the issue
2. the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie; a military judge has the discretionary authority to sua sponte excuse the member but has no duty to do so; the discretionary authority of a military judge to excuse a member sua sponte in the interest of justice may be characterized as a drastic action

Military Justice Personnel: Court Members: Interrogation by Members

1. after appellant testified on her own behalf, a court member asked if she was aware of the concept of lying by omission by exercising her right to remain silent; after the defense moved for a mistrial, the military judge denied the motion and provided the following curative instruction to the members: “You may not consider the accused’s exercise of her right to remain silent in any way adverse to the accused. You may not consider such exercise as lying by omission.”; in this case, the member’s question was not so prejudicial that a curative instruction was inadequate, and there is no evidence the members did not follow those instructions; as such, the military judge did not abuse his discretion by denying the motion for mistrial and he did not have a sua sponte duty to excuse the court member
2. to avoid issues with questions posed by members, the military judge should review and rule on the member’s questions before permitting them to be asked

Trial Stages: Merits: Instructions › Generally

1. after appellant testified on her own behalf, a court member asked if she was aware of the concept of lying by omission by exercising her right to remain silent; after the defense moved for a mistrial, the military judge denied the motion and provided the following curative instruction to the members: “You may not consider the accused’s exercise of her right to remain silent in any way adverse to the accused. You may not consider such exercise as lying by omission.”; in this case, the member’s question was not so prejudicial that a curative instruction was inadequate, and there is no evidence the members did not follow those instructions; as such, the military judge did not abuse his discretion by denying the motion for mistrial and he did not have a sua sponte duty to excuse the court member
2. because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions; a curative instruction is preferred to granting a mistrial, which should only be granted when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members

Trial Stages: Merits: Mistrial

1. after appellant testified on her own behalf, a court member asked if she was aware of the concept of lying by omission by exercising her right to remain silent; after the defense moved for a mistrial, the military judge denied the motion and provided the following curative instruction to the members: “You may not consider the accused’s exercise of her right to remain silent in any way adverse to the accused. You may not consider such exercise as lying by omission.”; in this case, the member’s question was not so prejudicial that a curative instruction was inadequate, and there is no evidence the members did not follow those instructions; as such, the military judge did not abuse his discretion by denying the motion for mistrial and he did not have a sua sponte duty to excuse the court member
2. a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings
3. a mistrial is an unusual and disfavored remedy; it should be applied only as a last resort to protect the guarantee for a fair trial; it is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice
4. because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions; a curative instruction is preferred to granting a mistrial, which should only be granted when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members

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

1. an appellate court will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion
2. absent evidence to the contrary, court members are presumed to comply with the military judge’s instructions