U.S. v. Commisso, 76 M.J. 315

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; indeed, impartial court-members are a sine qua non for a fair court-martial

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; indeed, impartial court-members are a sine qua non for a fair court-martial

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his discretion when: (1) he predicates his ruling on findings of fact that are not supported by the evidence of record; (2) he uses incorrect legal principles; (3) he applies correct legal principles to the facts in a way that is clearly unreasonable, or (4) he fails to consider important facts
2. failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause
3. under the facts of this case, the military judge abused his discretion in denying appellant’s motion for a mistrial where, in appellant’s trial for various sex offenses, three panel members gave inaccurate statements during voir dire about their association with the sexual assault response system and their exposure to the facts of appellant’s case and they failed to correct these inaccurate statements during trial; not only did the members fail to answer material questions honestly at voir dire, had they answered honestly, their responses would have provided a valid basis for a challenge for cause, especially considering the cumulative effect of having three panel members serve on the same panel under a specter of possible bias that they each recognized, and even talked about during trial, but did not disclose

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; indeed, impartial court-members are a sine qua non for a fair court-martial

Military Justice Personnel: Court Members: Challenges for Cause

1. a member shall 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; such substantial doubt arises when, in the eyes of the public, the challenged member’s circumstances do injury to the perception or appearance of fairness in the military justice system
2. failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause
3. a panel member is dishonest when he fails to exhibit complete candor
4. the test for member dishonesty is not whether the panel members were willfully malicious or intended to deceive; it is whether they gave objectively correct answers
5. because a panel member is not the judge of his own qualifications, each member must answer fully and correctly on voir dire regardless of his own subjective evaluation of either the importance of the information or his ability to sit in judgment; it is therefore settled law that a panel member has an ongoing duty to advise the court of any answers he or she realizes, or reasonably should have realized, were incorrect or have become incorrect before the close of trial
6. under RCM 912(f)(1)(N), a member shall be excused for implied bias 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; substantial doubt exists where the presence of a member on the panel would cause the public to think that the accused received something less than a court of fair, impartial members, injuring the public’s perception of the fairness of the military justice system

Trial Stages: Merits: Trial Procedures › Voir dire

1. voir dire is a critical tool for ensuring that the accused is tried by an impartial trier of fact, the touchstone of a fair trial; voir dire protects an accused’s right to an impartial trier of fact by exposing possible biases, both known and unknown, on the part of potential jurors; the necessity of truthful answers by prospective members if this process is to serve its purpose is obvious
2. voir dire case law with respect to the civilian right to an impartial jury under the Sixth Amendment holds equally true with regard to servicemember rights under the Fifth Amendment and the Rules for Courts-Martial
3. without honest disclosures during voir dire, an accused is hamstrung in challenging potentially biased members for cause
4. not every contretemps during voir dire rises to the level of a constitutionally unfair trial
5. responses to voir dire need not be pristine to satisfy the constitutional minimum of a fair trial or even RCM 912’s requirement that a court-martial appear fair to the observing public
6. failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause
7. a voir dire question is material if it has some logical connection with the consequential facts of the case, or is of such a nature that knowledge of the item would affect a person’s decision-making
8. voir dire is a valuable tool for determining how to exercise peremptory challenges; dishonesty during voir dire prevents the accused from exercising this important right

Trial Stages: Merits: Mistrial

1. a military judge has discretion to 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
2. the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons
3. failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause
4. under the facts of this case, the military judge abused his discretion in denying appellant’s motion for a mistrial where, in appellant’s trial for various sex offenses, three panel members gave inaccurate statements during voir dire about their association with the sexual assault response system and their exposure to the facts of appellant’s case and they failed to correct these inaccurate statements during trial; not only did the members fail to answer material questions honestly at voir dire, had they answered honestly, their responses would have provided a valid basis for a challenge for cause, especially considering the cumulative effect of having three panel members serve on the same panel under a specter of possible bias that they each recognized, and even talked about during trial, but did not disclose

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

1. failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause