Challenges for Cause, Implied Bias, and the Peremptory Challenge
Key takeaways
- Challenges for cause are unlimited; the workhorse ground is R.C.M. 912(f)(1)(N) — substantial doubt as to legality, fairness, and impartiality.
- Actual bias is bias in fact; implied bias is judged objectively, “through the eyes of the public,” and can require excusal even when the member sincerely claims impartiality. Elfayoumi.
- Military judges must liberally grant defense challenges for cause — a mandate that does not extend to government challenges. James.
- Each side gets exactly one peremptory challenge (Article 41(b)(1)) — but using it on the member you unsuccessfully challenged for cause kills appellate review of that challenge. R.C.M. 912(f)(4).
- Batson bars race- and gender-based peremptories, and military law is stricter than civilian law: trial counsel’s explanation cannot be unreasonable, implausible, or nonsensical. Tulloch.
The R.C.M. 912(f) grounds
Challenges are the last act of the panel selection process — the moment voir dire pays off. R.C.M. 912(f)(1) commands that a member shall be excused for cause whenever any listed ground appears. Grounds (A) through (M) are largely mechanical — disqualifying roles and statuses that rarely generate litigation:
| Category | Examples from R.C.M. 912(f)(1)(A)–(M) |
|---|---|
| Prior role in the case | Accuser as to any charged offense; witness in the court-martial; counsel for any party; preliminary hearing officer; convening authority or its SJA/legal officer; forwarded charges with a personal recommendation; member of a prior court-martial that heard the same case |
| Status problems | Not competent to serve under Article 25; not properly detailed; junior to the accused in grade or rank (unless unavoidable); in arrest or confinement |
| Fixed opinion | Has formed or expressed a definite opinion as to the guilt or innocence of the accused |
The ground that decides real cases is the discretionary catch-all, R.C.M. 912(f)(1)(N) — 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.”R.C.M. 912(f)(1)(N)
Both sides hold unlimited challenges for cause under Article 41(a)(1), UCMJ, and (N) is broad enough to reach every flavor of bias. A challenge under it usually invokes two distinct doctrines at once — actual bias and implied bias — each with its own test. United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 2000). Challenges normally come after voir dire and before evidence, but a challenge for cause may be made at any time during trial when a ground becomes apparent (R.C.M. 912(f)(2)(B)), and the military judge may excuse a member sua sponte in the interest of justice — though there is no duty to. United States v. McFadden, 74 M.J. 87 (C.A.A.F. 2015).
Actual bias
Actual bias is bias in fact: a state of mind that will not yield to the evidence and the military judge’s instructions. It is judged subjectively, member by member, and because the trial judge sees the member’s demeanor and hears the answers firsthand, appellate courts give those rulings substantial deference. The Army court has put it plainly: prospective members who cannot table competing obligations in favor of their controlling duty to be fair and impartial are actually biased and cannot serve. United States v. Cashin, No. ARMY 20200050, 2022 CCA LEXIS 194 (A. Ct. Crim. App. 2022).
Once a member’s answer suggests a problem, counsel or the judge may attempt rehabilitation: can you follow the instructions, decide only on the evidence, keep an open mind on punishment? Naked disclaimers and equivocal answers are not always enough — and CAAF has warned that piling on rehabilitation questions can itself create a perception of unfairness. United States v. Townsend, 65 M.J. 460 (C.A.A.F. 2008).
Implied bias: through the eyes of the public
Implied bias asks a different question: not what this member actually feels, but how the situation looks. The doctrine exists because R.C.M. 912 protects the appearance of fairness, not just its substance:
“[T]he text of R.C.M. 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.”United States v. Bragg, 66 M.J. 325, 327 (C.A.A.F. 2008)
The test: implied bias exists when most people in the same position as the member would be prejudiced. United States v. Daulton, 45 M.J. 212 (C.A.A.F. 1996). Courts evaluate it objectively, through the eyes of the public, on the totality of the circumstances, focusing on the perception of fairness of the military justice system. United States v. Elfayoumi, 66 M.J. 354 (C.A.A.F. 2008). Because the test is objective, appellate review is less deferential than ordinary abuse of discretion — though more deferential than de novo. United States v. Strand, 59 M.J. 455 (C.A.A.F. 2004). The upshot: a member can swear sincerely to impartiality, be believed, and still have to go.
The implied bias case law: where challenges win and lose
The reported decisions cluster around a few recurring situations:
- Connections to the case or its cast. A member whose own inquiries gave him what he believed was the “complete picture” of the case had to go (United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006)), as did the member in Bragg who may have reviewed — and recommended relief in — the accused recruiter’s relief-for-cause packet. But some familiarity with the facts or witnesses is tolerable where the member can put it aside and judge the case on its merits. United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999).
- Rating-chain voting blocs. Where the senior member supervised six of nine others — enough votes to convict — CAAF found an “intolerable strain on public perception” and reversed. United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001). The relationship alone is not automatic disqualification, but counsel must build the record on who rates whom.
- Victims of similar crimes. No per se rule excludes a member who was a victim of a similar offense. United States v. Castillo, 74 M.J. 39 (C.A.A.F. 2015). But the closer and rawer the experience, the stronger the challenge: a member whose fiancée had been raped should not have sat on a rape trial (United States v. Terry, 64 M.J. 295), and asking a member whose young nephew died from prenatal cocaine exposure to sentence a drug user was “asking too much.” United States v. Miles, 58 M.J. 192 (C.A.A.F. 2003).
- Punishment predisposition. Expecting some punishment is not automatically disqualifying — the test is whether the member will yield to the evidence and instructions. United States v. Rolle, 53 M.J. 187 (C.A.A.F. 2000). A member locked into a result crosses the line: the senior member who promised to be “merciless within the limit of the law” required excusal (United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007)), as did one who insisted “something has to be done.” United States v. Martinez, 67 M.J. 59 (C.A.A.F. 2008).
- Ties to counsel. Working relationships with trial counsel are not per se disqualifying — but when trial counsel personally vouched for a challenged commander on the record, the endorsement itself created implied bias requiring reversal. United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015). Member attitudes shaped by command messaging feed challenges too — the overlap with unlawful command influence has its own line of cases.
The liberal-grant mandate
Military judges are charged to liberally grant defense challenges for cause. United States v. James, 61 M.J. 132 (C.A.A.F. 2005). The rationale is structural: the convening authority hand-picks the panel, so the government effectively holds unlimited peremptories while the accused holds one. The mandate does not apply to government challenges. Courts have preached this for decades:
“We again take the opportunity to encourage liberality in ruling on challenges for cause. Failure to heed this exhortation only results in the creation of needless appellate issues.”United States v. Reynolds, 23 M.J. 292, 294 (C.M.A. 1987)
Two practice consequences: a judge who states on the record that the mandate was considered earns greater appellate deference (Clay, 64 M.J. at 277), and the defense should frame every close challenge in liberal-grant terms — when a close call materializes, defense causal challenges must be liberally granted. Cashin.
What this means if you think a member is biased
Tell your defense team everything — the member who served with a government witness, the one whose spouse works in the SJA office, the one who talks about “making examples.” Challenges are won on specifics developed during voir dire, and implied bias means a member can be removed even after promising the judge complete impartiality. But the window is short: grounds not developed before impanelment are usually gone. Work the panel problem with counsel before trial, not during deliberations.
Preserving a denied challenge
When the military judge denies a defense challenge for cause, what happens next controls whether the issue survives. Under the current R.C.M. 912(f)(4), if either party uses its peremptory challenge to remove the member it unsuccessfully challenged for cause, appellate review of that denied challenge is precluded — the old “but for” magic words no longer save it. And a party that declines to use its peremptory against any member at all likewise waives review. United States v. Medina, 68 M.J. 587 (N-M Ct. Crim. App. 2009). The preserved path is narrow: let the challenged member sit, or spend the peremptory on a different member.
That rule forces a brutal choice: burn the only peremptory to remove a biased member now — and forfeit the appellate issue — or leave the member seated to preserve the claim. The Supreme Court has blessed the dilemma: making an accused use a peremptory to cure an erroneous cause denial violates no due process right. Ross v. Oklahoma, 487 U.S. 81 (1988).
The peremptory challenge
Each side gets one peremptory challenge, no reason required. Article 41(b)(1), UCMJ. It is a creature of statute, not the Constitution — but deprivation of the right is presumed prejudicial and has produced automatic reversal. United States v. Pritchett, 48 M.J. 609 (N-M. Ct. Crim. App. 1998). The working rules:
- Timing. Peremptories follow challenges for cause — trial counsel first, then defense — and may not be made after presentation of evidence begins.
- New members, new strike. When additional members are detailed to restore the panel, each side gets causal challenges against them plus one peremptory against members not previously subject to one. Article 41(c), UCMJ.
- No conditional strikes. A party cannot exercise a peremptory and then withdraw it when the result displeases — the government could not take back its strike after the defense’s peremptory broke the enlisted one-third quorum. United States v. Newson, 29 M.J. 17 (C.M.A. 1989).
- Alternates count. The member pool for the peremptory includes any authorized alternates, so counsel weighing the single strike should think about who deliberates if a member is later excused.
Batson: the limits on peremptories
Batson v. Kentucky, 476 U.S. 79 (1986) prohibits peremptory challenges based on race, and its progeny extend the ban to gender and ethnicity. Military case law applies Batson through the Fifth Amendment — and goes further than civilian courts in three ways:
- A per se trigger. On objection, trial counsel must explain every government peremptory against a member of the accused’s race — no prima facie showing required. United States v. Moore, 28 M.J. 366 (C.M.A. 1989).
- A stricter standard for the explanation. Civilian courts accept virtually any non-discriminatory reason. In the military, trial counsel’s reason cannot be “unreasonable, implausible, or [one] that otherwise makes no sense” — blinking a lot and looking uncomfortable did not cut it. United States v. Tulloch, 47 M.J. 283 (C.A.A.F. 1997).
- Mixed motives fail entirely. Where one of two offered reasons rests on a racial stereotype, the whole challenge falls even if the other was valid. United States v. Greene, 36 M.J. 274 (C.M.A. 1993).
Batson binds the defense too: an accused’s peremptory cannot rest on race or gender. United States v. Witham, 47 M.J. 297 (C.A.A.F. 1997). The doctrine generally stops there — age- and marital-status strikes are permitted, and religion remains unresolved. Preserving the issue takes two objections: one when the strike is made, another if the proffered neutral reason is pretextual — silence at either stage can waive it on appeal.
Practitioner’s note
We build every challenge for cause on two independent rails: the actual bias record (the member’s own words, pinned down without softening follow-ups) and the implied bias framing (what would the public think, watching this member judge this case). Then we say the magic words on the record — implied bias, totality of the circumstances, liberal-grant mandate — because appellate courts notice which standards the judge was asked to apply. And before spending the peremptory, we make the R.C.M. 912(f)(4) calculation out loud with the client: using it on the member we just lost on removes that member but extinguishes the appellate issue. That trade should never happen by accident.
Frequently asked questions
What are the grounds for removing a court-martial panel member?
R.C.M. 912(f)(1) lists mandatory grounds — the member is an accuser, a witness, prior counsel in the case, the preliminary hearing officer, junior in rank to the accused, or has a fixed opinion on guilt, among others — plus a catch-all: any member whose service would leave substantial doubt about the court-martial's legality, fairness, and impartiality. Challenges for cause are unlimited for both sides.
What is the difference between actual bias and implied bias?
Actual bias is bias in fact — a member whose state of mind will not yield to the evidence and instructions, judged with deference to the trial judge who heard the answers. Implied bias is objective: whether most people in the member's position would be prejudiced, viewed through the eyes of the public. A member can honestly claim impartiality and still be excused for implied bias.
What is the liberal-grant mandate in a court-martial?
It is the rule that military judges must liberally grant defense challenges for cause, resolving close calls in favor of excusal. The rationale is the structural imbalance in member selection: the convening authority hand-picks the panel, while the accused holds only one peremptory challenge. The mandate does not apply to government challenges for cause.
How many peremptory challenges do I get at a court-martial?
One. Article 41(b)(1), UCMJ gives each side a single peremptory challenge, exercised after challenges for cause with no reason required — though it cannot be based on race or gender. If new members are detailed because the panel fell below its required size, each side receives an additional peremptory against the new members.
Does Batson apply to courts-martial?
Yes, through the Fifth Amendment, and military law is stricter than civilian practice. On objection, trial counsel must explain any peremptory against a member of the accused's race, and the explanation cannot be unreasonable, implausible, or nonsensical. The prohibition covers race, ethnicity, and gender, and it binds the defense as well as the government.
If the judge denies my challenge for cause, is the issue saved for appeal?
Only if you handle the peremptory correctly. Under R.C.M. 912(f)(4), using your peremptory challenge on the very member you unsuccessfully challenged for cause precludes appellate review of that denial — and declining to use the peremptory at all also waives it. Preserving the issue means leaving the member seated or striking a different member, a genuinely hard strategic choice.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has litigated member challenges in contested courts-martial for more than 25 years, from rating-chain voting-bloc objections to implied bias fights over members with ties to alleged victims. As a former Army prosecutor he exercised the government’s strikes; as a civilian defense lawyer and cross-examination author he now builds the voir dire records — question by question, on the record — that make challenges stick at trial and survive on appeal.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has spent over 20 years pressing bias challenges in the cases where panel composition matters most — sexual assault, domestic violence, and murder courts-martial. She has confronted members with undisclosed connections to victims, counsel, and commands, argued the liberal-grant mandate in courtrooms worldwide, and legally reviewed this page against R.C.M. 912 and the controlling CAAF decisions.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.