Accused’s Forum Selection.
Doctrine of substantial compliance.
1. Trial before military judge alone. RCM 903(b)(2). United States v. Turner, 47 M.J. 348 (C.A.A.F. 1997). Where the military judge fully explained the accused’s rights as to forum, and defense counsel stated at trial that the accused wished to be tried by military judge alone, it was error for the accused not to state his election either in writing or orally
on the record. However, the facts of the case showed substantial compliance with Article 16, UCMJ, and no material prejudice to the substantial rights of the accused.
2. Request for trial before members. RCM 903(b)(1). United States v. Alexander, 61 M.J. 266 (C.A.A.F. 2005). Military judge advised the accused of his forum selection
rights, which the accused requested to defer. During a later proceeding, the military
judge stated that he was told an enlisted panel would be hearing the case and defense did
not object to the judge’s statement. The accused, however, failed to state in writing or on
the record his request for enlisted members in violation of Article 25, UCMJ and RCM
903(b)(1). The CAAF held that the error in the accused failing to personally select forum
on the record is a procedural, as opposed to jurisdictional, issue. The court stated, “[the] right being addressed and protected in Article 25 is the right of an accused
servicemember to select the forum[,] . . . [t]he underlying right is one of forum selection,
not the ministerial nature of its recording.” The CAAF held that the record reflected that
the accused selected court-martial by panel members and the accused failed to show that
the error in recording his forum selection resulted in any prejudice.
a. United States v. Morgan, 57 M.J. 119 (C.A.A.F. 2002) (military judge erred
by not obtaining on record defendant’s personal request for enlisted members to
serve on court-martial, but error was not jurisdictional, and under circumstances,
it did not materially prejudice substantial rights of defendant)
b. United States v. Daniels, 50 M.J. 864 (A. Ct. Crim. App. 1999). Where
accused was tried by enlisted members and there was no evidence on the record
reflecting personal forum selection, jurisdiction was properly found by a military
judge in an ACCA-ordered DuBay hearing, which established that accused had
discussed her forum choices with her counsel, and that, prior to the assembly of
the court, she had decided to elect trial by an enlisted panel, and that her counsel
had then presented a document to TC stating that the accused requested an
enlisted panel. Failure to elicit forum selection on the record was a technical
defect in the application of Article 25, a defect that, as was clear from the DuBay
hearing, did not prejudice the substantial rights of the accused.
c. United States v. Lanier, 50 M.J. 772 (A. Ct. Crim. App. 1999), aff’d, 53 M.J.
220 (C.A.A.F. 2000) (summary disposition). Counsel’s consulting with the
accused and announcing on the record, in response to judge’s question, “We will
have a court with enlisted” substantially complied with the terms of Article
d. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). No error where accused,
who had signed his request for enlisted members with words “Negative
Reading,” was directed by military judge to elect a forum and he subsequently
signed his name above the words “Negative Reading;” any confusion the accused
experienced concerned his name and not his forum choices.