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The law on jury selection in a military court-martial

Qualifications of Military Jurors – Article 25, UCMJ Criteria

Article 25(d)(2) directs the convening authority to personally select members who are “best qualified” based on six criteria: “age, education, training, experience, length of service, and judicial temperament.” Until 2008, the Army exempted certain groups of officers from serving on court-martial panels. Fidell’s CAAF Rules Guide CAAF rejected this old rule:

Old Rule on Panel Qualifications

AR 27-10, Chapter 7, exempted the following officers from duty on Army courts-martial: chaplains; medical, dental, and veterinary officers; and inspectors general.

New Rule on Panel Qualifications

In United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008), CAAF held the Secretary of the Army “impermissibly contravened the provisions of Article 25” by enacting provisions in AR 27-10 that exempted certain special branches from court-martial duty. CAAF held that convening authorities must consider officers in these special branches when applying Article 25 to select panel members.

Law enforcement personnel

United States v. Swagger, 16 M.J. 759 (A.C.M.R. 1983). “At the risk of being redundant – we say again – individuals assigned to military police duties should not be appointed as members of courts-martial. Those who are the principal law enforcement officers at an installation must not be.”

United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995). Accused charged with sexual offenses against a child. Member of panel (Air Force 0-3) was Deputy Chief of Security Police and had sat in on criminal activity briefings with base commander. Focus is on the perception and appearance of fairness. Member was intimately involved day-to-day law enforcement on the base; “the embodiment of law enforcement and crime prevention.” MJ’s denial of challenge for cause reversed and case set aside.

United States v. Fulton, 44 M.J. 100 (C.A.A.F. 1996). Military judge did not abuse discretion by denying challenge for cause against member who was Chief of Security Police with Bachelor of Arts in criminal justice, where member only had contact with accused’s commander on serious matters requiring high level decisions, and member had no prior knowledge of accused’s misconduct. Cf. Dale, above.

United States v. Berry, 34 M.J. 83 (C.M.A. 1992). Member was command duty investigator for NAS Alameda security and knew and worked with key Government witness. Military judge said, “I don’t think he said anything that even remotely hints that he could not render a fair judgment in this case.” Abuse of discretion in the face of mere naked disclaimers by member. Reversed. But see United States v. McDavid, 37 M.J. 861 (A.F.C.M.R. 1993) (no “per se” rule of exclusion for security policemen).

Junior in rank

United States v. McGee, 15 M.J. 1004 (N.M.C.M.R. 1983). When it can be avoided, court members should not be junior in rank to the accused. Failure to object results in waiver. United States v. Schneider, 38 M.J. 387 (C.M.A. 1993). Defense discovered court member was junior to accused during deliberations on findings and remained silent until the morning after findings were read in open court. Issue waived. See also RCM 503(a) Discussion.

Quorum. Article 29, UCMJ

Three members for SPCM, five members for GCM. Ballew v. Georgia, 435 U.S. 223 (1978). “Jury” of less than 6 is unconstitutional (civilian). But see United States v. Wolff, 5 M.J. 923 (N.C.M.R. 1978), pet. denied, 6 M.J. 305 (C.M.A. 1979) (holding Sixth Amendment right to trial by “jury” does not apply to courts-martial); United States v. Hutchinson, 17 M.J. 156 (C.M.A. 1984).

Twelve members for capital case. Article 25a, UCMJ requires a minimum of twelve panel members in military capital cases, except in certain circumstances. The change was effective for offenses committed after 31 December 2002.

Excusal prior to assembly

Prior to assembly, RCM 505(c)(1) allows delegation to staff judge advocate or convening authority’s deputy authority to excuse up to one of the members. See AR 27-10, para. 5-18c. United States v. Cook, 48 M.J. 434 (C.A.A.F. 1998). The excusal of more than one-third of the members of a panel by the convening authority’s delegate rises to the level of reversible and jurisdictional error only if the defense objects to the excusals and substitutions of members at trial, and the record somehow indicates that the accused was deprived of a right to make causal or peremptory challenges.

The accused was convicted of violating a lawful general regulation and possession of marijuana with intent to distribute. Prior to trial, the SJA excused five of nine members who were detailed to sit as members. The accused suffered no prejudice because he failed to object to the excusals at trial. The CAAF skirted an issue regarding the appropriate number to determine whether one-third of the members were excused (five of nine detailed for the accused’s case or five of thirty-one total members on primary and alternate member lists).

Excusal after assembly

Excusal after assembly can occur only as the result of a challenge or by the military judge for good cause shown. United States v. Latimer, 30 M.J. 554 (A.C.M.R. 1990) (panel member’s upcoming appointment for physical examination was not “good cause”).

A sleeping member is good cause for excusal. United States v. Boswell, 36 M.J. 807 (A.C.M.R. 1993). Military judge could have rehabilitated member by reading portions of transcript. Not an abuse of discretion, however, to excuse. What if excusal dropped court  JAA Inn of Court  below quorum? Mistrial? See RCM 806(d)(1).

Replacement Members

Sloppy paper trails

United States v. Gebhart, 34 M.J. 189 (C.M.A. 1992). “The administration of this court-martial…can best be described as slipshod.” “Such a lack of attention to correct court-martial procedure cannot be condoned.” The amended CMCO mistakenly removed member who actually sat on panel. Order also included member who was not present without explanation for the absence. The amending order also incorrectly referred to the original order by the wrong number. Held: errors were administrative and not jurisdictional. Issue was waived by defense failure to object. See also United States v. Sargent, 47 M.J. 367 Fidell’s CAAF Rules Guide (C.A.A.F. 1997) and United States v. Larson, 33 M.J. 715 (A.C.M.R. 1991).

Triggering mechanisms

United States v. Mack, 58 M.J. 413 (C.A.A.F. 2003). SJA memorandum approved by convening authority concerning operation of convening order provided that, when accused requested panel of at least one-third enlisted members, alternate enlisted members would be automatically detailed without further action by the convening authority if, among other triggering mechanisms, “before trial, the number of enlisted members . . . falls below one-third plus two.” Prior to trial, two officer and one enlisted members were excused, leaving five officer and four enlisted members (a total of nine members, of which one-third plus two, or five, were enlisted). At trial, two additional enlisted members sat, which appeared to be inconsistent with the above triggering mechanism. The defense did not object. ACCA remanded on its own for a DuBay hearing concerning the presence of the additional two enlisted members.


held that, “When a convening authority refers a case for trial before a panel identified in a specific convening order, and the convening order identifies particular members to be added to the panel upon a triggering event, the process of excusing primary members and adding the substitute members involves an administrative, not a jurisdictional matter. Absent objection, any alleged defects in the administrative process are tested for plain error.”

Here there was no error. Excusal of one officer and the one enlisted member prior to the excusal of the other officer would have reduced the panel to ten members, five of who were officers and five of whom were enlisted. This triggered the one-third plus two triggering event. Even if there was error in the triggering event, so long as the members were listed on the convening order and the panel met the one-third requirement, any error in the operation of the triggering mechanism was administrative, not jurisdictional.

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