Qualifications – article 25 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:
1. Old Rule: AR 27-10, Chapter 7, exempted the following officers from duty on Army courts-martial: chaplains; medical, dental, and veterinary officers; and inspectors general.
2. New Rule: 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.
3. 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.”
a. 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.
b. 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.
c. 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).
4. 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.