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Military Sexual Assault Defenses: Mistake of Fact Explained by a Military Defense Lawyer

On the day of trial, members are sworn as a group. After panel members are sworn, the military judge tells the members, “With regard to challenges, if you know of any matter that you feel might affect your impartiality to sit as a court member, you must disclose that matter when asked to do so.” See Military Judges’ Benchbook.

The military judge then asks group questions of all of the members. The Military Judges’ Benchbook recommends 28 questions for the military judge to ask members:

  1. Does anyone know the accused?
  2. Does anyone know any person named in any of the Specifications?
  3. Having seen the accused and having read the charges and Specifications, does anyone believe that you cannot give the accused a fair trial for any reason?
  4. Does anyone have any prior knowledge of the facts or events in this case?
  5. Has anyone or any member of your family ever been charged with an offense similar to any of those charged in this case?
  6. Has anyone, or any member of your family, or anyone close to you personally ever been the victim of an offense similar to any of those charged in this case?
  7. If so, will that experience influence the performance of your duties as a court member in this case in any way?
  8. How many of you are serving as court members for the first time in a trial by court-martial?
  9. Can each of you who has previously served as a court member put aside anything you may have heard in any previous proceeding and decide this case solely on the basis of the evidence and the instructions as to the applicable law?
  10. The accused has pled not guilty to all charges and specifications and is presumed to be innocent until his/her guilt is established by legal and competent evidence beyond a reasonable doubt. Does anyone disagree with this rule of law?
  11. Can each of you apply this rule of law and vote for a finding of not guilty unless you are convinced beyond a reasonable doubt that the accused is guilty?
  12. You are all basically familiar with the military justice system, and you know that the accused has been charged, his/her charges have been forwarded to the convening authority and referred to trial. None of this warrants any inference of guilt. Can each of you follow this instruction and not infer that the accused is guilty of anything merely because the charges have been referred to trial?
  13. On the other hand, can each of you vote for a finding of guilty if you are convinced that under the law, the accused’s guilt has been proved by legal and competent evidence beyond a reasonable doubt?
  14. Does each member understand that the burden of proof to establish the accused’s guilt rests solely upon the prosecution and the burden never shifts to the defense to establish the accused’s innocence?
  15. Does each member understand, therefore, that the defense has no obligation to present any evidence or to disprove the elements of the offenses?
  16. Has anyone had any legal training or experience other than that generally received by service members of your rank or position?
  17. Has anyone had any specialized law enforcement training or experience, to include duties as a military police officer, off-duty security guard, civilian police officer, or comparable duties other than the general law enforcement duties common to military personnel of your rank and position?
  18. I have previously advised you that it is your duty as court members to weigh the evidence and to resolve controverted questions of fact. In so doing, if the evidence is in conflict, you will necessarily be required to give more weight to some evidence than to other evidence. The weight, if any, to be given all of the evidence in this case is solely within your discretion, so it is neither required nor expected that you will give equal weight to all of the evidence. However, it is expected that you will use the same standards in weighing and evaluating all of the evidence and the testimony of each witness and that you will not give more or less weight to the testimony of a particular witness merely because of that witness’s status, position, or station in life. Will each of you use the same standards in weighing and evaluating the testimony of each witness and not give more or less weight to the testimony of a particular witness solely because of that witness’s position or status?
  19. Is any member of the court in the rating chain, supervisory chain, or chain of command of any other member?
  20. Will you feel inhibited or restrained in any way in performing your duties as a court member, including the free expression of your views during deliberation, because another member holds a position of authority over you?
  21. Will you be embarrassed or restrained in any way in performing your duties as a court member if a member over whom you hold a position of authority should disagree with you?
  22. Has anyone had any dealings with any of the parties to the trial, to include counsel and me, which might affect your performance of duty as a court member in any way?
  23. Does anyone know of anything of either a personal or professional nature that would cause you to be unable to give your full attention to these proceedings throughout the trial?
  24. It is a ground for challenge that you have an inelastic predisposition toward the imposition of a particular punishment based solely on the nature of the crime or crimes for which the accused is to be sentenced if found guilty. Does any member, having read the charges and Specifications, believe that you would be compelled to vote for any particular punishment, if the accused is found guilty, solely because of the nature of the charges?
  25. If sentencing proceedings are required, you will be instructed in detail before you begin your deliberations. I will instruct you on the full range of punishments, from no punishment up to the maximum punishment. You should consider all forms of punishment within that range. Consider doesn’t necessarily mean that you would vote for that particular punishment. Consider means that you think about and make a choice in your mind, one way or the other, as to whether that’s an appropriate punishment. Each member must keep an open mind and neither make a choice nor foreclose from consideration any possible sentence until the closed session for deliberations and voting on the sentence. Can each of you follow this instruction?
  26. Can each of you be fair, impartial, and open-minded in your consideration of an appropriate sentence if called upon to do so in this case?
  27. Can each of you reach a decision on sentence if required to do so on an individual basis in this particular case and not solely upon the nature of the offense of which the accused may be convicted?
  28. Is any member aware of any matter that might raise a substantial question concerning your participation in this trial as a court member?

Representing Guilty Clients: How do defense lawyers sleep at night?

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