Panel/jury selection is often a hot topic in military defense circles. As defense attorneys, we are entitled to unlimited challenges for cause of potential members. We get one peremptory challenge that we can use for any reason.
We have written about jury selection before. Military Jury Selection
The Convening Authority (the general) gets to pick the pool of potential panel members. In effect, the general and government lawyers get unlimited challenges. There are number of ways in which the Convening Authority can abuse the system.
-They can stack the panel with all senior members that are presumptively more likely to vote for guilt to support the Convening Authority;
-They can systematically exclude potential members of lower rank;
-They can stack the panel with members that all work together within the same office or section and are presumed to be more likely to vote together;
-They can stack the panel with officers that the Convening Authority personally knows;
-They can stack the panel with members that the prosecutor knows or advises.
United States v. Lance Corporal Bartee
A recent case in the Court of Appeals for the Armed Forces reminds us of the potential for abuse in the system. United States v Bartee, is a Marine Corps case decided on 15 March 2017. The Court ruled that the Convening Authority did not systematically pack the panel with panel members above the rank of master sergeant and major.
The facts are interesting though. The trial judge did find that the jury was improperly packed with senior members of the command. The Staff Judge Advocate and Convening Authority then went back and created a new jury pool using the same names from before.
Article 25, UCMJ requires a Convening Authority to select members based on experience and temperament to serve as a panel member. Rank is not a criteria. Lance Corporal Bartee objected to having all members above the rank of E-8 and O-4. Bartee objected and the judge agreed that members below a certain rank were systematically excluded from the pool of potential members.
After the judge ruled, the Staff Judge Advocate provided the general with a new list of potential members. It was the same list the judge ruled systematically excluded Marines based on rank. The SJA also gave him the full roster of 8,000 Marines in the command and told the general anyone could be susbstituted. The general did not substitute any panel members. The General added a letter stating that he personally new all of the members and felt they were qualified to serve on the case.
LCpl Bartee renewed his objection. The judge overruled the objection this time, finding that the general's letter cured any concerns under Article 25, UCMJ. That ruling prompted Bartee to change forum and elect a military judge alone trial. That was a bold call.
We won't Monday Morning quarterback the forum change. But, the military judge found him guilty of larceny, false official statement, and other charges. Bartee was accused of a conspiracy to steal credit cards to purchase gift cards at the post exchange. We've written about conspiracy defense in the past. We've also been involved in similar cases.
The judge sentenced Bartee to 20 months confinement and a dishonorable discharge.
United States v. Dowty and Case Law
In Bartee, the appellate courts agreed with the trial judge that Article 25 was not violated. The classic case is United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). Dowty looks at whether there was:
(1) Improper motive to “pack” the member pool;
(2) Systemic exclusion of otherwise qualified members based on an impermissible variable like rank; and
(3) Good faith efforts to be inclusive so courts-martial are open to all segments of the military community.
In the Greene the court said, "We start by recognizing that an accused has an absolute right to trial before a properly constituted court with members.” United States v. Greene, 20 U.S.C.M.A. 232, 239 (C.M.A. 1970).
Article 25, Uniform Code of Military Justice and Rule for Courts-Martial 912
The convening authority has the responsibility to properly select court members. Art. 25(d)(2), UCMJ, 10 USC §825(d)(2). “The convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” R.C.M. 912(b)(1). However, the UCMJ prohibits the convening authority from attempting “to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, In reaching the findings or sentence in any case.” Art. 37(a), UCMJ, 10 USC § 837(a).
Case law makes clear that the intent or purpose of the convening authority in executing this procedure is an essential factor in determining compliance with Article 25. In courts-martial, an accused is not entitled to a panel that represents a cross-section of the eligible military population. However, deliberate and systematic exclusion of lower grades and ranks from court-martial panels is not permissible. United States v. Bertie, 50 M.J. 489, 492 (C.M.A. 1998). Moreover, a convening authority may not, in an individual case, purposefully stack a panel with members of senior grades or ranks to achieve a desired result. Id. A statistical showing may support an argument that the make-up of a particular panel was intended to produce a desired result.
Burden of Proof and Standards in Showing the Panel is Stacked
A party is entitled to present evidence to the court through an offer of proof, including any
written materials considered by the convening authority in selecting the members, which,
if true, would constitute improper selection of the members. R.C.M. 912(b)(2). If the
military judge determines that the members have been selected improperly, the military
judge shall stay any proceedings requiring the presence of members until members are
properly selected. Id.
The defense shoulders the burden of establishing the improper exclusion of
qualified personnel from the selection process. United States v. Kirkland, 53 M.J. 22, 24
(C.A.A.F. 2000) (citing to United States v. Roland, 50 M.J. 66, 69 (1999)). Once the
defense establishes such exclusion, the Government must show by competent evidence that no impropriety occurred when selecting appellant's court-martial members. Kirkland, 53 M.J. at 24.
Military courts have recognized that exclusion of persons below certain ranks
from consideration for being panel members by the convening authority is improper.
United States v. McClain, 22 M.J. 124 (C.M.A. 1986). In McLain, the appellant
challenged his rape conviction on the grounds that the convening authority had
improperly selected the member panel at his court martial. Id. at 124-125. The convening
authority, based on suggestions from his Staff Judge Advocate, selected enlisted panel
members from a list only containing soldiers of the E-7, E-8, and E-9 ranks. Id. at 125.
The court ruled that “the appointment to the court-martial only of persons in the upper
three grades was not proper.” Id. at 130. The court further ruled that the convening
authority had acted inconsistently with the “spirit of impartiality” embodied in Article 25 and Article 37 of the UCMJ by excluding soldiers E-6 and below from consideration for
court martial detail. Id. at 132.
The court stated:
"Discrimination in the selection of court members on the basis of improper criteria
threatens the integrity of the military justice system and violates the Uniform
Code. Except for the statutory preference for exclusion of persons in a rank lower
than the accused, all ranks are eligible to serve on a court-martial. When rank is
used as a device for deliberate and systematic exclusion of qualified persons, it
becomes an irrelevant and impermissible basis for selection. Id. at 129-130
(quoting United States v. Daigle, 1 M.J. 139, 140-141 (C.M.A. 1975))."
Military courts have also ruled that advisory nominations provided to a convening
authority may not improperly exclude service members based on rank. Roland, 50 M.J. at
69. In Roland, the court stated that presenting nominations to a convening authority is a
reasonable means of assisting the convening authority, provided it does not improperly
exclude eligible service members. Id. (citing to United States v. Kemp, 22 U.S.C.M.A.
152 (1973)). The court ruled that the, “nomination process may not systematically
exclude or include a certain category of service members. When the request for
nominations does improperly include or exclude certain members, this Court will ensure that those actions do not taint the selection by the convening authority.” Roland, 50 M.J. at 69. “Blanket exclusion of qualified officers or enlisted members in the lower grades is at odds with congressional intent and cannot be sustained.” Id. (quoting United States v. Nixon, 33 M.J. 433, 434 (C.M.A. 1991)).
Similarly, in Kirkland, the court set aside a service member’s sentence because
panel member nomination documents appeared to exclude service members from certain ranks. Kirkland, 53 M.J. at 24-25. In that case, a base legal office sent out a quarterly
letter, signed by the Base Commander, to the numerous unit commanders at the
installation. Id. at 23. The letter included a chart-form for the commanders to use to nominate Non-commissioned officers (“NCOs”) for court martial panels. Id. The chart
had columns for nominating E-7, E-8, and E-9s, but no areas for nominating E-6s or
below. Id. Subsequently, no soldiers E-6 or below were nominated. Id. at 25. The court
found that while the commanders knew that they had the ability to nominate soldiers
from any rank, it was likely that soldiers under E-7 would not be nominated due to the
improper structure of the form. Id. at 24. As a result, the selection process was improper
because it excluded certain groups of soldiers from consideration solely based on their
rank. Id. at 25. The court ruled that the military judge erred by denying the defense
request to seat a new panel. Id. The court further ruled that, “where an unresolved
appearance that potentially qualified court members below the grade of E-7 were
excluded, reversal of the sentence is appropriate to uphold the essential fairness and
integrity of the military justice system." Id. (quoting McClain, 22 M.J. at 133).
Challenges in Showing and Improper Motive that the Panel was Stacked
The first criteria under Dowty to show an improper motive for stacking the panel is tricky. As a defense lawyer, it would be almost impossible to get a general to admit an improper motive. You don't become a general without knowing what to say. In this case, there was evidence that the SJA attempted a top-down process looking for members from high rank to low rank until enough were selected.
A Caution Against Waiving the Issue
Other judges on the Bartee Court found that Bartee waived the issue when he chose a judge alone trial. It's a fair point. Forum selection is often an agonizing decision. It is certainly interesting the defense counsel in Bartee chose to go judge alone rather than question the prospective panel members.
The problem with the Bartee case, as the dissenting opinion points out, is that we've created a precedent where commands can stack a jury. All they have to do is provide a list of everyone's name in the unit and a letter.
Other Ways Panel Selection can be Manipulated by the Convening Authority
Unfortunately, stacking a panel/jury with senior members is not the only way a pool can be manipulated. I'm not picking on 82d Airborne, because I've won three cases in a row with full acquittals on over 40 charges. But, years ago that command was in the habit of loading up panels with brigade commanders and their staff officers. You would regularly have a senior member who was a brigade commander, maybe two or three of his battalion commanders, his sergeant major, and a few first sergeants all on the jury. And, of course, they knew each other. The assumption was that they would form a voting block. I don't see that problem at Bragg anymore, but it's another way juries can be manipulated in the military.
Another problem that can arise is when the prosecutor is the legal advisor to members of the panel/jury. It's as though the prosecutor has clients on the panel. Of course, it's an unfair advantage.
The courts, however have reasoned that the military community is small. Routine professional relationships are not per se disqualifying. The question is whether or not a court member is free from actual or implied bias. United States v. Bannwarth, 36 M.J. 265 (C.M.A. 1993); United States v. Porter, 17 M.J. 377 (C.M.A. 1984); United States v. Warden, 51 M.J. 78 (1999); United States v. Ai, 49 M.J. 1 (1998); United States v. Velez, 48 M.J. 220 (1998).
Using Challenges for Cause to Exclude Panel Members
A military judge's ruling on a challenge for cause is reviewed for an abuse of discretion. United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000). Military judges are afforded a high degree of deference on rulings involving actual bias. See Wiesen, 56 M.J. at 174.
By contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo. United States v. Strand, 59 M.J. 455 (C.A.A.F. 2004). Implied bias is reviewed under an objective standard, viewed through the eyes of the public, United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997), and it is intended to address the perception or appearance of fairness of the military justice system. Wiesen, 56 M.J. at 174. Actual bias, on the other hand, tests the expressed views of members.
In Richardson, four panel members were identified as having a professional relationship with the trial counsel. United States v. Richardson, 61 M.J. 113 (C.A.A.F. 2005). In response to questioning by the military judge, each member advised that their relationship with the trial counsel would not affect their ability to equally evaluate each side of the case. The military judge denied individual voir dire for three of the four members. The defense challenged for cause all four members for both actual and implied bias. The military judge granted only one of the challenges.
The Court of Appeals for the Armed Forces expressed concern that “whatever the qualitative nature of trial counsel’s professional relationships with these members, we do know that much of the advice rendered was in the area of criminal law.” Id. The Court was sensitive to the “possibility that trial counsel may have already established a rapport with three of the six members on criminal matters or sentencing issues...” Id.
The Court further stated that the “military judge had a responsibility to further examine the nature of the relationships in the context of implied bias review...” Id. The Court concluded that “in this case the appearance of a panel biased in favor of the trial counsel was heightened...” In that case, the Court declined to adopt a per se ground for challenge, but emphasized the importance of thorough voir dire. In that case, C.A.A.F. was concerned that trial counsel had “already established a rapport with three of the six members on criminal matters or sentencing issues...”
Using Voir Dire to Win the Case
I still subscribe to the belief that most members of the military are honest and want to do the right thing. They may have command biases, but those biases can be overcome. In most cases, the number of members on the panel/jury will likely be between 6-8 members. That means that to win the case (2/3 vote to convict) defense counsel will need about 3 votes for not guilty.
The opportunity to question (voir dire) potential members is extremely valuable. During jury selection we are searching for at least 3 votes. In the military, our ability to question panel members can be limited. So we have to use the few questions we have to our benefit.
Early in the case, we want to identify a theme of the case. A theme is merely a critical element of a story. It include any number of ideas:
-The victim had a motive to lie;
-Law enforcement did not fully investigate the case;
-Somebody else committed the offense.
These are just a few examples. In voir dire, we want to ask questions that give us insights into how potential jurors feel about the theme. For instance, in a sexual assault case where the accused is wrongfully charged, we want to explore whether panel members have ever been wrongfully accused. We'll want to ask members about their feelings towards particular issues important to the case. Examples in a sexual assault case might include questions like:
-Do any members know of an anyone - including themselves - that has been wrongfully accused of misconduct?
-Does anyone believe that because a case is investigated, the accused must be guilty?
-Have any members served as a SAPR?
-Have any members provided counseling services to victims? Medical services? Victim advocate?
-Do any members have any experience investigating sexual assault allegations?
-Does anyone have a family member or friend that has been a victim?
-Does anyone believe that if someone has even one drink of alcohol, they cannot consent to sexual activity?
-Do any members believe in not drinking alcohol?
-Do any members believe that the military has not done enough to address sexual assault issues?
-Do any members believe the military does not prosecute enough sexual assault cases?
-Do any members think the commander wants you to vote a particular way in this case?
Thes are just a few examples. We craft specific questions for each case. But, we want to use voir dire to help identify those - at least - 3 members that will vote for not guilty. With a properly prepared case and theme, handling a stacked jury is much more manageable.
Academics Continue Their Push to Remove Protections for Accused Servicemembers in Sexual Assault Cases
A recent article (see below) presents the position that Military appellate courts should no longer have the authority to decide cases based on factual sufficiency. The article describes in detail the different stance that military courts have as compared to most federal and state courts regarding factual sufficiency. While I disagree with the overall opinion that Military appellate courts should no longer have the authority to review a case of factual sufficiency, the important take away for the Servicemember is that the need for competent and experienced counsel, at the trial, post-trial, and appellate stages, has never been higher. Members of congress and academics continually push for changes in the military justice system, but few of the voices behind the changes have actually observed a recent sexual assault Court-Martial.
I. A Defense Attorney’s Analysis of: Lisa M. Schenck, "Just the Facts Ma’am": How Military Appellate Courts Rely on Factual Sufficiency Review to Overturn Sexual Assault Cases When Victims Are "Incapacitated," 45 Southwestern Law Review 522 (2016).
Appellate review for factual sufficiency is a necessary protection for the military accused. When an appellate court reviews a case for factual sufficiency, the court is taking a fresh look at the facts presented at trial and determining whether a reasonable jury (or “panel” as they are called in Courts-Martial) could have found the appellant guilty beyond a reasonable doubt. Some of the criticisms of this authority highlighted in the article are (1) the appellate court does not have the benefit of observing witness testimony at trial, (2) that almost all federal and state appellate courts do not have this much authority, and (3) this authority essentially enables the appellate court to grant no deference to the military panel and substitute its judgement for that of the factfinder. Certainly, if a military appellate court overturns a conviction for factual (in)sufficiency, the court is substituting their judgement for that of the panel. Such a result, however, is not a bad thing.
The author’s opinion is largely based on cases involving sexual assault convictions by means of incapacitation of an alleged victim. The poorly defined meaning of “incapacitation” is at the heart of the problem. The article qualifies its opinion to remove this authority from the military appellate courts by concurrently arguing that there needs to be a clearly defined definition of “incapacitated.” We could not agree more with this point, but don’t hold your breath. Such a thing is easier said than done.
With all that in mind, the author argues that a military accused no longer needs the added protection of an appellate court’s authority to overturn a case based on factual sufficiency. To support this position, the author highlights, among other things, the improved quality of defense representation and due process afforded in the military system since the inception of the UCMJ in the 1950s, the significant effort to combat unlawful command influence in the military justice system, and the general reliability of a military panel. With more protection in place to ensure that a military accused receives a fair trial, the author argues that our system no longer needs such an unencumbered review by the appellate courts.
Regarding the issue of unlawful command influence and reliability of a panel in sexual assault verdicts, there is no fair comparison to civilian jurisdictions. Even under current military law, it is legal (not unlawful command influence) for a commander to require every Servicemember (and thereby every panel member) to take sexual assault training. There is no civilian equivalent of this. Could you imagine if the governor of your state required every potential juror in the state to take sexual assault training prior to your trial for sexual assault? And then the judge tells you that that despite the sexual assault training they received, you will still receive a fair trial because the judge will instruct them to disregard what they heard in that training? Additional protection at the appellate level would not be such a bad thing in that case.
Absent from the article, and the primary basis of my disagreement with this position, is the fact that military panels, unlike federal and state jurisdictions, are not required to have a unanimous verdict for a finding of guilty. In fact, in many circumstances, the panel only needs a 2/3 majority to convict and can have as few as three members. Most if not all civilian jurisdictions require a unanimous verdict with a set number of jurors. The meaning of this significant deviation from the civilian sector is that a military panel’s verdict is not as representative of the views of the members as is a civilian jury.
I am not arguing that Courts-Martial should require a unanimous verdict from a panel. The needs of the military to ensure minimal disruption to the mission simply could not withstand the immeasurable burden of requiring a unanimous verdict in every case. The increase in “hung juries” and the additional deliberation time per Court-Martial alone would suffocate the military justice system. Rather, I support the position that with a 2/3 guilty verdict from a panel in a felony case, additional appellate court authority to ensure that there was a fair trial, is appropriate.
II. The pendulum has not stopped moving towards the Government.
The military defense community is somewhat a victim of our own success. The single greatest driving force behind military justice reform is the fact that the defense community wins more than the government thinks we should. Our firm in particular has extraordinary success with sexual assault cases.
That success causes the government to attempt to “swing the pendulum” back to their side. They are doing this by changing the law, changing the rules, and reducing the protections that accused Servicmemebrs have. Unfortunately, too many lawmakers rely on the narrow-minded statistics of conviction rates, rather than a more substantive analysis of the strength of the cases the Government choses to bring.
The continued need for protection of the accused is obvious to any observer of the average sexual assault trail. Therein lies the problem. Congressional and academic case analysis is conducted on high profile outliers, not the everyday sexual assault trial.
As congress and the military consider measures to remove/reduce protections afforded to the accused Servicemember, it has never been more important to have qualified and experienced civilian counsel at every stage of representation. If the military appellate courts ever do lose the authority to review a case for factual sufficiency, they only protection will be to make sure the military panel gets the verdict right at the Court-Martial.
In US v. Sterling, the Court of Appeals for the Armed Forces recently explained the balance between disobeying orders and religious freedom.
Sterling was a lance corporal in the Marine Corps. She taped a quote to her workstation that read "[n]o weapon formed against me shall prosper." The quote was based on scripture. She did not tell anyone that it was a bible verse. Unfortunately, LCpl Sterling seems to have had a personality conflict with her immediate enlisted supervisor - also a former drill instructor. He ordered her to remove the quote because he did not like it's tone. She refused. The first sergeant ordered her to remove the quote. She refused. The major ordered her to remove the quote. She still refused.
The Marine Corps ultimately opted to prosecute her at a Special Court-martial. She was convicted and demoted to E-1 and discharged from the service. There was no jail.
On appeal, she raised - for the first time - the issue of the Religious Freedom Restoration Act - 42 U.S.C. § 2000bb-2 (4). She also argued that there was no valid military purpose for the order to remove the quote. Spoiler alert - she lost. The Court found that she did not make a prima facie case that the order substantially burdened her exercise of religion under the RFRA. Likewise, they rejected her argument that there was no valid military purpose for the order.
Religious expression and speech are certainly issues that this firm has fought in the past. Years ago we represented a Navy public affairs officer who edited a book of essays that were critical to the Bush Administration and wars in Iraq and Afghanistan. The Sailor was devoutly Catholic. On a Catholic radio program he was asked about Just War Doctrine.
The radio host was asking the officer to explore the dilemma a Catholic service member might face when government policy conflicts with Catholic doctrine. The officer said:
"When [God] says, hey you murdered all those Iraqis...and the servicemembers respond, well George Bush said...I don't know that that is going to be a persuasive answer."
In that case, we fought for the Sailors rights at nonjudicial punishment. He was accused of contemptuous speech towards President Bush. Unfortunately, LCpl Sterling's case was escalated to a criminal court. Unnecessarily, I might add.
The actual balance between military orders and religious freedom, however, is not that difficult. The Sterling case offers a nice reminder of a few principles of law:
1. The legality of an order is a question of law;
2. Lawful orders must relate to a military duty;
3. A military duty includes all activities reasonably necessary to accomplish a mission, or safeguard or promote the morale or good order and discipline of a command;
4. The dictate's of a person's conscience, religion, or personal philosophy cannot justify or excuse the disobedience of a lawful order;
5. A lawful order must have a valid military purpose and be clear, specific, and narrowly drawn;
6. Orders are presumted to be lawful;
7. The burden is on the accused to show that an order is not lawful;
8. Orders must not conflict with statutory or constitutional rights;
9. The RFRA provides that government shall not substantially burden a person's exercise of religion;
10. Substantially burden is not well-defined, but generally means any government requirement that causes a person to significantly modify their behavior or violate their beliefs;
11. Restraints on behavior do not necessarily equate to substantial burdens;
12. The burden is on an individual to show - under the RFRA - that they had a sincerely held religious belief and that the belief was substantially burdened;
13. The test for sincerely held beliefs is subjective;
14. The Department of Defense has procedures for requesting religious accommodations; and,
15. The RFRA does not require an individual to exhaust administrative remedies.
Fight Over the Definition of Reasonable Doubt in the Air Force Headed to the Military's Highest Court
As a litigator, I can say that I have memorized the definition of reasonable doubt in each of the branches. Many times I have stood in front of a jury and discussed that definition.
Each of the branches has slightly different definitions of reasonable doubt. The definition of reasonable doubt can often mean the difference between guilt or innocence.
In an interesting development, 23 June 2016, the Court of Appeals for the Armed Forces granted review in an Air Force case over the definition of reasonable doubt. See United States v. McClour. The Court is going to examine whether there is an inconsistent application of the definition of reasonable doubt between the branches.
The Air Force defines reasonable doubt under the "firmly convinced" standard:
A “reasonable doubt” is a conscientious doubt, based upon reason and common sense, and arising from the state of the evidence. Some of you may have served as jurors in civil cases, or as members of an administrative board, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government’s proof must be more powerful than that.
It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the accused’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find the accused guilty. If, on the other hand, you think there is a real possibility that the accused is not guilty, you must give the accused the benefit of the doubt and find the accused not guilty.
We like the Army the definition - and I hope we don't lose it in this case. The Army definition states that the evidence must exclude every fair and rational hypothesis except for that of guilt. I have won many cases referencing that standard in closing:
A “reasonable doubt” is not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest misgiving generated by insufficiency of proof of guilt. “Proof beyond a reasonable doubt” means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt.
The Navy and Marine Corps uses a definition that talks about general misgivings:
By reasonable doubt is intended not a fanciful, speculative, or ingenious doubt or conjecture, but an honest and actual doubt suggested by the material evidence or lack of it in the case. It is a genuine misgiving caused by insufficiency of proof of guilt. Reasonable doubt is a fair and rational doubt based upon reason and common sense and arising from the state of the evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the accused's guilt.
There are very few things in this world that we know with absolute certainty, and in criminal cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him/her guilty. If, on the other hand, you think there is a real possibility that he/she is not guilty, you shall give him/her the benefit of the doubt and find him/her not guilty.
I will be watching this case with great interest to see whether we wind up with a uniform definition of reasonable doubt.
A copy of the grant order and a Motion for Appropriate Relief that the accused filed in Mclour is attached for some light reading. Hats off to the Air Force appellate attorneys for preparing a draft motion for others to use.
The Court of Appeals for the Armed Forces recently examined the question of the admissability of human lie detector testimony. Human lie detector testimony happens when a witness is asked whether another witness is telling the truth. The testimony is inadmissible on a number of different levels - (1) it is the job of the jury to determine witness credibility and (2) human's are notoriously bad at telling whether people are telling the truth. United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014).
Despite the inadmissibility of human lie detector testimony, it is still a favorite line of questioning for young trial lawyers. Wouldn't it be great if the one witness that should believe the victim thinks he or she is lying. In this line of business, however, you have to be careful what you ask for. That played out perfectly in a Marine Corps case recently - US v. Martin.
In Martin, the accused was convicted of wrongful sexual contact. He received a BCD for an alleged sexual touching of the sleeping wife of a fellow Marine. The defense theory was that the alleged victim fabricated the story. The prosecutors called the alleged victim's husband to testify that he was sleeping next to his wife at the time of the alleged assault.
The question CAAF was deciding was basically whether defense counsel invited the human lie detector testimony. Here is what happened:
On direct examination, trial counsel asked the husband about the night of the party in question. to
Q. Now, after you fell asleep that night, do you have any recollection of touching your wife in a sexual manner?
A. No, sir.
Q. In your mind, is there any chance that you could’ve digitally penetrated or put your fingers inside your wife’s vagina?
A. No, sir.
Q. Why do you say that?
A. It’s never happened before. I have never woken up and just done something like that with my wife….
Q. And you said it has never happened before that. Has anything like that ever happened since that?
A. No, sir. ….
Q. When you originally talked to NCIS you told NCIS that you thought it possibly could have been you who had touched your wife?
Editorial: This is obviously a critical statement that defense counsel picked up on in the NCIS interview.
Q. Why did you say that?
A. I’m the kind of person that if it’s even remotely an option I think about it like that. I guess I’m, like, a by-the-numbers-type of person. So, I mean, my wife could have thought about, you know, maybe it could have been another night. But just the way she has been since then, then I know it wasn’t me. She wouldn’t be acting the way she does nowadays, like, if it would have been me. Even if it was something that she wasn’t expecting from me she wouldn’t be acting that way.
Editorial: On cross-examination, the defense counsel clearly wanted to elicit the fact that the husband - at one time - thought he could have possibly committed the digital penetration on his sleeping wife. The lawyer starts off the cross-examination well enough, but goes too far in asking the human lie detector question.
Q. When she initially told you, she didn’t give anything in detail, did she?
A. No, sir.
Q. And you initially thought that maybe she imagined it?
A. I just -- I was kind of in disbelief.
Q. You thought maybe she dreamed it?
A. Something like that, sir, yes.
Q. The story didn’t really make too much sense to you?
A. I just figured that if something like that would have happened then …. where was I in this? … [I]f something like that were to happen to me, sir, I would -- I would have stopped it or done something, like, instantly, sir. ….
Q. [A]t no point after [she told you about the assault,] … you never went and reported it to anyone, did you?
A. I honestly … [it’s] not like I didn’t believe her, sir. But it, kind of, it didn’t make too much sense to me….
Q. Okay. So you weren’t entirely convinced that this happened then?
A. No, sir. Q. And you told NCIS that?
A. Yes, sir.
Q. You thought that, hey, maybe … it happened[,] maybe [it] didn’t happen?
A. Yes, sir.
Trial counsel did not object to this questioning.
Editorial: There was probably a better way to conduct this line of questioning to elicit the information that the defense counsel really wanted before the jury:
1) The husband was in the bed at the time of the assault;
2) The husband did not personally see the alleged offense even though he was in the bed;
3) The wife did not make any sounds;
4) The wife did not try and wake her husband up;
5) The husband would have expected her to wake him up if she was being assaulted while he was in the bed with her;
6) The fact that the wife said nothing and did nothing led the husband to believe that he possibly could have committed the act.
STOP at that point. You got what you wanted - reasonable doubt that maybe the husband did it.
On redirecf examination by the prosecutor, the husband was asked:
Q. Now, you just told the defense counsel that you had your doubts?
A. Yes, sir.
Q. You do believe your wife, though, correct?
A. I do, sir.
Q. And she’s telling the truth?
A. She is, sir.
Q. And why do you think that?
A. The way … that it’s affected her, the way that she’s changed, the way that it’s affected our marriage -- the way that it’s negatively impacted us just as a family -- we have two kids, we have three dogs, and she’s just depressed. And I understand that a mother is, obviously, is stressed out from all that, especially with me deploying again. But even on good days, she’ll just snap sometimes. And just the way that it’s affected her, something as big as it had on her wouldn’t have happened over a small situation, sir.
Editorial: Military defense counsel should have conducted a re-cross-examination about the impact.
This was a tough lesson for defense counsel...but it highlights a couple of important points:
1) Never call or examine a witness unless you have to elicit the information to win the case;
2) Never ask a question unless you know the old answer and the current answer. The exception to that rule is when you don't care what the answer is;
3) When you get the information you need, sit down; and,
4) If the prosecutor gets into victim impact testimony during the merits portion of the trial, either object or have a re-cross ready.