Members (Jury) Issues Category Archives — Court-Martial Trial Practice Blog Published by International Military Lawyer

Reasonable doubt

November 26, 2024 | The Law Office of Philip D. Cave

Reasonable doubt is the fundamental pillar protecting the rights of accused service members in a court martial. It is a legal standard that ensures a fair and just process and safeguards against the potential for wrongful convictions. The prosecutor must prove a case beyond a reasonable doubt, a crucial safeguard against false convictions. The BRD standard serves as a second cornerstone to a fair trial. BRD works alongside another cornerstone of the legal system- the presumption of innocence. The burden of proving guilt rests solely on the prosecution. The defendant does not have to prove their innocence. This principle helps to prevent wrongful convictions by ensuring that individuals are not punished unless the state can provide compelling evidence of their guilt. The high burden of proof helps to mitigate the potential impact of biases or errors in the justice system. It requires the prosecution to present objective evidence that can withstand scrutiny, reducing the risk of convictions based on prejudice, faulty eyewitness testimony, or flawed forensic evidence.

Military judges in the various military services play a crucial role in defining reasonable doubt to their panels (juries). For instance, the Army and the Coast Guard judges instruct the panel that a “reasonable doubt is a fair and reasonable hypothesis other than that of guilt.” Soldiers and Coasties are guided to acquit if there is another rational, innocent explanation for the facts. On the other hand, the Air Force, Navy, and Marine Corps use different language, telling the panel that they must be “firmly convinced” or similar language to convict.

The highest standard of legal proof in criminal trials is beyond Reasonable Doubt. This means that the prosecution must present evidence strong enough to convince a reasonable person that there is no other logical explanation for the facts except that the defendant committed the crime. This demanding standard makes it less likely that someone will be convicted based on weak or insufficient evidence. The evidence must firmly convince the jury of the defendant’s guilt. If there is any reasonable uncertainty, the jury is instructed to acquit. This standard recognizes the gravity of depriving someone of their freedom, or worse, their life, and requires that the evidence be overwhelmingly convincing.

Unanimous verdicts Update

September 23, 2023 | The Law Office of Philip D. Cave

In this earlier blog, I commented on the pending litigation over unanimous verdicts at courts-martial. As military defense lawyers we continue to support the advice given that the issue should be raised in all courts going forward.

The update is that the Court of Appeals for the Armed Forces has decided United States v. Anderson. The unanimous court decided that there was still no constitutional requirement for a unanimous court-martial verdict, despite the Supreme Court decision in Ramos v. Louisiana.

That means we must now wait until the issue gets presented to the Supreme Court for a final ruling on the issue. It can take time for the Supreme Court to decide to take on an issue. That was our experience as appellate military defense counsel in United States v. Weiss, 36 M.J.224 (C.M.A. 1992) aff’d Weiss v. United States. 510 U.S. 163 (1994). So,

Unanimous verdicts

May 9, 2023 | The Law Office of Philip D. Cave

Military lawyers know that since the Supreme Court decided Ramos v. Louisiana, the U. S. military is the only federal jurisdiction that does not require unanimous findings of guilt.

Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

Collateral consequences

January 29, 2019 | The Law Office of Philip D. Cave

Thanks to Prof. Berman at Sentencing Law 7 Policy who directs us to Murray, Brian, Are Collateral Consequences Deserved? (January 29, 2019). Available at SSRN: https://ssrn.com/abstract=

I have a standard sex offender registration motion that I use in all cases in which a sex offense is charged and if convicted the client will have to register as a sex offender.

Few appellate courts have been willing to agree that SOR is a punishment and hold that to be a collateral consequence. Some state supreme courts have held new amendments to their state law are “punishment” for ex post facto analysis, but they are few. Despite that, I continue to argue that SOR is more than a collateral consequence. As the second part of my motion, I argue admissibility of SOR as “evidence” under the principles for giving punishment, on which the members are instructed: particularly rehabilitation and deterrence.

Case to watch–jury nullification

February 11, 2017 | The Law Office of Philip D. Cave

The SCOTUS might soon give us an idea on the subject of jury nullification in Lee v. United States.

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

It is not obvious from the Issue that nullification is central to the case. But, Ilya Shapiro, The Right to Hope for Jury Nullification, CATO Institute, 9 February 2017, explains.

Supreme Court gossip

October 23, 2016 | The Law Office of Philip D. Cave

SCOTUSBlog has an interesting post about the court’s relist practice. Some of us discussed the relist option when the court was considering the petition in United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) cert. denied.

When last we wrote about the statistics of relists a little over a year ago, it was to report on what was then a new trend: the court’s practice of routinely relisting petitions that are under serious consideration for review at second or subsequent conferences prior to entering orders granting or denying certiorari. The practice is by now an accepted feature of the certiorari process, and at least one relist is generally viewed as a necessary step on the way to a grant of further review. Here, we offer an update on the statistics of relists. Focusing on October Term 2015, we highlight some emerging trends in what appears to be an evolving practice.

Regrettably, on 3 October 2016 the court declined to take Captain Sullivan’s petition.

A question of judge and jury impartiality–conflict

November 20, 2015 | The Law Office of Philip D. Cave

The petition for a writ of certiorari has been filed in Sullivan v. United States, CGCMG 0285 (C.G. Ct. Crim. App. 25 September 2014)(unpub.), 74 M.J. 448 (C.A.A.F. 2014).

CAAF’s decision in Woods does not support MJIA

June 26, 2015 | The Law Office of Philip D. Cave

The Real Cost Of Having Commanders In Charge Of Military Justice

This article has appeared in Task & Purpose as a result of United States v. Woods, decided by the Court of Appeals for the Armed Forces on 18 June 2015.

Incredibly, a senior naval officer was appointed to be the president of a court-martial panel when in a questionnaire prepared when first told she’d be a court-martial member in the future, the member answered thus about the presumption of innocence.

Stacked deck

October 1, 2014 | The Law Office of Philip D. Cave

The Coast Guard has an interesting opinion in United States v. Sullivan, on a members panel stacking.

A military accused does not have the same “jury” right as a civilian accused, but he does have the right to a panel (jury) that is fair and impartial. United States v. Roland, 50 M.J. 66, 68 (1999); United States v. Nash, 71 M.J. 83 (C.A.A.F. 2011). Oddly, and unlike the civilian case, it is the person who orders the trial who gets to select who will decide the case he has referred to trial. The commander cannot systematically or for bad motive select a panel likely to be biased in some way toward an accused. For example, a person who believes that all convicted accused’s must be punitively discharged. The primary engine for challenging members once appointed is through voir dire, and then showing actual or implied bias. United States v. Gooch, 69 M.J. 353 (C.A.A.F. 2010).

This is the second Coast Guard panel challenge case in just a short period. United States v Riesbeck has been examined here, by colleague Sam Adams. Riesbeck may be viewed as a “normal” issue of panel stacking. Panel stacking questions often arise with rank or gender of the selected members. There is the anomalous case of volunteerism in United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004), [1] which joins Sullivan as being an oddity – serious, but odd.

They’ve already made up their minds

September 1, 2014 | The Law Office of Philip D. Cave

How many times during a trial do you try to guess what the members are thinking, and what their decision is – I would suggest we do that many times throughout a trial. We do this because we are responding to a client’s comment about a look, a question, or the demeanor of one or more members. We do this to try and sense how our case is going for tactical reasons. We do this because we hope to gain some “insight” on the next steps. A pretty common reason is whether or not we feel the client needs to testify.

Of course we can never know what the members are really thinking. During the occasional after court talk it becomes clear that what we thought the members were thinking was not what they were thinking, etc., etc., etc.

So, it’s a worthwhile effort in situational awareness to try and monitor the members. But what happens if their thinking becomes more obvious or blatant – or possibly so. At times, I have addressed the issue of the members having already decided the case or evidenced a bias because of a question one of them has asked.