Members (Jury) Issues Category Archives — Page 2 of 4 — Court-Martial Trial Practice Blog Published by International Military Lawyer

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.

Benchbooks and Instructions

July 21, 2014 | The Law Office of Philip D. Cave

The Military Judge’s Benchbook (MJBB) is the bible for how a military judge will instruct the members of your court-martial under the UCMJ. Your military defense lawyer should be well versed in this book and these instructions. The military judge will tell the members what elements of the crime must be proved beyond reasonable doubt; she will tell them about how they may consider evidence presented in court; and she will tell them the voting procedures they must follow to ensure a secret written ballot without undue command influence.

Military appellate courts are not enthused with deviations from the MJBB, even though it is quite possible to do that. Oddly, the military court of criminal appeals allow for minor deviations and don’t actually require exacting compliance with the MJBB. See for example, United States v. Bigelow, 57 M.J. 64 (C.A.A.F. 2002). On the other hand the Court of Appeals for the Armed Forces {CAAF) has cautioned against significant deviations from the MJBB, unless adequately explained on the record. United States v. Rush, 54 M.J. 313 (C.A.A.F. 2001). That’s what happened with the litigation over challenges to Article 120, when a military judge ignored the law and also the MJBB, and advised the members that the accused did not have any burden to prove consent.

It may not matter if the judge does not follow the MJBB when instructing the members. For example in a recent case the Court of Appeals for the Armed Forces (CAAF) decided that the judge had made a mistake in not instructing on a defense, but that the error was harmless. We don’t need to go too deep into this area of trial practice; this is something your appellate military defense lawyer and trial military defense lawyer should know about and discuss with you.

Comment on silence

March 17, 2014 | The Law Office of Philip D. Cave

Direct comments on the exercise of the right to silence are usually quite clear and should draw an immediate objection. Our friends at federalevidence review have a comment. What isn’t so clear are indirect or implied or subtle comments. This is a particular bugaboo of my when LE agents and trial counsel stray from the correct path. This involves judgment and discretion on whether to object.

When does the introduction of evidence constitute an indirect comment on a defendant’s silence, violating the defendant’s Fifth Amendment right against self incrimination? In a tax fraud case, the Seventh Circuit examined evidence how the government focused the the jury on the defendant’s lack of response. Even though the admission of the evidence was a harmless error, the circuit found that questions to the case agent regarding the alleged fraudulent scheme, though “subtle,” were no less in violation of the defendant’s Fifth Amendment rights than more direct comments on a defendant’s silence, in United States v. Phillips, __ F.3d __ (7th Cir. March 14, 2014) (No. 12-2532)

It is coming up on fifty years since the Supreme Court clarified as part of Fifth Amendment jurisprudence that a defendant’s right against self-incrimination is violated by introduction of evidence that only indirectly comments on a defendant’s failure to respond to government charges. See, e.g., Griffin v. California, 380 U.S. 609, 615 (1965) (“We … hold that the Fifth Amendment … forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.”) The normal test of the violation of this requirement is that the evidence would “naturally and necessarily” be construed as a comment on the defendant’s silence. The Seventh Circuit recently examined this exclusion, explaining and describing a standard approach to dealing with evidence that possibly strays into this type of constitutional violation.

Two years of federal evidence

January 20, 2014 | The Law Office of Philip D. Cave

Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014.

Key Evidence Issues During 2013

1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence

Worth the read about Member bias

November 4, 2012 | The Law Office of Philip D. Cave

What Happens in the Jury Room Stays in the Jury Room . . . but Should It?: A Conflict Between the Sixth Amendment and Federal Rule of Evidence 606(b), Amanda R. Wolin, 60 UCLA L. Rev. 262 (2012).

The Members sieve

October 23, 2010 | The Law Office of Philip D. Cave

Leaks from Members (or sometimes military judges) occasionally give rise to appellate litigation.

Here is an interesting piece on federal evidence review:

Motion for new trial on criminal extortion and bribery case denied, despite juror’s statement to newspaper after the verdict that because the defendants did not testify, the juror reasoned that "[if] they were innocent, they would have testified.’”; since members of the jury did not learn of the defendant’s failure to testify through improper channels, the evidence of their discussions was not admissible under FRE 606(b) as it was not an extrinsic influence, inUnited States v. Kelley, 461 F.3d 817 (6th Cir. Aug. 31, 2006) (Nos. 05-1361, 05-1435)

Pretrial and trial publicity

October 18, 2010 | The Law Office of Philip D. Cave

Federal Evidence Review references:

In conspiracy and arson trial, reversing and remanding when trial court failed "to make adequate inquiries regarding news stories" that appeared during deliberations and their impact on juror’s deliberations; the judge erroneously failed to explore "whether any juror heard any of the information" and its impact on the jury, in United States v. Waters, __ F.3d __ (9th Cir. Sept. 15, 2010) (No. 08-30222)

The Ninth Circuit recently considered the trial court’s responsibilities to make specific inquiry of jurors when "adverse publicity occurs during deliberations" of the jury. The case can help clear up confusion about the role of the trial court, particularly in light of FRE 606(b) limiting inquiry into a verdict.

In the Supremes

October 7, 2010 | The Law Office of Philip D. Cave

SCOTUSBlog notes two new petitions with potential impact on a court-martial practice under the UCMJ.

Title: NIBCO, Inc. v. Rivera
Docket: 10-383
Issue(s): (1) Whether a court of appeals must conduct a comparative juror analysis when reviewing a claim under Batson v. Kentucky, even though the comparative analysis was neither raised before nor considered by the trial court below; and (2) whether a court of appeals that identifies a suspected Batson problem based on a comparative juror analysis never considered by the trial court can vitiate a trial without remanding to allow the trial court to consider the new arguments and evidence in the first instance.

Title: Dunn v. Louisiana
Docket: 10-386
Issue(s): Whether a court’s modification of the three-step Batson v. Kentucky analysis, requiring the defense to prove that its strikes were not motivated by race, while simultaneously requiring it to prove that the state’s strikes were motivated by race, violates the Sixth and Fourteenth Amendments.

Humor in uniform lawyering

May 16, 2010 | The Law Office of Philip D. Cave

The accused is charged with indecent assault on a complaining witness and rape on another complaining witness.

Member: Sir I’m the unit victim advocate. Individual voir dire continues blah, blah, blah.

Def: The defense objects on implied bias and liberal grant mandate.

A SPCM panel of at least three not unconstitutional

November 13, 2009 | The Law Office of Philip D. Cave

(Thanks to Volokh Conspiracy) we have Sanford v. United States, No. 08-5402 (D.C. Cir. 13 November 2009), in which the court held that a SPCM with less than six members is not unconstitutional. The court notes that:

This court has recognized that the standard of review in non-custodial collateral attacks on court-martial proceedings is “tangled.” United States ex rel. New v. Rumsfeld, 448 F.3d 403,
406 (D.C. Cir. 2006) (“New II”).

Sanford had been arguing that the government had the burden to demonstrate reasons why there should not have been at least six members on his court-martial panel, in accordance with Ballew v. Georgia, 435 U.S. 223 (1978). The district court dismissed Sanford’s case, and he appealed. The circuit court ultimately concluded that the burden was on Sanford to show reasons why there was a constitutional violation and that because he’d not done so, dismissal was proper. Thus, a special court-martial can still have less than six members. It is uncertain if Sandford will appeal.