Court-Martial Trial Practice Blog
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.
MJ: Explain why please.
Def: Blah, blah, blah.
TC: The government objects to the defense challenge. There is no evidence of bias or potential bias, the member won’t be an expert in the deliberation room, and the public won’t have a warped perception of the system with an advocate for sexual assault victims being a member in a case of multiple sexual assaults.
MJ: Challenge denied.
And yes, under the current prosecution extremely favorable pro-government (made by and for the government, even though they have unlimited preemptory challenges in the initial selection process) rule the member was pre-empted and the challenge can’t be preserved.
From my trial notebook.
Sine qua non for a fair court-martial is members free of bias. A member shall be excused in cases of actual bias or implied bias. United States v. Napoleon, 46 M.J. 279, 282-83 (C.A.A.F. 1997); United States v. Minyard, 46 M.J. 229, 231 (1997); United States v. Daulton, 45 M.J. 212, 217 (1996); United States v. Harris, 13 M.J. 288, 292 (C.M.A. 1982).
Implied bias. Implied bias when "most people in the same position would be prejudiced.” United States v. Armstrong, 54 M.J. 51, 53-54 (2000), quoting United States v. Warden, 51 M.J. 78, 81 (1999); United States v. Smart, 21 M.J. 15, 20 (C.M.A. 1985). Implied bias is viewed through the eyes of the public, focusing on the appearance of fairness. United States v. Townsend, 65 M.J. 460 (C.A.A.F. 2008), is newest case on implied bias, which again seems to cut back on the concept; as well as the liberal grant mandate. This is a good 2008 article on implied bias, Colonel Louis J. Puleo, Implied Bias: A Suggested Disciplined Methodology, Army Law., Mar. 2008, at 34.
Ultimately the issue wasn’t preserved because of an acquittal on the two sexual assault charges.