The right to trial by jury is the cornerstone of the American system of justice. James Madison, one of the major contributors to the Constitution, stated that “Trial by jury is essential to secure the liberty of the people as any one of the pre-existent rights of nature.” The belief was widely held by the Framers of the Constitution and ultimately enshrined in the Bill of Rights.
While courts-martial are not subject to the jury trial requirements of the Sixth Amendment, military defendants do have the right to be tried by a fair and impartial panel under Article 25, Uniform Code of Military Justice (UCMJ).
MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ. If you are facing court-martial, you need an experienced law firm that will fight for you. Contact one of our military defense lawyers today for a free consultation.
Eligibility and Selection of Members
Jury members in the military are referred to as “member” and the jury is called a “panel.” Article 25, UCMJ, details who may serve as members on a court-martial. The list includes commissioned officers, warrant officers, and, when specifically requested by the accused, enlisted members if the accused is also an enlisted member. Generally, members should not be junior in rank to the defendant.
In the military justice system, panel members are chosen by the convening authority—the same individual who also decides whether to bring criminal charges forward to trial. Under Article 25, the convening authority is required to detail as members only those individuals who, in his or her opinion, are “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Notably, gender is not a selection factor under Article 25, UCMJ, and selection on the basis of gender is generally prohibited.
While a military defendant has an absolute right to a fair and impartial panel, courts-martial are not subject to the jury trial requirements of the Sixth Amendment, and, therefore, military members are not afforded a trial in front of a representative cross section of the military community.
Peremptory Challenges and Challenges for Cause
RCM 912(f)(1)(N) requires that a court-martial member be excused for cause whenever it appears that the member should not sit as member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality. A lack of impartiality can result from either implied or actual bias.
Actual bias is defined as bias in fact. Actual bias exists when there is evidence that the potential member will not act impartially and where the person possesses a “personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.”
For example, courts have found that actual bias exists if a potential panel member holds an inelastic attitude toward the appropriate punishment to adjudge if the accused was convicted. A mere predisposition or inclination to give a certain type of punishment is not enough to disqualify a member. Rather, the evidence must show that the member’s attitude is of such a nature that he will not yield to the evidence presented or the judge’s instructions.
In contrast, implied bias challenges stem from the historic concerns about the potential for command influence in courts-martial. To determine whether implied bias exists, courts try to determine whether the public will perceive that the accused received something less than a court of fair, impartial members. This determination is based on the totality of the circumstances.
During jury selection, the parties may raise an unlimited number of challenges for cause. However, each side is only entitled to one peremptory challenge.
Authority of Members
One of the most unique and interesting facets of the military justice system is that panel members have the opportunity to ask questions during the court-martial and even obtain other witnesses and evidence under Article 46, UCMJ.
RCM 921(b) further gives members the chance to request that the court-martial be reopened, and that additional evidence be introduced. MRE 614(a) allows members to request to call or recall witnesses to testify at a court-martial. The military judge decides whether to grant these requests.
After hearing all the evidence and instructions, members will decide on guilt or innocence. If there is a conviction, members can also impose a sentence, or a service member can elect sentencing by military judge alone.
Unanimous Verdict Not Required
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The United States Supreme Court has repeatedly held that the Sixth Amendment requires a unanimous verdict. In other words, to be convicted of a crime in civilian court, all jurors must agree on the issue of guilt.
Unfortunately, this right does not extend to military courts-martial. Unlike a civilian court where a unanimous decision is required for conviction, in a military court the Government only needs three-fourths of the military panel to secure a conviction. A sentence of death is an exception and requires a unanimous finding of guilt and a unanimous determination by the members that death is the appropriate sentence.
The Court of Appeals for the Armed Forces (CAAF) recently considered this issue again United States v. Anderson (2023). The CAAF emphasized that the Sixth Amendment right to a jury trial does not apply to courts-martial and reasoned that a military defendant can have a fair and impartial panel even if it is not unanimous.
Contact MJA Today
If you are under investigation or facing court-martial, it is of the utmost importance that you are represented by an experienced military attorney.
MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ and stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.
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