2008 edition - Fort Sam Houston - U.S. Army

v. Greene, 20 U.S.C.M.A. 232, 43 C.M.R. 72 (1970); United
S t a t e s v . H e r n d o n , 5 0 C . M . R . 1 6 6 ( A . C . M . R . 1 9 7 5 ) ; U n i t e d
States v. Perry, 47 C.M.R. 89 (A.C.M.R. 1973). The purpose of
this procedure is analogous to that of 18 U.S.C. §§ 1867(f) and
1868. The rule is a discovery device; it is not intended to limit the
types of evidence which may be admissible concerning the selection
process.
(b) Challenge of selection of members. This subsection is based
on 28 U.S.C. § 1867(a), (b) and (d). Other subsections in that
section are inapposite to the military. No similar provision appeared
in MCM, 1969 (Rev.). Nevertheless, a motion for appropriate
relief challenging the selection of members and requesting
a new one was recognized. See United States v. Daigle, 1 M.J.
139 (C.M.A. 1975); United States v. Young, 49 C.M.R. 133
(A.F.C.M.R. 1974). Except for matters affecting the composition
of the court-martial ( see Article 16 and 25(a), (b) and (c)),
i m p r o p e r s e l e c t i o n o f m e m b e r s i s n o t a j u r i s d i c t i o n a l d e f e c t .
United States v. Daigle, supra. See also S. Rep. No. 53, 98th
Cong., 18th Sess. 12 (1983). Cf. United States v. Blaylock, 15
M.J. 190 (C.M.A. 1983). The issue may be waived if not raised in
a timely manner.
(c) Stating of grounds for challenge. This subsection is based on
the second sentence of paragraph 62 b of MCM, 1969 (Rev.).
(d) Examination of members. This subsection is based on Fed. R.
Crim. P. 24(a). Paragraph 62 b and h of MCM, 1969 (Rev.)
discussed questioning members. Paragraph 62 b provided that “...
the trial or defense counsel may question the court, or individual
m e m b e r s t h e r e o f . ” U n i t e d S t a t e s v . S l u b o w s k i , 7 M . J . 4 6 1
(C.M.A. 1979), reconsideration not granted by equally divided
court, 9 M.J. 264 (C.M.A. 1980), held that this provision did not
establish a right of the parties to personally question members.
Instead, the court recognized that the procedures in Fed. R. Crim.
P. 24(a) are applicable to the military. See also United States v.
Parker, 6 U.S.C.M.A. 274, 19 C.M.R. 400 (1955). Therefore,
subsection (d) does not change current practice.
The discussion is based generally on paragraph 62b of MCM,
1969 (Rev.) and encourages permitting counsel to question personally
the members. See United States v. Slubowski, supra at
463 n.4; ABA Standards, Trial by Jury § 2.4 (1979). As to the
scope of voir dire generally, see Ristaino v. Ross, 424 U.S. 589
(1977); United States v. Baldwin , 607 F.2d 1295 (9th Cir. 1979);
United States v. Barnes, 604 F.2d 121 (2d Cir. 1979); United
States v. Slubowski, supra; United States v. Parker, supra. The
second paragraph of the discussion is based on ABA Standards,
The Prosecution Function § 3-5.3(c). (1979); The Defense Function
§ 4-7.2(c) (1979).
(e) Evidence. This subsection is based on the first sentence of
paragraph 62 h(2) of MCM, 1969 (Rev.).
( f ) C h a l l e n g e s a n d r e m o v a l f o r c a u s e . S e e g e n e r a l l y A r t i c l e
41(a). Subsection (1) is based on Article 25 and paragraph 62 f of
MCM, 1969 (Rev.). The examples in the last paragraph of paragraph
62 f have been placed in the discussion.
Subsection (2) is based on paragraphs 62 d and h(1) of MCM,
1969 (Rev.).
Subsection (3) is based on Article 41(a) and paragraph 62 h of
MCM, 1969 (Rev.). The first sentence is new. MCM, 1969 (Rev.)
was silent on this matter. The procedure is intended to protect the
parties from prejudicial disclosures before the members, and is in
ANALYSIS
App. 21, R.C.M. 912(g)
accord with practice in many courts-martial. Paragraph 62 h(2) of
MCM, 1969 (Rev.) advised that the military judge “should be
liberal in passing on challenges, but need not sustain a challenge
upon the mere assertion of the challenger.” The precatory language
has been deleted from the rule as an unnecessary statement.
This deletion is not intended to change the policy expressed in
that statement.
The waiver rule in subsection (4) is based on United States v.
Beer, 6 U.S.C.M.A. 180, 19 C.M.R. 306 (1955). See also United
S t a t e s v . D y c h e , 8 U . S . C . M . A . 4 3 0 , 2 4 C . M . R . 2 4 0 ( 1 9 5 7 ) ;
United States v. Wolfe, 8 U.S.C.M.A. 247, 24 C.M.R. 57 (1957).
Grounds (A) and (B) in subsection (f)(1) may not be waived,
except as noted. See generally H. R. Rep. No. 491, 81st Cong, 1st
Sess. 17-18 (1949); United States v. Newcomb, 5 M.J. 4 (C.M.A.
1978). Membership of enlisted members of the enlisted members
of the accused’s unit has been held not to be jurisdictional, and,
therefore, may be waived. United States v. Wilson, 16 M.J. 678
( A . C . M . R . 1 9 8 3 ) ; U n i t e d S t a t e s v . K i m b a l l , 1 3 M . J . 6 5 9
( N . M . C . M . R . 1 9 8 2 ) ; U n i t e d S t a t e s v . T a g e r t , 1 1 M . J . 6 7 7
( N . M . C . M . R . 1 9 8 1 ) ; U n i t e d S t a t e s v . S c o t t , 2 5 C . M . R . 6 3 6
(A.B.R. 1957). Contra United States v. Anderson, 10 M.J. 803
(A.F.C.M.R. 1981). The Court of Military Appeals has held that
the presence of a statutorily ineligible member is not a jurisdictional
defect. United States v. Miller, 3 M.J. 326 (C.M.A. 1977);
United States v. Beer, supra. Ineligibility of enlisted members
from the accused’s unit is designed to protect the accused from
prejudice and does not affect their competency. See Hearings on
H.R. 2498 Before a Subcomm. of the House Comm. on Armed
Services, 81st Cong. 1st Sess. 1140, 1150-52 (1949). See also S.
Rep. No. 53, 98th Cong., 1st Sess. 12(1983).
The second sentence in subsection (4) is based on United States
v. Seabrooks, 48 C.M.R. 471 (N.C.M.R. 1974). See also United
States v. Jones, 7 U.S.C.M.A. 283, 22 C.M.R. 73 (1956). This is
c o n s i s t e n t w i t h f e d e r a l p r a c t i c e . S e e , e . g . , U n i t e d S t a t e s v .
Richardson, 582 F.2d 968 (5th Cir. 1978). The third sentence
clarifies the effect of using or failing to use a peremptory challenge
after a challenge for cause is denied. This has been a
subject of some controversy. See United States v. Harris, 13 M.J.
288 (C.M.A. 1982); United States v. Russell, 43 C.M.R. 807
(A.C.M.R. 1971) and cases cited therein. Failure to use a peremptory
challenge at all has been held to waive any issue as to denial
o f a c h a l l e n g e f o r c a u s e . U n i t e d S t a t e s v . H e n d e r s o n , 1 1
U.S.C.M.A. 556, 29 C.M.R. 372 (1960). Because the right to a
peremptory challenge is independent to the right to challenge
members for cause, see Article 41, that right should not be forfeited
when a challenge for cause has been erroneously denied.
See United States v. Baker, 2 M.J. 773 (A.C.M.R. 1976). See also
United States v. Rucker, 557 F.2d 1046 (4th Cir. 1977); United
States v. Nell, 526 F.2d 1223 (5th Cir. 1976). See generally Swain
v. Alabama, 380 U.S. 202 (1965). The requirement that a party
peremptorily challenging a member it has unsuccessfully challenged
for cause state that it would have peremptorily challenged
another member is designed to prevent a “windfall” to a party
which had no intent to exercise its preemptory challenge against
any other member. See United States v. Harris, supra; United
States v. Shaffer, 2 U.S.C.M.A. 76, 6 C.M.R. 75 (1952); United
States v. Cooper, 8 M.J. 538 (N.C.M.R. 1979).
(g) Peremptory challenges. Subsection (1) is based on Article
41(b). The second sentence is new. Paragraph 62 e of MCM,
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