Many practitioners in military practice long ago wrote off the idea of truly being able to test the fairness of those in the position to decide the verdicts (findings) in military courts-martial. Military judges on the whole loathe any questions that probe deeply into potential biases or the appearance of potential biases, desiring more an expeditious process than necessarily a thorough one. Unlike the process in most civilian jurisdictions, military practitioners are restricted to questions that demand merely “yes” or “no” responses, to be followed up on in individual voir dire. Judges are most worried that any narrative answer given among the group would sully or taint the others that remain.
Practitioners that feel constrained in the current model often view the general voir dire process as an opportunity to introduce oneself to the panel members and to spot overt challenges. Many trial counsel approach the podium wanting merely to be able to step away not having floundered in an embarrassing fashion.
There is a reason why jury consultants in civilian trials make heaps of money: there is much to be gained from a systematic endeavor to shape the panel into those best situated to favorably hear your case. Am I suggesting that the facts of a case will turn completely on the panel? No. But in a close case, even one vote can mean the difference between sex offender registration and freedom.
Posing questions, even those that are restrained by demanding a “yes” or “no” response, in a way that psychologically permits the answerer to feel the freedom to be among the minority in answering differently from the group. A question’s asker needs also to have the comfort level to stare the potential panel members in the eye long enough to demand truthful answers but not so long as to create discomfort among the members. The practitioner seeking the fairest panel also needs to the ability to perceive non-verbal cues that will provide insight into that member’s inner feelings.
Last week, while attempting to pick the panel most advantageous to my client’s case and defense, I was able to find sufficient grounds to successfully challenge six out of twelve potential members. The government opted to use its peremptory challenge, as did we. That left only four members, falling below the quorum for a general court-martial. The next day the government brought five additional members and I successfully challenged three of those five members. The government wanted desperately to use its peremptory challenge against a member that was clearly favorable to the defense, but felt the pressure from their superiors not to “bust quorum” again. Defense successfully leveraged a five-member panel and we have put our client in the best position to gain a successful outcome. The voir dire process took nearly three days to complete and trial has been continued until October.
Defense was able to unravel the most fodder for challenges by posing questions that allow the members to give human reactions. There are two basic categories of questions that are asked during the military court-martial voir dire process: 1) those that attempt to teach legal standards; and 2) those that attempt to elicit actual or implied bias. In choreographing a medley of questions that vacillate between the two, the practitioner sets himself in the best position to gain material to challenge the member. Questions that teach legal standards include “Do all panel members agree that the defense bears no burden in this trial?” or “Will all panel members be able to follow the military judge’s instruction that the burden of proof rests solely on the government and never shifts to the defense?” Neither of those questions will often result in a challenge, although every now and again, you will see that member who is so skewed against fairness that they give the response that will set them free from their duty. Most often, these questions teach the potential panel member that they are supposed to accept these tenants as true, even if they do not. Routinely, the government counsel pepper their questions with these types of “teaching” questions to train the potential members of how they are supposed to respond. It is the defense counsel’s job to test what lies beneath that superficial learned behavior that the trial counsel is trying to deeply engrain.
The types of question that will elicit actual or implied bias are ones that, as an initial matter, gives permission to the answerer to agree with it. Rather than posing the question as “Are you open to the idea that…” when the answerer will rarely come out and say “no, I cannot even consider” whatever it is that you are trying to get me to consider, the asker needs to pose the question in a way that requires an affirmative answer that will set the responder apart but not in such a way as to make them feel alone or solitary. For instance, phrasing the question, “How many of you…?” the responder will feel that an affirmative answer puts him or her in the company of reasonable people. “How many of you would like to hear the accused’s version of events when deciding whether or not you believe he is guilty?” Such a question will lead to affirmative responses that will generate follow-up and challenges far more often than “Does any panel member want to hear the accused’s version of events?” especially when the defense attorney follows the military judge and the government’s teaching questions that drill into them that they should not want to hear from the accused because of the accused’s right to remain silent. The distinction is subtle yet severe. Psychologically a member will feel far more comfortable answering in the affirmative when asked the former when compared with the latter.
Most often it is the facts of a case, as filtered by the attorney practitioners, that win and lose cases, but ensuring one’s client is best situated after picking an advantageous panel doesn’t hurt the client’s chances. Voir dire is not an opportunity to be thrown away; it is for many a lost art. Ensure that your case is shaped to your advantage at every possible step by choosing an attorney that understands the nuances of member selection.
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