Imagine a world where the prosecutor handpicks the jury for a trial. I don't want to live in that world
. . . but I do.
I'm Cody Harnish, a UCMJ attorney. Today, we are peeling back the curtain and peeking inside the high-stakes world of jury selection at a court martial.
In the civilian world, potential jurors are selected randomly from the community, and they're supposed to represent a fair cross-section of that community. Sounds fair. Right?
Well, in the military, things couldn't be more different. We don't have juries. We have panels. And they're not randomly selected. No, it's the convening authority. The two-star / three-star general, the commanding general of the base, the prosecutor's chain of command who hand picks the jury pool. This means the people deciding my client's fate have already gotten a green light, a pat on the back from the commanding general to serve on this panel. They've been handpicked.
On the first day of the trial, we always do panel selection. The prosecutors bring in 15 to 20 of these hand-picked, pre-selected individuals. And they all have to outrank my client. Then, these 15 to 20 people will have to be cut down to eight (8) for a general court-martial. How is this done? Through a process called Voir Dire.
Now, some people pronounce it “Voy Die-er,” they're wrong; others pronounce it “Vwar-dir,” they're right. Translated literally, it means "to speak the truth." But really, it's a process in which the attorneys, both the prosecution and the defense, are going to get up, and they're going to ask questions of these potential panel members, all 15 to 20 of them at first, about their opinions on some awkward topics that might come up at trial.
The whole point of this is to find a fair and impartial panel; after group voir dire and individual voir dire outside the presence of the panel members, the attorneys can ask the military judge to excuse certain panel members for either actual or implied bias. Let me give you an example.
Let's say I ask the question, "are you more likely to believe a police officer based solely on the fact that they're a police officer and nothing else?" And let's say I get a candid, open response from an individual who says, "Yeah, I naturally believe police officers more than any other type of witness based solely on the fact that they're police officers." Now, in a case where the prosecution will be calling police officers to take the stand, this person might not be the most fair and impartial for this trial.
Remember, the whole point of this process is to find a fair and impartial panel, so when the prosecutor does the following, I get very pissed off (professionally of course): The prosecutor gets up, looks at the panel members in their full regalia sitting in the panel box, and they say, "If the military judge instructs you that you're not allowed to give any more weight or credibility to a police officer based solely on the fact that they are a police officer, is that an instruction you can and will follow?"
I mean come on! If anyone asks any military member, especially on the record, if they can and will follow a lawful order, what do you think the answer is going to be? They're going to say yes.
The prosecutor then sits down like they've done their job and proven that this individual is fair and impartial. But in reality, they don't want a fair and impartial panel. They are playing a strategy game, and they want someone who will lean to their side and their case, thus the leading questions. When the process is not about being fair and impartial, the process is broken.
Don't even get me started that a unanimous verdict is not required.
If this has been helpful, like, share, comment, or follow for more information on military law. In the meantime, I'm going to keep doing what I've been doing: defending America's defenders.
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