Articles Posted in Members (Jury) Issues

How many times during a trial do you try to guess what the members are thinking, and what their decision is – I would suggest we do that many times throughout a trial.  We do this because we are responding to a client’s comment about a look, a question, or the demeanor of one or more members. We do this to try and sense how our case is going for tactical reasons.  We do this because we hope to gain some “insight” on the next steps.  A pretty common reason is whether or not we feel the client needs to testify.

Of course we can never know what the members are really thinking.  During the occasional after court talk it becomes clear that what we thought the members were thinking was not what they were thinking, etc., etc., etc.

So, it’s a worthwhile effort in situational awareness to try and monitor the members.  But what happens if their thinking becomes more obvious or blatant – or possibly so.  At times, I have addressed the issue of the members having already decided the case or evidenced a bias because of a question one of them has asked.

At what point do you make an issue of the perception either with the individual member or the panel as a group?

Another area of concern is when you hear about comments made by one or more members outside the courtroom.  Perhaps something overhead in the passageway or in the head.

At what point do you make an issue of the perception either with the individual member or the panel as a group?

As with all things this is a matter of judgment.  Do you upset the members about something that is nothing, do you draw something to the attention of the members you’d rather they not focus on.  Or do you have a problem and it needs to be addressed now!

I had a case at GitMo some years ago where there was in court wrangling over a particular legal definition.  After a break we found out one of the members was looking the definition up in a legal text book.  The members deliberation was the SJA law library.  We dealt with that on the record.  This would be extraneous information.  See e.g., United States v. Lambert55 MJ 293 (C.A.A.F. 2001), about inquiry into members conduct.  Lambert is not “the” case, but it’s worth the read.  Check out, United States v. Dugan, 58 MJ 253 (C.A.A.F. 2003).

I am reminded of this piece of trialcraft by the case of United States v. Axsom, _ F.3d _ (8th Cir. Aug. 4, 2014) (No. 12-3703), brought to us by our friends at federal evidence review blog.  In that case the defense claimed that two members had come to a premature decision on guilt.Two items got the attention of the parties and the judge.

“[D]uring voir dire, “A prospective juror reported that banter between a Court Security Officer and an FBI case agent in the courtroom, while the judge and attorneys were in the jury room conducting individual voir dire, may have affected her outlook about the trial.”

o[O]n one morning during the trial, when the jurors were lining up to enter the courtroom, an alternate juror overheard one juror state: “It looks like this is going to be a long day today and tomorrow. Today may be the bulk of it.” A second juror replied, “Yeah . . . But I don’t know how much more they could say. It looks like we already know where it’s headed.”

To address the issue the judge took testimony from each of the two jurors, under oath.  While the judge concluded there were premature deliberations he declined to excuse the whole panel or either of the two jurors.  The jurors agreed not to have further discussions and also to keep an open mind.  The Eighth disagreed there were premature deliberations.  And in context of the overall trial there was no prejudicial effect on the right to a fair trial.  Essentially the evidence was insufficient on the issue.  But that doesn’t mean there would have been no meritorious issue if the evidence showed more, especially expressions of actual opinion on guilty or innocence.

So a caution for military judges as they go through the common preliminary instructions to members.  The Eighth found the trial judge’s actions effective to address the issue.  A different result maybe if the trial judge had done nothing?

The Military Judge’s Benchbook (MJBB) is the bible for how a military judge will instruct the members of your court-martial under the UCMJ.  Your military defense lawyer should be well versed in this book and these instructions.  The military judge will tell the members what elements of the crime must be proved beyond reasonable doubt; she will tell them about how they may consider evidence presented in court; and she will tell them the voting procedures they must follow to ensure a secret written ballot without undue command influence.

Military appellate courts are not enthused with deviations from the MJBB, even though it is quite possible to do that.  Oddly, the military court of criminal appeals allow for minor deviations and don’t actually require exacting compliance with the MJBB.  See for example, United States v. Bigelow, 57 M.J. 64 (C.A.A.F. 2002).  On the other hand the Court of Appeals for the Armed Forces {CAAF) has cautioned against significant deviations from the MJBB, unless adequately explained on the record.  United States v. Rush, 54 M.J. 313 (C.A.A.F. 2001).  That’s what happened with the litigation over challenges to Article 120, when a military judge ignored the law and also the MJBB, and advised the members that the accused did not have any burden to prove consent.

It may not matter if the judge does not follow the MJBB when instructing the members.  For example in a recent case the Court of Appeals for the Armed Forces (CAAF) decided that the judge had made a mistake in not instructing on a defense, but that the error was harmless.  We don’t need to go too deep into this area of trial practice; this is something your appellate military defense lawyer and trial military defense lawyer should know about and discuss with you.

However, there are times when it is necessary to go outside the MJBB to look for an appropriate instruction.  Usually this happens when the prosecution is seeking to assimilate a federal or civilian crime under Articles 133 or 134, UCMJ.  I have done this, for example by referring to the Eleventh Circuit instructions is CP cases.

So, it is helpful for your military defense lawyer to know that there is a good resource for civilian, primarily federal members (read jury) instructions.  One of my favorite daily reads is the Federal Evidence Review blog. The blog is an excellent resource on federal evidence.  They have two posts relevant to instructions: a main “page,” and an “update” for several circuits.

It appears one of the primary updates is intended to counter a growing problem – social media, cellphones in court, and the like.  Thankfully this does not seem to be a problem at court-martial or other actions under the UCMJ.

The chief judge of the United States Army Trial Judiciary is responsible for publishing and updated the MJBB.  You can find a copy here.  If you are a military defense lawyer and practice at court-martial, you can also download an electronic version which works in MSWord, but unfortunately not WordPerfect.

And to digress a little, there is a presumption that members follow the instructions.  That’s a nice social and legal “policy,” but if research is to be believed the presumption doesn’t work.  Check out an article by one of my favorite resources, The Jury Verdict.  Can members put aside their pride and prejudices?  Can jury members ‘forget’ the inadmissible evidence they just heard?  Can . . . . . .?

Direct comments on the exercise of the right to silence are usually quite clear and should draw an immediate objection.   Our friends at federalevidence review have a comment. What isn’t so clear are indirect or implied or subtle comments.   This is a particular bugaboo of my when LE agents and trial counsel stray from the correct path.  This involves judgment and discretion on whether to object.

When does the introduction of evidence constitute an indirect comment on a defendant’s silence, violating the defendant’s Fifth Amendment right against self incrimination? In a tax fraud case, the Seventh Circuit examined evidence how the government focused the the jury on the defendant’s lack of response. Even though the admission of the evidence was a harmless error, the circuit found that questions to the case agent regarding the alleged fraudulent scheme, though “subtle,” were no less in violation of the defendant’s Fifth Amendment rights than more direct comments on a defendant’s silence, in United States v. Phillips, __ F.3d __ (7th Cir. March 14, 2014) (No. 12-2532)

It is coming up on fifty years since the Supreme Court clarified as part of Fifth Amendment jurisprudence that a defendant’s right against self-incrimination is violated by introduction of evidence that only indirectly comments on a defendant’s failure to respond to government charges. See, e.g.Griffin v. California, 380 U.S. 609, 615 (1965) (“We … hold that the Fifth Amendment … forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.”) The normal test of the violation of this requirement is that the evidence would “naturally and necessarily” be construed as a comment on the defendant’s silence. The Seventh Circuit recently examined this exclusion, explaining and describing a standard approach to dealing with evidence that possibly strays into this type of constitutional violation.

Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014.

Key Evidence Issues During 2013

1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence

2. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Salinas v. Texas: Splintered Ruling Fails To Provide Guidance On Prearrest Contacts With Law Enforcement

3. Supreme Court Watch: Fourth Amendment (Search and Seizure Clause): Maryland v. King: Divided Court Upholds DNA Sample Collection From Arrestees For A “Serious” Crime Without A Search Warrant

4. Supreme Court Watch: Fifth Amendment (Due Process Clause): Smith v. United States: Unanimous Conspiracy Withdrawal Ruling

5. Certification (a civil case).

6. Supreme Court Watch: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct): Nevada v. Jackson: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes

7. Addressing Juror Internet Research During Trials

8. Electronic And Internet Evidence Issues

9. FRE 706: Encouraging The Use And Consideration Of Court-Appointed Experts

10.  Rule Amendments: FRE 803(10) (Absence of a Public Record)

Each of the above issues had something of value and interest to military justice practitioners.  For example:

In Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), the Supreme Court held unanimously that the burden of proof to establish withdrawal from a conspiracy, is on the accused, and the prosecution has no burden to disprove withdrawal under the Fifth Amendment Due Process Clause.

And now, “we look forward at some key evidence issues that may arise in 2014.”

 Key Evidence Issues for 2014

 1. Supreme Court Watch: Sixth Amendment (Confrontation Clause): Continuing Confusion On Expert Testimony Following Williams v. Illinois

2. Circuit Split: Sixth Amendment (Confrontation Clause): Division under the Confrontation Clause on “Language Conduit” Theory for Interpreters

3. Supreme Court Watch: Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence?

4. Open Issue (civil case):

5. Circuit Splits: Challenging A Verdict Based On Claims of Juror Racial Bias During Deliberations Or Claims of Juror Dishonesty During Voir Dire

6. Legislation: Will Congress Enact a New Media Shield Privilege?

7. Rule Amendment: Sixth Amendment (Confrontation Clause): More Notice and Demand Rules?

8. Rule Amendment: FRE 801(d)(1)(B): Encouraging the Use and Consideration Of Court-Appointed Experts

9. Rule Amendment: FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records)

10.  Considering the Role of Cameras in the Courtroom

Professor Friedman, a frequent litigator on confrontation issues hasn’t blogged recently, but here is one related to post-Williams issues.

[T]he second petition for certiorari in Turner v.  United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court’s conference on Friday but the Court did not take any action.  (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.)  It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take.  There are several others pending.  The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State’s response is not due until February 3.  Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644,  on Nov. 22.

(Note:  I have one case pending at a CCA on issue 5 – impeaching a verdict.)

Leaks from Members (or sometimes military judges) occasionally give rise to appellate litigation.

Here is an interesting piece on federal evidence review:

Motion for new trial on criminal extortion and bribery case denied, despite juror’s statement to newspaper after the verdict that because the defendants did not testify, the juror reasoned that "[if] they were innocent, they would have testified.’”; since members of the jury did not learn of the defendant’s failure to testify through improper channels, the evidence of their discussions was not admissible under FRE 606(b) as it was not an extrinsic influence, inUnited States v. Kelley, 461 F.3d 817 (6th Cir. Aug. 31, 2006) (Nos. 05-1361, 05-1435)

Two weeks ago, the Federal Evidence Blog reported a recent Ninth Circuit case in which the circuit remanded a conspiracy and arson conviction because the trial judge failed "to make adequate inquiries regarding news stories" that appeared during deliberations and their impact on juror’s deliberations; the judge erroneously failed to explore "whether any juror heard any of the information" and its impact on the jury. See "Trial Court’s Duty To Make ‘Adequate Inquiries’ About Extrinsic Influences On Jury" (Oct. 6, 2010).

A contrasting and much more usual case is one in which a party learns of the influence of news reports after the trial concludes. For example, in United States v. Kelley,

Federal Evidence Review references:

In conspiracy and arson trial, reversing and remanding when trial court failed "to make adequate inquiries regarding news stories" that appeared during deliberations and their impact on juror’s deliberations; the judge erroneously failed to explore "whether any juror heard any of the information" and its impact on the jury, in United States v. Waters, __ F.3d __ (9th Cir. Sept. 15, 2010) (No. 08-30222)

The Ninth Circuit recently considered the trial court’s responsibilities to make specific inquiry of jurors when "adverse publicity occurs during deliberations" of the jury. The case can help clear up confusion about the role of the trial court, particularly in light of FRE 606(b) limiting inquiry into a verdict.

I would imagine the media access and media impact issues are going to have a continuing interest in court-martial cases under the UCMJ – Hasan, the Stryker Brigade cases, Wikileaks and Manning, to name a few.

SCOTUSBlog notes two new petitions with potential impact on a court-martial practice under the UCMJ.

Title: NIBCO, Inc. v. Rivera
Docket: 10-383
Issue(s): (1) Whether a court of appeals must conduct a comparative juror analysis when reviewing a claim under Batson v. Kentucky, even though the comparative analysis was neither raised before nor considered by the trial court below; and (2) whether a court of appeals that identifies a suspected Batson problem based on a comparative juror analysis never considered by the trial court can vitiate a trial without remanding to allow the trial court to consider the new arguments and evidence in the first instance.

Title: Dunn v. Louisiana
Docket: 10-386
Issue(s): Whether a court’s modification of the three-step Batson v. Kentucky analysis, requiring the defense to prove that its strikes were not motivated by race, while simultaneously requiring it to prove that the state’s strikes were motivated by race, violates the Sixth and Fourteenth Amendments.

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.

(Thanks to Volokh Conspiracy) we have Sanford v. United States, No. 08-5402 (D.C. Cir. 13 November 2009), in which the court held that a SPCM with less than six members is not unconstitutional.  The court notes that:

This court has recognized that the standard of review in non-custodial collateral attacks on court-martial proceedings is “tangled.” United States ex rel. New v. Rumsfeld, 448 F.3d 403,
406 (D.C. Cir. 2006) (“New II”).

Sanford had been arguing that the government had the burden to demonstrate reasons why there should not have been at least six members on his court-martial panel, in accordance with Ballew v. Georgia, 435 U.S. 223 (1978).  The district court dismissed Sanford’s case, and he appealed.  The circuit court ultimately concluded that the burden was on Sanford to show reasons why there was a constitutional violation and that because he’d not done so, dismissal was proper.  Thus, a special court-martial can still have less than six members.  It is uncertain if Sandford will appeal.

The military appellate history of the case is:

United States v. Sanford, 2006 WL 4571896  (N-M. Ct. Crim. App. Nov. 6, 2006); pet. denied 64 M.J. 428 (C.A.A.F. 2007).