Voir dire, Members problems.

Professor Miller has an interesting post today, Lie To Me?: Supreme Court Of Maine Opinion Reveals That Jury Deliberations Can Be Used To Prove Juror Deceit During Voir Dire,11 February 2009.

The recent opinion of the United States District Court for the District of Maine in Watts v. Maine,
2009 WL 249236 (D. Me. 2009), reveals the important point that while
jurors cannot testify regarding jury deliberations to impeach their
verdicts after trial, they can testify regarding those same
deliberations to prove that a juror lied during voir dire (which can have the effect of impeaching the verdict).

In, United States v. Lambert, 55 M.J. 293 (C.A.A.F. 2001).

Th[e] Court granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO ADEQUATELY VOIR DIRE THE MEMBERS, AND FAILING TO ALLOW CIVILIAN DEFENSE COUNSEL TO VOIR DIRE THE MEMBERS, AFTER A MEMBER INTRODUCED A BOOK ENTITLED "GUILTY AS SIN" INTO THE DELIBERATION ROOM.

The court held, "that the military judge did not err under these facts."

The military judge has wide discretion in deciding whether to investigate the potential introduction of extraneous information. United States v. Lambert, 55 M.J. 293, 295 (C.A.A.F. 2001).

United States v. Gleason, No. ACM 36444, 2007 LEXIS 205, unpublished op., (A.F.C.C.A. May 31, 2007).

Then Military Judge Ron White and I had this come up not too long ago at Guantanamo Bay.  The member's deliberation room was the law library to the Navy Legal Office.  We had a specific legal issue come up.  The members were mostly Army MP's.  (client detainee abuse case).  We were told that during a lunch break two of the members were reading and discussing the precise legal issue from one of the law books they'd pulled off the shelves.  After voir dire we all decided not to excuse the two members involved.  Fortunately it didn't become an appellate issue because the members acquitted literally as they were gathering to sit down and deliberate.  But I wonder how that case might have fared on appeal if the M.J. had not voir-dired the members and there was a conviction.

This reminds me of my caution to have situational awareness at trial.  Besides the witness and your client, you need to watch, observe, and try to understand the reactions of the Members, the bailiff, the court-reporter, the other counsel, and the military judge.  In particular the bailiff and the court-reporter have been around the military and been around cases.  From time to time I've seen them react in such a way to something that happened or was said that became helpful to presentation of the case.