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Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the Military

Victor Hansen
New England Law | Boston
August 18, 2010

This article address the method used in the military court-martial system to select jurors (referred to as panel members). Under military law, the panel members who sit in judgment of a military service member are hand picked by the court-martial convening authority. The question often raised in how is a fair trial possible when the very person who determines if there should be a trial at all, and if so, what charges should be brought, is also the person who gets to hand-pick the people responsible for deciding guilt? Often the court-martial convening authority is the senior military officer on the base. If the convening authority determines that the charges should go to trial, can we really expect the military subordinates he selected to serve as panel members to exercise an independent evaluation of the case? Nonetheless, this is the very system that exists in the military today.
This article addresses this issue and offers a proposed change – not to the military’s panel selection system itself, but through an expansion of the accused’s rights to exercise peremptory challenges as a means of addressing the potential for unfairness and the threat of panel member-stacking. Part I of the article explores the current law associated with panel member selection, and the rationale behind this system. It examines the most common criticisms of this selection process, the solutions that have been proffered to date, and why those proposed solutions have failed to take hold. Part II looks at the law of challenges for cause and peremptory challenges. It focuses specifically on the historical development of peremptory challenges within the military and how the system of peremptory challenges currently operates. Part III proposes an expanded use of peremptory challenges for the military accused. Specifically, this part addresses how the selection process should be modified, the costs and benefits of such a modification and why this proposed change strikes an appropriate balance between the rights of the accused and the unique needs of a military justice system. In the final part, the article addresses the likely criticisms of this proposal.

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