Court-Martial Trial Practice Blog
So I’m reading a ROT for a case tried after 2005.
During the challenge for cause part of the trial the trial counsel seeks to challenge member(s) under the liberal grant policy.
An early explanation of the liberal grant comes from United States v. White, 36 M.J. 284, 287 (C.M.A. 1993).
Appellant argues that giving the military judge’s ruling on a challenge for cause "great deference" is inconsistent with the liberal-grant mandate underpinning the challenge procedure. The liberal-grant mandate was expressly set out in paragraph 62h(2) of the Manual for Courts-Martial, United States, 1951, and carried forward in paragraph 62h(2) of the Manual for Courts-Martial, United States, 1984, does not contain an express statement of the liberal-grant mandate, but deletion of the express language was "not intended to change the policy expressed in that statement." Drafters’ Analysis, 1984 Manual, supra at A21-54; United States v. Smart, 21 M.J. 15, 18-19 and n. 1 (CMA 1985). See United States v. Glenn, 25 M.J. 278, 279 (CMA 1987) ("Challenges for cause are to be liberally granted.").
The CMA resolved the perceived inconsistency.
A trial court’s standard is to grant challenges for cause liberally. An appellate court’s standard is to overturn a military judge’s ruling on a challenge for cause only for a clear abuse of discretion. This means that military judges must follow the liberal-grant mandate in ruling on challenges for cause, but we will not overturn the military judge’s determination not to grant a challenge except for a clear abuse of discretion in applying the liberal-grant mandate. (Emphasis added.)
So, more recently:
In the context of challenges brought by a defendant, this court has stated that "military judges must liberally grant challenges for cause." United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002); see also McLaren, 38 M.J. at 118 (quoting United States v. Glenn, 25 M.J. 278, 279 (C.M.A. 1987)).
However, getting back to the liberal grant policy for prosecution challenges:
United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005)(no basis for application of the ‘liberal grant’ policy when a military judge is ruling on the Government’s challenges for cause). As the court said,
[The LGM] is a response to the unique nature of the military justice system “because in courts-martial peremptory challenges are much more limited than in most civilian courts and because the manner of appointment of courtmartial members presents perils that are not encountered elsewhere.”