Yes, and removing a biased member from the panel is one of the most important things a defense does before trial, in part because of a feature unique to the military: the convening authority picks the members, and each side gets only one peremptory strike. Those constraints make the challenge-for-cause process, and a special rule that favors granting it, central to securing a fair panel.
Voir dire and two kinds of challenge
The process for testing and removing members is governed by Article 41 of the UCMJ and Rule for Courts-Martial 912, beginning with voir dire, the questioning of members by the judge and counsel to surface bias. From there, two tools remove members:
- Challenges for cause. Each side has an unlimited number. A member is removed when there is a basis to doubt their impartiality.
- The peremptory challenge. Each side gets just one, allowing removal of a member without stating a reason, far fewer than in civilian courts.
Because peremptories are so scarce, the challenge for cause carries most of the weight.
Actual bias and implied bias
A challenge for cause can rest on either of two distinct theories, judged by different standards:
- Actual bias, an actual prejudice that would prevent the member from being fair.
- Implied bias, circumstances that, regardless of the member’s stated impartiality, create a perception that the court is not free from substantial doubt as to its fairness and impartiality.
The governing rule requires removing a member when needed to keep the court-martial free from substantial doubt as to legality, fairness, and impartiality, covering both theories.
The liberal grant mandate
Here is the rule that tilts the field toward fairness. Because the convening authority selects members and each side has only one peremptory, military judges are directed to be liberal in granting defense challenges for cause. Under this liberal grant mandate, when an implied-bias challenge presents a close question, the judge should grant it. That is a meaningful advantage for the defense.
One practical note on preserving the issue: if a challenge for cause is denied and the party then uses its peremptory on that member, it should state it would have struck a different member had the challenge been granted, which protects the issue for appeal.
Where a panel member admits a fixed view about the kind of charge at issue, the attorney challenges them for cause, and on a close implied-bias question the judge is to grant it.
The central point is that securing an impartial panel turns on the challenge for cause. With unlimited cause challenges, only one peremptory, and a liberal grant mandate that resolves close implied-bias questions in the defense’s favor, the attorney’s job is to surface bias in voir dire and press for removal where the fairness of the court is in genuine doubt.
Frequently Asked Questions
How many challenges does each side get?
An unlimited number of challenges for cause, but only one peremptory challenge per side, which is far more limited than in civilian courts.
What is the difference between actual and implied bias?
Actual bias is a real prejudice preventing fairness, while implied bias concerns circumstances that create substantial doubt about the court’s fairness regardless of the member’s stated impartiality.
What is the liberal grant mandate?
A directive that military judges be liberal in granting defense challenges for cause, so that a close implied-bias question should be resolved by granting the challenge.
This article is general information about challenging court-martial panel members. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the law can change. Anyone facing a court-martial should consult qualified defense counsel.
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