A Jury of One's Peers: An Empirical Analysis of the Choice of Members in Contested Military Courts-Martial

AuthorJohn A. Sautter - J. Derek Randall
PositionB.A., New York University, 2001 - B.A., Texas A & M University, 2008
Pages91-112
2013] CONTESTED MILITARY COURTS-MARTIAL 91
A JURY OF ONE’S PEERS: AN EMPIRICAL ANALYSIS OF THE
CHOICE OF MEMBERS IN CONTESTED MILITARY COURTS-
MARTIAL
JOHN A. SAUTTER AND J. DEREK RANDALL**
This article explores the question of panel choice in a contested military
court-martial. In the military system an accused can choose one of three
options: trial by judge alone, trial by officer panel members or trial by
officer panel members with at least 1/3 enlisted representation. A
common assumption among many military practitioners is that an
enlisted accused will fare better when tried by a members’ panel (the
military term for jury) that is composed of both officers and enlisted
members as opposed to trial by judge alone or by officers only. Using
statistical analysis of cases occurring in the US Marine Corps between 1
January 2011 and 1 July 2011, this article shows there is no marked
difference in outcomes between the three sorts of fact finders allowed at
trial. Furthermore, the evidence suggests that following a contested
court-martial member panels composed of at least 1/3 enlisted members
tend to award confinement sentences that are longer in time than trial by
judge alone or officer only panels.
I. Introduction
Does a jury of one’s peers always offer the best outcome for a
defendant? This article sheds light on the effects of having enlisted
members on a court-martial “panel” (the military name for a jury) during
contested trials and during sentencing.1 Data was collected from all
B.A., New York University, 2001; M.A., University of Nebraska, 2002; Ph.D.,
University of Nebraska, 2005; J.D., 2008, Vermont Law School; LL.M., Vermont Law
School, 2009. Captain in the U.S. Marine Corps and presently serving as a military
prosecutor at Marine Corps Base Camp Pendleton, California. The views herein should
not be attributed to any of the author’s institutional affiliates, including the U.S.
Department of Defense. The author can be contacted at jas276@nyu.edu.
** B.A., Texas A & M University, 2008; Captain in the United States Marine Corps;
Captain Randall is currently assigned as Assistant Professor of Naval Science at
Marquette University. The views herein should not be attributed to any of the author’s
institutional affiliates, including the U.S. Department of Defense. The author can be
contacted at jdrandall08@hotmail.com.
1 MANUAL FOR COURTS MARTIAL, UNITED STATES, R.C.M. 907(2)(C)(i) (2008)
[hereinafter MCM] (“The role of members in a military has become somewhat more
analogous to that of a jury.”). See, e.g., UCMJ art. 39(a) (2008). See also infra note 5
(visiting the composition of courts-martial panels).
92 MILITARY LAW REVIEW [Vol. 217
cases in the Marine Corps from 1 January to 1 July 2011. Information on
each case came from the United States Marine Corps (USMC) Trial
Counsel Assistance Project weekly case reports during this time period.2
These reports offer a brief description of each special and general court-
martial, totaling 218 cases during the six month time period.3 A
statistical analysis was conducted using this data. Results from this
sample of cases suggest that there is no significant difference between
the outcomes of cases decided by a judge alone, officer member panels
or panels with enlisted representation.4 Finally, a regression analysis was
employed to test the hypothesis that panels with enlisted representation
give lower sentences as compared to sentencing by a judge alone or a
members’ panel of officers. Findings indicate that members’ panels
composed of at least 1/3 enlisted members tended to give higher
sentences at a statistically significant rate.
II. Enlisted Representation and Military Juries
A. Juries in the Military
Juries are difficult.5 Whether a litigator is attempting to pick the
right jurors, decide how to phrase voir dire questions or whether to
choose a jury trial, it all comes down to a complex set of calculations that
the trial lawyer must make.6 Oftentimes, there are certain variables that a
lawyer can know at the outset of a case.7 For example, a good defense
counsel might take into account the skill level of the prosecutor they are
facing, the strength of the evidence against their client, or whether the
2 Trial Counsel Assistance Project, available at http://www/marines.mil/unit/judge
advocate/Pages/JAM/JAM_home/TCAP.aspx (The Marine Corps Trial Counsel
Assistance Project’s mission is to “develop and provide litigation training, develop and
maintain litigation support resources, and provide military justice advice for
prosecutors”).
3 Each weekly report provided the name, judge, type, Uniform Code of Military Justice
(UCMJ) article violated, sentence and place of court martial.
4 UCMJ art. 25 (2008) (As explored further in the article, there are three different trial
options within special and general courts-martial: judge alone, officer only panel, and
officer and enlisted panel.).
5 James K. Lovejoy, Abolition of Court Member Sentencing in the Military, 142 MIL. L.
REV. 30–31 (1994) (purporting the unpredictability of member panels).
6 Voir dire is the French word for “speaking the truth.”
7 See, e.g., GEORGE R. DECKLE, PROSECUTION PRINCIPLES: A CLINICAL HANDBOOK
(Thomas West Publishing, 2007) (describing the initial analysis of a case done by any
lawyer preparing to be in court).

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