Peremptory Challenges in Military Criminal Justice Practice: It is Time to Challenge Them Off

Military Law ReviewNbr. 183, April 2005

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Peremptory Challenges in Military Criminal Justice Practice: It is Time to Challenge Them Off


Volume 183 Spring 2005



[The peremptory challenge] functions as a repository of the unexamined fears, suspicions, and hatreds held by attorneys and their clients.2

Peremptory challenges provide opportunities for game playing and the exercise of pseudo-expertise by trial lawyers, but it seems doubtful that they accomplish much more.3

I. Introduction

In the crucible of a contested court-martial with members, the facts are elicited in a search for the truth and assessment of criminal liability,

if any, of an accused.4 In that crucible, the most important actors are thefinders of fact,5 for in their collective judgment lies the fate of the accused―his life, liberty, and property. When the accused chooses trial by a panel, he has no control over which specific persons initially sit as finders of fact. Rather, the convening authority, the same person who decided to send the accused's case to be tried by court-martial in the first place,6 personally selects persons to sit as court members pursuant to Article 25, Uniform Code of Military Justice (UCMJ)7 and Rule for Courts-Martial (RCM) 503.8 The only way an accused can shape a panel after the convening authority has selected it is through the exercise of either challenges for cause9 or peremptory challenges.10

Critics regularly compare the military criminal justice system with the civilian criminal justice system, often times with the military system allegedly coming up short.11 Nowhere is this more pronounced than with comparisons between the civilian jury system and court-martial panels. For example, unlike a civilian criminal defendant, a servicemember is not entitled to a court-martial panel that is cross-representative of the community.12 Military personnel are not entitled to a "jury of their peers" composed of a fair cross-section of the community as a matter of Sixth Amendment right.13 Military personnel are, however, entitled to a panel composed of fair and impartial members,14 who are, in the mind of

the convening authority, "best qualified."15 This aspect is a key difference from state and federal courts. In the civilian system, the convening authority is unknown and jury selection is entirely different.16

The criminal civilian jury need not be a "true" cross-section of the community, but it must be fair and impartial.17 Thus, "[t]he logical, and desirable, way to impanel an impartial and representative jury . . . is to put together a complete list of eligible jurors and select randomly from it, on the assumption that the laws of statistics will produce representative juries most of the time."18 Such juries "will be impartial in the sense that they will reflect the range of the community's attitudes."19

Procedurally, most jurisdictions use random selection in an effort to meet the Sixth Amendment's requirement for an impartial jury.20 After winnowing the prospective list of jurors because of various excuses or exemptions,21 the venire is then subjected to questioning by the parties to determine their "impartiality" and fitness to sit as a juror. "The purpose of challenges is to eliminate jurors who may be biased about the

defendant, the prosecution, or the case, and who thus might threaten the jury's impartiality."22 The function of the challenge system, both causal and peremptory challenges, is "to eliminate those who are sympathetic to the other side, hopefully leaving only those biased for [the litigant]."23 A

party's ability to impanel a jury it wants is generally limited by two factors: (1) for causal challenges, success in proving a juror's bias to the judge's satisfaction; and (2) the number of peremptory challenges available and how they are exercised.24

Military criminal practice also features both challenges for cause and peremptory challenges.25 Peremptory challenges are, by definition, challenges for which no cause or basis need be stated.26 Each party is entitled to one peremp...

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