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

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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 peremptory challenge.27 Challenges for cause, by contrast, are unlimited in number.28 Given the preselection of a panel by the convening authority, the exercise of for-cause challenges and the peremptory challenge is the only means left to the parties to shape a panel. Some argue that by virtue of being able to select the members ab initio, the convening authority has already shaped the composition of the panel and, very likely, the outcome of the trial.29 Unlike jury selection in

the civilian sector, with its typically larger number of available peremptory challenges,30 the process of seating a panel is more akin to member deselection than member selection.31 Using the tools provided by the Manual for Courts-Martial (MCM), the parties attempt to shape the "impartial" fact finders into a panel partial to their respective cases.

This article focuses on the exercise of peremptory challenges to answer the question of whether the military peremptory challenge should be abolished. To that end, this article analyzes the genesis of peremptory challenges in civilian practice and how that practice influences the establishment and practice of peremptory challenges in the military court-martial system. Specifically, this article examines the following issues:

1. The historical development of the peremptory challenge, as inherited from the common law,32 into today's modified peremptory challenge33 and how that history informs the modern practice in courts-martial practice;

2. The development of the peremptory challenge in the military justice system, paying particular attention to the parameters of the challenge as developed in case law, with further attention focused on the clear distinction between the federal and military practice of peremptory challenges (curative peremptory challenges); and

3. The roles of the jury as an institution34 and whether those roles are translated into courts-martial practice.

This article concludes that the right to exercise peremptory challenges should be removed from Article 41, UCMJ. The peremptory challenge, once a challenge not requiring any explanation as to its exercise, is now a psuedo-causal challenge that must be justified in all but the most limited circumstances. Therefore, the "peremptory" nature of the challenge is no more. Further, as any judge advocate experienced in military justice knows, the use of peremptory challenges has devolved into an unseemly "numbers game," detracting from the solemnity of the process and giving the parties more power than should be permitted.35

From a practical standpoint, as a result of the impact of Batson and its progeny, the challenge has been emasculated and serves no particularly useful function. From an aspirational point of view, the challenge should be abolished to ensure that discrimination, which has no place in a courtroom, does not occur.

II. Historical Background

A. The Common Law History of Peremptory Challenges

At their origin in English law,36 juries were "presentment" juries, meaning their function was to investigate and accuse;37 the concept of impartiality did not have a place. There were only three recognized challenges for cause: being related to the defendant by blood, being related to the defendant by marriage, or having an economic interest.38

As juries were called upon to make findings of guilt, they evolved into fact-finders; and thus, correspondingly, the need for impartiality also evolved.39 "By the end of the fifteenth century, the notion that jurors had to be impartial was firmly entrenched in the English common law."40

Since their inception and until the English parliament reacted, the King effectively handpicked juries.41 By virtue of having picked the jurors, the Crown could remove someone deemed unacceptable, thus claiming for itself an unlimited number of peremptory challenges.42 "In 1305, the English Parliament decided that this type of jury―which was not impartial but rather biased toward the prosecution―was obnoxious to their idea of justice."43 Parliament, therefore, passed a statute that limited challenges by the Crown to causal challenges, eliminating the Crown's peremptory challenges altogether,44 and giving criminal

defendants the right to challenge jurors peremptorily.45 The accused was permitted to exercise thirty-five peremptory challenges; that number was reduced to twenty except in cases of treason in 1530.46 Some believe that the peremptory challenge was actually a disguised for-cause challenge.47 In the ancestral home of the peremptory challenge, its use was extremely rare for hundreds of years.48 Notwithstanding its rare use, William Blackstone, in his Commentaries on the Laws of England, called the defendant's right to peremptory challenges "a provision full of that tenderness and humanity to prisoner's [sic] for which our English laws are justly famous."49 Unlike the causal challenge, the peremptory challenge is "an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all."50 The challenge exists because:

As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, that want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.51

Blackstone also assigned a second reason for the challenge: "Because upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases peremptorily to set him aside."52 As will be shown, these same arguments...

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