Juror Selection Under the Uniform Code of Military Justice: Fact and Fiction

• Author: By Major R. Rex Brookshire, II
• Pages: 02

This stvdy emmines both the law relating to juror selection under the L'nifo7'm Code of .wilitary Justice and the procedures actually employed in the wtise Gem eral Court-.\Jartial jurisdictions. Thzs law and these pro-cedures are compared to their civilian equivalents, andbath systems are evaluated according to generally reeofl-nired standards of jwtiee relating to juror selection. Empirical dat-btained by tke conduct of three separate surveys-is utilized throughout the study, which emeludes with a seetion devoted to guflflested reforms.

1. INTRODUCTION

There 1s perhaps no other single facet of British-American jurisprudence as well-known and a8 widely publicized as the concept of a jury trial. Indeed, the idea that a man should be judged by his peer8 dates at least from the eleventh century on the European continent and even earlier in Enp1and.l It is possibly this very antiquity which has caused the concept to become so in-grained in the American c~nsciousness.~

In any case, the right to have a jury trial is recognized in the Constitution and, for the

*This article was adapted from B theaia presented to The Judge Advocate General's Schwl, US Army, Charlottesvilie. Virgmis, while the author was a member of the Twentieth Advanced Course. The opinions and conduaims presented herein are rhoae of the author and do not neeeasariiy repreaenl th ~iews of The Judge Advocate General's School or any gOvernmental agency.

*'JAGC, US Army; US Army Garrison, Fort Riley, Kanaas. E.A., 1062,Kansas State College of Pittrburgh: J.D., 1071, University of Missouri, Kanaaa r t y : member of the bar of the State of Nissouri.

' Erlanger, JZLV Research in Ameneo-Ita Post and Future, 4 LAW B Soc. REI-. 346 (1070)

'See genirrlly, 47 AM. Jun. Id, JUW 5 12 (1060) : "The right to juw trial is immemorial: it -as brought from England by the edaruats, and It became B pert of the birthright of every free man. The right to have B trial by jury 19 a fundaments1 dght ~n OYI democratic judicial system, including our federal juriaprudenee. It Is a right which is juatly dear to the American wople, and , . . should be jealously guarded by the courts. Any eeeminr curtailment of this right should be scrutinized with the utmort esre."

"'The trial of 811 Crimes except in Cases of Impeachment, shall be by Jury. . . .I' U. s. Coxisr. art,'III, g 2, cI. a. Sea olao. U. S. COBBI.. amend. VI.

time being at least, is a vital part of our criminal law, and proeedure. The mere existence of the lay jury, however, does not in itself sufficlentiy indicate the significance of the jury's role in the criminal justice system.

I1 ia p0puiari.v etated that criminal trial juries are "fact-find-em" Theg "weigh the evidence" and conclude their deliberations with a findmg of guilt or innocence. This is all true, of course, but these statements oversimplify the complex and often intangible role played by the jury. In their monumental text, The American Jirry, Professors K a h n and Zeisel point out that

[tlhe jury . represents a uniquely Subtle distribution of official power. 8" UnuQuai arrangement of checks and balances. It represents an Imprasaiie way of building discretion, equity, and Rexinto a legal system. Not the leait of the advantam8 is that tho juri, relieved of the burdens of creating precedent, can bend the law wthout breaking 1t.i

The Supreme Court itself indicated this broader role in the case of Wzllinm v. Florida:the essential feature of B jury obviously lies I" the interposition between the accused and his aceuser of the common lime iudgmrniof a group of laymen and in the commiinity pn~tinpation and ahwed ir8pombiiity that results from that group's determination of guilto* Innocence.

These same observations may be applied ta military justice and its system of courts-martial nith certain reservations. One must realize that court-martial members are not true "jurors" in the legal sense of the word.* Courts-martial are not Article I11 courts, according to present case interpretation. Rather it has been held that Congress has the power to authorize whatever tribunals it deems necessary to try members of the armed forces, and that this power is derived from Article I, S 8, of the Constitution wherein Congress is granted the power "[tlo make Rules for the Government and Regulation of the land and naval forces." Simi-larly. it has been held that 811 Fifth and Sixth Amendment guarantees do not apply to members of the armed forces since aaid

where it LI stated that "[]In all e~iminsl proseeutiona. the accused shall enjoy the right to a speedy and Dublie trial, by an impartial jury. "

: KALYEY AND Zmsn, THE AM~RICAI

JCRY 458 118661.

'Sei Schlesaer, Trial by Piers. Eniisfed .Member8 an Cowta-Morria!, 15 CAT". T. L. m. 171. 184 115661.Relieid Y. Commandant, 401 US.

3% 11971). The mterpretatron IS not a new one. See aka E l w7ts Miiligan, 71 U.S. (4 Wall.) 2. 137 (1866). and Dines b. Hnver, 61 T.S. (20 How) 85, 78 116-571

18. 1W 115701 lemphaas added).

388 U.S.

members do not have the right to indictment by grand jury nor trial by petit jury,' Essentially, provisions for the trial of members of the armed forces must be regarded as being statutory rather than constitutional, and, if this is remembered, analysis will not be impeded by what are here irrelevant constitutional considerations.

Even accepting the present state of the law, it will nonetheless be seen that court-martial members and civilian jurors share many common functions: both are ad hoc assemblies of fact-find. em, both determine guilt or innocence. bath are subject to their own biases, prejudices, and opinions. It i8 perhaps in recognition of this identity of roles that the terminology in one proposed bill " would modify the Uniform Code of Military Justice 80 that the word "juror" would be used in place of the existing word "member."

This article will focus on one aspect of the military justice system: juror selection. The entire array of commentary and judicial interpretation emphaaizes the importance and significance of the juror selection process to the basic trail-by-jury concept. There ia but one hypothesis: in order for a defendant to secure a fair trial, his jurora should be selected without bias or discrimination so that "they can reflect the conscience and mores of the community in applying punitive sanctions to individual case%."

lo

Should the

selection process break down or became tainted, it would neces-sarily result in a distorted jury, and a distorted jury cannot produce anything other than distorted verdicts. This is not to imply that the military's "blue ribbon" panel of officers, the type of jury most often found on courts-martial, has always rendered a biased, distorted verdict. Even the most severe critic of the military has yet to go so far, for blue ribbon juries can also reflect community standards. But general principles of justice and fairness are applicable to both military and civilian jurisdictions and, since jurisdictions everywhere are giving greater attention to their jury selection processes, recognizing the vital role those processes play

'United States 9. Jenkina, 20 D.S.C.M.A. 112, 114, 42 C.M.R. 304, 306 11~70); Reid 21. Covert, 354 U.S. 1, 37 n.68 (19671. S.1121, OZd Cang., 1st Seas. (19711.'"Kuhn, JILW Diar;m%mfion. The ,Vert Phme, 41 So. CAL. L. REV. 236, 245 (1868)

"Dunng the 1970'a, junadlctiona throughout the country will ieexamine techniques employed for eentuiies in the aeieetlon of prospective jumrs, An increasing demand far jurors, ie~moni in the availability of jury trial, court reorganization and the appliestion of modern data process-mg techniques will mak$ reevaiuatm mperalive." Msekoff, Jury Selrotim for the Seventies, 65 JUDICATURE 1W (18711

In the administration of justice, so also should the military reex- amine its own system of selection.

It has been noted before that projects evaluating military law hare tended to become polarized

The armed ~erweei generally emphasize the many goad points about milnary justiee. and their reprerentatires attempt to aiaid dircv%sing the few deficiencies that exist. . . . [Tlha military's critics

. emphaeize only dehcienciea and wmetimei ignore the many recent advances in militarp lev,?

Aware of this pitfall, this writer shall not attempt to "justify" the military system of juror selection to its critic8. Rather, the purpose of this study la to objectiiel? examine first the existing state of military and civilian laws relating to jurr selection, and second, to look at actual military and civilian practices in this area, to identify any extant shartcamings. Where such shortcomings are noted-admittedly a subjective, conclusory evaluation of the writer-concrete suggested reforms will be set out.

To assiet in this effort, three surveys (printed in their entiret, as Appendices A, B, and C) have been taken of field grade Army officers. These proiide an Insight, perhaps far the first time, into the prevailing attitude8 and opinions of middle level and senior military officers regarding the administration of militarb- justice. The initial dud! surveyed about 26 colonels and senior lieutenant colonels attending a Senior Officers Legal Orientation Course at The Army Judge Advocate General's School." The second study

~ Schiesser and Benron. Xodrrn Jl,/ifand JiYtlri 19 CarH U L. REI 489. 492 (1970)

'All three surwys m e appended. It will be noted that each question con. tans a designated "data base," which ia the number a i re~ponrlve answers returned for :hat que~bon. A few ~niwers were discarded for analytical purposes because the respondents either modified the printed anbwe~a, sub-mitted a multiple answer, YT else did not answer at all B? each choice onthe questionnaires 1s a series ai numbers separated by a slash mark , 1 , e.#., 78 34.2. The digits to the left of the mark indicate the raw number of persons within the data base ior that queation Kho chase that particular response. The number to the right of...