Who Questions the Questioners? Reforming the Voir Dire Process in Courts-Martial

AuthorAnn B. Ching
PositionJudge Advocate, U.S. Army
The jury, passing on the prisoner’s life,
May in the sworn twelve have a thief or two
Guiltier than him they try.1
I. Introduction
The above quote, from Shakespeare’s Measure for Measure,
exemplifies an inherent danger in a trial by jury—jurors who are
incapable of judging a case in a fair and impartial manner. Both the
prosecution and defense want to know whether any jurors are biased,
predisposed to a certain result, or otherwise unqualified to sit in
judgment on “the prisoner’s life.”2 Ferreting out unqualified members is
accomplished through voir dire, which has been called “the start of a
criminal trial,”3 “a valued and integral part of the adversary process,”4
and “the most important aspect of the trial.”5
Indeed, an impartial jury is a constitutional right.6 Although voir dire
itself is not mentioned in the Constitution, courts have long recognized it
* Judge Advocate, U.S. Army. LL.M., 2010, The Judge Advocate Gen.’s Sch., U.S.
Army, Charlottesville, Va.; J.D., 2000, Univ. of N.C. at Chapel Hill; B.A., 1997, Univ. of
Ariz. Previous assignments include Editor, Military Law Review, The Judge Advocate
Gen.’s Legal Ctr. & Sch., Charlottesville, Va., 2007–2010; Chief of Justice,
Administrative and Civil Law Attorney, and Trial Counsel, U.S. Military Academy, West
Point, N.Y., 2004–2007; Trial Defense Counsel, Operation Iraqi Freedom, Mosul, Iraq,
2003–2004; Trial Defense Counsel, Region V, Fort Lewis, Wash., 2002–2003;
Operational Law Attorney and Legal Assistance Attorney, I Corps, Fort Lewis, Wash.,
2001–2002. Member of the Arizona bar. This article was submitted in partial completion
of the Master of Laws requirements of the 58th Judge Advocate Officer Graduate Course.
2 Id.
3 Editorial, Trials: The Art of Voir Dire, TIME, Apr. 7, 1967, available at
http://www.time.com/magazine/article/0,9171,843543,00.html [hereinafter Editorial]
(quoting F. Lee Bailey) (internal quotations omitted).
[hereinafter ABA PRINCIPLES] (citing Swain v. Alabama, 380 U.S. 202, 218–19 (1965)).
5 Sydney Gibbs Ballesteros, Don’t Mess with Texas Voir Dire, 39 HOUS. L. REV. 201, 204
6 See U.S. CONST. amend. VI (guaranteeing, inter alia, “an impartial jury of the State and
district wherein the crime shall have been committed”).
as the means to achieve the right to an impartial jury.7 Given that this
process is the defendant’s best—and perhaps only—chance to ensure an
impartial jury, voir dire is an integral aspect of the criminal justice
Despite its the vital nature, several jurisdictions significantly limit
counsel’s ability to participate in voir dire. Notably, in courts-martial the
military judge completely controls this key aspect of the trial, with broad
discretion to limit or deny direct questioning by counsel.8 This
procedure implicates the competing interests of judge and counsel during
voir dire; generally speaking, judges are concerned about efficiency and
protecting the record, while counsel may view voir dire as their first
opportunity to present their case to the members.9 Recent military
appellate cases, however, have identified some weaknesses in a military
judge-controlled approach, going so far as to find abuse of discretion in
the military judge’s denial of defense counsel’s questions.10
Having wrestled with similar issues, civilian jurisdictions throughout
the United States take various approaches toward the level of control
judges and counsel exert over voir dire.11 Several states follow the
military and federal courts’ method and place voir dire entirely under the
judge’s control.12 Others allow counsel greater control, in some
instances even creating a statutory right to counsel-conducted voir dire.13
States that grant control to counsel recognize several significant legal and
policy interests that favor this approach. Chief among these are
guaranteeing a defendant’s constitutional right to an impartial jury by
ensuring that counsel have the most thorough and effective means of
challenging biased venire members. The military justice system can
benefit from examining these state approaches and adopting their best
7 See, e.g., Pointer v. United States, 151 U.S. 396, 408 (1894).
8 MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 912 (2008) [hereinafter
9 See, e.g., Jackson Howard, Lawyer-Conducted Voir Dire is a Seventh Amendment Right,
VOIR DIRE, Summer 1995, at 40, 40.
10 See, e.g., United States v. Richardson, 61 M.J. 113 (C.A.A.F. 2005); United States v.
Jefferson, 44 M.J. 312 (C.A.A.F. 1996); United States v. Adams, 36 M.J. 1201
(N.M.C.M.R. 1993). These cases are discussed further in Part III, infra.
11 See infra notes 139–68 and accompanying text.
12 See infra notes 152–60 and accompanying text.
13 See infra notes 164–68 and accompanying text.
14 See infra notes 194–204 and accompanying text.
This article explores the history and purpose of voir dire in the United
States, and its crucial role in ensuring a defendant’s constitutional right
to an impartial jury. Sections III and IV examine the different
approaches to voir dire used in federal and state courts, emphasizing the
effectiveness of those states that allow counsel to participate significantly
in the process.15 Section V analyzes the applicability of these approaches
to the military, keeping in mind notable differences between military and
civilian courts, and recommends an amendment to the Rules for Courts-
Martial to allow counsel more control over voir dire.16 Section V further
addresses the key counterarguments against changing voir dire in courts-
martial, and, in turn, argues that reform can actually improve the process
for counsel, judges, and the accused.17 A thorough examination of this
“most important aspect of [a] trial”18 and its place in the military justice
system will demonstrate that, rather than diminishing the efficient
administration of justice, granting counsel a statutory right to participate
in voir dire will benefit all parties.19 First, however, this article will step
back a few hundred years and examine how voir dire evolved into its
current form in our justice system.
II. Voir Dire: Purpose and Practice
A brief discussion of the evolution of the jury trial sets the backdrop
for a greater appreciation of the purpose of voir dire. Prior to the
thirteenth century, accusatorial trial practices existed throughout Europe,
such as trial by ordeal or trial by battle.20 Over time, inquisitorial
practices and the use of juries became more widespread, although certain
practices we now take for granted—such as not punishing jurors for
returning a verdict of not guilty—did not develop in England until the
late seventeenth century.21
15 Infra notes 63–168 and accompanying text.
16 Infra notes 169–204 and accompanying text.
17 Infra notes 205–34 and accompanying text.
18 Ballesteros, supra note 5, at 204.
19 Infra notes 169–234 and accompanying text.
20 See LEONARD W. LEVY, THE PALLADIUM OF JUSTICE 4–5 (1999). In a trial by ordeal,
“[t]he accused underwent a physical trial . . . . Cold water, boiling water, and hot iron
were the principal ordeals, all of which the clergy administered.” Id. at 5. It was
believed that the innocent would better survive the ordeal. Id. In trial by battle, it was
thought that the innocent party would prevail, regardless of the circumstances: “Right,
not might, would therefore conquer.” Id. at 6.
21 See id. at 49. This rule was not put into place until 1670, when a juror named Edward
Bushell sought a writ of habeas corpus after being confined for “influencing” a jury to

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT