In a court-martial, the people who decide guilt and adjudge a sentence are called members, not jurors, and the process of questioning them to expose bias is voir dire. Before voir dire, the parties often have access to written questionnaires that the prospective members complete. A natural and important question for the defense is whether it is entitled to see those questionnaires. The answer, under the Rules for Courts-Martial, is yes, and the right is built directly into the rule that governs the assembly and examination of members.
The governing rule: RCM 912
Rule for Courts-Martial 912 controls the use of member questionnaires and voir dire. Under RCM 912(a), trial counsel may submit written questionnaires to the prospective members before trial, and must do so when the defense requests it. The rule makes member questionnaires a defense-accessible tool rather than a one-sided resource for the government. When the defense asks for questionnaires to be used, the prosecution is obligated to have the members complete them.
Once completed, the questionnaires are provided to the defense. The point of allowing them is to give both sides, and the military judge, advance information about the members’ backgrounds so that voir dire can be focused and meaningful. A questionnaire that only the government could see would defeat that purpose and would undercut the defense’s ability to identify members who should be challenged. In ordinary practice, the completed questionnaires are furnished to the military judge and to defense counsel in advance of trial so that counsel can prepare challenges, often well before the members are assembled in the courtroom.
Why the defense needs the questionnaires
Member selection in the military is different from civilian jury selection. The convening authority details the members, who are typically service members senior to the accused, and the pool is smaller and often more interconnected than a civilian venire. Information about a member’s rank, career field, prior involvement in military justice matters, relationships within the command, and exposure to similar cases is essential to identifying bias. The questionnaire is frequently the first and most efficient source of that information.
The defense uses questionnaire answers to prepare two kinds of challenges. A challenge for cause seeks to remove a member who cannot be impartial, and a peremptory challenge allows each side to remove one member without stating a reason. Effective use of both depends on knowing the members’ backgrounds in advance, which is exactly what the questionnaires supply.
Voir dire and challenges build on the questionnaires
RCM 912 also governs the questioning and removal of members. The military judge may conduct voir dire or allow the parties to question the members, and the scope of that examination rests within the judge’s discretion. The questionnaires feed directly into this process: counsel reviews the written answers, then uses voir dire to probe areas of concern revealed by those answers.
The standards for removal reinforce why defense review matters. A member must be excused for cause when it appears the member should not sit in the interest of a court-martial free from substantial doubt as to legality, fairness, and impartiality. Challenges for cause encompass both actual bias, evaluated through the eyes of the military judge or the member, and implied bias, which is assessed under an objective standard viewed through the eyes of the public and focused on the perception or appearance of fairness. A questionnaire answer can reveal a relationship, an experience, or an attitude that supports either kind of challenge, and the defense cannot raise such a challenge if it never sees the answer.
Limits and protective conditions
Defense access to member questionnaires is the rule, but it operates within the trial framework. The military judge manages the timing and handling of the questionnaires and can impose reasonable conditions to protect members’ personal information, such as limiting how identifying details are used or disseminated outside the proceeding. Access for the purpose of litigating challenges is not the same as unrestricted public release. These conditions protect member privacy while preserving the defense’s ability to prepare. The questionnaires also typically become part of the record so that the appellate courts can later review how member selection and challenges were handled.
Practical guidance for the defense
Because the rule entitles the defense to request and review member questionnaires, counsel should affirmatively request their use under RCM 912 when they are not already planned. Counsel should then mine the answers for grounds to challenge, prepare voir dire questions that follow up on troubling responses, and be prepared to articulate both actual and implied bias theories tied to specific answers. If a questionnaire is incomplete or a member’s answers raise unresolved concerns, voir dire is the opportunity to develop the record needed to support a challenge for cause.
The bottom line
Yes. Under RCM 912, member questionnaires used in connection with voir dire are subject to defense review. Trial counsel may use such questionnaires and must do so on defense request, and the completed questionnaires are furnished to the defense and the military judge in advance of trial. That access exists precisely so the defense can identify and litigate challenges for cause and exercise peremptory challenges, all in service of seating a panel free from substantial doubt about its fairness and impartiality, subject to reasonable conditions the judge may impose to protect member privacy.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.