A court-martial panel is not a randomly drawn jury in the civilian sense. The convening authority personally selects the members, which naturally raises a concern: what happens when an enlisted accused believes the panel was assembled, consciously or not, to favor the command? The short answer is that an enlisted member has real tools to challenge a biased panel, but those tools are aimed at specific problems and follow specific procedures rather than allowing a free request to swap out members.
How members are chosen, and why bias is a built-in worry
Under Article 25 of the Uniform Code of Military Justice, the convening authority details as members those who are, in that authority’s opinion, best qualified by reason of age, education, training, experience, length of service, and judicial temperament. Because a single commander makes that choice, the system carries an inherent risk that selection could be skewed. The military justice system addresses that risk not by removing the convening authority from selection but by policing the manner of selection and by giving the defense ways to test individual members.
The enlisted member’s distinctive right
An enlisted accused has a right that officers do not. The accused may request that the panel include enlisted members, and when that request is made, at least one third of the panel must be enlisted personnel. Those enlisted members generally cannot come from the accused’s own unit. This is a composition right the accused can affirmatively invoke, and it directly responds to the fear of being judged solely by the officer corps.
Challenging members through voir dire and challenges for cause
The main mechanism for addressing perceived bias is not asking the convening authority to rebuild the panel. It is the examination of members at trial. Article 41 of the UCMJ and the Rules for Courts-Martial provide for voir dire, the questioning of members, and for challenges. Rule for Courts-Martial 912 governs the process.
A challenge for cause asks the military judge to remove a member who cannot be impartial. Grounds include actual bias, an inability to set aside preconceived opinions, a close relationship to a party, prior involvement in the case, or anything suggesting the member cannot follow the judge’s instructions. There is no numerical limit on challenges for cause. Each side also has one peremptory challenge, which can remove a member without stating a reason, subject to the rule that it cannot be used for an unlawful discriminatory purpose.
Importantly, a member’s mere awareness of the case or the accused through ordinary contemporaneous service is not, by itself, a basis to strike that member. The defense must show a real reason to doubt impartiality, developed through questioning.
When the problem is the selection itself: unlawful command influence
Perceived command bias sometimes runs deeper than any one member. If the evidence suggests the convening authority chose members on an improper basis, for example hand-picking members likely to convict or to impose a harsh sentence, that is treated as a form of unlawful command influence, often described as panel stacking. This is challenged by motion to the military judge.
The burden structure here favors the accused once the issue is genuinely raised. When the defense produces some evidence of improper selection, the burden shifts to the government to prove beyond a reasonable doubt that the selection had a benign motive. If the government cannot make that showing, the law infers that the improper selection was intended to affect the result, and the military judge can grant relief. That relief can include removing members or other corrective action.
What an enlisted member realistically can and cannot do
An enlisted accused cannot simply ask the convening authority to redo the panel because it feels unfavorable. What the accused can do is concrete and effective when used correctly. The accused can demand enlisted representation on the panel. The accused can question every member during voir dire and move to remove any member for cause based on demonstrated bias. The accused can exercise a peremptory challenge. And where the facts support it, the accused can litigate a panel-stacking claim as unlawful command influence, forcing the government to justify the selection.
Practical guidance
Perceived bias must be converted into a record. Vague discomfort will not move a military judge, but pointed voir dire that exposes a member’s fixed views, a documented relationship, or a pattern in how the panel was assembled will. Counsel should investigate how the members were selected, preserve any indication that the convening authority sought a particular result, and raise composition and command-influence issues promptly, because failing to challenge at trial can limit what an appellate court will later consider. Used properly, these mechanisms give an enlisted member a meaningful way to confront a panel that appears tilted toward the command.
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.