Military defense counsel can ask a military judge to close a portion of voir dire when questioning panel members would expose genuinely sensitive personal information, but the request faces a demanding legal standard. Courts-martial are presumptively open under both the accused’s right to a public trial and the public’s First Amendment interest in access. A military judge may close part of a proceeding only after making specific findings that justify it. Privacy concerns can supply a reason to close, but the closure must be supported, narrowly tailored, and accompanied by findings on the record. A general worry about sensitivity is not enough.
The presumption of openness in courts-martial
Two overlapping principles keep courts-martial open. The Sixth Amendment guarantees the accused a public trial, and that right applies to courts-martial. Separately, the public and the press hold a First Amendment interest in access to criminal proceedings, including military trials. Rule for Courts-Martial 806 codifies the public trial requirement and provides that courts-martial are open to the public, while giving the military judge limited authority to control spectators and to close proceedings in narrow circumstances.
Voir dire, the questioning of prospective panel members, is part of the proceeding to which these principles attach. Because jury or panel selection is historically open and because public access serves the integrity of the process, voir dire is presumptively conducted in open court. Closing it, even partially, is an exception that the proponent of closure must justify.
The standard for closure
Military courts apply the test the Supreme Court developed for closing criminal proceedings, and the Court of Appeals for the Armed Forces adopted it for courts-martial in ABC, Inc. v. Powell. Before closing a proceeding, the military judge must find that there is an overriding interest that is likely to be prejudiced by an open proceeding, that the closure is no broader than necessary to protect that interest, that the judge has considered reasonable alternatives to closure, and that the judge makes findings adequate to support the closure. The closure must be narrowly tailored, meaning the judge closes only what must be closed and reopens as soon as the protected interest no longer requires secrecy.
Powell is instructive on what is not sufficient. There the convening authority closed an entire Article 32 proceeding to protect alleged victims’ privacy and to guard members against outside influence. Even assuming good faith, the court held that those generalized reasons, without the required individualized findings and tailoring, could not support wholesale closure. The lesson for defense counsel is that a privacy rationale must be specific and the closure must be limited to the precise portion of voir dire where the sensitive information is elicited.
How privacy concerns can justify limited closure
Voir dire frequently requires asking prospective members about matters they would not willingly discuss in front of an audience: prior experiences with sexual assault, mental health treatment, family violence, substance abuse, or similar topics that bear on a member’s ability to be impartial. Candid answers are essential to an effective challenge for cause, yet members may be reluctant to disclose such matters publicly, and forcing public disclosure can itself injure legitimate privacy interests. That tension supplies the overriding interest that can support a narrowly drawn closure.
The practical solution courts favor is the least restrictive one. A judge may conduct individual voir dire of a single member at the bench or in a closed session limited to the sensitive questioning, while the rest of voir dire remains open. The judge can also consider alternatives short of closure, such as written questionnaires, sidebar questioning, or simply allowing a member to approach a topic without elaborating publicly. Defense counsel requesting closure should frame the request around a specific topic, identify the privacy interest at stake, explain why open questioning would prejudice that interest or chill honest answers, and propose the narrowest mechanism that solves the problem.
What counsel should put on the record
Because the validity of any closure turns on findings, defense counsel should help build the record rather than leave it to chance. That means stating the precise scope of the requested closure, the overriding interest it protects, the reason an open session would prejudice that interest, the alternatives considered and why they are inadequate, and a plan to reopen once the sensitive questioning ends. Counsel should also ensure that the closed portion is transcribed and preserved, so that the record remains complete for appellate review even though it was not conducted publicly. A properly documented, narrowly drawn closure stands a far better chance of withstanding later challenge than a broad, conclusory one.
Counsel should also recognize the limits of the analogy to closed evidentiary hearings. Some closed sessions, such as hearings conducted under Military Rule of Evidence 412 concerning an alleged victim’s sexual history, have a discrete and limited purpose and are treated differently from the trial proper. Voir dire is part of the open trial process, so the closure standard, not a categorical rule, governs, and the judge must still make the required findings.
When the request is likely to fail
A closure request is likely to be denied when it is broad, vague, or premised on generalized discomfort rather than a concrete privacy interest. Asking to close all of voir dire because the case is sensitive will not satisfy the narrow tailoring requirement. Likewise, closing the courtroom to spare the panel from publicity, without a showing that openness would actually prejudice an overriding interest, repeats the error condemned in Powell. The remedy for sensitive but non-private topics is usually careful questioning, not closure.
Bottom line
Yes, military defense counsel can request closed-session voir dire in privacy-sensitive cases, but the request must overcome the strong presumption that courts-martial, including panel selection, are open. Under Rule for Courts-Martial 806 and the closure test adopted in ABC, Inc. v. Powell, the military judge may close only a narrowly defined portion of voir dire, only upon finding an overriding interest likely to be prejudiced by openness, only after considering alternatives, and only with findings adequate to support the closure. The strongest requests are specific, limited to the sensitive questioning, paired with alternatives like individual bench voir dire or questionnaires, and supported by a complete preserved record.
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.
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