In a court-martial tried before members, the parties question prospective panel members through voir dire to identify bias and to inform challenges. In a sexual assault case under Article 120 of the Uniform Code of Military Justice, the law of consent is often central, and a member who misunderstands the legal standard for consent can be a serious problem for a fair trial. The question is whether voir dire may probe what panel members understand consent to mean. The answer is yes, within the limits that govern voir dire generally: the questioning may explore attitudes and the capacity to follow the law, but it may not be used to instruct members on the law or to lock them into a verdict.
The purpose and scope of voir dire
Voir dire in a court-martial is governed by Rule for Courts-Martial 912. Its purpose is to obtain information that will allow the parties to intelligently exercise challenges, both challenges for cause and the peremptory challenge. The military judge controls the scope of voir dire and has broad discretion over what questions are permitted, but that discretion is exercised in favor of allowing reasonable inquiry into matters that could reveal bias or an inability to be impartial. Questions designed to expose a fixed attitude that would prevent a member from following the judge’s instructions are squarely within the proper purpose of voir dire.
A member’s understanding of consent fits this purpose. If a member holds a personal belief about consent that conflicts with the legal definition, and the member cannot set that belief aside and apply the law as instructed, that member harbors a disqualifying bias. Voir dire is the mechanism for discovering it.
Why consent understanding is a legitimate area of inquiry
In sexual assault prosecutions, consent and the lack of consent are frequently contested, and the governing definitions are specific. A member who carries strong preconceptions, for example a belief that consent can never be withdrawn, that a prior relationship implies ongoing consent, or that intoxication automatically establishes or negates the capacity to consent, may apply a personal rule rather than the law. Counsel are entitled to explore whether members hold such views and, if they do, whether they can follow the court’s instructions instead. Military appellate courts have recognized that misunderstanding of the law on issues such as intoxication and consent can be a real and material concern in these cases, which is exactly why probing the area during voir dire is appropriate.
The line that voir dire may not cross
Although the subject is fair game, the manner of questioning is constrained. Voir dire may not be used to teach the members the law of consent or to pre commit them to a particular outcome. Counsel may not pose questions that essentially ask members to promise how they will vote on a given set of facts, sometimes called staking out the members. Counsel also may not misstate the law in the guise of a question. The military judge will limit questions that argue the case, that instruct on the law, or that seek a commitment to a verdict. Instruction on the law is the judge’s role, and it occurs through formal instructions, not through the questions of counsel.
The workable approach is to ask members about their existing attitudes and beliefs concerning consent, and then to ask whether they can follow the judge’s instructions on the legal definition even if it differs from their personal view. That form of questioning gathers the information needed for a challenge without crossing into instruction or commitment.
From questioning to a challenge for cause
The reason to ask these questions is to support a challenge for cause under Rule for Courts-Martial 912. A member may be challenged for actual bias, meaning a personal bias that will not yield to the evidence and the law, or for implied bias, which is evaluated under an objective standard focused on whether the public would perceive the proceeding as fair given the member’s presence. A member whose understanding of consent reveals a fixed view at odds with the law, or who cannot commit to applying the law as instructed, may be removed for actual bias. Even a member who professes the ability to be fair may be removed for implied bias if the circumstances would create a substantial doubt about the fairness of the court-martial in the eyes of the public. Voir dire about consent understanding is what builds the record for either type of challenge.
The bottom line
Panel members can be questioned during voir dire about their understanding of sexual consent standards. In an Article 120 case, a member’s misconception about consent can create actual or implied bias, and Rule for Courts-Martial 912 permits inquiry aimed at exposing such bias and supporting a challenge for cause. The military judge controls the scope and will allow reasonable questioning into attitudes and the willingness to follow instructions, while prohibiting questions that instruct the members on the law, misstate it, or seek a commitment to a verdict. Counsel should frame the inquiry around the members’ existing beliefs and their capacity to apply the court’s instructions, which is both permissible and the most effective way to identify a member who cannot fairly try the case.
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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