A court-martial panel member must be removed for “implied bias” when the facts and circumstances create a clear appearance that the member cannot be fair and impartial, even if the member themselves insists they can be. The legal standard is based on what a reasonable person would perceive. The goal is to protect the actual fairness and the public perception of the fairness of the trial. The challenge is typically raised by a defense attorney during the voir dire process.
Implied bias can arise from a number of situations. A common one is a close personal or professional relationship between the panel member and a key party in the case, such as the accused, the alleged victim, a key witness, or the convening authority. For example, if a panel member is the direct supervisor or a close friend of the victim, implied bias exists. Another situation is when a panel member has a direct financial or personal interest in the outcome of the case.
A third category is when a panel member has prior knowledge of the case or has already formed a strong, inelastic opinion about a matter at issue. If a panel member expresses an inflexible view on a certain type of offense or a certain class of witness, a judge may find implied bias. The attorney makes a “challenge for cause,” and if the military judge agrees that the situation creates an unacceptable appearance of unfairness, they will grant the challenge and remove the member from the panel.