When post-voir dire discovery reveals an undisclosed panel member conflict, immediate action is required to preserve trial fairness. Upon learning of the conflict, counsel must promptly notify the military judge, who should conduct individual voir dire of the affected member outside other members’ presence. The inquiry explores the conflict’s nature, reasons for non-disclosure, and potential impact on impartiality. Documentation should include when the conflict arose and why it wasn’t initially disclosed.
The military judge must determine whether actual bias or implied bias exists warranting removal. Actual bias requires showing the member cannot be impartial, while implied bias exists when most people in similar circumstances would question fairness. The judge considers factors including the conflict’s severity, whether non-disclosure was intentional, and the member’s credibility in claiming continued impartiality. Liberal grant mandates favor removal when reasonable doubts exist about member fairness.
Remedies depend on timing and prejudice assessments. If discovered before deliberations, removal and replacement with alternates may cure issues. Post-deliberation discovery complicates matters, potentially requiring mistrial if the conflict materially affected proceedings. The defense can challenge any adverse rulings through interlocutory appeals or preserve error for post-trial review. Failure to disclose material conflicts may constitute grounds for reversal if prejudice is demonstrated. The record must thoroughly document all proceedings related to the conflict’s discovery and resolution.