|
Article Excerpt
I. INTRODUCTION
One of the recurring themes in recent American legal scholarship is the inadequacy of the contemporary jury system. (1) Some proposals for criminal jury "reform" suggest that we abandon our reliance on juries as arbiters of the facts and, ultimately, of culpability, while others propose to increase the jurors' participation in the trial process to improve the jury's performance in its crucial role as factfinder. (2) This Article suggests that adopting several specific procedures used by the modern (3) American court-martial would enhance the effectiveness and finality of verdicts in state jury trials for noncapital (4) criminal cases: reaching the verdict based upon the consensus of a super-majority (5) of the jurors, through secret written ballot, (6) with acquittal resulting for any charge for which a guilty verdict is not reached. (7)
Readers may ask whether the scope of modern military criminal practice provides significant experience from which civilian practitioners could learn anything useful. Are there enough military criminal trials to offer any meaningful comparison, as opposed to minor anecdotal interest? Are the types of allegations handled by courts-martial significant enough to offer any real parallel to criminal trials in civilian society?
With regard to the first question, the number of courts-martial is indeed significant enough for comparative purposes. Since 2000, courts-martial have tried almost 28,000 American military personnel. (8) Further, with approximately 1.4 million American military personnel currently on active duty (9) (and thus potentially affected by the military criminal justice system), military trials conducted under the Uniform Code of Military Justice (UCMJ) (10) affect a larger population than eleven states and the District of Columbia. (11) In short, both the number of courts-martial conducted and the number of American citizens subject to the court-martial process are comparable in magnitude to many of our smaller state jurisdictions.
To answer the second question, courts-martial routinely decide the guilt or innocence of Americans charged with an incredibly wide range of criminal offenses, (12) whether those offenses were committed in the United States or abroad, and whether the offenses occurred on a military installation or in a "civilian" setting. (13) The offenses tried by courts-martial may involve victims who are civilian or military, (14) and courts-martial have jurisdiction even where parallel prosecution by civilian authorities (federal, state, or foreign) would be feasible. (15) As long as the person accused is a member of the armed forces in an "active duty" status, that person may be brought before a court-martial to stand trial for virtually any conceivable felony offense). (16)
Thus, military trials regularly adjudicate serious felonies such as internet child pornography, child sexual abuse, rape, and murder, and not just minor disciplinary infractions peculiar to military life, such as AWOL or disrespect to superiors. (17) Further, courts-martial frequently impose serious sentences, including substantial periods of imprisonment and the death penalty, on those found guilty of felonies. (18)
Skeptics may question whether the procedures followed in military jury trials are fair enough toward the accused that any civilian jurisdiction would even consider adopting any of their features. My own experience as a military trial judge, presiding over hundreds of felony trials by military jury during a recent ten-year period, leads me to conclude that the military jury trial, while no more perfect than any other human institution, is a fundamentally fair and sound process for determining criminal culpability. (19) More significant than my own opinion is that offered by one of America's most renowned trial lawyers, F. Lee Bailey, in 1996: "If I had an innocent client, I would want that person to be tried in a military court[, where] the accused receives a full and fair trial of the facts." (20)
Of course, the military criminal law system has always had its detractors. (21) In 1969, the Supreme Court expressed serious concern about the adequacy of due process within the court-martial system. (22) In large part based on its reasoning that "military tribunals have not been and probably never can be constituted in such [a] way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians," (23) O'Callahan v. Parker ruled that courts-martial could only reach criminal offenses by service members if such offenses were "service connected." (24) The Court decided that the allegation that a soldier had broken into a downtown Honolulu hotel room and there attempted to rape a young civilian girl while he was on an evening pass away from his military post, in peacetime, (25) was not service-connected and, therefore, could not be tried by a court-martial. (26)
However, in the 1978 case of Solorio v. United States, (27) the Court rejected that narrow view of the jurisdiction of military courts and held that the subject matter jurisdiction of courts-martial extends to any offense allegedly committed by military personnel while in "active duty" status. (28) Solorio expressed no criticism of the fundamental fairness of military trials, and the Court specifically overruled the O'Callahan decision. (29) In fact, since 1969, the Court has neither questioned the fairness of the military trial nor overturned any court-martial conviction; in each of the eight military cases where it granted certiorari, the Court affirmed the military conviction, (30) including one case that directly challenged the imposition of the death sentence by a court-martial. (31)
In Weiss v. United States, the Court affirmed several court-martial convictions, rejecting the defendants' assertion that a trial by a court-martial violates the Fifth Amendment's Due Process Clause because military judges who preside over courts-martial are not sufficiently independent to guarantee a fair trial. (32) In holding that the lack of a fixed term of office for military judges does not undermine the due process to which a military defendant is entitled, (33) the Court clearly applied the "elementary [principle] that 'a fair trial in a fair tribunal is a basic requirement of due process'" with equal force to military trials. (34) Next, the Court reasoned that "[a] necessary component of a fair trial is an impartial judge." (35) Thoroughly reviewing the court-martial system's many safeguards aimed at preserving the independence of military judges, (36) the Court concluded that "the applicable provisions of the UCMJ, and corresponding regulations, by insulating military judges from the effects of command influence, sufficiently preserve judicial impartiality so as to satisfy the Due Process Clause." (37) Moreover, as the Supreme Court recognized in Weiss, the Court of Appeals for the Armed Forces (38) has demonstrated its willingness to overturn any court-martial conviction that is reached without the fundamental fairness or due process to which a defendant is entitled under the Constitution. (39)
However, this Article does not undertake a general defense of the entire military criminal law system or attempt to demonstrate that the UCMJ provides the military defendant the same procedural fairness at trial that state or federal criminal justice systems generally afford American citizens. (40) The adequacy of due process within the military criminal justice system has been debated for years in academic circles and in Congress; adding to that huge body of commentary is beyond the more modest objective of this Article. (41)
Instead, the thesis here is that several specific aspects of military jury practice satisfy contemporary notions of due process for civilian defendants and would enhance the reliability and efficiency of those trials, if these features were adopted for use in state criminal trials. (42) Accordingly, fair-minded observers ought to consider the relevance of these specific military trial features to state criminal trial procedures.
II. UNDERSTANDING TRIAL PROCEDURES USED BY THE COURT-MARTIAL
Any discussion of how military jury practice differs from that found in many state systems requires an understanding of the structure and proceedings of a military trial. Federal law, and specifically the UCMJ, requires that the courts-martial conducted by any of the armed forces (43) conform to certain fundamental trial procedures. (44) The UCMJ provides the authority of the military trial judge as the presiding officer (45) of the court-martial, the procedures for challenging the judge and military jurors, (46) and the procedures for reaching the verdict and the sentence. (47) While the UCMJ leaves other important procedural details of the military trial process to the President's discretion, (48) the UCMJ nonetheless requires that such executive directives apply uniformly among the armed forces. (49) The President, by executive order, has provided those uniform supplementary procedures in the Manual for Courts-Martial (MCM). (50) The combined effect of the UCMJ and the MCM is that the jury trial practices used by each of the several armed forces are the same. Thus, while this Article discusses military jury practices within the context of an Army general court-martial, (51) the same features apply in any military trial, whether the defendant is a sailor, airman, marine, or coastguardsman.
When a senior commander considers that the allegations of criminal conduct (52) against a soldier are serious enough to warrant consideration by a military court with authority to impose felony-level punishment, that senior commander designates an experienced officer from within the command to investigate the allegations and then report back in writing. (53) This procedure, known as an "Article 32" investigation, consists of a preliminary hearing at which the accused and his legal counsel are present. (54) During the course of this hearing, the investigating officer takes testimony under oath from witnesses for both the prosecution and the defense who are reasonably available, and considers all other relevant evidence reasonably available. (55) After considering this evidence, the investigating officer recommends whatever disposition he considers appropriate, including that the charges should be dropped or that the allegations do not merit a court-martial. (56) The senior commander is required to consider the investigating officer's recommendations and to consult with his senior military legal advisor (the staff judge advocate) before deciding how to proceed. (57) Assuming that the senior commander does not elect to dismiss the charges or proceed with some less severe mechanism, he will refer the accusations to a general court-martial. (58)
During the court-martial proceeding, the defendant is represented by military or civilian defense counsel, or both, as she chooses. (59) The United States is represented by a military prosecuting attorney, called the trial counsel. (60) Counsel for both the defense and the prosecution must be members of a state bar or the bar of a federal court. (61)
The GCM itself has two essential components: a military judge and a panel of voting "members." (62) The military judge is a commissioned military officer certified as qualified for judicial duties by the Judge Advocate General of that service and must be a member of the bar. (63) The military judge presides over the trial proceedings, exercising those judicial functions familiar to any observer of the American legal system. (64) Thus, he controls the docketing, pace, and course of the trial proceedings. (65) The military judge rules on any motions or other procedural issues raised by the prosecution or defense and instructs the voting members on the substantive and procedural legal principles applicable to the case. (66) A number of safeguards insulate military judges from inappropriate pressure by senior commanders who may have an interest in the prosecution of soldiers under their command. (67) Significantly, military judges are not supervised by, and do not report to, field commanders; rather, they are accountable to the Judge Advocates General of their respective military services, (68) who, as the Supreme Court has noted, "have no interest in the outcome of a particular court-martial." (69)
The "members" of the court-martial (or military jurors) perform functions very much like the jurors in any civilian criminal trial: they are responsible for the determination of guilt or innocence, and, when necessary, an appropriate sentence. (70) All military jurors are military personnel on active duty, (71) and, like civilian jurors, they are ordinarily lay persons rather than lawyers. (72)
However, unlike jurors for civilian criminal trials, military jurors are not randomly selected for that duty. Instead, military jurors are designated to participate in a particular court-martial by the same senior commander who referred the allegations to the court-martial for trial. (73) The senior commander generally selects the members of a court-martial from personnel available within the large organization or unit that he commands. (74) Collectively, the voting members of a particular court-martial are generally referred to as the "panel." (75) The members of the panel are commissioned officers, warrant officers, enlisted soldiers, or some combination thereof; the particular composition of the panel depends on the rank of the defendant and, in part, on his or her preference. (76) When the court-martial convenes to begin a particular trial, the members are subject to voir dire and challenges by both the defense and the prosecution, (77) and the military judge rules on any challenges against members. The parties are allowed an unlimited number of challenges for cause against members, (78) and additionally each party is allowed one peremptory challenge. (79)
In contrast to the mandated number of jurors required in federal and state civilian criminal trials (frequently twelve), (80) a general court-martial jury may lawfully include as few as five voting members. (81) Typically, however, the general court-martial convenes with ten or twelve members, and after the exercise of challenges by the parties, between six and ten members are left to actually hear and decide the case. (However, there is no prohibition against a significantly larger court-martial panel, (82) and indeed for a military capital trial, at least twelve members are usually required. (83))
Despite the difference between the civilian and military processes for jury selection, the members of the court-martial are the functional equivalent of the civilian criminal jury. (84) In open court, (85) the members, as a panel, receive preliminary instructions from the military judge about their responsibilities in the trial, listen to opening statements from counsel for each side, listen to witness testimony, consider any other evidence, (86) and finally listen to the closing arguments presented by counsel for each side. (87) Then, guided by the military judge's instructions about the governing law, (88) the members go behind closed doors to collectively deliberate in order to reach their verdict. (89) If the accused is found guilty, the trial moves promptly into a sentencing phase, during which the same members hear additional evidence, further argument by counsel, and additional instructions from the military judge. Then, the panel members deliberate together in private in order to determine an appropriate sentence. (90) In contrast with civilian criminal trial juries, the military court members have significant discretion in the formulation of a sentence; for most offenses, the MCM specifies only the maximum punishment, and the members decide what period of imprisonment or other punishment is appropriate subject to that upper limit, taking into consideration the particular circumstances of the case. (91)
The military defendant often elects to have a bench trial ("trial by military judge alone") instead of a trial in which jury members determine the verdict and sentence. (92) Moreover, even when the defendant prefers a panel of voting members, the accused frequently elects to plead guilty, (93) leaving the jury to determine only the appropriate sentence for the crime. As a result, in the majority of courts-martial, as in most criminal trials in civilian jurisdictions, jurors do not determine guilt or innocence. Nonetheless, in several thousand military trials each year, both in the United States and wherever else American forces are deployed around the world, defendants who plead "not guilty" and who do not elect to have a bench trial have their culpability determined by military jurors. (94) Section III of this Article examines how several key features of the procedures followed by military juries in such contested cases compare to the usual practices in state felony trials, and suggests that adopting those military verdict practices would improve the criminal trial process in state courts. (95)
III. IMPROVING STATE CRIMINAL VERDICTS BY ADOPTING MILITARY JURY PROCEDURES
A jury decision reached through the military approach, which allows a non-unanimous verdict, requires secret balloting, and provides for a default acquittal, results in a more reliable verdict and increases the efficiency of the criminal trial.
The historic function of the jury in the American criminal trial is to insure that the judgment that a citizen is' culpable of a serious crime is reached by a group of his fellow citizens, rather than by a government official. (96) To accomplish that, every American state except Louisiana and Oregon provide that the verdict in a felony case can be reached only with the unanimous assent of the jury. (97) Stated another way, no verdict (whether of guilt or acquittal) can be reached without the agreement of every participating juror. By comparison, the military practice improves the reliability and efficiency of the jury trial by combining three features. The court-martial practice: (1) allows a super-majority to reach a guilty verdict; (98) (2) dictates a verdict of acquittal whenever guilt is not established to the satisfaction of the requisite super-majority of the jurors; (99) and (3) requires that each member of the jury vote confidentially. (100) The conjunction of these three critical features of military jury procedure results in a verdict that better protects a defendant from improper conviction and, at the same time, improves the efficiency of the trial process. (101)
A. HOW THE TYPICAL STATE JURY REACHES ITS VERDICT
In forty-eight American states, the verdict in a felony trial can be reached only by unanimous agreement of the jurors. (102) Louisiana allows ten of the twelve jurors to reach a verdict in non-capital felony trials. (103) Oregon likewise permits a verdict when at least ten of the twelve jurors agree in most non-capital felony trials; for non-capital murder, eleven of the twelve jurors must agree. (104)
In most states, the trial judge provides the jurors with very little guidance about the deliberative process and the procedure for actually adopting a verdict. Of course, the typical pre-deliberation charge includes detailed discussion of such matters as the elements of the offenses under consideration, the burden of proof, the reasonable doubt standard, and the jurors' responsibilities to assess the credibility of the various witnesses and to determine the facts, but "[m]any jurisdictions still shy away from giving jurors any advice on their deliberations." (105) Typically, with regard to the process of reaching a verdict, the trial judge simply instructs the jury that it must engage in a thorough consideration of the evidence, that it must elect a foreman to present the verdict, and that unanimous agreement of all jurors is required for any verdict (whether guilty or not guilty). (106)
The judge's charge ordinarily makes no mention of whether an actual vote by the jury is necessary to signify each juror's position (regarding either the individual's preliminary viewpoint or final position), except to state that a verdict must represent the view of all of the jurors. (107) In other words, the judge instructs the jury that all jurors must assent, but does not provide any guidance on how such assent can or must be registered. The judge does not instruct the jurors that once they have discussed the evidence, they should register their own personal assessments of the proper verdict by casting secret ballots, or even that they may vote secretly if they choose to do so. (108) As will be seen, the military judge's instructions to a court-martial jury are much more specific, and that specificity furthers the integrity of the verdict as the honest viewpoint of the individuals who make up the jury. (109)
If the state criminal jury's discussions and deliberations result in agreement among all twelve of the jurors that the defendant should be convicted, or alternatively that he ought to be acquitted, then the jury has reached a verdict. If the twelve jurors report that they are unable to reach complete agreement for either conviction or acquittal, the judge will typically attempt to prod them toward unanimity with what is commonly called the "Allen charge." (110) Eventually, if prospects grow dim that the jurors will be able to reach unanimous agreement either way, the judge will accept the jury's belief that it has deadlocked and that further efforts to reach a verdict will be futile. In such a "hung jury" situation, the state trial judge will declare a mistrial. (111)
The double jeopardy clause is applicable to state prosecutions. (112) However, when a trial judge declares a mistrial under circumstances of manifest necessity, the jeopardy of the first trial does not end, and a subsequent retrial is considered to continue the same jeopardy. Thus, reprosecution after a mistrial does not violate the double jeopardy prohibition. (113) The hung jury situation "is the paradigmatic example of manifest necessity" justifying a mistrial. (114)
Assuming that prosecutorial misconduct did not cause the hung jury, (115) the district attorney may lawfully pursue the same charges against the defendant at a subsequent retrial, before a different jury. (116) In theory, there is no legal limitation on the number of times a hung jury caused by failure to reach unanimity can cause a defendant to face prosecution on the same charge. (117)
B. HOW A COURT-MARTIAL REACHES ITS VERDICT
In the general court-martial, by contrast, the military judge instructs the members...
|
