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Jury selection is different for the military

On Behalf of | Jan 26, 2023 | Military Law |

Most American adults have been called to jury duty or at least understand the general concept. As is often the case with military law, the jury selection process works differently. Rather than a 12-person jury of peers selected from a random pool of jurors, the commanding general nominates officers and enlisted personnel to sit on the panel (the military does not use the term “jury”). Moreover, the court panel members may not be lower in rank and up to one-third can be officers. The number on the panel may also exceed 12. Panelist selection considers age, training, length of service, education, judicial temperament and other factors.

There are three judicial formats

Just as civilian juries sit on the most significant trials, military courts also use the court panel for court martials and other offenses with severe ramifications, including Article 120 cases addressing sexual assault and rape. The military courts use different formats.

  • General courts-martial: This involves at least eight-panel members, who may be officers or enlisted. The accused can request that the judge hear the case without the panel. Cases involving the death penalty must use general court-martial and must have a unanimous decision among 12 panelists.
  • Special courts-martial: This involves four or more panelists, although the accused can request that a judge hears the case without a panel.
  • Summary courts-martial: This does not use a panel. Instead, an officer acts as a judge, calling witnesses, hearing evidence, rendering a verdict and imposing a sentence.

Selecting the panel

The accused’s commanding general is supposed to choose a fair and impartial panel, which can be difficult. To better ensure impartiality, the Uniform Code of Military Justice (UCMJ) uses an interview process called voir dire, which translates from French as “speak the truth.” The judge and legal counsel interview the potential panelists to root out those with predetermined biases. It is common to start with a larger pool of panelists, which is then pared down to an appropriate number.

Voir dire is supposed to root out bias, but defendants may find that the commanding general consciously or unconsciously used a biased court panel for the desired outcome. Of course, this violates the right to a fair trial.

Military attorneys are essential

Personnel facing serious charges with severe ramifications have a lot riding on the outcome of the case. Hiring a military defense attorney is essential to protect the accused’s right to a fair hearing. The attorney can also identify weaknesses in the accusers’ claims and advocate for a lesser sentence that better reflects the facts of the case.