Can panel members and judges ask witnesses questions in a court-martial?

Yes.  Under Military Rule of Evidence (M.R.E.) 614, the panel members and/or the military judge in a court-martial may call witnesses and ask questions of witnesses despite the fact that they are neither the prosecutor nor the defense counsel in the court-martial.  If a member of the court-martial panel wishes to ask a witness a question, he or she will write his or her question down on a piece of paper.  The written question will then be passed to the military judge.  The military judge will then call both the prosecutor and defense counsel to the bench to view the written question.  The attorneys will then indicate on the paper whether they object to the written question being asked of the witness.  If one of the attorneys objects to the question, the military judge will then make a ruling on whether the question should be asked or not based on the Military Rules of Evidence.  If the question is permitted, the military judge will read the question aloud to the witness.  Sometimes a court-martial panel member’s question can reveal a lot about what that particular member is thinking.  Sometimes the question can show that the panel member is biased against one side or the other.  If a court-martial panel member’s written question shows that the panel member is already rooting against an accused before the military judge has instructed the panel regarding deliberations, the accused may have a valid argument that the panel member should be excused from the court-martial.  The accused may even have a valid argument for a mistrial.  The Court of Appeals for the Armed Forces (CAAF) in United States v. Nash, ruled that a panel member’s written question showed an implied bias against the Marine accused of a child pornography offense.  In that case, the panel member asked the wife of the accused “Do you think a pedophile can be rehabilitated?”  This question implied that the panel member already believed that the Marine was guilty of a child pornography offense before the court-martial was over.  The military judge in that court-martial did not dismiss the panel member for implied bias.  However, the CAAF determined that the military judge erred in not doing so.  An experienced defense counsel will know to listen closely to court-martial panel member’s and/or military judge’s questions asked of witnesses on the stand.  A defense counsel needs to look at whether the question is objectionable under the M.R.E., but also if the question reveals an express or implied bias.  If a bias is revealed, an experienced defense counsel must take action to ensure that his client’s rights are protected.   To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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