consider ways in which to improve the challenge for cause
, rather than
103) The CAAF held the military judge erred in denying defense counsel's challenge for cause
by relying solely on the panel member's disclaimers during voir dire, and that the military judge should have presumed bias based on these factors.
39) Moreover, the appellate courts have charged the trial courts with the obligation to rehabilitate a juror who has responded to voir dire questions in a manner that would sustain a challenge for cause
if no party attempts to rehabilitate the prospective juror and the trial court seats the juror.
Martinez-Salazar appealed, arguing both a general insufficiency of evidence and the trial court's erroneous refusal to grant the challenge for cause
142) Moreover, an erroneous denial of a challenge for cause
resulted in automatic reversal if the defendant subsequently exhausted his peremptory challenges.
In finding the military judge "clearly abused his discretion" in denying the defense challenge for cause
, the CAAF reasoned the member showed an actual bias with an inelastic view toward sentencing.
If the challenge for cause
fails, the challenger still has available the peremptory challenge or the stand aside.
Downing, (92) the CAAF reviewed a military judge's denial of a defense challenge for cause
against an officer member based on the member's friendship with the trial counsel.
Regardless of whether the question arises from a challenge for cause
or a peremptory challenge, a voir dire issue is not preserved for appeal unless the trial lawyer again objects to the entire jury immediately before it is sworn.
Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause
And, the Court warned, the prosecutor's explanation for exercising the peremptory challenge need not rise to the level of a challenge for cause
, but it must consist of something more than the assumption or intuition that the juror would be partial to the defendant because of their shared race.
In recent years, the Court of Appeals for the Armed Forces (CAAF) has addressed the issue of implied bias arising from defense counsel's challenge for cause
against a member of the court-martial panel.
Two grounds exist for a challenge for cause
against a member: (1) actual bias; and (2) implied bias.
Rule for Courts-Martial 912(f)(1)(N) allows for a challenge for cause
on the following two grounds: (1) actual bias and (2) implied bias.
In the area of voir dire and challenges, the CAAF and the Navy and Marine Court of Criminal Appeals (NMCCA), which usually review the propriety of a denied defense challenge for cause
, focused on a new factual twist--whether a military judge abuses his discretion by granting a government challenge for cause
based on a member's pro-defense sentencing philosophy.