Hear, hear! CAAF will be considering whether a TC abused the voir dire process by using it as a subterfuge for seeking the members’ promise to vote guilty under the facts of the case. The granted issue in United States v. Nieto, __ M.J. ___, No. 07-0495/MC (C.A.A.F. July 27, 2007), is:
WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT COMMIT PLAIN ERROR WHEN HE PERMITTED THE TRIAL COUNSEL TO ASK HYPOTHETICAL VOIR DIRE QUESTIONS THAT PRESENTED THE MEMBERS WITH SUCH DETAILED FACTS ABOUT APPELLANT’S CASE THAT THE TRIAL COUNSEL WAS IN EFFECT COMMITTING THE MEMBERS TO RETURN A VERDICT OF GUILTY PRIOR TO THE PRESENTATION OF EVIDENCE, ARGUMENT, AND INSTRUCTIONS.
Here is a link to the lower court’s opinion. United States v. Nieto, NMCCA 200600977 (N-M. Ct. Crim. App. Apr. 5, 2007). I will reproduce NMCCA’s analysis of this issue in full: “We find the appellant’s second assignment of error without merit.” Nieto, slip op. at 4 n.2. No doubt CAAF will have something more interesting to say.