In United States v. Nieto, __ M.J. ___, No. 07-0495/MC (C.A.A.F. Mar. 12, 2008), Chief Judge Effrom writes for a majority consisting of himself, Judge Stucky and Judge Ryan. Judge Stucky also wrote a concurring opinion. Judge Baker, joined by Judge Erdmann, concurred separately in the result.
As Chief Judge Effron’s majority opinion explains, “Before this Court, Appellant contends that the prosecution improperly sought to obtain from the panel members a commitment to convict Appellant based upon a hypothetical set of facts, that the commitment questions violated his right to be tried by an impartial panel, and that the military judge erred by permitting these questions.” Id., slip op. at 10. There was no objection at trial, so the issue was reviewed under a plain error standard.
The majority observed that “[a]lthough this Court has addressed challenges for cause based upon answers provided by prospective members to hypothetical questions during voir dire, we have not heretofore addressed the scope of permissible questioning in this regard.” Id., slip op. at 11 (internal citation omitted). CAAF declined to fill that vacuum in the Nieto case, basically punting until a better developed record comes along. CAAF did, however, cite some federal and state case law on the subject, perhaps trying to nudge the issue along a bit by providing some cites for trial-level counsel’s use in litigating the issue. See id.
In his concurrence, Judge Stucky foreshadowed how he will vote when such a well developed issue comes along: “While I agree with the majority’s disposition of the case, I write separately to emphasize that actions like those of the trial counsel are disfavored, if not necessarily outright error.” While Judge Stucky observes that “I would find error in this case, I agree with the majority that the error is not plain or obvious.”
In his separate concurring opinion, Judge Baker suggests that the voir dire questions at issue were likely improper in light of the evidence that was ultimately introduced. But at the time of voir dire, the military judge wouldn’t have known how the questions fit in with the prosecution’s theory of the case. The defense, on the other hand, should have understood this — it was, therefore, the defense’s duty to object. There was no plain error in the military judge failing to act on the basis of information he didn’t yet possess.