When military trial judges and appellate courts rule on whether a potential court-martial member is challengeable for implied bias, the test “is objective, ‘viewed through the eyes of the public, focusing on the appearance of fairness.'”  United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)).  “The hypothetical ‘public’ is assumed to be familiar with the military justice system.”  Id.  Good cause exists to question whether the actual public is familiar with the military justice system.

Here’s a 31(b)log post by the Army JAG School’s Jim Clark destroying a law journal note on the military’s restricted vs. unrestricted sexual assault reporting system as uninformed.

He also posted this comment discrediting the statistic for civilian sexual assault prosecution rates in this Christian Science Monitor article called, “Why Pentagon’s progress against sexual assault is so slow.”

2 Responses to “Is the public familiar with the military justice system?”

  1. Former MJ says:

    I always hated voicing that standard when denying or granting a challenge because it sounds so ridiculous, partly for the reasons Dwight notes.  It purports to be an objective standard. But does every member of the public with familiarity with military justice system view every response from a member during voire dire the same?  And if they would have a different opinion on whether the court-martial is “fair” after the denial/grant of the challenge, how can it be an objective standard?  Some people would be okay with it and some people would think it was unfair, etc.   

  2. Phil Cave says:

    By “the public” we mean not only the civilian population, but also the rank and file of the services. Since the vast majority of servicemembers have no direct contact with the military justice system, their perspective is very similar to that of the civilian public and for purposes of this analysis may be regarded as essentially the same.  We do not understand the appearance doctrine to be limited in its application to situations which have already been publicized. We believe that the appearance doctrine was devised to insure that public confidence in the military justice system would not be undermined by the appearance that the accused was prejudiced by unlawful command influence in a given case if that case were subjected to public attention. United States v. Cruz, 20 M.J. 873, 882 (A.C.M.R. 1985).

    Seems workable for implied bias challenges.