Military Jury Trials

It’s judgment day. We’re talking about jury trials on “Off The Record.” The process might’ve taken six months, it might’ve taken a year, but this is where the rubber meets the road, the actual court-martial trial.

Topics discussed:

  • This Is The One Chance For You To Win
  • What Happens During the Military Trial?
  • Your Attorney Helps Pick The Jury
  • Telling Your Story of Innocence
  • Cross-Examination
  • The Jury Gets To Ask Questions
  • The Government Rests Their Case
  • The Defense Puts On A Case
  • The Defense Rests
  • Rebuttal
  • Closing Arguments From The Defense
  • Closing Arguments From The Government
  • The Jury Reaches A Verdict
  • The Reality of Trials

This Is The One Chance For You To Win

And I want to talk about all of the different pieces of a trial and how this plays out. This is the one shot that you have. This couple of days in trial, a couple of weeks or even a month, however long the jury trial takes, this is it. This is the one chance you have, this is where all of it, you’re playing all of your cards, everything is on the line and you’ve got to win.

What Happens During the Military Trial?

So what happens at trial? Well, the first part of trial is called voir dire, it’s jury selection. Now in the military, it’s a little bit different than in civilian court. We don’t have 50, 100, 150 people to pick from when we do the jury selection, the convening authority actually selects the members of your trial. I know that might seem crazy. The same convening authority, who if you remember from the Article 32 sent the case to trial, that same person actually gets to pick who’s going to be in your trial or at least the initial members.

A Panel Of Specialists

In the military, you do not get a jury of your peers, it’s a misnomer. If you’re a specialist, you’re not gonna get a jury, in the military, it’s called a panel of specialists. If you’re an E5, you’re not gonna get a jury of E5s. Everyone on that jury will outrank you, it is required under the UCMJ. Your jury can either be all officers or officers and enlisted and that decision would’ve been made prior to trial.

Your Attorney Helps Pick The Jury

Now, your attorney has the opportunity to help pick the jury, it’s called voir dire. We’re gonna ask the jury members questions. Starts with the government, the government is allowed to ask the members questions that go directly to bias, whether they’ve had a family member who’s been accused of sexual assault, whether they know anyone who’s been accused of sexual assault, what are their feelings on sexual assault? Have they ever been a law enforcement officer before? These are the types of questions that we’re gonna be able to ask the members in what’s called general voir dire or general voir dire. That we’re gonna be able to ask the members in general voir dire.

The Defense Speaks

From there, the defense, we’re gonna be able to stand up in front of the members and this is the first time that we will be speaking directly to the people who are making the decision on the case. So you got to present well, you have to have confidence. You can’t come across like a bumbling fool and you need to ask smart questions that are gonna get to the issue of whether this person should actually sit in this trial and give you a fair shot. All of the questions we ask in the military have to be written down and vetted through the military judge. So this is not the opportunity for us to wing it, everything has to be written down and the judge has to approve them or disapprove them.

Determining Jury Bias

So the questions we’re asking have been preapproved by the judge and they’re gonna be questions that are gonna generally determine whether a person on the panel has some bias. After the general voir dire, we move into individual voir dire. That’s where the government, then the defense counsel can ask individual panel members any questions that they have related to the prior questions. Again, we’re looking for bias, we’re looking for people that can’t be impartial, we’re looking for people that aren’t gonna give you a fair trial.

Challenges to the Jury

After that process, there’s challenges. We can challenge members for cause or we can do what’s called a preemptive challenge where we’re gonna argue to the judge that this particular member has a bias and cannot be impartial. The judge will then rule on that and either grant them or deny them. Then after that process, our jury is set, the members are set, and those will be the people who make the final decision on guilt or innocence.

The next phase in the trial is the opening statements. That’s where the government is gonna stand up and tell their theory of the case. They’re gonna tell all the crazy things that you did, how bad of a person you are, that you committed these crimes and they’re gonna tell the jury how they want and how they plan on convicting you. What they want to do is have the jury buy into something called confirmation bias where as soon as they hear how bad of a person you are, they’re gonna look at you in a different light and want to convict you. This is the first thing the government is going to do is paint you as an evil person, as a bad person, as a wrongdoer, someone that’s committed these horrific charges, and that’s the first thing that the government is gonna do in the case, in this opening statement.

Telling Your Story of Innocence

Trial video snapshotAt that point in time, we the defense, we have the ability to stand up and for the first time tell your story of innocence. In the opening statement, we need to layout the theme of the case, the theory of the case, look the member in the eye and tell them, “My client is not guilty,” and be able to show exactly why they’re not guilty.

What’s the story, what actually happened, and to lay out what they’re gonna see in court, how we’re gonna cross-examine witnesses and kind of layout for them the roadmap which we’re gonna follow in a trial. This is our first opportunity after voir dire to get the jury kind of on our side.

We want them to buy into our theory of defense, we want to be the truth seeker. We want to be the people that they know I can trust, who will later, that they’re gonna acquit our client. It’s a critical phase in the trial because this is the first time the jury is gonna hear your side of the story, and we’re articulating what they’re going to see and why they should acquit you.

From there, the government is gonna call their witnesses and maybe the alleged victim in a sex assault case and maybe the CID agents, maybe a forensic psychologist. They’re gonna call their witnesses and do what’s called direct examination, where they’re gonna ask them questions and they’re gonna testify essentially against you. And after they testify, we have the opportunity to cross-examine them. And this is where you need to know what the hell you’re doing.

Cross-Examination

The truth comes out under the crucible of cross-examination, it’s really easy for the government to prepare a witness to give their version of events or to prepare a witness for a direct examination where they can essentially slam you or make you look guilty.

What’s really hard to prepare for is a tough cross-examination, it makes the difference in winning a case and losing a case. And it’s not scripted out, you have to be on your feet and sometimes you have to go after someone to expose whether they’re lying, to expose their motive or to get the pieces you need in cross-examination, inconsistencies that you’re gonna use in a closing argument.

It is a critical skill set that is tough to learn and takes a long time to master but every witness the government calls, we have the ability to cross-examine, to expose their motive or their biases. And that’s gonna happen for all of the government’s witnesses, whether it’s 2 witnesses or 20 or 30, if they’re gonna call the witness, direct examination, we’re gonna cross-examine and then they get the opportunity to do redirect examination and this can go back and forth.

The Jury Gets To Ask Questions

Now the really interesting part about a jury trial in the military is that the members, the jury, they can actually ask the witness questions. This is not allowed in civilian court, it’s not allowed in federal court, so if the members have questions that weren’t asked by the government counsel or the defense counsel, all they have to do is write the question out, hand it to the judge, and as long as that question is admissible within the rules of evidence, the judge will ask the question.

It’s the ultimate curveball because we can certainly prepare for what the government’s gonna do, we prepare our cross-examination, then we need to anticipate any questions the members might have. That’s a fundamental difference between a military court and a civilian court is the jury can actually ask questions of the witness.

The Government Rests Their Case

Now after the government is done presenting their case, whether that’s a day or a week, they’re gonna rest their case and you’re gonna hear, “The government rests.”

The Defense Puts On A Case

It’s at that point in time that the defense has the opportunity to put on a case. Now sometimes calling no witnesses and resting right there may be the best strategy. Sometimes cross-examining the government’s case, showing the data to prove their case beyond a reasonable doubt and not calling a single witness, that may be the best strategy. In other cases, we might want to call witnesses, call our client, call expert witnesses, call fact witnesses, and then we do the direct examination and the government cross-examines the witness, all of this playing out for the jury.

The Defense Rests

After the defense rests its case, we then move on to instructions. Once we finish our case, we rest our case. At that point in time, the government has the opportunity to call a rebuttal case. So if there’s anything that we brought up in our case that they want to rebut, they get a second bite at the apple because the burden is beyond a reasonable doubt. It’s their burden to prove your guilt beyond a reasonable doubt so they get a second bite at the apple.

Rebuttal

They can specifically rebut any evidence that we put on. Sometimes they do a rebuttal case, sometimes they don’t. If they then rest their case, all the evidence has been heard, that’s all the evidence a jury is gonna hear or the panel’s going to hear. From there, the judge, we discuss instructions, that’s the actual legal instructions we’re gonna give to the jury. That’s gonna be what the law is, what the elements of the case are, what defense is applied.

For example, if it’s an assault case, there may be a self-defense instruction, if it’s a “to catch a predator” sting operation case, there may be an entrapment instruction. And the jury then gets read and they get written copies of all the instructions, these are basically framework for them to analyze the facts of the case.

Closing Arguments From The Defense

Finally, our closing arguments. Closing arguments is what everyone wants to see, and this is where you have to be an advocate. Not only do you have to be an advocate, you have to be a storyteller, you have to be able to think on your feet. You have to be able to convey passion and convey your story to a jury. You have to get them to know you and like you and trust you and lead them down the road where they want to acquit your client, where they think they are righting a wrong or they are doing justice. And that is a skill that takes years and years and years to learn and even longer to master. It is perhaps my favorite part of a trial because, one, you’re summing everything up and you’re telling your client’s story of innocence.

You don’t get a redo, you have to know what the hell you’re doing. In a studio setting like I’m at now, if I make a mistake, I just tell the editors I want to stop, I recut the film and we can re-edit it out and it looks good. In a trial, you don’t get a second redo, you don’t get a copywriter, you don’t get an editor, what you say goes. You have to be able to tell a compelling story, be a storyteller, and have the jury, again, almost eating out of the palm of your hand so, at the end, they want to right the wrong, they want to do justice. You give them all the tools they need to acquit your client.

Closing Arguments From The Government

After your closing argument, the government gets to do a final closing argument. The government goes first, the defense goes and the government gets one last say, again, because the burden of proof is on them. And the key is to shut down their rebuttal argument in your closing, to give a closing argument that’s so powerful that there’s nothing else they can say to get up, that there’s nothing else that they can say to the jury that’s gonna salvage their case. And after they do their closing argument, the jury deliberates. And this is an intense moment because this may be an hour, it may be two hours, it may be two days, this is where the jury deliberates on guilt or innocence.

The Jury Reaches A Verdict

Once the jury reaches a verdict, they let the bailiff know, the bailiff lets the judge know, the judge lets defense counsel and the government know. And we’re typically waiting in a room, we hear a knock on the door, and your heart starts beating and the bailiff will say, “We have a verdict.” And that’s the part where all the work, all the hours, all the long nights, where all of the efforts, it comes down to this moment. And the decision has already been made, but it never stops your heart from beating anymore. So we get our client, we gather up, we gather up the family, come back into the courtroom and we’re sitting at counsel table.

And the jury comes in and they have a verdict form, the findings worksheet, it’s called. And they’ll hand it to the bailiff, they’ll hand that to the judge. The judge reviews it to make sure it’s in proper format, then they hand it back to the panel president. At that point in time, the judge says, “Accused and counsel, please rise.” At that point in time, you stand up, you’re with your client and your heart is beating out of your chest. It just is. You can do 100 trials, you can do 200, you can do 1,000 trials. I always say the moment my heart stops beating out of my chest and I don’t get nervous when they’re reading a verdict is the day I’m gonna just do something else.

The panel president stands up and looks at your client and the words we want to hear are, “Of all charges and specifications, not guilty.” And when those words come out, you get this sigh of relief like the weight of the world has just been lifted off your shoulders and you can hug it out with your client. You know all the hard work’s paid off, that’s the verdict you want to hear. That’s when everything went your way, the jury came back with a verdict that you were looking for and it’s been absolution at that point in time.

The Reality of Trials

But the reality is not every case is a full acquittal, I wish it were. We can’t always control what a jury does, I can’t always control what the facts are in a case. What we can control is putting on the best damn case we can and doing the best we can in terms of a defense but we can’t always control what a jury does. You may get a full conviction, you may get convicted of a lesser included offense, maybe what’s called mixed findings where you’re not guilty of the major offense but guilty of the lower offense. If that happens, we’re immediately gonna go into a sentencing hearing. And at that point in time, you’ve got to just lick your wounds and get back up and just keep fighting.

No matter what the verdict is, you can’t stop fighting because the jury will see it. If the jury sees you look like, looks like you’ve given up on your client, they’re gonna know it, they’re gonna feel it, and you’ve got to get back up and get right back in the game because the sentencing hearing actually starts immediately after the verdict. Now we’re gonna talk about the sentencing hearing on another episode of “Off The Record.”

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