Army Court of Criminal Appeals

Hernandez is ACCA' s refresher on challenges to a member, especially when it involves implied bias. He gets a new trial because the MJ declined to excuse a panel member who “expressed a strongly held belief that consent to sexual intercourse required verbal consent.” (The member's wife was a SARC which was part of the basis for challenge.)

Two prospective members held the same opinion, but one was peremptorily challenged by the defense. (Keep in mind that a peremptory challenge waives the issue, and failure to peremptorily challenge, if there is only one member affected, waives the issue.)

Sergeant First Class@expressed a strongly held belief that consent to sexual intercourse must be expressed verbally. When asked by the defense counsel, "[d]o you think consent to sexual intercourse has to be verbal?" SFC responded, "[y]es." Defense counsel then quoted the definition of consent that the military judge would later use in instructions. and then asked: "[s]o if you saw the words 'consent is a freely given agreement,'you would think that agreement has to be a verbal agreement?" SFC responded with: "(i]t has to be verbal without intoxication."

When it came time for the MJ to question SFC he attempted torehabilitate the member, asking, "[i]f my definition of consent differs from you[r] own personal beliefs, would you be able to follow my definition?" to which SFC replied, "[y]es, sir."

During their turn to question SFC the government revisited his understanding of consent, again attempting to rehabilitate the panel member, asking: "If someone else were to indicate with a thumbs up or a nod, would that be interpreted as consent for you?" SFC replied, "I would have to hear it, personally." And when asked one final time if it was his personal view that consent must be verbal, SFC responded, "[a] thumbs up or a nod could be a miscommunication between the two, so it's best to clear it up." 

In denying the challenge the MJ mentioned the liberal grant mandate but found the standard for either an actual or implied bias was not met.

The ACCA focuses on the implied bias issue and notes that

​​Just as there is ​"no per se rule that a panel member must be excused" when they had been the victim of a crime similar to the one being tried, there is also no per se rule that a panel member whose spouse is a victim advocate must be removed from sexual assault cases. United States v. Castillo, 74 M.J. 39, 42 (C.A.A.F. 2015). In this case, given that SFC and his wife rarely discussed her work with, and on behalf of victims, the public would have no reason to doubt the legality, fairness, or impartiality of the proceedings. However, the same is not true as to SFCs strong personal belief that consent to sexual intercourse must be verbal. 
. . . 
Reversal will "indeed be rare" when a military judge "considers a challenge based on implied bias, recognizes his [or her] duty to liberally grant defense challenges, and places his [or her] reasoning on the record." On the other hand, where the military judge fails to apply the liberal grant mandate and denies an implied bias challenge in a close case," such error prejudices an appellant's substantial right to an impartial trial and mandates reversal under Article 59(a), UCMJ, without any requirement for the accused to demonstrate prejudice. Our superior court has repeatedly declined to apply a prejudice test to he inclusion of biased members, whether the bias was actual or implied.

Finally, as appellant appropriately asserted before this court, the liberal grant mandate is not a suggestion nor a preference, it is just that, a mandate. Under this mandate, even when a challenge against a panel member is a "close call" then the challenge must be granted. The government has not provided this court with a single case from any military appellate court-and we are aware of none-where a panel member who repeatedly stated in voir dire a belief that consent must be verbal then sat on the panel and the conviction was affirmed. We are also not aware of any case where an appellate court reversed in such a case. There is an obvious likely rationale for this lack of appellate case law; when panel members repeatedly indicate in sex assault cases that consent must be verbal, they are struck.

The other assignment of error was the MJ's decision not to give a defense requested instruction.

n.4. While we need not reach the assignment of error related to the panel instructions in this case, to the extent it is relevant to the panel member challenge we note that appellant asked the military judge to instruct the panel at the close of the case that consent "does not have to be verbal," and the military judge declined to give that instruction.