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."
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.
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.
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