Challenge of selection of members;

examination and challenges of members (a) Pretrial matters. (1) Questionnaires. Before trial, trial counsel may, and shall upon request of defense counsel, submit to each member written questions the following information: (A) Date of birth; (B) Sex; (C) Race; requesting (D) Marital status and sex, age, and number of dependents; (E) Home of record; (F) Civilian and military education, including, when available, major areas of study, name of school or institution, years of education, and degrees received; (G) Current unit to which assigned; (H) Past duty assignments; (I) Awards and decorations received; (J) Date of rank; and (K) Whether the member has acted as accuser, counsel, preliminary hearing officer, investigating officer, convening authority, or legal officer or staff judge advocate for the convening authority in the case, or has forwarded the charges with a recommendation as to disposition. Additional information may be requested with the approval of the military judge. Each member’s responses to the questions shall be written and signed by the member. For purposes of this rule, the term “members” includes any alternate members. (2) Other materials. A copy of any written materials considered by the convening authority in selecting the members detailed to the court-martial shall be provided to any party upon request, except that such materials pertaining solely to persons who were not selected for detail as members need not be provided unless the military judge, for good cause, so directs. (b) Challenge of selection of members. (1) Motion. Before the examination of members under subsection (d) of this rule begins, or at the next session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, whichever is earlier, that party may move to stay the proceedings on the ground that members were selected improperly. (2) Procedure. Upon a motion under paragraph (b)(1) of this rule containing an offer of proof of matters which, if true, would constitute improper selection of members, the moving party shall be entitled to present evidence, including any written materials considered by the convening authority in selecting the members. Any other party may also present evidence on the matter. If the military judge determines that the members have been selected improperly, judge shall stay any proceedings requiring the presence of members until members are properly selected. the military (3) Forfeiture. Failure to make a timely motion under this subsection shall forfeit the improper selection unless it constitutes a violation of R.C.M. 501(a), 502(a)(1), or 503(a)(2). (c) Stating grounds for challenge. Trial counsel shall state any ground for challenge for cause against any member of which trial counsel is aware. (d) Examination of members. The military judge may permit the parties to conduct examination of members or may personally conduct examination. In the latter event the military judge shall permit the parties to supplement the examination by such further inquiry as the military judge deems proper or the military judge shall submit to the members such additional questions by the parties as the military judge deems proper. A member may be questioned outside the presence of other members when the military judge so directs. (e) Evidence. Any party may present evidence relating to whether grounds for challenge exist against a member. (f) Challenges and removal for cause. (1) Grounds. A member shall be excused for cause whenever it appears that the member: (A) Is not competent to serve as a member under Article 25(a), (b), or (c); (B) Has not been properly detailed as a member of the court-martial; (C) Is an accuser as to any offense charged; (D) Will be a witness in the court-martial; (E) Has acted as counsel for any party as to any offense charged; (F) Has been a preliminary hearing officer as to any offense charged; (G) Has acted in the same case as convening authority or as the legal officer or staff judge advocate to the convening authority; (H) Will act in the same case as reviewing authority or as the legal officer or staff judge advocate to the reviewing authority; (I) Has forwarded charges in the case with a personal recommendation as to disposition; (J) Upon a rehearing or new or other trial of the case, was a member of the court-martial which heard the case before; (K) Is junior to the accused in grade or rank, unless it is established that this could not be avoided; (L) Is in arrest or confinement; II-73 (M) Has formed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged; (N) Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality. (2) When made. (A) Upon completion of examination. Upon completion of any examination under subsection (d) of this rule and the presentation o f evidence, if any, on the matter, each party shall state any challenges for cause it elects to make. (B) Other times. A challenge for cause may be made at any other time during trial when it becomes apparent that a ground for challenge may exist. Such examination of the member and presentation of evidence as may be necessary may be made in order to resolve the matter. (3) Procedure. Each party shall be permitted to make challenges outside the presence of the members. The party making a challenge shall state the grounds for it. Ordinarily trial counsel shall enter any challenges for cause before defense counsel. The military judge shall rule finally on each challenge. The burden of establishing that grounds for a challenge exist is upon the party making the challenge. A member successfully challenged shall be excused. for challenge (4) Waiver. The grounds in subparagraph (f)(1)(A) of this rule may not be waived. Notwithstanding the absence of a challenge or waiver of a challenge by the parties, the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie. When a challenge for cause has been denied, the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review. Further, failure by the challenging party to exercise a peremptory challenge against any member shall constitute waiver of further consideration of the challenge upon later review. (5) Following the exercise of challenges for cause, if any, and prior to the exercise of peremptory challenges under subsection (g) of this rule, the military judge, or a designee thereof, shall randomly assign numbers to the remaining members for purposes of impaneling members in accordance with R.C.M. 912A. II-74 (g) Peremptory challenges. (1) Procedure. Each party may challenge one member peremptorily. Any member so challenged shall be excused. No party may be required to exercise a peremptory challenge before the examination of members and determination of any challenges for cause has been completed. Ordinarily trial counsel shall enter any peremptory challenge before the defense. (2) Waiver. Failure to exercise a peremptory challenge when properly called upon to do so shall waive the right to make such a challenge. The military judge may, for good cause shown, grant relief from the waiver, but a peremptory challenge may not be made after the presentation of evidence before the members has begun. However, nothing in this subsection shall the exercise of a previously unexercised bar peremptory challenge against a member newly detailed under R.C.M. 505(c)(2)(B), even if presentation of evidence on the merits has begun. (h) Definitions. (1) Witness. For purposes of this rule, “witness” includes one who testifies at a court-martial and anyone whose declaration is received in evidence for any purpose, including written declarations made by affidavit or otherwise. (2) Preliminary hearing officer. For purposes of this rule, “preliminary hearing officer” includes any person who has examined charges under R.C.M. 405 and any person who was counsel for a member of a court of inquiry, or otherwise personally has conducted an investigation of the general matter involving the offenses charged. Rule 912A. Impaneling members and alternate members (a) In general. After challenges for cause and peremptory challenges are exercised, the military judge of a general or special court-martial with members shall impanel the members, and, if authorized by the convening authority, alternate members, in accordance with numerical requirements: following the (1) Capital cases. In a general court-martial in which the charges were referred with a special instruction that the case be tried as a capital case, the number of members impaneled, subject to paragraph (4) of this subsection, shall be twelve. (2) General courts-martial. In a general court- martial other than as described in paragraph (1) of this subsection, the number of members impaneled, subject to paragraph (4) of this subsection, shall be eight. (3) Special courts-martial. In a special court-martial, to the number of members paragraph (4) of this subsection, shall be four. impaneled, subject (4) Alternate members. A convening authority may authorize the military judge to impanel alternate members. When authorized by the convening authority, the military judge shall designate which of the impaneled members are alternate members in accordance with these rules and consistent with the instructions of the convening authority. (A) If the convening authority authorizes the military judge to impanel a specific number of alternate members, the number of members impaneled shall be the number of members required under paragraphs (1), (2), or (3) of this subsection, as applicable, plus the number of alternate members specified by the convening authority. The military judge shall not impanel the court-martial until the specified number of alternate members has been identified. New members may be detailed in order to impanel the specified number of alternate members. (B) If the convening authority does not authorize the military judge to impanel a specific number of alternate members, and instead authorizes the military judge to impanel alternate members only if, after the exercise of all challenges, excess members remain, the number of members impaneled shall be the number of members required under paragraphs (a)(1), (2), or (3) of this rule and no more than three alternate members. New members shall not be detailed in order to impanel alternate members. (b) Enlisted accused. In the case of an enlisted accused, the members shall be impaneled under subsection (a) of this rule in such numbers and proportion that— (1) If the accused elected to be tried by a court- martial composed of at least one-third enlisted members, the membership of the panel includes at least one-third enlisted members; and (2) If the accused elected to be tried by a court- martial composed of all officer members, the membership of the panel includes all officer members. (c) Number of members detailed insufficient. If, after the exercise of all challenges, the number of detailed members remaining is fewer than the number of members the court-martial under subsections (a) and (b) of this rule, the convening required for authority shall detail new members under R.C.M. 503. (d) Excess members following the exercise of all challenges. If the number of members remaining after the exercise of all challenges is greater than the number of members required for the court-martial under subsections (a) and (b) of this rule, the military judge shall use the following procedures to identify the members who will be impaneled— (1) Enlisted panel. In a case in which the accused has elected to be tried by a panel consisting of at least one- third enlisted members under R.C.M. 503(a)(2), the military judge shall— (A) first identify the one-third enlisted members required under subsections (a) and (b) of this rule in numerical order beginning with the lowest random number assigned pursuant to R.C.M. 912(f)(5); and (B) then identify the remaining members required for the court-martial under subsections (a) and (b) of this rule, in numerical order beginning with the lowest random number assigned pursuant to R.C.M. 912(f)(5). (2) Other panels. For all other panels, the military judge shall identify the number of members required under subsections (a) and (b) of this rule in numerical order beginning with the lowest random number assigned pursuant to R.C.M. 912(f)(5). (3) Alternate Members. (A) If the convening authority authorizes the military judge to impanel a specific number of alternate members, the specified number of alternate members shall be identified in numerical order beginning with the lowest remaining random number assigned pursuant to R.C.M. 912(f)(5), after first identifying members under paragraph (1) or (2) of this subsection. (B) If the convening authority does not authorize the military judge to impanel a specific number of alternate members, and instead authorizes the military judge to impanel alternate members only if, after the exercise of all challenges, excess members remain, alternate members shall be identified in numerical order beginning with the lowest remaining random number assigned pursuant to R.C.M. 912(f)(5), after first identifying the members under paragraph (1) or (2) of this subsection. The military judge shall identify no more than three alternate members. (C) In a case in which the accused has elected to be tried by a panel consisting of at least one-third enlisted members under R.C.M. 503(a)(2), the convening authority may instruct the military judge to II-75 prioritize impaneling a specific number of alternate enlisted members before impaneling alternate officer members. These members shall be identified in numerical order beginning with the lowest remaining random number assigned pursuant to R.C.M. 912(f)(5), after first identifying members under paragraph (1) of this subsection. (4) The military judge shall excuse any members not identified as members or alternate members, if any. (e) Lowest number. The lowest number is the number with the lowest numerical value. (f) Announcement. After identifying the members to be impaneled in accordance with this rule, and after excusing any excess members, the military judge shall announce that the members are impaneled. Rule 912B. Excusal and replacement of members after impanelment (a) In general. A member who has been excused after impanelment shall be replaced in accordance with this rule. Alternate members excused after impanelment shall not be replaced. (b) Alternate members available. An excused member shall be replaced with an impaneled alternate member, if an alternate member is available. The alternate member with the lowest random number assigned pursuant to R.C.M. 912(f)(5) shall replace the excused member, unless in the case of an enlisted accused, the use of such member would be inconsistent with the specific panel composition established under R.C.M. 903. (c) Alternate members not available. (1) Detailing of new members not required. In a general court-martial in which a sentence of death may not be adjudged, if, after impanelment, a court-martial member is excused and alternate members are not available, the court-martial may proceed if— (A) There are at least six members; and (B) In the case of an enlisted accused, the remaining panel composition is consistent with the specific panel composition established under R.C.M. 903. (2) Detailing of additional members required. In all cases other than those described in paragraph (1), if an impaneled member is excused and no alternate member is available to replace the excused member, the court-martial may not proceed until the convening authority details sufficient additional new members. II-76