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83 Mont. L. Rev. 1 (2022)

handle is hein.journals/montlr83 and id is 1 raw text is: THE POSSIBILITY OF SPECIAL VERDICTS BY COURT-MARTIAL PANELS Christopher Daniel Carrier* I. INTRODUCTION This article posits that a court-martial panel, unlike the jury in a civil- ian criminal trial, could be required by Congress to return a special verdict rather than a general verdict. The peer jury and the court-martial panel are now superficially very similar in function, but they differ in origin and au- thority such that legal and historical arguments about the powers of the jury do not necessarily apply to the court-martial panel. The article begins by noting the pre-constitutional origins of the jury and its democratic authority as the voice of the community in the adminis- tration of criminal justice. The article then describes how these origins limit the power of judges to intrude into the traditional domain of the jury, though judges attempt to guide jurors and limit their discretion by the use of instructions on the law. This section concludes by noting the very limited use of jury questions in American criminal jury trials and some recent pro- posals to expand their use in that realm. In criminal trials in the United States, jury questions are usually limited to questions about sentence en- hancers, mental health defenses, or other special circumstances. The tradi- tional reluctance to include questions about the core decision on guilt has quietly eroded, but such questions are asked as interrogatories following a vote on a general verdict. The next section of the article notes the origins of the court-martial- mythical, historical, and constitutional-to establish that the court-martial panel does not derive its authority from the same sources as the peer jury. Both jury trials and court-martials convened by military commanders pre- date the Constitution, which preserved the right to jury trial but also em- powered Congress to adopt the court-martial as a form of trial without a jury. Thus, because a court-martial panel is not a peer jury under the Consti- tution, many of the legal and historical arguments against jury questions in criminal cases do not apply to court-martial panels. * Lieutenant Colonel, U.S. Army (Retired). Attorney in private practice. B.A., The Citadel; J.D., University of Cincinnati; L.L.M., George Washington University; L.L.M., The Judge Advocate Gen- eral's Legal Center and School. His professional experience includes service as prosecutor, trial defense counsel, trial judge, and appellate defense counsel in military courts. He was also a member of the Army Trial Judiciary's Benchbook Committee, which drafts pattern panel instructions, and an executive secre- tary of the Joint Service Committee Working Group, which drafts Department of Defense proposals for statutes and executive orders related to military justice.

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