WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT COMMIT PLAIN ERROR WHEN HE PERMITTED THE TRIAL COUNSEL TO ASK HYPOTHETICAL VOIR DIRE QUESTIONS THAT PRESENTED THE MEMBERS WITH SUCH DETAILED FACTS ABOUT APPELLANT'S CASE THAT THE TRIAL COUNSEL WAS IN EFFECT COMMITTING THE MEMBERS TO RETURN A VERDICT OF GUILTY PRIOR TO THE PRESENTATION OF EVIDENCE, ARGUMENT, AND INSTRUCTIONS.
The NMCCA resolved the issue with a footnote stating without discussion that the issue was without merit. United States v. Nieto, NMCCA 200600977 (N-M. Ct. Crim. App. Apr. 5, 2007).
The latest from the CAAF on this issue follows:
The issue in this case arises from questions propounded to the members in a vacuum, before they heard any evidence or received instructions from the military judge. In United States v. Heriot, 21 M.J. 11, 13 (CMA 1985), this Court stated that it was "sympathetic with the plight of court-martial members who on voir dire are asked hypothetical questions about the sentence they would adjudge in the event of conviction." We expressed reluctance "to hold that a prospective member who is not evasive and admits to harboring an opinion that many others would share -- such as that a convicted drug dealer should not remain a noncommissioned officer or should be separated from the armed services -- must automatically be excluded [**14] if challenged for cause." Id. In United States v. Reynolds, 23 M.J. 292, 294 (CMA 1987), this Court held that neither side "is entitled to a commitment" during voir dire about "what they will ultimately do." See also United States v. Rockwood, 52 M.J. 98, 114 (1999) (Gierke, J., concurring) (military judge should not have allowed voir dire asking for sentencing commitment).United States v. Rolle, 53 M.J. 187, 191 (C.A.A.F. 2000)
There is not a lot of federal law on this issue. Many of the cases are habeas cases in which an accused contends his counsel was ineffective by not objecting to the prosecutor asking hypothetical questions on voir dire and then getting the members to commit to the answers. The courts typically claim that even if it was error for counsel to not object, the petitioner could not establish prejudice.See, e.g., Boyd v. Delo), 999 F.2d 1286, 1289 (8th Cir. 1993).
But some states have specific rules about hypothetical questions on voir dire.
Under Texas law, when conducting voir dire, "it is proper to pose hypothetical fact situations to explain the application of the law, [but] it is improper to inquire how a veniremember would respond to particular circumstances." Penry v. State, 903 S.W.2d 715, 740 (Tex.Crim.App. 1995) (citing Boyd v. Delo, 999 F.2d 1286, 1289 (8th Cir. 1993), 742 S.W.2d 331, 336 n. 6 (Tex.Crim. App.1987)). In application, this means that "[a] proper [voir dire] question is one which seeks to discover a veniremember's views on an issue applicable to the case." Rhoades v. Texas, 934 S.W.2d 113, 122 (Tex.Crim.App. 1996). In contrast, an improper voir dire question "attempts to commit a veniremember to a particular resolution based upon facts peculiar to the trial." Id. For instance, Rhoades held that it was improper to ask a prospective juror whether he would find good conduct in prison to be a mitigating factor, rather than whether he could find good conduct to be a mitigating factor. See id. at 123.Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998).
The prosecution used hypothetical questions to determine if prospective jurors could distinguish between "deliberate" and "intentional" acts, which is a proper area for voir dire examination. See Heiselbetz v. State, 906 S.W.2d 500, 509 (Tex.Crim.App.1995). As the district court found, the vast majority of the prosecution's questions did not require a prospective juror to commit that a specific set of facts constituted a "deliberate" act. Rather, each juror was questioned to determine if he could (not would) find that it was a "deliberate" act to wound a victim with the first shot and then shoot the victim additional times to prevent the victim from identifying his killer. And even in those rare instances where a juror agreed that a defendant acted "deliberately" by shooting a victim multiple times, it is clear from the context of each question that the thrust of the prosecution's examination was to ensure that the juror could distinguish between "intentional" and "deliberate" acts. Thus, Green's counsel's failure to object does not violate the first prong of Strickland because it was perfectly reasonable not to object when the prosecution's evident purpose was to inquire into a valid area of voir dire examination. And even assuming there was deficient performance, Green fails to allege any facts showing prejudice. Under the circumstances of this case, there is no reasonable probability that, but for the failure of the petitioner's trial counsel to object to the prosecution's use of a hypothetical which involved multiple gun shots fired into a robbery victim to illustrate the difference between "intentional" and "deliberate" murder, the outcome of the petitioner's trial would have been different.