                         UNITED STATES, Appellee

                                         v.

                      Amador NIETO Jr., Corporal
                     U.S. Marine Corps, Appellant

                                  No. 07-0495
                        Crim. App. No. 200600977

       United States Court of Appeals for the Armed Forces

                        Argued December 12, 2007

                          Decided March 12, 2008

EFFRON, C.J., delivered the opinion of the Court, in which
STUCKY and RYAN, JJ., joined. STUCKY, J., filed a concurring
opinion. BAKER, J., filed an opinion, in which ERDMANN, J.,
joined, concurring in the result.


                                     Counsel


For Appellant:    Major Brian L. Jackson, USMC (argued).

For Appellee: Lieutenant Justin E. Dunlap, JAGC, USN (argued);
Commander Paul C. LeBlanc, JAGC, USN, and Lieutenant Derek D.
Butler, JAGC, USN (on brief); Captain Roger E. Mattioli, USMC.



Military Judge:    S. F. Day




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Nieto Jr., No. 07-0495/MC


    Chief Judge EFFRON delivered the opinion of the Court.

    A special court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of wrongful

use of cocaine, in violation of Article 112a, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 912a (2000).    The sentence

adjudged by the court-martial and approved by the convening

authority included a bad-conduct discharge, confinement for

three months, forfeiture of $350.00 pay per month for three

months, and reduction to the pay grade of E-1.   The United

States Navy-Marine Corps Court of Criminal Appeals affirmed.

United States v. Nieto, No. NMCCA 200600977, 2007 CCA LEXIS 113,

2007 WL 1701863 (N-M. Ct. Crim. App. Apr. 5, 2007)

(unpublished).

     On Appellant’s petition, we granted review of the following

issue:

     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.

     In the present case, trial defense counsel did not object

to the questions posed to the members by the prosecution during

voir dire.   For the reasons set forth below, we conclude that

the military judge did not commit plain error in permitting


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United States v. Nieto Jr., No. 07-0495/MC


trial counsel to ask specific questions under the circumstances

of this case.


                        I.    TRIAL PROCEEDINGS

     After assembly of the court-martial, and prior to the

exercise of challenges against members of the panel, the

military judge provided an opportunity for voir dire examination

of the panel members.   See Rule for Courts-Martial (R.C.M.)

912(d).    The voir dire reflected the parties’ anticipation that

the prosecution would rely primarily on a positive urinalysis

test, and that the defense would rely primarily on Appellant’s

good military character and would seek to cast doubt on the

reliability of the urinalysis procedure.

                         A.    GROUP VOIR DIRE

     At the outset, the military judge asked a series of

questions during group voir dire to ensure that the members

would assess urinalysis evidence in a neutral manner, with

particular emphasis on ensuring that the members would not

automatically equate a positive urinalysis result with guilt.

The military judge then permitted each party to question the

members.   See R.C.M. 912(d).

     Trial counsel asked a number of questions during group voir

dire related to urinalysis and military character, as reflected

in the following excerpts from the record:



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United States v. Nieto Jr., No. 07-0495/MC


     Does any member believe that an accused should
     not or cannot be convicted of wrongful use of
     cocaine based on a urinalysis alone?

     Negative response from all members.

          . . . .

     Do any members have any negative opinions about
     the urinalysis testing program?

     Negative response from all members.

     Do any members disagree with the use of a
     urinalysis to determine the presence of
     contraband substance in the body?

     Negative response from all members.

     If the government proves to you beyond a
     reasonable doubt that drugs were present in the
     accused[’s] urine[,] would you be capable of
     inferring that he knowingly used those drugs that
     were found there? . . .

     Affirmative response from each of the members.

          . . . .

     Would you be able to convict a Marine if the
     evidence supports a conviction even if the Marine
     has an otherwise unblemished service record?

     Affirmative response from each of the members.

     Does any member believe that a Marine with a good
     record cannot commit a violation of the UCMJ?

     Negative response from all members.

          . . . .

     Does any member believe that evidence [of] the
     accused[’s] good military character by itself is
     sufficient to out weigh [sic] other evidence of
     the accused’s guilt?



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United States v. Nieto Jr., No. 07-0495/MC


     Negative response from the members.

          . . . .

     Do the members understand that you all determine
     how much weight, if any[,] to give to the
     evidence of good military character that is
     presented by the defense in determining the
     accused’s guilt or innocence, if that is
     presented?

     Affirmative response from the members.

     Does any member believe that any technical error
     in the collection process, no matter how small[,]
     means that the urinalysis is per se invalid?

     Okay affirmative response from each of the
     members.


     Defense counsel asked a series of questions regarding

urinalysis procedures during which all the members responded in

the negative as to whether they believed the urinalysis program

was infallible, responded in the affirmative to the proposition

that “zero tolerance” related to mandatory processing rather

than automatic discharge, and responded in the negative as to

whether a positive urinalysis test “is the absolute proof that

an individual knowingly used drugs[.]”

                    B.   INDIVIDUAL VOIR DIRE

     The record reflects detailed questioning of the members

during individual voir dire, including a number of interchanges

between trial counsel and individual members pertinent to the

present appeal.



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United States v. Nieto Jr., No. 07-0495/MC


     The following exchange occurred during the voir dire of

Chief Warrant Officer 3 (CWO3) M:

     TC: You believe that any type of deviation from
     the SOP automatically invalidates that[,] there
     is no weight to be assigned to it, you didn’t
     follow procedures so therefore you can’t rely on
     it, it is unreliable evidence?

     MBR (CWO3 [M]): Any time you have a gap in the
     chain, sir[,] it makes it a weak link. So it is
     possible that any part of that gap could have
     been tampered with. I would like to hear the
     evidence of why there is a gap there, and based
     off of that evidence I could make a better
     determination of whether it is valid or not
     valid.

     TC: Okay. So you are talking about custody
     issues when you talk about the collection
     process?

     MBR (CWO3 [M]):   Yes, sir.

     TC: What if it was something else[?] What if
     there was a particular space where someone didn’t
     initial, where other wise [sic] they would have?
     Is that the sort of procedural error that you
     think would invalidate a urinalysis test per se?

     MBR (CWO3 [M]): Only if it is a standard
     operating procedure for that point in time, yes,
     sir.

     TC: So if there were some body [sic] like the
     coordinator who was supposed to initial the
     bottle, and he didn’t, that would necessarily
     mean that you couldn’t rely on that sample that
     was collected because he didn’t fulfill the
     duties he should have?

     MBR (CWO3 [M]):   Yes, sir.




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United States v. Nieto Jr., No. 07-0495/MC


     Trial counsel asked similar questions during the individual

voir dire of CWO2 C.   In particular, the following exchange

occurred:

     TC: [W]ould you be able to look at and assess if
     there were any deviations from the SOP, and weigh
     them to factor whether or not this is a reliable
     test that we have in this case?

     MBR (CWO2 [C]):   Yes, sir.

     TC: And so it wouldn’t necessarily be per se
     invalid if the coordinator didn’t put his
     initials on the bottle[,] let’s say. If it came
     back to the coordinator [and] the accused brought
     it back to the table, but the coordinator didn’t
     put his initials on the bottle before it went
     back into the box. Would that be a violation
     that you couldn’t over look [sic]? No matter
     what[,] that is an invalid test in your mind?

     MBR (CWO2 [C]):   In that case with the initials,
     no.


     During the individual voir dire of Staff Sergeant (SSgt) R

and Corporal (Cpl) M, trial counsel asked similar questions

regarding urinalysis procedures.       Both members agreed with the

statement that such a deviation would not necessarily render the

test invalid.

     Sergeant (Sgt) Z offered a different response, as reflected

in the following colloquy:

     TC: [Is it] your opinion [that] any violation of
     the SOP regarding the collection process, no
     matter what it is[,] that automatically means
     that you can’t rely on the results of that test?

     MBR (Sgt [Z]):    Yes, sir.


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United States v. Nieto Jr., No. 07-0495/MC


     TC: Would it make any difference what sort of
     violation we are talking about?

     MBR (Sgt [Z]): I believe that is something that
     seriously needs to be perfect, sir.

     TC: All right. So if that included a
     coordinator, for instance, not initialing the
     bottle when he should have, that, in your mind,
     is a deviation that seriously jeopardizes the
     reliability of the results?

     MBR (Sgt [Z]):   Yes, sir.


     Subsequently, in response to questioning by defense

counsel, Sgt Z agreed that he could consider all the evidence,

if so instructed, before making a decision regarding the impact

of an error in the collection process.

     During individual voir dire questioning, Cpl L expressed a

similar belief that a coordinator’s failure to initial a urine

bottle would invalidate a positive urinalysis test.    After

asking several unrelated questions, trial counsel returned to

the issue of deviations in urinalysis procedures:

     TC: If the evidence showed that the accused is
     the one who brought back a bottle and he put the
     label on the bottle himself, and verified it was
     his social security number, that sort of thing,
     and he put his initials on that label, and then
     he himself put the tape on the bottle and he
     initialed the top of the tape, and he put the
     sample into the box himself and took out his ID
     card. Would the fact that the coordinator in
     that process hadn’t picked up the bottle himself
     and initial [sic] it. . . . be enough to . . .
     throw out the results of that test, that couldn’t
     support a conviction, you couldn’t find the



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United States v. Nieto Jr., No. 07-0495/MC


     accused guilty if that was the error that
     occurred here? Is that true or not?

     MBR (Cpl [L]):   Not true because he signed for
     it.

     TC:   The accused?

     MBR (Cpl [L]): The accused signed saying that it
     was his urine, sir.


In addition, Cpl L agreed that he would consider all the

evidence, notwithstanding an error in the collection procedures.

                          C.   CHALLENGES

     The prosecution challenged CWO3 M and Sgt Z for cause on

the grounds that their responses indicated an inflexible

attitude with respect to processing errors, among other grounds.

After considering defense objections to the challenges, the

military judge granted the prosecution’s challenge as to Sgt Z

and denied it as to CWO3 M.    Subsequently, the prosecution

exercised a peremptory challenge against CWO3 M.

     Only two members were challenged by the defense, both of

whom were removed from the panel.     The military judge granted

the defense challenge to Cpl M on the grounds of her personal

and professional relationship with various witnesses, and the

defense exercised a peremptory challenge against Cpl L.




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United States v. Nieto Jr., No. 07-0495/MC

                          II.    DISCUSSION

     Before this Court, Appellant contends that the prosecution

improperly sought to obtain from the panel members a commitment

to convict Appellant based upon a hypothetical set of facts,

that the commitment questions violated his right to be tried by

an impartial panel, and that the military judge erred by

permitting these questions.     In the absence of objection by the

defense at trial, we apply a plain error standard of review.

United States v. Moran, 65 M.J. 178, 181 (C.A.A.F. 2007).     To

establish plain error, an appellant bears the burden of

demonstrating “(1) an error was committed; (2) the error was

plain, clear, or obvious; and (3) the error resulted in material

prejudice to an appellant’s substantial rights.”    Id. (citing

United States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998));

see Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

     Voir dire provides an opportunity to explore whether a

member possesses partiality or otherwise is subject to

challenge, and the military judge has broad discretion in the

conduct of voir dire.   See United States v. Belflower, 50 M.J.

306, 309 (C.A.A.F. 1999); United States v. Jefferson, 44 M.J.

312, 318-19 (C.A.A.F. 1996); R.C.M. 912(d) Discussion.    As a

general matter, hypothetical questions provide a permissible

means of exploring potential grounds for challenge.    See United




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United States v. Nieto Jr., No. 07-0495/MC

States v. Reynolds, 23 M.J. 292, 293-94 (C.M.A. 1987); United

States v. Heriot, 21 M.J. 11, 12-14 (C.M.A. 1985).

     Although this Court has addressed challenges for cause

based upon answers provided by prospective members to

hypothetical questions during voir dire, see, e.g., Reynolds, 23

M.J. at 294, we have not heretofore addressed the scope of

permissible questioning in this regard.   Among the few courts

that have addressed this question, a number have held that

certain hypothetical questions are impermissible if they seek to

obtain a commitment from jurors to agree to decide the case in a

particular way upon a hypothetical set of facts.   See, e.g.,

Hobbs v. Lockhart, 791 F.2d 125, 129-30 (8th Cir. 1986);

Hutcheson v. State, 213 S.W.3d 25, 32 (Ark. Ct. App. 2005);

State v. Henderson, 574 S.E.2d 700, 705-06 (N.C. Ct. App. 2003);

Thompson v. State, 2007 OK CR 38, ¶ 33, 169 P.3d 1198, 1209.       A

number of other courts have adopted a broader prohibition,

precluding questions that ask jurors to commit themselves to

resolving a particular aspect of the case in a specific way

based upon a hypothetical set of facts.   See, e.g., State v.

Ball, 824 So. 2d 1089, 1110 (La. 2002); Burkett v. State, 179

S.W.3d 18, 31 (Tex. App. 2005).    Neither party has cited to us

decisions from the federal civilian courts that would indicate a

generally applicable standard for considering this question in

the trial of criminal cases in federal district courts.    Cf.


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United States v. Nieto Jr., No. 07-0495/MC

Article 36(a), UCMJ, 10 U.S.C. § 836(a) (2000) (referring to

“the principles of law and the rules of evidence generally

recognized in the trial of criminal cases in the United States

district courts” as the foundation for similar rules in the

military justice system).

     In short, at the time of trial, the case law from this

Court did not preclude trial counsel’s questions, generally

applicable federal criminal law did not provide guidance on

point, and only a handful of state cases addressed this matter.

In that context, we conclude that Appellant has not carried his

burden of demonstrating that the military judge committed an

error that was “plain” or “obvious” in permitting the trial

counsel to ask the hypothetical questions at issue in the

present case.

     We emphasize that the case before us involves the scope of

permissible questions on voir dire, not the ruling of a military

judge on a challenge for cause.    If, for example, a question

prompted a panel member to make a statement demonstrating

prejudgment of the case, that would present a question regarding

a challenge for cause.   See R.C.M. 912(f)(1)(N).   In the present

case, however, defense counsel not only permitted the trial

counsel’s questions to proceed without objection, but also

offered no challenge to any of the members who rendered the

findings or sentence.    On appeal, Appellant has not contended


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United States v. Nieto Jr., No. 07-0495/MC

that trial defense counsel erred in not offering a challenge for

cause or that the military judge erred in permitting any member

to sit on the panel.

     To the extent that Appellant asks us to rule that the

questions at issue were impermissible, we are presented with a

question that not only is a matter of first impression with this

Court, but also a matter on which there is little guidance from

other federal courts.   Particularly in light of the fact-

intensive, case-specific nature of the issue raised by

Appellant, it is an issue that would benefit from a well-

articulated objection at trial, as well as findings of fact and

conclusions of law by the military judge.    Absent the

development of such a record in the case before us, we decline

to conclude that the military judge committed plain error.



                          III.   DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Nieto Jr., No. 07-0495/MC


     STUCKY, Judge (concurring):

     Trial counsel posed voir dire questions using facts from

Appellant’s case to obtain from court members commitments that

they would view those facts in a particular way.   While I agree

with the majority’s disposition of the case, I write separately

to emphasize that actions like those of the trial counsel are

disfavored, if not necessarily outright error.   As we cautioned

practitioners in United States v. Tippit:

     [I]t is appropriate to allow considerable leeway to
     counsel in the voir dire examination of court members
     as they seek to ascertain whether a challenge for
     cause should be asserted. However, latitude for
     counsel in propounding questions to court members
     about their reactions to hypothetical situations
     should not become an invitation to reversible error.

9 M.J. 106, 107-08 (C.M.A. 1980) (per curiam).   More recently,

we sympathized “‘with the plight of court-martial members who on

voir dire are asked hypothetical questions.’”    United States v.

Rolle, 53 M.J. 187, 191 (C.A.A.F. 2000) (quoting United States

v. Heriot, 21 M.J. 11, 13 (C.M.A. 1985)).

     This Court has long held it is error to pose hypothetical

questions involving case-specific facts to seek a commitment

regarding a punitive discharge.    United States v. Reynolds, 23

M.J. 292, 294 (C.M.A. 1987).   As we said in Reynolds, “[n]either

the Government nor the accused is entitled to a commitment from

the triers of fact about what they will ultimately do.”   Id.

(holding that hypothetical voir dire questions asking members to
United States v. Nieto Jr., No. 07-0495/MC


commit themselves to an appropriate sentence was error); accord

Rolle, 53 M.J. at 191; United States v. Rockwood, 52 M.J. 98,

106 (C.A.A.F. 1999); United States v. Small, 21 M.J. 218, 219

(C.M.A. 1986).   Although the questions posed in Appellant’s case

did not seek commitment on a particular sentencing element, they

did seek commitment on how the member questioned would view

certain evidence.

     Although I would find error in this case, I agree with the

majority that the error is not plain or obvious.   See United

States v. Magyari, 63 M.J. 123, 125 (C.A.A.F. 2006) (holding

that there is no plain error unless an appellant can show the

error was plain or obvious and that the error materially

prejudiced the appellant’s substantial rights).    While this

Court has addressed the validity of voir dire questions seeking

commitment on an appropriate sentence, this Court has not

clearly addressed whether it is error to seek commitment on a

disputed factual matter.1   I agree with the majority that the


1
  One possible exception is United States v. Carver, 6 C.M.A.
258, 19 C.M.R. 384 (1955). In Carver, the law officer released
a member after the member apparently became disturbed by trial
counsel’s questioning of a defense expert witness. 6 C.M.A. at
264, 19 C.M.R. at 390. Trial counsel was allowed to voir dire
the member mid-trial. Id. We held it was error to permit
questions designed to discover the weight the member would give
to various expert witnesses as the questions asked for a
commitment on how he would decide the issues before hearing
testimony or receiving evidence. 6 C.M.A. at 267, 19 C.M.R. at
392. Given the unusual facts of this case, I do not see it as
clearing the murky waters in this area.

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United States v. Nieto Jr., No. 07-0495/MC


decisions discussing this issue, in both this Court and in other

federal courts, do not provide clear guidance.   Error cannot be

plain or obvious if the law is unsettled on the issue at the

time of trial and remains so on appeal.    United States v.

Garcia-Rodriguez, 415 F.3d 452, 455-56 (5th Cir. 2005); United

States v. Diaz, 285 F.3d 92, 96 (1st Cir. 2002).    Nor is an

error “plain” if Appellant’s theory requires “the extension of

precedent.”   United States v. Hull, 160 F.3d 265, 272 (5th Cir.

1998).

     Thus, I would find the use of voir dire questions asking

for a commitment using case-specific facts to formulate

hypothetical questions was error in this case, but the error was

not so plain or obvious that it relieves Appellant of his

failure to preserve the issue on appeal.   For this reason, I

concur in affirming the decision of the United States Navy-

Marine Corps Court of Criminal Appeals.




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United States v. Nieto Jr., No. 07-0495/MC


     BAKER, Judge, with whom ERDMANN, Judge, joins (concurring

in the result):

     The Court’s opinion concludes that Appellant has not met

his burden of demonstrating plain error.   I agree, albeit for a

different reason.    As a separate matter, I believe this Court

should, in light of this case, offer further guidance to the

field distinguishing between proper and improper hypothetical

and commitment questions during voir dire, although for reasons

stated below this is admittedly difficult to do.

     The Court discusses two tracks in state case law on the

subject of hypothetical questions during voir dire.   The first

track prohibits hypothetical questions intended to induce juror

commitments on facts that are verdict dispositive.    The second

track addresses questions intended to induce juror commitments

on specific facts.

     It is not clear how different the two tracks really are.

One problem in this case is that under either track the

questions asked by trial counsel would appear to be

impermissible efforts to preview the members’ reaction to

evidence yet to come.   Trial counsel asked prospective members

whether a technical error in the collection process would per se

invalidate a urinalysis.   This is a general question intended to

discern potential bias and fixed and inflexible views regarding

urinalysis processing generally.   However, with some members
United States v. Nieto Jr., No. 07-0495/MC


trial counsel went further.    In the case of Chief Warrant

Officer 2 (CWO2) C, for example, he asked:

     And so it wouldn’t necessarily be per se invalid if the
     coordinator didn’t put his initials on the bottle let’s
     say. If it came back to the coordinator the accused
     brought it back to the table, but the coordinator didn’t
     put his initials on the bottle before it went back into the
     box. Would that be a violation that you couldn’t overlook?

Whether viewed as hypothetical, commitment, or case specific in

nature, trial counsel’s questions about urinalysis processing

accomplished the same objective, because Appellant’s case hinged

on any doubts he might generate regarding the urinalysis

procedures, and in particular with regard to the labeling of the

bottle.1    Thus, on this point, I think Appellant has the better

argument.    However, such insight comes from reading the record

backward, a benefit the military judge did not have at the time.



1
  Trial counsel’s “military character” question put to all the
potential members was also problematic:

     Does any member believe that evidence [of] the accused[’s]
     good military character by itself is sufficient to out
     weigh [sic] other evidence of the accused’s guilt?

     Negative response from the members.

This question asked the members to commit to an incorrect
statement of the law pertaining to the reasonable doubt
standard, which was arguably plain and obvious at the time.
However, the military judge later instructed the members that
evidence of good military character and character for
truthfulness could be enough to create reasonable doubt -- and
we assume that the members followed the military judge’s
instructions. Therefore, if there was error in not immediately
addressing the question posed, it was not prejudicial.

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United States v. Nieto Jr., No. 07-0495/MC


     I would not find plain error in this case because at the

time the questions were asked, the military judge did not have

the benefit of knowing how the evidence yet to be introduced

would relate to the theories of the parties.   Therefore, while

it may be obvious in retrospect to see how the questions

involved were more than hypothetical and did more than test for

bias, I do not find error in the military judge not seeing this

at the time the questions were asked.   Where the questions

concerned might reasonably have been intended to test for bias

as well as potentially to test the real facts in issue on the

potential members, the military judge did not have a sua sponte

duty to look behind the questions asked.

     In the voir dire context, it is the counsel who will have

the better feel for the coming evidence rather than the military

judge.   Therefore, it is generally counsel’s objection and not

the military judge’s speculation that is critical in detecting

the improper question.   Counsel, rather than the military judge,

will have a better feel during voir dire as to whether

hypothetical questions are truly hypothetical and intended to

test for bias, or whether they are in reality (and in disguise)

commitment questions intended to preview attitudes toward

specific evidence.   While not all commitment questions are

improper, some questions surely are.    Therefore, appellate

courts might express concern but it is problematic to draw


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United States v. Nieto Jr., No. 07-0495/MC


bright line rules.    The same is true of hypotheticals.

Hypotheticals are surely useful in testing for and detecting

bias.    However, they can also be used to preview case specific

facts and to warm up the jury.

        For these reasons, military judges must have broad

discretion in overseeing voir dire questioning.    This

discretion, however, should extend to looking behind the

questions asked, especially where questions suggest an effort at

securing commitments to case related “hypothetical” facts.

Thus, in instances where a military judge can reasonably foresee

the direction of the case, hypothetical factual questions like

those presented in this case might indeed present obvious

attempts to commit the members.    In such cases, a military judge

would err in not testing the basis for such questions.




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