United States v. McFadden, 2015 CAAF LEXIS 205

Appellant (Airman McFadden) was tried by general court-martial and convicted of absence without leave, desertion, conspiracy, and making a false official statement; sentence approved by convening authority.
At trial Appellant testified she never intended to remain away permanently and had turned herself in; she testified in part that investigators had not asked whether she intended to return.
On cross, Appellant volunteered that Senior Airman Aeree had asked her and she invoked her right to remain silent.
A court member (Major Cereste) asked Appellant from the panel whether her invocation of silence was ‘‘lying by omission’’ and implied she was deceptive, prompting a defense mistrial motion.
The military judge denied the mistrial, instead giving a curative instruction (language proposed by defense) telling members not to consider invocation of the right to remain silent adversely or as lying by omission; defense did not ask to voir dire or challenge the member.
Majority held the judge did not abuse discretion in denying mistrial and had no duty to sua sponte excuse the member; a dissent argued the judge should have voir dired/excused the member because the member demonstrated bias.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the military judge abused discretion by denying a mistrial after a member’s comment equated invoking the right to remain silent with "lying by omission."	McFadden: Member’s comment tainted the panel and constituted prejudicial comment on her invocation of silence, warranting mistrial.	Government: Questioning sought clarification; Appellant herself volunteered the invocation; curative instruction sufficed.	Denied abuse of discretion: judge’s curative instruction (defense‑approved) was adequate; members are presumed to follow instructions.
Whether the military judge had a sua sponte duty to excuse the court member who implied bias.	McFadden (dissent): Member’s comment showed she was not impartial; judge should have voir dired/excused member to protect fairness.	Government/Majority: Rule gives judge discretion to excuse sua sponte; no mandatory duty to do so absent clearer showing.	No duty to sua sponte excuse: judge’s failure to remove member was within discretion; not an abuse.

Ryder v. United States, 515 U.S. 177 (1995) (appointment method for civilian appellate military judges).
Jama v. Immigration & Customs Enforcement, 543 U.S. 335 (2005) (interpretation that "may" connotes discretion).
United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) (mistrial is extraordinary; curative instructions preferred).
United States v. Diaz, 59 M.J. 79 (C.A.A.F. 2003) (mistrial reserved for manifestly necessary situations).
United States v. Strand, 59 M.J. 455 (C.A.A.F. 2004) (voir dire may be required where member bias is reasonably indicated).