Get ready for the new voir dire law

Issue January 2015 By Peter Elikann

Last August, Massachusetts joined the majority of states when Gov. Deval L. Patrick signed into law Chapter 254 of the Acts of 2014, which permits voir dire conducted by attorneys or self-represented parties during empanelment of criminal and civil trials in the Superior Court. The Massachusetts Bar Association advocated strongly for this law, which also included a provision allowing attorneys to suggest a monetary amount for damages suffered by a plaintiff in a civil trial.

The section of the law governing voir dire stated that judges could set reasonable limitations on questions and require pre-approval of such questions, but the legislation left it to the courts to promulgate the guidelines.

A committee made up of various members of the bench and bar was tasked with moving quickly to draft a temporary procedure that would go into effect in February 2015. The resulting Superior Court Standing Order 1-15, issued last month, can probably be considered a work in progress as the committee will continue to work past that date as the Massachusetts bench tests its way through this first time effort.

Judicial discretion remains paramount. Trial judges may not only lead and supervise the voir dire and oral examination, but may even employ procedures that could differ from this standing order including the use of written questionnaires.

Procedure

  • An attorney or self-represented party must file a motion requesting permission to conduct juror interviews. Civil or criminal motion practice must be followed respectively. Civil cases must follow Superior Court Rule 9A requiring that the motion along with the response be filed the earlier of either the final pretrial conference date or 14 days prior to trial. In criminal cases, the motion must be served on the other party one week before filing and the response must be given two business days before the final pretrial conference or, if no final pretrial, then five days prior to trial.
  • The motion should identify the general question areas that the moving party plans to ask the jurors. It is understood that reasonably related follow-up questions should be permitted. A response or opposition by the other party to these lines of inquiry may be filed. A judge has the discretion to request that specifically written questions be filed for pre-approval.
  • In determining whether to approve or disapprove topics, judges are to be guided by the principle that: (a) jurors should not be exposed, through the voir dire process, to extraneous matter that could undermine their impartiality; (b)  voir dire should move at a reasonable rate that bears some relation to the seriousness of the matter and anticipated length of the trial and consideration for other sessions that might need access to the same jury pool; and (c) the dignity and privacy of each jury must be respected.

Questions that should generally be approved

  • Questions and reasonable follow-up questions about a prospective juror's background and experience if relevant to the case should be explored as to how that might affect the juror. Sensitive personal information should be outside the earshot of the other jurors.
  • Questions about potential biases about the parties, the claims or issues.
  • Questions about the juror's inclination or ability to follow the judge's instructions about the applicable law.

Questions that should generally be disapproved

  • Questions that duplicate the questions on any juror questionnaire. However, incomplete answers on a questionnaire or answers that need further elaboration are permitted.
  • Questions regarding a variety of personal information including political and religious views and information on past charitable giving, hobbies, recreation, reading and viewing habits, etc. unless they pertain to issues that may arise at trial or may affect the juror's impartiality.
  • Questions about a juror's previous service on a jury.
  • Questions that are tantamount to instructing prospective jurors on the law.
  • Questions that are an attempt to persuade the juror, encourage the juror to prejudge the case or commit to a result or do anything other than remain impartial.
  • Questions that require a juror to guess about facts or law.
  • Questions that might embarrass or offend the juror or invade privacy.

Prior to voir dire the judge shall:

  • Give a brief description of the case and related information.
  • Give a rudimentary description of legal principles relevant to the case.
  • Explain the empanelment process and, upon request, might permit the attorneys or self-represented party to also make a brief statement explaining the process. The jurors should be informed that, if a question is invasive of their privacy, they may request to decline to answer or have the questioner take steps to better ensure their privacy.
  • Ask all questions required by law to the prospective jurors possibly as a group. Yet at least some of the questions must be asked individually outside the earshot of other prospective jurors.
  • Excuse jurors if it is determined that service would be a hardship or they could not be impartial.

Questioning

  • Once the judge determines that a juror is impartial, the party with the burden of proof goes first.
  • The judge may require certain questions be asked outside the presence of fellow prospective jurors.
  • Parties may assert challenges for cause and, if the juror is not excused, a peremptory challenge may be exercised at that time beginning with the side that has the burden of proof or, in civil cases, the judge may order both parties alternate challenges. Or the juror may be seated subject to a later challenge after the voir dire.
  • Upon request, jurors may be questioned as a group in what is known as "panel voir dire." In that case, no questions may be asked that appear to seek personal information. Jurors are to be addressed by their juror numbers only. After that, challenges for cause may be exercised. All challenges must be heard outside the earshot of the other jurors. Any time a juror is challenged, the judge may permit the opposing party to ask further questions.
  • Any party may object to a question by the other party merely by stating "Objection" without further explanation. The judge may rule on the objection in front of the jurors or the judge may hear argument and rule outside the jury's hearing.
  • The judge may set a reasonable time limit on questioning of prospective jurors.
  • There will be instituted by the court a pilot project where volunteer judges will conduct "panel voir dire" according to procedure to be determined and compile data on it.

Peter Elikann is a criminal defense attorney who is vice chair of the MBA's Criminal Justice Section Council. He also serves as a member of the MBA's Executive Management Board.