The Introduction of Attorney-Conducted Voir Dire in Massachusetts

by Mark D. Smith

Heads Up

Last year, the Massachusetts Legislature enacted General Laws chapter 254, §2, permitting attorneys (and self-represented parties) in Superior Court criminal and civil cases to examine prospective jurors.  The Supreme Judicial Court subsequently created the Committee on Juror Voir Dire composed of judges, court officials, academics, and practitioners to help implement the new statute.

The Committee’s efforts led to two important initiatives: Superior Court Standing Order 1-15, an interim order setting forth the procedures for attorney-conducted voir dire in the Superior Courts, and, in conjunction with the Superior Court, the creation of the Panel Voir Dire Pilot Project, which will provide the opportunity to conduct group or “panel” voir dire in selected Superior Courts.

The Standing Order now guides the process for all attorney-conducted voir dire in the Superior Courts.  For now, it will be up to the discretion of each individual Superior Court Justice whether to permit attorney-conducted voir dire, except in the case of Superior Court Justices who have volunteered to participate in the Pilot Project, where the right to attorney-conducted voir dire will be automatic.

The Standing Order

An attorney who wants to examine prospective jurors must first file a motion requesting leave to do so.  In civil cases, the motion must follow the procedures of Superior Court Rule 9A.  In criminal cases, the motion must be served on all parties at least one week before filing and the opposition shall be filed with the court not later than two business days before the scheduled date of the final pre-trial conference.  The motion shall identify generally the topics of the questions which the moving party proposes to ask prospective jurors, though reasonable follow-up questions will be permitted.  The trial judge decides what questions are appropriate, but must give due regard to: (a) selecting jurors who will decide the case fairly and based solely on the evidence and the law; (b) conducting the selection process with reasonable expedition: and (c) respecting the dignity and privacy of each potential juror.

Generally, a court should approve questions that: (a) seek factual information about a prospective juror’s background and experience pertinent to the issues expected to arise in the case; (b) elicit pertinent preconceptions or biases; and (c) inquire about the prospective jurors’ willingness and ability to accept and apply pertinent legal principles.

A court should generally disapprove questions that: (a) duplicate questions appearing on the juror questionnaire; (b) seek information about a potential juror’s political views or voting pattern; (c) ask about the outcome of or deliberation in any trial in which the prospective juror has previously served; or (d) purport to instruct jurors on the law, require speculation about facts or law, are argumentative or would tend to embarrass or offend jurors, or unduly invade their privacy.

As in prior practice, before any jurors are questioned, the trial judge shall provide the venire with a brief description of the case, including the facts alleged and the claims or charges being brought, as well as brief preliminary instructions on legally significant principles such as the standard of proof and the basic elements of the civil claims or criminal charges.  The judge then shall proceed to ask all questions required by statute, and any other questions necessary to find jurors indifferent.  As with prior practice, the judge may ask these questions of the venire as a group but should conduct at least part of the questioning of each prospective juror individually outside the presence or hearing of other jurors.

After the judge has found an individual juror indifferent and able to serve, the judge shall permit the attorneys to ask the previously approved line of questions.  The questioning shall begin with the party having the burden of proof.  The judge may require the questioning of each prospective juror to be conducted individually and outside the presence (or at least the hearing) of the other potential jurors.

Perhaps the most significant provision of the interim order is that it allows counsel to question jurors as a panel during voir dire.  In such group questioning, the judge shall not permit questions that would elicit sensitive, personal information about an individual juror or that would specifically reference information provided in the jurors’ statutory confidential jury questionnaire (such information is required to be kept confidential under Chapter 234A, §23 and so may only be elicited outside of the presence or hearing of the other members of the jury pool).  If this procedure is followed, jurors shall be identified on the record by juror number only.

The trial judge may set a reasonable time limit for questioning of prospective jurors by attorneys, according to guidelines set forth in the interim order.  Once the attorneys are through questioning, the parties may assert challenges for cause, even though the judge previously found the challenged jurors indifferent.

The Panel Voir Dire Pilot Project

To facilitate the introduction of so-called “panel voir dire,” a subcommittee of the Committee on Jury Voir Dire and the Superior Court created a Pilot Project in which certain Superior Court Justices have volunteered to conduct panel voir dire according to the principles established in the Standing Order.  (The list of participating Courts can be found on the Trial Court website.) The Pilot Project will gather data on attorney-conducted voir dire to evaluate the efficacy of this selection process.  Upon the completion of the Pilot Project, the Committee will issue a report on its findings, including suggested changes to the Interim Standing Order.

In Pilot Project courts, parties must still make a request for attorney-conducted voir dire in compliance with Standing Order 1-15.  In cases where the parties are represented by counsel, jury selection in the Pilot Project shall include panel voir dire except for good cause shown.  At the final pretrial conference, the judge shall confer with counsel as to the mechanics of the panel voir dire process, including the use of a supplemental jury questionnaire and the establishment of time limits on questioning.

At trial, once the preliminary steps in jury selection are completed, the court should seat up to 16 jurors based on the judge’s preliminary findings of indifference.  As the jury box is filled, and before any attorney questioning is allowed, the clerk shall read into the record which juror, identified by juror number, is seated in which numbered seat.  It is incumbent upon the trial attorneys to correct any misstatements regarding any potential juror’s number and seating.  Also, as in prior practice, it is important for attorneys to keep track of this designation as they must address potential jurors by their identification number rather than by name.

Parties with the burden of proof shall conduct the questioning first.  In cases in which multiple parties are on the same side, the parties on each side shall agree to an order in which to proceed.  The questions may be posed by counsel to the entire jury panel or to an individual juror.  An attorney is free to object to any question posed to the jury panel by an opposing attorney, and the court may openly rule on the objection.

During this process, the nature of a proposed question or the particular circumstances of an individual juror may warrant bringing a juror to side bar.  The judge may rule on any challenge or cause at that time or at the conclusion of the panel questioning.  Furthermore, if the juror is brought to side bar, the judge may direct the parties to do their own questioning on the same subject matter at that time to avoid the need to return to side bar for related questioning. No follow-up questioning of a panel is allowed once an attorney has had his or her turn with questioning an individual juror except in the judge’s discretion and for good cause shown.

After all parties have questioned a panel, challenges for cause shall be heard and ruled upon at side bar.  The parties then exercise any preemptory challenges they have as to the remaining panel members.  Again, the party with the burden proceeds first, using all preemptory challenges the party seeks to use with that panel. If the first round of questioning of jurors does not result in a full panel, the same procedure shall apply for all subsequent panels required to seat a full jury.

The Superior Court will solicit feedback from participants in the Pilot Project, including judges, court personnel, attorneys, and jurors. It is expected that this feedback will be used to evaluate attorney-conducted voir dire and modify Standing Order 1-15 as appropriate.

Conclusion

The introduction of attorney voir dire in Massachusetts is a significant development in trial practice and a new opportunity for trial counsel, though the practical effects of attorney voir dire remain to be seen.  Whatever those effects might be, it is important for trial attorneys to learn and properly apply the interim procedures and then provide appropriate feedback to help shape the final form of these rules.

Mark Smith is a partner at Laredo & Smith, LLP, where he concentrates his practice in white collar criminal defense and government investigations.  He serves as a member of the Supreme Judicial Court’s Committee on Juror Voir Dire.