Second Annual Bench-Bar Symposium tackles voir dire, jury instruction;

Issue November 2007 By Bill Archambeault

Tackling issues like conducting individual voir dire, jury instructions and reforming rules limiting lawyers’ post-trial contact with jurors, the Massachusetts Bar Association’s Second Annual Bench-Bar Symposium attracted 150 people to the John Adams Courthouse on Oct. 11.
Divided into panels on pre-trial and post-trial jury issues, MBA President David W. White Jr. moderated the panelists, which included four judges and four attorneys, including one law school professor.

White thanked the panelists for helping to strengthen the bench-bar relationship.

“We do not rest on ceremonies, but confront the difficult issues that face the bench and the bar,” he said during his opening remarks.

The profession is witnessing a change in the culture of the courts and lawyering, White said, thanks to reforms such as firm and fair trial scheduling.

 “There will be bumps along the way,” he said. “But working together, as we have, we will continue to improve the court system.”

Touching upon one of the major themes of his 2007-08 term, White said that the criminal sentencing reforms enacted in the 1990s left the job unfinished. The MBA is building support for widespread sentencing reform, including holding a Sentencing Symposium at the Statehouse on Oct. 23.

“We hope there will be legislative action on sentencing reform this term,” White said.
Before introducing Supreme Judicial Court Chief Justice Margaret H. Marshall, who presented her Annual Address to the Legal Community (see story on p. xx), White touched upon one of the main topics of the symposium: “We renew today our frequent request for improved voir dire.”

Pre-Trial Jury Issues: voir dire

The first panel, on Pre-Trial Jury Issues, delved into the need for more extensive voir dire, what limitations should be put in place and what kind of delays individual questioning does or does not cause.

Edward P. Ryan Jr., of O’Connor and Ryan PC in Fitchburg and an MBA past president, was unequivocal about the need for attorneys to assert themselves and ask judges to let them question individual members of the jury pool. It’s an essential tool, he said, in weeding out jurors who may be prejudiced or can’t conform to the process.

“We need to ask for permission to question jurors,” Ryan said, encouraging lawyers to regularly request individual voir dire. “Most judges will allow expanded questioning. It’s not something the bench or the bar should be afraid of.”

Indeed, all four of the judges on the panel agreed that expanded voir dire, in most cases, is a valuable tool for eliminating inappropriate jurors that requires only a negligible investment of additional time.

Kathy Jo Cook, an attorney at Keches & Mallen PC in Taunton and chair of the MBA’s Judicial Administration Section, raised particular concern about the “silent juror” who either doesn’t acknowledge their prejudices on the juror questionnaire or reveal how opposed they are to sitting on a jury. In both instances, individual questioning will usually identify jurors who shouldn’t be selected, she said.

“Time is really not an issue,” she said. “It doesn’t take many questions once you’re one-on-one. But they’ve got to be open-ended questions.”

Superior Court Justice Margaret R. Hinkle said some jurors may not appreciate what the time commitment will be unless they’re individually interviewed, and that can lead to either resentful or disinterested jurors who are far from ideal.

“I enthusiastically support expanded judicial voir dire,” Hinkle said, noting however, that making the process longer is always a concern.

Superior Court Associate Justice Kenneth J. Fishman said he’d be inclined to allow attorneys additional questioning of jurors prior to jury selection, but he’s surprised at how infrequently the request is made.

“I’ve seen it work, and I think because Massachusetts isn’t familiar with it, there’s concern how it would affect our jury system,” he said. Encouraging additional attorney-conducted voir dire, with judicial supervision, “I think would go a long way in satisfying the need for more information.”

The biggest deterrence seems to be a lack of familiarity with the process and concerns about the time needed to individually question jurors. Cook noted that “there’s never enough time to review questionnaires” submitted by members of the jury pool.

Superior Court Justice Peter W. Agnes Jr., who said he has conducted individual voir dire in his court the last few years, said that shouldn’t be an issue.

“If attorneys need more time, I think they should ask for it. I think we must find a way to conduct individual voir dire in every case. I have found it extraordinarily helpful to me, and the attorneys too, I think. I don’t think in any way that it means we need to be inefficient.”

It’s key, he said, that judges engage jurors in conversational settings in which jurors will be more likely to reveal potential problems.

Superior Court Associate Justice Carol S. Ball agreed, going so far as to say, “Individual voir dire easily can and should take place in all trials. It doesn’t take any more time; it really doesn’t.”
Ball said she keeps questions open-ended instead of allowing “yes” or “no” answers. In all, she estimated it requires an additional 30 to 45 minutes.

She noted, however, “For your run-of-the-mill case, I have some time concerns.”

Agnes said he makes sure to ask if there’s anything else a juror wants to tell the judge, which sometimes reveals jurors who aren’t fit to serve, he said.

Ball said that while there’s no statistical evidence to prove that individual voir dire is improving the quality of jurors, she thinks it is.

“I think you’re seeing fewer people sleeping,” she said. “They don’t want to be there, and I don’t want them to be there.”

Post-Trial Jury Issues

MBA Past President Kathleen M. O’Donnell, of the Marcotte Law Firm in Lowell, and Andrew M. Perlman, an associate law professor at Suffolk University Law School, replaced Ryan and Cook for the second panel on Post-Trial Jury Issues. The four judges sat on both panels.

O’Donnell began discussion by noting the shortcomings she’s observed regarding judges’ instructions to jurors.

“My experience has been that, in most cases, jurors are not being given written instructions, and when they are, they’re only being given one copy. It shouldn’t be that hard. At least until we get plain English jury instructions, we need written instructions,” she said, noting that most people would be shocked if they knew what jurors had interpreted a judge’s charge to mean.

Judges on the panel said providing written instructions might be ideal, but are somewhat unrealistic given time limitations. They also expressed concerns about jurors misinterpreting the written instructions.

Ball said she usually sends juries tapes of her instructions.

“I don’t know if I like the idea of jurors poring over a particular sentence in a charge,” she said. “I’m not motivated to send in written instructions.”

Agnes, however, said he not only provides written instructions, but makes sure that each juror has their own copy.

“They’ve indicated to me that they’ve wasted too much time passing (one copy of) written instructions around,” he said. “If you don’t give them instructions in writing, they’re left with their impressions, and those will dim with each passing hour.”

Hinkle said that, like Ball, she provides jurors a tape of her instructions.

“I just don’t think it’s realistic for all of us, in our short trials, to generate a document in advance,” she said.

Hinkle said she even allows jurors to ask questions during her charge to make sure they understand her instructions when she’s giving them. When her charge involves more complicated legal issues like joint venture, she said numerous questions are asked, whereas issues like reasonable doubt produce almost none.

“Jurors have told me afterward that they found that helpful in understanding the charge,” she said.

Insurance payment instructions

O’Donnell proposed introducing language into judges’ instructions to ignore questions of insurance payments when considering awarding compensation to victims or plaintiffs because it can be easily misunderstood and affect the award amount.

Hinkle said most judges endorse giving some amount of instructions to jurors, but deciding exactly what kind of instructions is difficult to decide without guidance from the Appellate Court.
Agnes said the issue needs to be addressed.

“I think it invites jurors to speculate in an inappropriate way,” he said. “We can quibble about the language, but I think the concept is sound, and I’m going to consider using it myself.”

Post-trial contact with jurors

The other big topic of the day involved Massachusetts Rule of Professional Conduct 3.5(d), which limits a lawyer’s contact with jurors after a trial. Though the rule was instituted in response to one lawyer’s egregious conduct in contacting a juror after a trial, the MBA has supported altering the rule, and the judges on the panel agreed that the prohibition was excessive.

Perlman served on the MBA’s Jury Communication Task Force, which won endorsement of a resolution at the May 18, 2006 House of Delegates to propose a rule change to the SJC.

Perlman said the existing rule is ambiguous and poorly worded, hinders lawyers’ ability to learn effective jury techniques and even raises constitutional issues. In addition, he said, most jurors don’t seem bothered by attorneys approaching them after a trial.

Perlman noted that one concern about lifting the rule centers on the possibility that it could lead to a flood of motions on appeal. “It’s a significant concern,” he said, but it hasn’t led to an increase in motions in other states and attorneys filing appeals would have to have valid concerns about an impropriety that took place during the trial that wasn’t discovered until talking with jurors afterward.

“I would encourage the bar to move forward with the concept of some change (in that rule),” Agnes said.

Ball added, “I’ve never understood that rule. I’ve never been comfortable with the rule.”

“I like the educational aspect of it,” Fishman said. “I think it would be very helpful to attorneys, if the other issues were worked out.”

Hinkle, however, said she has concerns about allowing attorneys in criminal cases to approach and question jurors after a murder trial or other violent cases because jurors can fear for their own safety if their information gets back to the defendant.

“I’m in a quandary about it,” she said, noting that she liked one suggestion to lift the rule in civil cases before considering doing the same in criminal cases.

One audience member noted that nothing prevents defendants from contacting jurors post-trial, only attorneys are restricted. Another audience member suggested allowing attorney-juror contact in criminal cases only after jurors had given their permission, an idea that seemed to address most of the panel’s concerns.

Afterward, White called the forum a success, adding, “The bar appreciates that the bench is always willing to participate in these discussions.”