Lawyers Journal

Voir dire during jury selection has been used in the United States for over 200 years and can be traced to the 1760 Massachusetts Jury Selection Law. Therefore it is truly ironic that Massachusetts, the birthplace of the jury system, retains one of the most archaic approaches to jury selection.

According to The State of the States Survey of Jury Improvement Efforts: A Compendium Report by scholars at the National Center for State Courts and the State Justice Institute, Massachusetts is one of only 10 states in the union in which voir dire is conducted predominately or exclusively by judges.¹ In 18 states, judges and attorneys share equally in conducting jury selection. In 23 states, voir dire is conducted predominately or exclusively by attorneys.

The effects of an outmoded jury selection system are many, and none are beneficial to our system of justice. Biased jurors are less likely to be identified and end up being routinely seated to the prejudice of parties. Attorneys are forced to stereotype individuals in an effort to exercise preemptory challenges effectively, in abrogation of the rights of individuals to sit as jurors. The only argument that can be made for the current system is that it is a little quicker. But for parties who have waited years (and spent thousands of dollars on their cases), a brief time savings in voir dire is hardly a bargain.

Unfortunately, judges in Massachusetts have been extremely slow to change old habits, and they have been reluctant to utilize questions which go beyond the few ineffective questions to the venire required by statute. According to the Massachusetts Bar Association Judicial Preference Guide, of the 42 Superior Court judges who filed responses, six answered that they always allow counsel to question prospective jurors at sidebar, two frequently allowed counsel to participate, 15 never allowed counsel to participate, and 19 rarely allowed counsel to participate. The unfortunate reality is that a practice which excludes counsel from voir dire examination leaves trial counsel with little information regarding prospective jurors.

Court-Driven Voir Dire does not Elicit Adequate Responses

The purpose of the voir dire examination is to determine whether a prospective juror will render a fair and impartial verdict on the evidence presented and apply the facts to the law as instructed by the judge. Generally, trial counsel are more familiar with the facts and nuances of a case and, thus, are better suited to formulate questions on those issues than judges. Empirical research has shown that juror responses to attorney questions are generally more candid than to questions from the judge because jurors are less intimidated and less likely to respond with perceived socially desirable answers.²

Furthermore, research has demonstrated that citizens are not likely to respond candidly to typical questions from the court, such as "Can you be fair?" or "Can you follow my instructions?" It is highly unlikely that such closed-ended and self-evident questions will produce meaningful answers.³ Simply stated, a perfunctory examination by a judge does not "reveal preconceptions of unconscious bias."⁴

As one court has noted, "It is unrealistic to expect that any but the most sensitive and thoughtful jurors (frequently those least likely to be biased) will have the personal insight, candor and openness to raise their hands and declare themselves biased."⁵

Striking a Balance

The appropriate role for the court during jury selection should be as an impartial referee to ensure that neither party unfairly indoctrinates or pre-educates prospective jurors to a particular theory or defense and to ensure the empanelment of the most impartial jury possible. Lawyers should be permitted to ask jurors open questions properly crafted to expose bias which might affect fair deliberation of the case.

The American Bar Association has issued a set of 19 principles which define fundamental aspirations for the management of the jury system. Principle 11 states, "Courts should ensure that the process used to empanel jurors effectively serves the goal of assembling a fair and impartial jury." It provides judges and counsel with model procedures which would promote the intelligent and lawful exercise of for-cause and preemptory strikes of unfit prospective jurors. It respects constitutional requirements as well as the privacy interests of prospective jurors, and proposes a model system in which:

1. Jurors are initially questioned by the court to determine minimal legal qualifications to serve in the case.
2. Each party has the opportunity under the supervision of the court and subject to reasonable time limits to question jurors directly.
3. The Court has the responsibility to prevent abuse of the juror selection examination process and facilitate intelligent exercise of preemptory challenges.

The Role of Counsel

The process of bringing Massachusetts into the modern era of voir dire continues to be a slow one. Voir dire will never change unless counsel consistently press for improved methods of jury selection.

Counsel should request expanded voir dire in every case. The matter should be brought to the court's attention by motion at the earliest appropriate instance, which is usually the pre-trial conference. Counsel should be prepared with proposed voir dire questions for approval by the court. The questions should be open-ended, not leading, so the prospective jurors will candidly share their views and reveal any potential bias. The questioning can be done quickly at side bar under the supervision of the judge. The trial judge should recognize that the process will add only a small amount of time to the length of the trial, and will also ensure the fairest possible jury for all sides in the case.

The Authors

David White is a member of the law firm Breakstone, White & Gluck PC. He focuses his practice on personal injury cases, as well as bad faith insurance and business cases. He is a past president of Massachusetts Bar Association (2007-08) and is a frequent lecturer on a variety of legal topics regarding civil litigation. He can be reached at (617) 723-7676.

Marc Breakstone is a member of the law firm Breakstone, White & Gluck PC. He focuses his practice on complex personal injury and medical malpractice claims on behalf of plaintiffs. He has been a member of the Board of Governors of the Massachusetts Academy of Trial Attorneys for the past 15 years and is actively leading campaigns to reform the jury selection system in Massachusetts. He can be reached at (617) 723-7676.

Notes

1. Hon. Gregory E. Mize (ret.), Paula Hannaford-Agor, J.D. & Nicole L. Waters, Ph.D.
2. Susan E. Jones, Judge Versus Attorney-Conducted Voir Dire, "Law & Human Behav.," Vol. 11, 131 (1987).
3. V. Hans & A. Jehle, Avoid Bald Men and People with Green Socks? Other ways to Improve the Voir Dire Process in Jury Selection, 78 Chi-Kent L. Rev., 1179 (2003).
4. Dingle v. State, 759 A.2d 819, 829-29 (MD 2000); see also Darvin v. Norse, 664 F.2d 1109, 1115 (9th Cir. 1981); State v. Ball, 685 P.2d 1055, 1058 (Utah 1984).
5. Village of Plainfield v. Nowicki (3rd Dist., 2006) 367 Il. App. 3rd 522, 854 N.E. 2nd 791, 794).