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
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
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
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
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
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
- Jurors are initially questioned by the court to determine
minimal legal qualifications to serve in the case.
- Each party has the opportunity under the supervision of the
court and subject to reasonable time limits to question jurors
- 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.
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.
- Hon. Gregory E. Mize (ret.), Paula Hannaford-Agor, J.D. &
Nicole L. Waters, Ph.D.
- Susan E. Jones, Judge Versus Attorney-Conducted Voir
Dire, "Law & Human Behav.," Vol. 11, 131 (1987).
- 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).
- 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
- Village of Plainfield v. Nowicki (3rd Dist., 2006) 367
Il. App. 3rd 522, 854 N.E. 2nd 791, 794).