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
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.
- 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
- 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
- Questions about potential biases about the parties, the claims
- 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
- Questions that might embarrass or offend the juror or invade
Prior to voir dire the judge shall:
- Give a brief description of the case and related
- Give a rudimentary description of legal principles relevant to
- 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
- Excuse jurors if it is determined that service would be a
hardship or they could not be impartial.
- 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
- 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
- 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.