Massachusetts Judges Moving Towards Expanded Voir Dire

Good news for trial advocates and their clients: Massachusetts courts are continuing to expand voir dire of prospective jurors. But Massachusetts state courts still lag behind courts in other states when it comes to screening citizens for possible selection on juries in our civil and criminal trials. The vast majority of states outside of the commonwealth permit a process whereby the judge and the attorneys inquire of potential jurors regarding their attitudes and beliefs on issues involved in the case. This process, called voir dire, is an important tool for identifying individuals who may have strong feelings or biases which would prevent them from fairly deciding the issues in the case.

Until recently, most judges in the Massachusetts state courts would simply ask a series of vague and basic questions to the entire prospective jury panel, which, in essence, asks the individuals to evaluate whether or not they can be fair and follow the court’s instructions. The system had one advantage: it was fairly quick. But the basic statutory questions are notorious for failing to eliminate potentially biased jurors.

States such as Rhode Island and New York permit extensive questioning by attorneys in the case directly with the prospective jurors. Voir dire in those states allows the attorneys on both sides to ensure that jurors with potential bias are not seated in the case.

In the last five years, the majority of judges in Massachusetts have begun a modified approach called “individual voir dire.” These judges bring each prospective juror to the side bar where the judge questions them about their beliefs and attitudes related to the issues in the case. Some of these judges allow attorneys to ask questions in follow up. Others allow attorneys to conduct the entire voir dire process. Most judges have found that this process is as efficient and expeditious as the old standard questions approach. In those cases where the process takes a little longer, there is the benefit of having a better jury for the case.

Under the new approach, judges are asking open-ended questions designed to encourage prospective jurors to express their feelings and beliefs. The basic premise of voir dire is that not every citizen is right for every case. For example, the parent of three young girls might not be an appropriate juror for a criminal case involving sexual assault on a minor. Similarly, an individual who feels there are too many frivolous lawsuits, might not be appropriate for a significant personal injury trial.

Only by inquiring of jurors regarding their beliefs and attitudes can the court and counsel be assured than an impartial jury has been seated. If the objective of justice is to have claims decided on the merits of the evidence rather than predisposed prejudices, then voir dire is an essential tool which must be employed in every case.

One of the challenges facing trial lawyers and criminal lawyers in Massachusetts is to train themselves in the best methods for interacting with prospective jurors in a respectful manner which most effectively elicits truthful responses. It should be the goal of all involved in the justice system to level the playing field as much as practicable. This way, we can best ensure that justice will be delivered.

At personal injury law firm of Breakstone, White & Gluck, P.C., our attorneys have long been advocates for expanding voir dire in Massachusetts. Marc Breakstone helped lead a discussion about expanding voir dire at the Massachusetts Bar Association’s annual meeting in 2003 before over 100 Massachusetts lawyers. In 2007, while he was president of the Massachusetts Bar Association, David White helped organize and moderated a Bench-Bar Symposium which was focused in large part on techniques for implementing expanded voir dire in civil cases. The four Superior Court judges present at the forum all offered strong support for continued expansion of voir dire for Massachusetts trials.

Voir dire will certainly continue to expand in Massachusetts. It is important for trial lawyers to teach themselves the latest techniques, and, more important, to ask for individual, lawyer-assisted voir dire in every single trial.

More Resources

Voir dire enlightens jurors about unconscious bias, by Steven Lipman, Massachusetts Bar Association Section Review, Spring 2002.
Current voir dire practices in bodily injury actions, by Brian F. Mahoney, Massachusetts Section Review, Fall 2006.

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