Changes to Voir Dire in Massachusetts Superior Court

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Earlier this month, the Supreme Judicial Court announced an interim procedure to implement Chapter 254 of the Acts of 2014 — i.e., a new statute, effective February 2, 2015, which grants attorneys and self-represented litigants the opportunity to participate in juror voir dire in the Massachusetts Superior Courts. The procedure is set out in Superior Court Standing Order 1-15: Participation in Juror Voir Dire by Attorneys and Self-Represented Parties, and it takes effect on February 2, 2015.

Neither Chapter 254 of the Acts of 2014 nor Standing Order 1-15 disturb trial judges’ authority to manage voir dire and jury selection. The Preamble of the Standing Order states, “This Standing Order fully preserves the discretionary authority of the trial judge with respect to the examination and selection of jurors in each case, and provides a standard procedure that will apply in each civil and criminal case unless otherwise ordered by the trial judge, while permitting attorneys and self- represented parties a fair opportunity to participate in voir dire so as to identify inappropriate bias.”

The Standing Order permits attorneys and pro se litigants to submit a motion seeking leave to examine prospective jurors. The motion must “identify generally the topics of the questions the moving party proposes to ask the prospective jurors.” In approving or disapproving the topics or questions proposed, the trial judge must “give due regard to the goals of: (a) selecting jurors who can and will decide the case based on solely the evidence and the law, fairly and impartially to all parties, without in the process exposing jurors to any extraneous matter that would undermine their impartiality; (b) conducting the selection process with reasonable expedition, in proportion to the nature and seriousness of the case and the anticipated length of the trial, and with due regard for the needs of other sessions that draw on the same jury pool for access to potential jurors; and (c) respecting the dignity and privacy of each potential juror.” See Standing Order 1-15. The Standing Order lists several categories of questions that should generally be approved (e.g., those regarding preconceptions or biases relating to the identity of the parties) or disapproved (e.g., those regarding jurors’ political views, voting patterns, party preferences, religious beliefs, and so on).

Before attorneys or pro se litigants have the opportunity to question prospective jurors, the trial judge will provide a brief description of the case, preliminary instructions on significant legal principles, and an explanation of the empanelment process, “including, in cases where attorneys and/or self-represented parties will pose questions, the nature and topics of the questions that will be posed, and that any juror who finds either a particular question or the process of questioning by attorneys or self-represented parties intrusive on the juror’s privacy may request to be permitted to decline to answer and/or that steps be taken to protect the privacy of any information disclosed.”

Only then are attorneys and pro se litigants permitted to ask their preapproved questions. The judge may require that questioning be conducted of each prospective juror individually or in a juror panel. Parties may challenge jurors based on their responses to questions, and if a juror is not excused for cause on the basis of a challenge, then the judge may (1) require exercise of any peremptory challenge, or (2) seat the juror subject to the parties’ later exercise of peremptory challenges. Any party may object to a question posed by another party by stating “objection.” The judge may hear argument and rule on the objection within or outside the presence of the jurors.

It remains to be seen what practical effect Chapter 254 of the Acts of 2014 will have on juror selection in Massachusetts. Standing Order 1-15 is the first step towards implementation of the new statute and voir dire procedures are likely to be modified again the near future.

For the full text of Standing Order 1-15, please click here.


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