The rules regarding jury selection in Massachusetts for civil and criminal cases are ever changing. About a year ago, the Massachusetts courts began a process called voir dire which allows more questioning of jurors. Many of you may wonder how intrusive the questioning will get?
It is very clear from the literature of the Supreme Judicial Court, the highest court in Massachusetts, that the dignity and privacy of jurors must be respected. I can assure you that discussions in which potential jurors reveal sensitive information or anything close to it will take place at sidebar. Sidebar is the side of the Judge’s bench and, significantly, out of the hearing of the people in the courtroom except the attorneys and the judge.
Yes, attention to dignity and privacy are contained in the reports and articles that have been promulgated by the committees researching and monitoring methods of jury selection.
But it goes beyond academic-type articles. In my experience, this has been a sacred obligation of all officers of the court. Respect of the potential jurors is of paramount importance. In the surveys of those who have gone through the jury process- and the fact that surveys are taken on this issue is instructive- validate the view that would-be jurors will be respected as will be their privacy concerns.
What is the goal of the jury selection process? The notion is to have a jury that is “indifferent.” When the word indifferent is used, we typically we think of people who could not care less, but that is not what it means in this context. It means those who can decide impartially. Indifferent, again, is synonymous with being fair and impartial. That is the stated goal of jury selection. This new system of attorney conducted voir dire is something that will bring about fairness, or at least further that goal. In civil cases, which I do, about 50% of them have used this more extensive way of screening jurors, according to a recent report. It is a system designed to point out or identify potential juror bias. The goal is that the decisions are made solely on the evidence.
In Massachusetts, in the most important case on jury selection, Commonwealth v. Soares, a criminal case, the prosecution excluded many jurors who were African- American. The defendant was African-American. The Supreme Judicial Court ruled that it was not appropriate for the prosecution to exclude minority jurors and set aside the conviction in ordering a new trial. For decades, it had always been thought that this would not apply in civil cases but I can tell that there is no ambiguity now. In a recent law review article, by an esteemed Superior Court Judge, Peter Lauriet, in Appendix 1, it says, the guidelines are to ensure the proper exercise of peremptory challenges:
“In Section 1 – Applicability. This checklist is designed for use in both civil and criminal cases…”. The Appendix continues by giving the reasons why an objection to a particular juror is appropriate and the reasons why it is inappropriate. But the fact that it says explicitly that it applies to civil cases can help to reassure us. Civil litigants, those suing for money damages, should be assured of a fair and impartial jury.
An interesting issue arises where a white litigant contests the other side’s exclusion of minority jurors. Courts are indeed alert to that twist. There is pending a civil case in Massachusetts where the defense struck minority jurors in the white plaintiff’s slip and fall lawsuit. Suffolk Superior Court Judge Gregg Pasquale has recently heard arguments from the losing plaintiff that African-Americans were wrongfully excluded from the jury as the defendants exercised four peremptory challenges of African-Americans. A peremptory challenge is where one side can strike a juror even without cause. But, as we’ve learned, there are restrictions on a biased attempt to strike jurors. Many will eagerly await that decision on the granting or denial of a new trial.
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