Bill to Allow Attorney Directed Voir Dire


Voir Dire is the mechanism society uses in all jury trials to ferret out a jurors’ predispositions, beliefs and values, the keys to reaching minds and hearts of jurors in the courtroom deciding the case. Its aim is the removal of or sanitization of preinclination of the deciders of fact and in so doing, renders a body of six to twelve of our peers who will decide a case only after all the evidence is presented. Not before.

Under the current system, voir dire is predominantly or exclusively conducted by judges. Under this system,

[b]iased 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.  Marc Breakstone & David White, Lawyers must work to improve voir dire system in Massachusetts, Lawyers Journal, August 2010

As compromise, the law permits– and judges allow –litigants to propose special jury questions which could delve into the more polarizing or nuanced aspects of a case where a juror’s prejudices or bias many lay dormant.  However, the compromise often fails its intended purpose. Following an affirmative response to any of these questions, the judge will call the responding prospective juror to sidebar and ask notwithstanding the affirmative answer to the question, can he/she judge the evidence impartially.

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. Simply stated, a perfunctory examination by a judge does not “reveal preconceptions of unconscious bias.” Id. (internal citations omitted)

As is often said in the law—things change….potentially

Pending before the state’s legislature right now is a bill that would amend General Laws 234 §§ 28 to allow attorneys to directly conduct voir dire of prospective jurors.

In all superior court jury trials, both criminal and civil, the following procedures shall govern:

(1) In addition to whatever jury voir dire of the jury venire is conducted by the court, and subject to the provisions in clause(3) for the commonwealth in criminal cases involving multiple defendants, the court shall permit, upon the request of any party or any party’s attorney, the party or the party’s attorney to conduct, under the direction of the court, an oral examination of the jury venire.

(2) The court may impose reasonable limitations upon the questions allowed during such examination. Additional time may be granted in the discretion of the court. Id.

 ( full text of bill )

The effect of the legislation could have on the justice is real. It would allow attorneys to probe misperceptions in potential jurors who may believe for instance that an adverse finding by them will raise their insurance premiums, or that lawsuits raise the cost of health care by requiring doctors to practice defense medicine.

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