LEGISLATIVE UPDATE: Superior Court Issues New Standing Order Regarding Voir Dire Law

This week the Superior Court issued Standing Order 1-15 providing guidance to the trial bar in exercising the new right of litigants to directly question prospective jurors about their prior experiences and potential biases in order ferret out preconceptions and size up the jury that will decide the case.  A copy of the new standing order can found here.

The order is a collaboration of attorneys, prosecutors, judges and law professors from across the state that provides temporary guidance on (1) when and how parties can assert their new right to inquire and (2) when and how the courts may restrict it. Colloquially, the procedure is referred to as “attorney directed voir dire,” but the order extends the right to unrepresented parties as well.

Going into effect on February 2, 2015, Standing Order 1-15 attempts to balance the competing interests of the litigants, jurors, and the court. Also, voir dire can be conducted of the jurors individually, or upon motion as a panel. As with trial, objections are permitted but here, stating the basis is not. Litigants are required to timely invoke the procedure by motion prior to the final pre-trial conference and identifying those areas of inquiry desired and the reasonable follow-up that naturally flows from.

Generally the court will allow questioning into:

  • Factual background of jurors
  • Potential preconception about parties or claims
  • Willingness and ability perform the role

The court will not allow questioning that:

  • Is repetitious or duplicative
  • Goes to political or religious beliefs, charitable giving, reading habits, hobbies, or insurance unless at issue
  • About results of prior juror service
  • “Arguments on any issue of fact or law; that tend to indoctrinate or persuade..”
  • Invites speculation into facts or law

Significantly, the standing order charges, or at least refers to, the creation of a Pilot Program designed to monitor and gather data related to the new voir dire procedure and render its finding publicly. While the Standing Order endeavors to provide needed orientation in this new frontier, it is ultimately a prototype to be settled by the Supreme Judicial Court. Issues will arise. But it’s a start.

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