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Lawyer Voir Dire: Coming to a Court Near You?

A new law signed this week has at least the potential to improve jury trials in Massachusetts by permitting lawyers to make more detailed inquiries of potential jurors to help identify those who are unsuitable for a particular case.  Chapter 254 of the Acts of 2014 expands the availability of voir dire, the process  by which jurors are questioned about their background and opinions in an attempt to make sure that the jurors who are seated are not predisposed to find for one side or the other.

Most other states permit lawyers to question jurors directly and extensively in a voir  dire process that often takes several days in a significant case.  In some states, the process even takes place outside the presence of a judge, who remains available to resolve disputes among the lawyers.  Lawyers who practice under that system strongly endorse the voir dire system as a necessary component of a fair and balanced judicial system.

Massachusetts, however, has always stood apart from those states.  Until fairly recently, all questioning of prospective jurors was done by the judge, and the questions were addressed to the entire group, rather to individual jurors.  Indeed, the judge was only required to ask four “statutory” questions–whether the juror could be fair or had any interest in the outcome of the case.  Those questions are so bland and general that an affirmative response was quite rare.

In recent years, most judges have been inclined to ask additional questions tailored to the particular case, often in response to suggestions from the lawyers.  Encouraged by appellate decisions that required individual questioning in certain types of criminal cases, some judges have experimented with individual questioning in major civil cases as well.  And some have even permitted lawyers to ask follow-up questions directly to a juror, instead of using the judge as a conduit.  Still, the process has remained quite limited compared to other states, and tightly controlled by the presiding judge.

The new law requires the court to permit lawyers to conduct voir dire on request, subject to “reasonable limitations” imposed by the trial judge.  Interestingly, the final version of the bill as passed does not contain language present in an earlier version that would have permitted judges to require lawyers to submit the questions in advance.

Reaction to the bill has been mixed.  Lawyers for personal injury victims, feeling that tort reform publicity has tainted many prospective jurors and predisposed them to reject meritorious claims, have applauded the new law, while defense lawyers, content with the status quo where most jurors are defense-oriented, have been more measured in their response.  Perhaps most disturbing, though, was the initial reaction of the judiciary, which opposed the bill on the basis that it would add time and expense to superior court jury trials.  Perhaps so, but if the result is that biased or otherwise unsuitable jurors are identified and excluded from service, and cases are tried to truly impartial jurors, the extra time would be well spent.


Lawyer Voir Dire: Coming to a Court Near You? | Crowe & Mulvey, LLP