Some Judges Accept Voir Dire, but no Rule Set
By JASON M. SCALLY
A recent public debate left Massachusetts no closer to attorney-conducted voir dire nor a formal voir dire experiment, but more Superior Court judges seem to be embracing the idea in some fashion on a voluntary basis.
Superior Court Chief Justice Suzanne V. DelVecchio told Lawyers Weekly last week that certain judges will be voluntarily trying to expand their use of voir dire, with the possibility of a formal voir dire arrangement somewhere down the road.
“Judges are going to do it on their own in the summer and fall, then at our fall conference we will discuss this,” said DelVecchio.
She noted that since the recent Bench/Bar Conference held at MCLE in Boston, she has already received responses from judges who tell her that they have been trying it in their courtrooms successfully.
At the conference, lawyers and judges debated whether expanded attorney-conducted voir dire should be accomplished through a bill pending in the State House, by order of the Superior Court or left to the judge’s discretion as it is under the current statute.
The proposed bill, House No. 477, “An Act Relative To The Examination Of Jurors,” provides that there will be a “pilot program” in Bristol, Middlesex and Worcester countries for two years where each party’s attorney will be permitted to question the jury venire for one hour.
DelVecchio believes that expanded use of voir dire under the current statute would be a better alternative than a new statute imposed by the Legislature.
The relevant statute, G.L.c. 234 Sect. 28, provides, in part: “Upon motion of either party, the court shall, or the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror therein.”
Recognizing that Massachusetts is one of a handful of states that presently does not have attorney-conducted voir dire as a matter of right, the Superior Court chief noted that this voluntary trial of expanded voir dire “isn’t innovative in 48 other states but it certainly is here.”
Other panelists at the conference, most notably judges and civil defense lawyers, agreed with DelVecchio in her opposition to the proposed bill.
“[It] does not improve our system,” argued Boston attorney Eileen P. Kavanaugh of the Massachusetts Defense Lawyers Association. “We have a system in place, why not use it?”
But supporters of the proposed legislation, including speakers from the Massachusetts Bar Association, the Boston Bar Association, the Massachusetts Academy of Trial Attorneys, and the Committee for Public Counsel Services countered that the present system does not work and, as a result, jury trials in Massachusetts courts are often biased.
MATA president Douglas K. Sheff of Boston believed that a uniform system is needed because potential jurors “are inundated with messages that all plaintiff’s suits are frivolous.”
Leonard A. Simon of Boston agreed that the “propaganda” about a so-called “litigation explosion” has had a “polluting effect on potential jurors.”
Sheff pointed to a recent U.S. Department of Justice report referred to as MATA’s “Brandeis brief” which purports to show that the four worst counties in the U.S. for plaintiffs’ victories at jury trial are all in Massachusetts.
The MATA president compared those statistics with others that show that a more balanced wining percentage occurs at bench trials in Massachusetts.
Sheff argued that the statistics prove that “when you remove the jury from the system [in Massachusetts], it becomes the way it’s supposed to be.”
Boston attorney William J. Leahy of CPCS also voiced his concern for the present system because criminal defense attorneys “are sick and tired of exercising our peremptory challenges in the dark.”
After many of the speakers had shared their opinions on the subject, Leahy asserted, “Two years from now we can all stop sharing anecdotes and look to what actually happened in practice,” if the bill passes.
Too Much Time?
Opponents of the proposed bill expressed criticism of the idea that each party would be allowed one hour of questioning under the proposed pilot program because they felt it would add hours, days or even weeks to existing trials.
Kavanaugh observed that in cases with four or more parties, courts will no longer be able to sit a jury in one day, and would add “an extra 25 days a year with the current 9 [a.m.] to 1 [p.m.] schedule.”
Neil Rossman of Boston, an attorney in the second Reggie Lewis trial, noted that he recently had a trial in Connecticut, where voir dire is allowed, that took two months to empanel a jury.
Fellow attorney in the Reggie Lewis case William J. Dailey Jr. of Boston believed that the extra time involved in an expanded jury voir dire would probably not “help one bit.”
Assistant U.S. attorney Theodore Heinrich observed that most prosecutors also feared the time commitment, although he personally believed that voir dire was a worthwhile process.
Supporters of expanded voir dire questioned whether those who used time as an argument had their priorities in order.
Pointing out the impact that potentially biased jurors have on criminal defendant, Stephanie Page of CPCS noted, “Everything is a mandatory sentence we can’t give [criminal defendants] half an hour?”
Page’s statement seemed to win points with those at the conference. A judge in the audience was overheard whispering to another judge, “She’s right, you know.”
Michael E. Weisman of Lexington, who spoke about his experiences with voir dire in a state court in Santa Barbara, California recalled that each party was allowed 2.5 minutes per juror.
“The notion that it’s not worth 2.5 minutes — it simply does not make sense,” said Weisman.
Keep Out
Although DelVecchio noted, “We are listening to you we’re in this together,” the judges at the bench/bar conference seemed to be the strongest advocates for staying with the current system.
Although most of the judges seemed to support the notion of attorney-conducted voir dire under the current statute, they had strong criticism for supporters of the pending legislation.
Recently retired Judge Thayer Fremont-Smith dismissed the argument that attorneys are looking for a fair trial and stated that he believed that those attorneys were really just looking for someone who will side with their side of the case.
Although Judge Raymond J. Brassard stated that he would be “delighted to try any and all techniques mentioned today,” as long as there were procedural safeguards in place, he felt that it would be a “terrible mistake” to allow the Legislature to pass the proposed bill because of its encroachment on judicial discretion.
Judge Patrick J. King said he would be open to more attorneys asking him to give additional questions, but he was opposed to a mandatory hour of voir dire per party because of the logistical problems it would cause, especially in the Superior Court.Judges were not the only ones opposed to the idea of the Legislature crafting an expanded form of voir dire.
Some attorneys who support the expanded form of voir dire expressed their preference that the courts take up the issue and resolve it themselves.
Although BBA President Joan A. Lukey of Boston noted that the BBA supports the legislation, she pointed out that most of its members would prefer the judiciary take the helm.
King also suggested that the courts look at the problem and try out expanded voir dire on an experimental basis for a year.
Criminal defense lawyer J.W. Carney Jr. of Boston agreed that the Legislature should not pass the proposed bill, but he felt that the main reason behind expanded voir dire — fairer trials — was being missed.
“We don’t want the Legislature passing a law,” he noted. “But the important part is not the judicial independence.”
Mass in Minority
Some panelists at the conference spoke positively about their experiences with expanded voir dire in other jurisdictions and questioned how Massachusetts could remain one of the handful of states that did not allow it.
Carney observed that in other jurisdictions where he has gone to trial, “they view us as neanderthals, as backwoods [and] as laughing-stocks” for not having attorney-conducted voir dire.
Weisman recalled that in his trial in California, the judge could not believe that Massachusetts did not have attorney-conducted voir dire as a right.
Frederic N. Halstrom of Boston, who spoke about a case in the U.S. District Court in Atlanta, Georgia, said that in his case it only took one and a half hours to empanel a jury “So it works.”
Even Connolly, who moderated the event, described an anecdote involving two Chicago lawyers that appeared before him.
When the two lawyers learned about how Massachusetts conducts its jury selection, they replied, “But how do you get a fair jury?”
Leo V. Boyle, president-elect of the American Trial Lawyers Association, argued to the panel, “To not listen to 40 other states, I think it’s shortsighted. Why not try it?”
