Jury Selection

In Massachusetts, district court juries are made up of 6 people and superior court juries are comprised of 12 people. The selection of the jurors is a crucial part of the trial. Potential jurors are required to fill out a one-page questionnaire that provides the Court with basic information about their backgrounds (such as their occupations; their spouses’ occupations; the number of children they have; and whether they have ever personally been involved in the legal system). These questionnaires are available to the attorneys prior to the selection process.

Picking a jury

In courthouses across the Commonwealth, regular citizens report every day to serve as jurors. It is up to the attorneys and the judge to ensure those people picked to serve will be unbiased and fair. How does the process work?

Questioning the Jury Panel – The potential jurors are herded into the courtroom at the beginning of the trial. The judge welcomes them and makes introductory remarks, and then asks them a series of questions. Some questions are standard (such as, “do you know the defendant or any of the attorneys?”) and other questions are case-specific. The attorneys often request that the judge ask questions that will weed out potential jurors who might be biased against their client. For example, in nearly every case, Attorney Spring wants to know if the potential jurors would tend to believe a police officer more than a civilian witness based solely on the police officer’s position in society. If so, that potential juror would probably not be fair to a criminal defendant.

  • Operating Under the Influence of Alcohol – It’s often difficult to seat a jury on OUI cases because so many people have been personally impacted by drunk driving accidents. Attorney Spring wants to know: if potential jurors (or their family members or close friends) have ever been involved in a drunk driving accident; if potential jurors have ever contributed to drunk driving advocacy groups (such as SADD or MADD); and if potential jurors accept the premise that it is not illegal in Massachusetts to drink alcohol and then drive (it becomes illegal only when the driver has consumed enough alcohol to impair his ability to drive safely). All of these inquiries are designed to eliminate potential jurors that would bring improper personal baggage to the deliberation room.
  • Domestic Violence – The obvious question in domestic violence cases is whether potential jurors, their family members, or their close friends have ever been victims of domestic violence. If so, it’s reasonable to think they would not be able to impartially assess the defendant’s innocence or guilt.
  • Drug Dealing – With the ongoing opiod crisis, many people know somebody who is struggling with drug addiction. A potential juror who has a sibling or a child who is addicted to drugs is unlikely going to be able to fairly judge an alleged drug dealer’s case.
  • Sexual Assault – The process of selecting a jury in a rape (or other sex crime) case might be the most challenging. In addition to determining whether potential jurors (or family members or close friends) have ever been sexually assaulted, it’s important to understand their philosophies on sexual assault cases. Do they believe an alleged child victim is always telling the truth? Do they understand just because a defendant was indicted, that doesn’t mean he’s automatically guilty? Do they believe a defendant who was ordered to provide a sample of his DNA must have committed the crime? The answers to all of these questions will help the judge and the attorneys determine whether a potential juror will be unbiased in considering the defendant’s guilt or innocence.
Challenging Potential Jurors

What happens when a defense attorney believes, based on the results of the jury questioning, that a potential juror will be unable to fairly judge the defendant’s guilt or innocence? The attorney will ask the judge to strike the potential juror (prohibit the potential juror from serving). There are two types of challenges.

  • Challenging for Cause – If a potential juror reveals something on the questionnaire or in response to a judge’s question that suggest he or she would not be unbiased, an attorney will lodge a challenge for cause. Challenges for cause would be appropriate for: a potential juror who would automatically believe a police officer in an OUI case; a potential juror who recently obtained a restraining order against her abusive husband in a domestic violence case; a potential juror whose brother died of a drug overdose in a drug dealing case; or a potential juror whose young daughter was raped at a daycare center in a sexual assault case. When an attorney challenges a potential juror for cause, the judge will then decide whether the challenge is meritorious. If so, the potential juror will be excused.
  • Peremptory Challenge – Each party in a criminal case is permitted to excuse a number of potential jurors for no reason at all (with the limitations discussed below). In district court, the defendant and the prosecutor each receive two peremptory challenges and in most superior court cases, each side receives four peremptory challenges (in cases where the defendant faces up to a life sentence, each party is entitled to up to 16 peremptory challenges). While no reason for a challenge is typically required, a party is not permitted to exclude a potential juror for reasons of race, gender, national origin, creed, or color. An attorney can object if she believes her opponent has improperly challenged a juror. As a practical matter, it is usually a defense attorney objecting to a prosecutor’s peremptory challenge of a potential juror who is a member of a minority class. The objecting attorney must establish a prima facie case of discrimination (for example, if there are only two black people in the jury pool and the prosecutor challenges both of them, the defense attorney can likely demonstrate a prima facie case of discrimination). If the judge finds a prima facie case of discrimination, the attorney who issued the peremptory challenge is obligated to provide a non-discriminatory reason for striking the potential juror. The judge then must determine whether the peremptory challenge was, in fact, non-discriminatory. If so, the potential juror will be excluded. If not, the potential juror will be seated on the jury.

The alleged improper use of peremptory challenges is a surprisingly common issue on appeal. Defendants often accuse prosecutors of purposely precluding minorities from juries. Some legal scholars have proposed eliminating the peremptory challenge system altogether, suggesting that it has long been a tool used by attorneys to improperly exclude otherwise-qualified potential jurors from serving.

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