Sizing up the Jury Without Voir Dire

Massachusetts Judges Like Things The Way They Are … But Lawyers Feel Their Hands Are Tied

When Boston litigator Douglas K. Sheff selects jurors, he relies on a jury questionnaire and a judge’s kindness.

“If all else fails, I use a Ouija board,” deadpans Sheff, who, like many other trial attorneys, is dead serious about the restrictive voir dire in Massachusetts.

“It’s unbelievable,” exclaims Sheff, active in the Massachusetts Academy of Trial Attorneys and adamant about expanding voir dire to allow lawyers to question prospective jurors.

Massachusetts is one of few states nationwide that do not permit counsel to question prospective jurors in criminal and civil cases.

“It’s very bleak,” says Dr. Amy Singer, of Florida-based Trial Consultants, Inc. “Massachusetts lawyers are shooting in the dark. How do they know whether people are getting a fair trial?”

That’s the MATA’s argument each year when it files a bill with the Legislature seeking an expanded voir dire to weed out the biased and prejudiced (Click here for a copy of the bill). But each year, the bill languishes. And as the efforts of the bar repeatedly fail, attorneys learn to live with the system, getting more and more frustrated with their lack of control.

Working With The System

Worcester defense lawyer James G. Reardon selects jurors by relying on “the art of framing the question.”

In almost all cases, Reardon finds that judges agree to ask questions submitted in limine. More importantly, he says, judges rarely modify questions.

“When presented with good and sufficient evidence, judges will go out of their way [to accommodate a lawyer],” says Reardon, noting that judges seem more willing to ask lawyers’ questions in criminal cases.

As defense counsel in criminal cases, Reardon wants to know prospective jurors’ views of the police and law enforcement.

“Would they believe a policeman?” says Reardon, referring to information he would need to know. “You want to make certain that a juror really, really understands an indictment. Do they think that just because someone is arrested they are guilty? They have to understand the system.”

But Boston lawyer Fredric N. Halstrom, unlike Reardon, says that very few judges ask attorneys’ proposed questions.

“They don’t ask all of them,” says Halstrom, stressing that a lawyer has no clue where a juror stands on such salient issues as tort reform. “They do not ask about jurors’ perception about the law.”

Proponents of the current jury selection system maintain that jurors are properly educated through the current voir dire scheme, which requires judges to ask certain questions. The current system, proponents add, adequately ferrets out bias and prejudice.

Superior Court Chief Justice Robert A. Mulligan stresses that voir dire should remain a judge’s responsibility.

“It really is a question of productivity,” says Mulligan, emphasizing that justice is far from sacrificed under the current system.

“Judges are receptive to tailoring questions in individual cases,” he says, noting that Superior Court judges are unanimous in their support of judicially conducted voir dire.

“Extensive voir dire does absolutely nothing but get a jury that knows nothing about anything,” adds Superior Court Judge Suzanne V. DelVecchio, pointing out that attorneys do not seek impartial jurors, but rather ones with leanings toward their client’s case.

“The lawyers have a different function in the courtroom,” says DelVecchio, who rarely asks jurors the lawyers’ questions.

“[Attorneys] don’t want impartial jurors; they want jurors who are partial to their issues.”

Edwin L. Wallace, MATA president, agrees that lawyers naturally want jurors leaning in their client’s favor.

“Of course, we are advocates,” he says. “I want to know whether someone has some partiality, and whether it is in my favor or against it. I want to know that. It works for both sides.”

Wallace understands the judiciary’s concern over time and control, but he remains incredulous that attorney-directed voir dire will delay the system substantially.

“If a judge is able to conduct courtroom proceedings properly, it boggles my mind that they could not control the voir dire process,” says Wallace, who remains “hopelessly optimistic” over the passage of the MATA bill.

But even Wallace admits that the bill will languish without the support of the judiciary. And given the sentiment of judges like DelVecchio, the bill will not elicit change to the voir system in Massachusetts any time soon.

“Properly handled, it is a great system,” says DelVecchio, adding that the jury questionnaire as well as the occasional granting of a few particular questions by attorneys should suffice in attaining an impartial jury. Lawyers should not be overly concerned whether a prospective juror is biased as a result of being in a car accident 10 years ago, says the judge.

“I can’t imagine that if a jury is supposed to be a jury of your peers that they are not going to be people who have been in accidents and others who have not,” she says. “It is only a question of bias or prejudice [in this particular case]. … I am not going to cross-examine [prospective] jurors.”

Superior Court Judge Gordon L. Doerfer stresses that the purpose of voir dire is to determine whether jurors are capable of having an open mind about the issue at hand. Attorney-conducted voir dire may sway jurors’ sentiment from the outset, and that, according to Doerfer, is not what voir dire is all about.

“There is a danger of having the advocate ‘work’ on a juror,” says Doerfer. “It goes way beyond what is permitted before a trial [actually] resumes. Jurors should not be coming to any conclusions before the case [begins in court].”

Like Reardon, Sheff submits questions to the judge for the jury. He also uses the juror questionnaire, which has been described by lawyers as inadequate at best.

In addition to standard education and employment information, the questionnaire requests prospective jurors:

• to describe briefly any involvement (past or present) as a party or a victim in a civil or criminal case;
• to relate whether the prospective juror or any member of the family, now or formerly, is employed by or associated with a police department or any law enforcement agency; and
• to indicate any other information which may be relevant to the ability to be an impartial juror.

To Sheff, the questionnaire provides little guidance. In fact, he says he often has to make sure his own preconceptions don’t get in the way of selecting a qualified juror based on what is divulged in the questionnaire.

“It causes me to generalize and use my own prejudices, and be unfair to jurors,” says Sheff, adding that two minutes of conversation with the person could allay any anxiety.

Halstrom says the current jury questionnaire is “vanilla in the extreme.”

However, Halstrom notes that the questionnaire does provide some guidance in criminal cases, as far as gleaning juror perceptions of law enforcement. But “for civil cases, there’s nothing,” he adds, stressing that the judiciary recently has hardened its line against voir dire for the sake of trial management.

“Judges have gotten into this thing about moving cases,” says Halstrom, noting that judges are also more concerned with depleting jury pools as a result of voir dire.

“That’s the big thing,” he says, noting that jury duty truancy is a serious issue, particularly in Suffolk County. “They are afraid they will run out of jurors. They are afraid that voir dire will be effective.”

Even as co-author of the bill, Halstrom is not very optimistic about it passing.

“Hell will freeze over before Massachusetts sees [attorney-directed] voir dire,” he says.

Say No To Body Language

Lawyers also try to read prospective jurors’ body language, and that, says Sheff, could prove disastrous.

Sheff recalls when the late U.S. District Court Judge John J. McNaught would hold summary jury trials where lawyers could try a mock case and talk to jurors afterward.

“We used to learn a lot about the juries,” says Sheff, who remembers one particular case.

“I had one case where five of the six jurors were looking angry with their arms crossed, and there was one sweet lady smiling and nodding her head at me,” says Sheff, who was surprised to find out that the “sweet” lady was the sole juror to find against his client.

With that experience in mind, Sheff is not a big fan of reading jurors. And he’s not alone.

“I wish I had a penny for every time I guessed wrong on a juror,” says Reardon.

Jury consultant Singer agrees that trying to decipher body language is unpredictable and useless.

“Reading body language really doesn’t work,” she says, adding that attorneys in Massachusetts are best off conducting focus groups — if they can afford them.

“You have to just focus group your cases with the widest latitude of acceptance,” says Singer. “[In Massachusetts] I would focus group a case with the worst jury a lawyer could possibly get.”

That way a lawyer can determine “what happens if I get the worst jury,” explains Singer. The question can then become how can a lawyer work with a difficult jury once stuck with it, she explains.

Benefit For Defense

While voir dire is an issue that elicits support from both sides of the bar, it is also an issue that can benefit one side over the other depending on the public sentiment du jour.

The scales are now tipped in defense’s favor, says Singer, noting that tort reform is high on everyone’s mind.

“Plaintiffs are starting out with a strike against them,” says Singer. “Juror attitudes are leaning toward defendants as a result of tort reform. People are suspicious of lawsuits.”

That is exactly what lawyers like Halstrom and Sheff do not want to hear.

“Jurors are often unaware of biases,” says Sheff, referring to weighty tort reform attention in the media. “If a juror has been watching Rush Limbaugh slamming someone like my client or if a juror keeps hearing ‘Lawsuit abuse, let’s beat it,’ [the juror] may not realize [he’s been influenced.]”

Again, a few questions with jurors can allay any lawyer’s concerns, notes Sheff, adding that the current system barely scratches beneath the surface of what a prospective juror thinks.

Even a list of affiliations of groups would be a gold mine for lawyers, notes Halstrom.

“If someone is a member of the Associated Industries of Massachusetts, which is a big tort-reform supporter, that tells me a lot,” says Halstrom, noting that jurors today raise their hands if any questions pertains to them. “They can avoid answering by not sticking their hand up,” leaving an attorney in the dark.

“It’s like jumping into an aquarium and not knowing whether there are goldfish or sharks,” says Sheff.