How I Pick a Jury in a Massachusetts Criminal Trial

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

A criminal trial is decided by people I have never met, and I get one short conversation to learn who they are. Empanelment is the only part of the case where I am gathering information instead of testing it. By the time the first witness is sworn, the jury is fixed, and every judgment I made in that hour is locked into the verdict. So I treat jury selection as the first substantive act of the defense, not as paperwork before the real trial starts.

What follows is how I work an empanelment in a Massachusetts criminal case: what I am listening for, how I ask, what the statute and the case law permit, when I challenge, and how the work changes between a District Court session and a Superior Court session. The governing rules and the full line of authority appear on the companion page for jury selection in Massachusetts criminal trials.

What I Am Listening For

I am not looking for a juror who likes me. I am looking for a juror who can hold the Commonwealth to its burden when the evidence is ugly and the sympathy runs the other way. Those are different people. A juror who nods along with everything I say is often the same juror who will nod along with the prosecutor an hour later.

The question the law asks is whether the juror stands indifferent, which means capable of setting aside personal opinions, weighing the evidence without regard to matters outside it, and following the judge’s instructions. Commonwealth v. Bryant, 447 Mass. 494, 501 (2006). That is the legal standard, and it is also the practical one. I am trying to find out whether a particular person can do that in this particular case.

So I listen for the thing in a juror’s life that sits closest to the charge. In an operating under the influence case, it is the juror who lost someone to a drunk driver. In a domestic violence case, it is the juror who watched a sibling go through it. In a firearms case, it is the juror who was robbed at gunpoint. None of those facts disqualify anyone. What matters is what the juror does with them.

I also listen for the opposite problem, which is the juror who has decided in advance to be fair and treats the question as an insult. A person who cannot imagine being influenced by anything is telling me something. Certainty about one’s own impartiality is not the same as impartiality, and it is usually the least examined answer in the room.

What the Panel List Tells Me and What It Does Not

Before the questioning begins I have a list with a name, a town, an occupation, and a few other details for each prospective juror. That is thin material and it is easy to over-read. An occupation is not a personality, and a town is not a politics. I have had jurors whose paperwork suggested one thing and whose answers showed the opposite within ninety seconds.

What the list is good for is preparation. It tells me who works in a field that touches the evidence, which matters when a case turns on a medical record, a financial document, or a police procedure. A juror with professional knowledge of the subject may apply a standard the evidence was never built to satisfy, in either direction, and I want to know that before the panel is seated rather than after the verdict.

It also tells me who is likely to know a witness. In a case tried in a small District Court session, a juror and a responding officer may live three streets apart. That is worth a question, and it is a question the judge will almost always allow, because a connection to a witness is squarely within the inquiry into whether a juror stands indifferent.

How I Ask

A juror will not volunteer a hard fact to a stranger in an open courtroom. My questions have to make it easy to say the difficult thing, which means I ask about experience before I ask about opinion. People will describe what happened to them long before they will admit what it did to them.

I ask open questions in empanelment, which is the reverse of everything I do on cross-examination. On cross I want a yes or a no and nothing else. At the sidebar I want the juror talking, because a one word answer tells me nothing I can use. So I ask what happened, how it was handled, what the juror thought of it afterward, and then I stop and let the silence do some work.

I never ask a juror to promise me anything. A question that asks whether a person can be fair invites the only answer anyone gives in a courtroom full of strangers. I ask instead what the juror would be thinking about during the testimony, or what would be hardest to put aside. Those questions produce answers a judge can act on.

I keep my own manner flat. Empanelment is the first time the jury sees me, and I want the impression to be that the defense is calm, prepared, and uninterested in theatrics. That impression is worth more over three days than any single question I ask in the first hour.

The Questions I Do Not Ask

I do not argue the case at empanelment. A question built to plant a defense theory is transparent to the judge, it draws an objection, and it costs me the credibility I need for the rest of the trial. The panel notices when a lawyer is campaigning, and jurors resent being handled.

I do not ask a juror to commit to anything in advance. A question that asks whether a person could acquit if the Commonwealth failed to prove one element is asking for a promise about evidence nobody has heard. Those questions are ordinarily disallowed, and when they are allowed the answer is worthless, because a promise extracted in front of forty strangers predicts nothing about deliberations three days later.

I do not embarrass anyone. If a subject is truly sensitive I ask for it to be taken at sidebar, and I ask before the question rather than after the answer. A juror humiliated in open court is a juror who stops talking, and every other person on that panel watches it happen and draws the obvious conclusion about what candor costs.

What the Law Lets Me Ask

Massachusetts permits attorney-conducted voir dire in criminal cases. G.L. c. 234A, §§ 67A to 67D, inserted by St. 2016, c. 36, § 4. That is a comparatively recent change and it matters, because before it the questioning was almost entirely the judge’s. Counsel may now examine prospective jurors directly, individually or as a panel, subject to the judge’s control of the process.

The statute did not displace the judge. The Supreme Judicial Court held in Commonwealth v. Kennedy, 478 Mass. 804, 818 (2018), that nothing in attorney-conducted voir dire restricts a judge’s broad authority to ask prospective jurors appropriate questions designed to determine whether the juror is impartial. A trial judge has considerable discretion over how empanelment is conducted. Commonwealth v. Andrade, 468 Mass. 543, 547 (2014).

That discretion runs in the defense’s favor as well. A judge must examine jurors fully regarding possible bias or prejudice where it appears that there is a substantial risk that jurors may be influenced by factors extraneous to the evidence presented to them. Commonwealth v. Perez, 460 Mass. 683, 688 (2011); Commonwealth v. Garuti, 454 Mass. 48, 52 (2009). When I have a real basis to think an extraneous influence is present, I say so on the record and ask for the inquiry.

Requesting the questions in writing before the panel arrives is the part of this that gets skipped. A proposed voir dire question submitted in advance, tied to a specific risk in the case, is far more likely to be asked than the same question raised for the first time while forty people wait in the gallery.

When I Challenge for Cause

A challenge for cause costs nothing and is granted less often than it should be, so I make the record whether or not I expect to win. If the judge denies the challenge and I later spend a peremptory on that juror, the denial is preserved and the peremptory is not wasted argument on appeal.

The moment that decides a cause challenge is usually the follow-up. A juror says something troubling, the judge asks whether the juror can nonetheless be fair, and the juror says yes. That exchange is ordinarily enough to defeat the challenge, and appellate review of it is deferential. Knowing that, I try to get to the substance before the rehabilitating question arrives rather than after.

What I want on the record is the juror’s own description of the difficulty, in the juror’s own words, before anyone offers an easy way out of it. A juror who says the memory would be in the back of her mind the whole time has given the judge a reason. A juror who says she can be fair has given the judge a conclusion.

When a challenge is denied I state the ground once, clearly, and I move on. Arguing with a judge about a juror in front of the panel costs more than the juror is worth. The objection is preserved by making it, not by repeating it, and the rest of the panel is still watching how the defense behaves when it does not get its way.

I also watch for the juror who wants off the case for reasons that have nothing to do with this case. Hardship is real and judges take it seriously, but a person determined to be excused will sometimes offer an opinion he does not hold in order to get there. A juror manufacturing bias is a different problem from a juror disclosing it, and the two sound almost identical from counsel table.

Peremptory Strikes and the Limits on Them

Peremptory challenges are limited in number by Mass. R. Crim. P. 20(c), and they are limited in kind by the Massachusetts Declaration of Rights. Article 12 prohibits striking a juror on the basis of sex, race, color, creed, or national origin. Commonwealth v. Soares, 377 Mass. 461, 488 to 489 (1979). The same conduct violates the federal equal protection guarantee. Batson v. Kentucky, 476 U.S. 79 (1986).

The mechanics matter, because objecting at the wrong moment loses the point. Soares begins with a presumption that peremptory challenges are being used properly. Either party may rebut that presumption by showing a pattern of conduct in which several jurors challenged peremptorily are members of a discrete group, and a likelihood that they are being excluded solely by reason of that membership. Id. at 489 to 490.

Shared group membership between the defendant and the excluded jurors is not required, though the judge may consider it, and the group membership of the complainant and of the jurors already seated is a significant factor as well. Id. at 490. Once the presumption is rebutted, the burden shifts to the striking party to show that the jurors were not struck on account of group affiliation, and the reason given must pertain to the individual qualities of that juror rather than to the group. Id. at 491.

So I count. I keep a written record of who was struck, by whom, and in what order, because a pattern is a factual showing and it cannot be made from memory at sidebar. If I raise the objection, I raise it with the numbers in front of me.

The same rule binds me. A peremptory I exercise for a reason that pertains to a juror’s group rather than to that juror is improper whether the Commonwealth objects or not, and the remedy is not a small one. The judge must dismiss the jurors seated to that point and quash the remaining venire, because the complaining party is entitled to a random draw from a full panel. Id. at 491.

District Court and Superior Court Are Different Rooms

In a busy District Court session the empanelment may be over in under an hour, with a large panel, a fast pace, and a judge who has a full list behind this case. The questions have to be short and the priorities have to be settled before I walk in. I decide in advance which two subjects I will spend time on, because I will not get four.

Superior Court gives more room, and in a case carrying serious exposure the individual questioning is where the case is often won or lost. There I will ask for individual voir dire on the specific risk in the case, submit the questions in writing, and expect to be at sidebar with jurors one at a time.

Either way the client sits beside me through all of it. I tell every client in advance what empanelment looks like, how long it takes, and why I may say almost nothing for the first twenty minutes, because a client who does not know what is happening reads silence as inattention.

I also ask the client to watch. A client will sometimes recognize a name, a face, or a street that means nothing to me, and that recognition has changed my strike list more than once. I tell the client to write it down rather than say it, because the panel is close enough to hear and a whispered conversation at counsel table is visible to everyone in the room.

The Work Happens Before the Panel Arrives

By the time the venire walks in, my proposed questions are filed, my cause priorities are set, my strike chart is drawn, and I know which two facts in this case are most likely to make an ordinary person stop listening. Everything after that is execution under time pressure.

Jury selection is the first of the trial skills, and it runs into the rest of them. What I learn at empanelment shapes what I say in the opening statement, which witnesses I press on cross-examination, and which trial motions are worth filing. A jury chosen without a theory of the case is a jury chosen at random.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and tries cases in the District Courts and Superior Courts of Greater Boston. Serpa Law Office can be reached at 617.936.0201.