A Practitioner’s Guide to Jury Selection in Massachusetts Criminal Trials

Jury selection in a Massachusetts criminal trial is governed by G. L. c. 234A, by Rule 20 of the Massachusetts Rules of Criminal Procedure, and by Supreme Judicial Court decisions that have changed substantially over the past decade. Counsel who last selected a Superior Court jury before 2015 will find the questioning transformed: attorneys now conduct oral voir dire on request, and the court restated the standard for discriminatory strike objections in 2020.

This guide collects the governing statutes and rules, the empanelment mechanics in each trial court department, the law of cause and peremptory challenges, and the special voir dire obligations that arise in sexual offense, child abuse, and other charge-sensitive prosecutions, closing with practice pointers from the defense perspective.

The Governing Framework

Chapter 234A of the General Laws governs juror qualification, summonsing, and service throughout the Commonwealth. Under G. L. c. 234A, § 4, a person is disqualified from juror service if the person is under 18 years of age, is 70 or older and elects not to serve, cannot speak and understand English, has a felony conviction within the past seven years, is a defendant in a pending felony case or in the custody of a correctional institution, or has served as a juror in any state or federal court within the previous three years.

The examination provisions long cited as G. L. c. 234, § 28 now appear, in materially identical language, at G. L. c. 234A, § 67A, and the Supreme Judicial Court applies the standards developed under the former section to the recodified one. See Commonwealth v. Espinal, 482 Mass. 190 (2019). Rule 20 governs trial jurors, including the number and timing of peremptory challenges. The Sixth Amendment and article 12 of the Massachusetts Declaration of Rights guarantee an impartial jury; neither guarantees peremptory challenges, which exist by rule and statute alone. Commonwealth v. Berardi, 88 Mass. App. Ct. 466 (2015).

Jury Size and Empanelment Mechanics

Trial of criminal offenses in the Boston Municipal Court department and the District Court department is by a jury of six persons unless the defendant files a written waiver and consents to be tried by the court without a jury. G. L. c. 218, § 26A. The waiver may not be received unless the defendant has counsel or has waived counsel in writing, and not before the pretrial conference is complete and discovery motions are resolved. Jury trials in those departments sit in the jury sessions designated under G. L. c. 218, § 27A. A Superior Court criminal case is tried to a jury that deliberates with twelve members. G. L. c. 234A, § 68.

Section 68 requires the court to impanel at least two additional jurors in every twelve-person jury case and at least one in every six-person jury case, so a Superior Court empanelment ordinarily seats at least fourteen jurors and a District Court empanelment at least seven. Alternates are identified only immediately prior to deliberations: the clerk places the names of all available jurors except the foreperson into a box or drum and draws at random the number needed to reduce the jury to twelve or six, and the same random draw fills a vacancy during deliberations. G. L. c. 234A, § 68.

Peremptory challenges are exercised after the judge finds a juror indifferent and before the jurors are sworn. Mass. R. Crim. P. 20(c)(2); Commonwealth v. Hinds, 487 Mass. 212 (2021). Within those limits the judge sets the sequence, and a Superior Court judge may require challenges after sidebar inquiry of an individual juror, after the jury box is filled with indifferent jurors, or at another designated time. Rule 6(4)(i)(i) of the Rules of the Superior Court. In Hinds the court found no error where the judge refused a final peremptory challenge asserted after the point fixed for challenges had passed, so counsel should confirm the sequence on the record.

Examination of Jurors Under Section 67A

Upon motion of either party, the court must examine prospective jurors on oath to learn whether a juror is related to a party, has an interest in the case, has expressed or formed an opinion, or is sensible of any bias or prejudice, and the parties or their attorneys may conduct the examination under the direction of the court. G. L. c. 234A, § 67A. In a criminal case the examination must include questions designed to learn whether the juror understands that the defendant is presumed innocent, that the Commonwealth must prove guilt beyond a reasonable doubt, and that the defendant need not present any evidence. If the court finds that a juror does not stand indifferent, or does not understand those principles, another juror is called.

The second paragraph of section 67A addresses issues extraneous to the case. If it appears that a juror may not stand indifferent because of extraneous considerations, including community attitudes, possible exposure to potentially prejudicial material, or possible preconceived opinions toward the credibility of certain classes of persons, the court must examine the juror about those considerations individually and outside the presence of the other jurors, and the examination may include a brief statement of the facts. Where a defendant demonstrates a substantial risk that an extraneous influence would affect the jury, the judge must include the subject in individual voir dire; an unsupported allegation of widespread belief does not compel the inquiry. Espinal, 482 Mass. at 196, 200.

Attorney-Conducted Voir Dire in the Superior Court

By St. 2014, c. 254, § 2, the Legislature gave attorneys and self-represented parties the right, on request, to question prospective jurors orally in the Superior Court, and the right is now codified at G. L. c. 234A, § 67D. See Commonwealth v. Dabney, 478 Mass. 839 (2018). In all criminal and civil Superior Court jury trials the court, in addition to its own voir dire, shall permit a requesting attorney or self-represented party to conduct an oral examination of the prospective jurors. The court may impose reasonable limitations on the questions and the time allowed, including advance approval of questions, and in a multiple-defendant case the Commonwealth receives the same amount of time as all defendants together. G. L. c. 234A, § 67D.

The Superior Court implemented the statute through Standing Order 1-15, effective February 2, 2015, and later through Rule 6 of the Rules of the Superior Court. Dabney, 478 Mass. at 848. Under Rule 6(3)(e), attorneys may not ask questions framed in terms of how the juror would decide the case, including hypotheticals close to the facts, questions that seek to commit jurors to a result, argument or indoctrination, questions about verdicts in prior cases on which the person served, or questions referencing a particular juror’s confidential questionnaire in the presence of others. The judge may impose reasonable restrictions on subject matter, time, or method, may require the specific language of questions in advance, and may refuse wording likely to confuse or mislead.

In practice the examination commonly proceeds by panels: the judge questions the venire as a group, follows up with individual jurors at sidebar, seats a panel found indifferent, and then allots each side a set period for attorney questioning before cause requests and peremptory challenges. The empanelment in Hinds followed that structure, with fifteen minutes per side for panel questions. Section 67D does not reach the District Court or the Boston Municipal Court by its terms; in those departments examination proceeds under section 67A, which permits attorney participation under the direction of the court.

Challenges for Cause

A challenge for cause tests whether the juror stands indifferent. The trial judge makes that determination, holds a large degree of discretion in the jury selection process, and will be reversed only where juror prejudice is manifest. Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995). The discretion is not unlimited: the court must be zealous to protect the rights of the accused, and it is better to risk excusing a juror whose asserted bias may be overstated than to insist that a juror sit after stating that bias may influence the verdict. Vann Long, 419 Mass. 798 (1995). The court reversed there where a juror had disclosed a possible ethnic bias and gave no unequivocal assurance of impartiality.

Preservation matters. A defendant who does not challenge a juror for cause waives the claim that the juror was not impartial, and a prospective juror who stays silent in response to the judge’s questions to the venire impliedly represents freedom from bias. Commonwealth v. McCoy, 456 Mass. 838 (2010). When a cause challenge is denied, prejudice on appeal generally requires that counsel used a peremptory challenge to remove the juror, exhausted the remaining challenges, and was then forced to accept an identified juror counsel would otherwise have struck. McCoy, 456 Mass. at 842.

Peremptory Challenges and Their Limits

Rule 20(c)(1) fixes the numbers. Upon the trial of an indictment for a crime punishable by imprisonment for life, each defendant is entitled to twelve peremptory challenges, plus one additional challenge for each additional juror impanelled. Mass. R. Crim. P. 20(c)(1); Berardi, 88 Mass. App. Ct. 466 (2015) (thirteen challenges where thirteen jurors were seated). A defendant indicted for a crime not punishable by imprisonment for life is entitled to four peremptory challenges, and the judge may allow additional challenges in the exercise of discretion. McCoy, 456 Mass. 838 (2010). In a jury-of-six session, each defendant is entitled to two. Mass. R. Crim. P. 20(c)(1). A peremptory challenge requires no stated reason, but it is bounded in time and in purpose.

Discriminatory Strikes Under Soares and Batson

In Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), the Supreme Judicial Court held that article 12 of the Massachusetts Declaration of Rights does not permit peremptory challenges that exclude prospective jurors solely because of membership in particular defined groupings in the community, identified there as sex, race, color, creed, and national origin. Soares, 377 Mass. at 486. The Commonwealth is equally entitled to a jury unimpaired by improper defense strikes. Batson v. Kentucky, 476 U.S. 79 (1986), reached a parallel rule under the equal protection clause of the Fourteenth Amendment, holding that a prosecutor may not challenge potential jurors solely on account of race.

The objection procedure runs in three steps. First, the objecting party must make a prima facie showing of impropriety sufficient to overcome the presumption that the challenge is proper. Second, the burden shifts to the party exercising the challenge to give a group-neutral reason. Third, the judge determines whether the reason is both adequate and genuine. The prima facie burden is not a heavy one, and in certain circumstances the challenge of a single prospective juror within a protected class can carry it. Commonwealth v. Henderson, 486 Mass. 296 (2020).

The Supreme Judicial Court refined the first step in Commonwealth v. Sanchez, 485 Mass. 491 (2020): the presumption that a strike is proper is rebutted when the totality of the relevant facts gives rise to an inference of discriminatory purpose. Sanchez, 485 Mass. at 511. Considerations bearing on the inference include the number and percentage of group members excluded, evidence of disparate questioning of prospective jurors, similarities and differences between excluded jurors and unchallenged jurors outside the group, whether the defendant or the victim shares the group, and the composition of the seated jury. Sanchez, 485 Mass. at 512. The Appeals Court applied the restated standard in Commonwealth v. Scott, 98 Mass. App. Ct. 843 (2020).

At the third step, an explanation is adequate if it is clear, reasonably specific, personal to the juror rather than to the juror’s group, and related to the case; explanations resting on looks, gestures, or unparticularized instinct should rarely be accepted. An explanation is genuine only if it was the actual reason for the strike. The judge must make separate findings on the record as to both adequacy and genuineness, and the Supreme Judicial Court reversed convictions in Commonwealth v. Maldonado, 439 Mass. 460 (2003), where those findings were missing. In Soares the court approved a demanding remedy for a sustained objection: the jurors already selected are dismissed, the remaining venire is quashed, and selection begins anew with a different venire.

Individual Voir Dire in Sexual Offense and Child Abuse Cases

In Commonwealth v. Flebotte, 417 Mass. 348 (1994), the Supreme Judicial Court, invoking its power of general superintendence, required that in cases involving sexual offenses against minors the judge must, on request, interrogate each prospective juror individually as to whether the juror has been a victim of a childhood sexual offense. The requirement accords with the policy of the examination statute, then G. L. c. 234, § 28 and now G. L. c. 234A, § 67A, and the judge retains broad discretion over the phrasing of the questions. The obligation arises only on request, so the request should be explicit, in writing, and on the record.

Espinal states the related mandatory categories. On a defendant’s request, individual voir dire regarding race and ethnicity is required as a matter of law whenever the victim and the defendant are of different races or ethnicities and the crime charged is murder, rape, or a sexual offense against children. Espinal, 482 Mass. at 196. Where a defendant requires an interpreter, the judge on request will ordinarily pose a question to the venire about language-related bias. Espinal, 482 Mass. 190 (2019). Questioning on these subjects proceeds individually, outside the presence of the other jurors.

Extraneous Influences and Case-Specific Bias

Section 67A names the recurring extraneous influences: community attitudes, exposure to potentially prejudicial material, and preconceived opinions toward the credibility of certain classes of persons. The list is not exclusive. Where the Commonwealth’s case depends on police witnesses, on the testimony of a child, or on a single complaining witness without corroboration, counsel may seek questioning on preconceived opinions about the credibility of those classes of witnesses. Pretrial publicity falls under the exposure clause, and the statutory mechanism of individual, sequestered examination avoids a group question that educates the rest of the venire about the coverage.

Practical Approaches When the Charge Itself Risks Prejudice

Domestic abuse and sexual assault prosecutions produce venires in which many jurors, or people close to them, have direct experience with the conduct charged. In McCoy, more than thirty members of the venire answered that they or a family member had been the victim of a violent crime, including sexual assault. McCoy, 456 Mass. 838 (2010). Outside the mandatory categories, individual questioning about such experiences remains within the judge’s discretion, so the defense objective is to give the judge a concrete reason and precise questions.

A written motion under section 67A should identify the extraneous influence with specificity: attitudes about domestic violence, personal or family experience with sexual assault, and assumptions about why a complaining witness might delay disclosure or later recant. Proposed questions should be neutral in form, should invite disclosure rather than commitment, and should route sensitive answers to sidebar. In the Superior Court, attorney-conducted voir dire time is well spent on whether jurors can hold the Commonwealth to its burden in the face of the accusation itself, within the limits of Rule 6(3)(e). A juror who discloses a relevant experience should be questioned individually about impartiality, and equivocal answers should be met with a cause challenge rather than accepted as rehabilitation.

Practice Pointers for the Defense

File the voir dire package in writing before empanelment: the section 67A motion identifying extraneous influences, the Flebotte request in any case involving a sexual offense against a minor, the Espinal request in any qualifying interracial case, and, in the Superior Court, the proposed attorney voir dire questions submitted for advance approval.

Guard the cause-challenge record. Challenge for cause expressly, because McCoy treats the failure to do so as waiver; if the challenge is denied, remove the juror with a peremptory challenge, exhaust the remaining challenges where the panel warrants it, and name on the record the seated juror the defense would have struck. Count the challenges before empanelment begins: twelve plus one per additional juror in a life case, four in other Superior Court cases, two in a jury-of-six session, with more available on motion in the judge’s discretion.

Make discrimination objections contemporaneously, state the Sanchez considerations with specifics, and request the separate adequacy and genuineness findings that Maldonado requires. Finally, try the case to every seated juror: alternates are drawn at random at the close of the evidence under section 68, with only the foreperson exempt from the draw, so no juror in the box can safely be discounted during trial.

Referring counsel may reach Attorney Serpa at 617.936.0201.

Last Reviewed: July 2026