Juror Nondisclosure and Misrepresentation in Massachusetts Criminal Trials

Every person called for jury service in Massachusetts completes a confidential juror questionnaire and signs it under a declaration that the answers are true. General Laws chapter 234A, section 22. The judge then questions the prospective jurors in court, and the prosecutor and defense counsel rely on the questionnaire answers and the answers to the judge’s questions in deciding which jurors to challenge for cause or with a peremptory challenge. The questions cover subjects such as the juror’s own criminal history and that of family members. Because both sides depend on the answers, a false answer can lead to the juror’s removal, a criminal penalty for the juror, or, after a verdict, a motion for a new trial.

A willful misrepresentation of a material fact on the confidential juror questionnaire, made in order to avoid or to secure jury service, is a crime under General Laws chapter 234A, section 32, punishable by a fine of up to two thousand dollars. The juror, not the defendant in the trial, faces that penalty. The false answer also affects the trial: a juror whose inaccurate answer is discovered before the jury is sworn is excused for cause or removed by a peremptory challenge, a juror whose false answer is discovered during trial may be dismissed under section 39, and a knowing false answer discovered after a verdict may support the defendant’s motion for a new trial if the defendant also proves that the juror was biased.

The term describes a prospective juror who conceals or misstates a material fact during jury selection in order to be seated. Massachusetts law addresses that conduct in three ways. Concealing a material fact on the confidential questionnaire to secure jury service is a crime under General Laws chapter 234A, section 32. A judge who learns of the concealment during trial may dismiss the juror under section 39. After a verdict, the defendant may seek a new trial by proving a knowing false answer to a material question and actual bias; under Commonwealth v. Amirault, 399 Mass. 617 (1987), bias may be presumed where a juror was the victim of a similar crime and consciously concealed it.

The judge handles the answer in the ordinary course of jury selection. The judge excuses the juror for cause, or a party uses a peremptory challenge, and the remedy at that stage is exclusion from the jury. The Commonwealth may check a prospective juror’s criminal record before the jury is sworn, because a prosecutor has independent authority to check jurors’ criminal offender record information under General Laws chapter 6, section 172, at that stage. Commonwealth v. Hampton, 457 Mass. 152, 170 to 171 (2010). A prosecutor who does not want to delay the swearing may declare satisfaction with the jury subject to the results of the checks, but must then complete them immediately, and no later than the beginning of the next trial day.

Yes, before the jury is sworn, without the judge’s permission; after the jury is sworn, only with the judge’s approval. Under Commonwealth v. Hampton, 457 Mass. 152 (2010), a prosecutor has independent authority under General Laws chapter 6, section 172, to check prospective jurors’ criminal offender record information during jury selection, and may declare satisfaction with the jury subject to the results so long as the checks are completed no later than the beginning of the next trial day. Once the jury is sworn, the prosecution or the defense must obtain the judge’s approval before checking criminal records or otherwise inquiring into juror misconduct. In Hampton the prosecutor learned after swearing that two jurors had not disclosed criminal histories, and the judge handled the matter under section 39.

Yes. Once the jury is sworn, General Laws chapter 234A, section 39, authorizes the judge to dismiss a juror at any time in the best interests of justice. In Commonwealth v. Hampton, 457 Mass. 152 (2010), the judge questioned two jurors who had not disclosed criminal histories on their questionnaires, kept the juror whose omission the judge found unintentional, and discharged the other for violating the order not to discuss the case; the Supreme Judicial Court held that the judge acted within her discretion. One limit applies once deliberations begin: section 39 permits the judge to discharge a deliberating juror only after a hearing and only on a finding of an emergency or other compelling reason.

Only by meeting a two-part test. The defendant must first show that a juror dishonestly answered a material question during voir dire, and must then prove, by a preponderance of the evidence, that the juror was not impartial. The Supreme Judicial Court adopted the test in Commonwealth v. Amirault, 399 Mass. 617 (1987), following McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), and restated it in Commonwealth v. Mitchell, 496 Mass. 66, 74 (2025). The defendant must prove both parts. Most motions fail on the second part, because a defendant is entitled to an impartial jury, not to a perfect trial, and proof that a juror gave a false answer does not by itself prove that the juror was biased.

An answer is dishonest only where the juror was aware that it was inaccurate when giving it. Commonwealth v. Mitchell, 496 Mass. 66, 74 (2025). A juror who forgets a distant event, misunderstands a question, or reads a form too quickly has not lied; the falsehood must be unmistakable, material, and knowing. Commonwealth v. Harrison, 368 Mass. 366, 375 to 376 (1975). The same test governs a juror’s silence and an affirmative misstatement. Where the judge finds the answer mistaken but honest, the judge does not go on to decide bias and must find the juror impartial. Commonwealth v. Murphy, 86 Mass. App. Ct. 118, 126 (2014). An answer is material where a correct one would have supported a challenge for cause.

After proving a knowing false answer, the defendant must prove that the juror harbored actual bias, or that the circumstances were so extreme that bias may be presumed as a matter of law. Commonwealth v. Amirault, 399 Mass. 617, 624 to 625 (1987). Bias may be presumed where a juror was the victim of a crime similar to the one on trial and consciously concealed that fact. In Commonwealth v. Mitchell, 496 Mass. 66 (2025), a seated juror knowingly gave an inaccurate answer about a relative’s criminal history; the Supreme Judicial Court held the answer dishonest but upheld the denial of a new trial because the defendants did not prove bias. The trial judge decides bias from the juror’s credibility and demeanor, and that finding stands on appeal unless clearly erroneous.

Only on a colorable showing, and only about certain subjects. A defendant cannot interrogate a jury on suspicion alone; the defendant must first make a showing that is more than mere speculation, Commonwealth v. Dixon, 395 Mass. 149, 152 (1985), and without it the judge has no duty to call jurors back. Section 606(b) of the Massachusetts Guide to Evidence permits a juror to testify about an inaccurate statement made during jury selection and about extraneous information or outside influence, but bars testimony about the deliberations themselves or the reasoning behind a vote. Commonwealth v. Fidler, 377 Mass. 192, 203 (1979), draws that line. A nondisclosure claim concerns an answer given during jury selection, so a judge may hear juror testimony on it.

A new trial before a properly constituted jury. A defendant who proves a knowing, material falsehood and actual bias receives a new trial; the judge does not enter a judgment of acquittal, and the Commonwealth may retry the charges without violating the prohibition on double jeopardy. A violation of General Laws chapter 234A, section 32, by the juror may support a colorable showing of dishonesty, but it does not relieve the defendant of proving bias, and the fine of up to two thousand dollars falls on the juror alone. Where the false answer comes to light before the verdict, the remedy is removal of the juror, by challenge during selection or by dismissal under section 39 during trial.

No. The two-part test from Commonwealth v. Amirault, 399 Mass. 617 (1987), applies only after a verdict, so a defendant whose trial ended in a mistrial has no judgment to attack. Different rules decide whether the Commonwealth may try the case again after a deadlocked jury. The one motion that ends a case on the evidence after a jury is discharged is the motion for a required finding of not guilty under Mass. R. Crim. P. 25, which asks the judge to rule that the Commonwealth’s evidence was legally insufficient. Attorney Joe Serpa litigates juror questions at empanelment, during trial, and in the motions that follow a verdict.