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 venire, and both sides rely on those answers in deciding which jurors to challenge. When a juror’s answer turns out to have been false, what a court can do about it depends on when the falsehood comes to light.

When the Inaccuracy Surfaces During Jury Selection

An inaccurate answer that comes to light before the jury is sworn is handled in the ordinary course of jury selection. The judge excuses the juror for cause, or a party uses a peremptory challenge. The remedy at this stage is exclusion from the jury.

The Commonwealth may check a prospective juror’s criminal record before the jury is sworn. 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, which must be completed immediately and no later than the beginning of the next trial day. Hampton, 457 Mass. at 171.

When the Inaccuracy Surfaces During Trial

Once the jury is sworn, the judge acts under General Laws chapter 234A, section 39, which gives the court discretionary authority to dismiss a juror at any time in the best interests of justice. The Supreme Judicial Court affirmed the exercise of that authority in Hampton, where the parties learned after the jury was sworn that a juror’s questionnaire answers concealed a bias.

Two limits apply at this stage. Section 39 permits the discharge of a juror who is participating in deliberations only after a hearing and only on a finding of an emergency or other compelling reason. Hampton requires the judge’s approval for any check of criminal records or other inquiry into juror misconduct after the jury is sworn, whether the prosecution or the defense seeks it.

The Standard for a New Trial After a Verdict

A criminal defendant is entitled to twelve impartial jurors. Where a party learns after a verdict that a juror gave a false answer during jury selection, the remedy is governed by a two-part test. The Supreme Judicial Court adopted that test in Commonwealth v. Amirault, 399 Mass. 617 (1987), following the plurality opinion in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), and restated it in Commonwealth v. Mitchell, 496 Mass. 66 (2025).

A 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. Mitchell, 496 Mass. at 74. Both parts are required.

A Knowing False Answer to a Material Question

An answer is dishonest only where the juror was aware that it was inaccurate. Mitchell, 496 Mass. at 74. 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 silence and an affirmative misstatement, and both turn on what the juror knew at the time. Where the judge finds that the juror answered mistakenly but honestly, the inquiry into actual bias ends, and the judge 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. Amirault, 399 Mass. at 625.

The Separate Requirement of Actual Bias

Most claims fail here. 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. Amirault, 399 Mass. at 624 to 625. Bias may be presumed where a juror was the victim of a crime similar to the one on trial and consciously concealed that fact. Amirault, 399 Mass. at 628 and n.5.

Mitchell shows how demanding the requirement is. A seated juror there knowingly gave an inaccurate answer about a relative’s criminal history. The court held the answer dishonest and still affirmed the denial of a new trial, because the defendants did not prove bias. Mitchell, 496 Mass. at 74. A defendant is entitled to an impartial jury and is not entitled to perfection in the trial process. Amirault, 399 Mass. at 624. The finding turns on the juror’s credibility and demeanor, and an appellate court disturbs it only where it is clearly erroneous.

The Limits on Questioning Jurors After a Verdict

A defendant cannot interrogate a jury on suspicion alone. The moving party must first make a colorable showing, which the court has described as something more than mere speculation. Commonwealth v. Dixon, 395 Mass. 149, 152 (1985). Without it, the judge has no duty to call jurors back.

The scope of any inquiry is confined. 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, and bars testimony about the deliberations themselves or the mental processes behind a vote. In Commonwealth v. Fidler, 377 Mass. 192, 203 (1979), the court drew a line between objective facts and a juror’s reasoning. A nondisclosure claim survives that limit because it concerns an empanelment answer.

Concealment on the Questionnaire as a Crime

A willful misrepresentation of a material fact on the confidential questionnaire is a crime where the juror misrepresents the fact in order to avoid or to secure jury service. General Laws chapter 234A, section 32. A person who violates the section may be punished by a fine of not more than two thousand dollars. That exposure belongs to the juror. A violation may support a colorable showing of dishonesty, and it does not relieve the defendant of the obligation to prove bias.

A New Trial Is the Only Remedy

A defendant who proves a knowing, material falsehood and actual bias tries the case again before a properly constituted jury. The defendant does not obtain a judgment of acquittal, and the Commonwealth may retry the charges without offending double jeopardy.

The framework also applies only after a verdict, so a defendant whose trial ended in a mistrial has no judgment to attack. Whether the Commonwealth may try the case again after a deadlock is governed by its own rules. 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 Rule 25. Attorney Joe Serpa litigates juror issues at empanelment, during trial, and in the motions that follow a verdict, and this office can be reached about a case in any of those postures.