Jury Selection in Massachusetts Criminal Trials

The jurors seated at jury selection decide the case. The purpose of the process is to identify whether a prospective juror can evaluate the evidence fairly and follow the judge’s instructions, and to remove those who cannot.

Massachusetts procedure governs what counsel may ask, when the judge must excuse a juror for cause, how each side may exercise peremptory challenges, and what happens when a party objects that a challenge was based on race, gender, or another protected characteristic. This guide explains those rules and the record counsel must make to preserve an issue for appeal.

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

For Attorney Serpa’s own account of how he works an empanelment, see how I pick a jury in a Massachusetts criminal trial.

Empanelment is the first stage of the trial itself. The stages that follow appear in the Massachusetts criminal court practice section.

Who Is Qualified to Serve

Juror qualification is governed by M.G.L. c. 234A. Section 4 lists the disqualifications. A person is disqualified who:

• Is under eighteen;
• Is seventy or older and elects on the juror summons response not to serve;
• Cannot speak and understand English;
• Is incapable of satisfactory service by reason of a physical or mental disability, supported by a physician’s letter;
• Is solely responsible for the daily care of a permanently disabled person in the same household, where service would create a substantial risk of injury to that person’s health, and is not regularly employed outside the home;
• Is outside the judicial district and does not intend to return during the following year;
• Has been convicted of a felony within the past seven years, is a defendant in a pending felony case, or is in the custody of a correctional institution; or
• Has served as a grand or trial juror in any state or federal court within the previous three years, or is currently scheduled to serve.

The criminal-history disqualification covers a felony conviction within the past seven years, a pending felony case, and custody. Section 4 does not disqualify a prospective juror solely because of a felony conviction more than seven years old or a misdemeanor record. The person must still satisfy the statute’s other qualifications.

Jury Size and Alternates

M.G.L. c. 218, § 26A provides that the trial of criminal offenses in the Boston Municipal Court and the District Court shall be by a jury of six persons, unless the defendant files a waiver and consents to a jury-waived trial. Unless the defendant waives a jury, the Superior Court tries the case before a jury of twelve.

M.G.L. c. 234A, § 68 requires at least two additional jurors in every twelve-person jury case and at least one additional juror in every six-person jury case. The additional jurors hear the evidence, and before deliberation the clerk draws the names of those who will not deliberate. Each additional juror impanelled adds one peremptory challenge for each party.

Voir Dire

M.G.L. c. 234A, § 67A governs the examination in every court. On the motion of either party, the judge shall examine a prospective juror on oath, or the parties or their attorneys may do so under the judge’s direction, to learn whether the 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. Where the judge finds that a juror does not stand indifferent, another juror is called. Massachusetts Rule of Criminal Procedure 20(b) states the same subjects.

In a criminal case, § 67A requires that the examination include questions designed to learn whether the juror understands that a defendant is presumed innocent until proven guilty, that the Commonwealth has the burden of proving guilt beyond a reasonable doubt, and that the defendant need not present evidence. A juror who does not understand those principles is replaced.

Section 67A also governs individual questioning. Where it appears that a juror may not stand indifferent because of considerations extraneous to the case, including community attitudes, possible exposure to prejudicial material, or possible preconceived opinions about the credibility of certain classes of people, the judge shall examine the juror on those matters, or the parties or their attorneys may with the judge’s permission and under the judge’s direction. That examination “shall be conducted individually and outside the presence of other persons about to be called as jurors or already called,” and it may include a brief statement of the facts of the case. Counsel should identify the subjects that call for individual questioning before the day of impanelment and file a written request with proposed questions.

M.G.L. c. 234A, § 67D applies to criminal and civil jury trials in the Superior Court. In addition to the judge’s examination, the court must permit a requesting attorney or self-represented party to question prospective jurors orally. The judge controls the examination and may impose reasonable limits on its scope and duration, including advance approval of proposed questions. When a case has multiple defendants, the Commonwealth receives the same total time as all defendants together. Section 67D does not apply to the District Court or the Boston Municipal Court. In those courts, § 67A governs questioning by counsel under the judge’s direction.

Subjects worth covering in a criminal case include prior experience as a victim of a similar offense, experience with the police, employment in law enforcement, relationships with people in law enforcement, prior jury service and its outcome, exposure to pretrial publicity, hardship, and views that would prevent a juror from following an instruction, including the instruction that no inference may be drawn from a defendant’s decision not to testify.

Challenges for Cause

A challenge for cause asks the judge to excuse a juror who cannot be impartial. There is no limit on the number.

A challenge for cause succeeds when the record shows that an opinion, relationship, interest, or experience prevents the juror from remaining impartial. An appellate court reviews the judge’s determination for abuse of discretion based on the juror’s recorded answers. Counsel should preserve both the juror’s initial expression of bias and any later statement that the juror can remain impartial. The full exchange allows the trial judge and any reviewing court to evaluate the challenge.

The practical point for counsel is to develop the answer before making the challenge. Where the challenge is denied, counsel should state the basis for it on the record.

Peremptory Challenges

A peremptory challenge ordinarily allows a party to remove a juror without stating a reason. If the opposing party raises a sufficient discrimination objection, however, the party exercising the challenge must provide a group-neutral explanation. Rule 20 sets the numbers:

• Twelve for each defendant where the crime is punishable by life imprisonment;
• Four for each defendant in any other felony tried to a jury of twelve;
• Two for each defendant in a case tried to a jury of six;
• One additional challenge for each additional juror, where alternates are impanelled.

The Commonwealth is entitled to as many peremptory challenges as the whole number to which all defendants in the case are entitled.

Objecting to a Discriminatory Peremptory Challenge

A peremptory challenge may not be used to remove a juror on account of race, ethnicity, gender, religion, or another protected characteristic. In Commonwealth v. Soares, 377 Mass. 461 (1979), the Supreme Judicial Court held that Article 12 prohibits the use of peremptory challenges “to exclude prospective jurors solely by virtue of their membership in, or affiliation with, particular, defined groupings in the community.” The federal rule followed in Batson v. Kentucky, 476 U.S. 79 (1986). Commonwealth v. Sanchez, 485 Mass. 491 (2020), states the three-step standard Massachusetts courts apply today. The prohibition binds both parties.

The objection proceeds in three steps:

1. Immediate objection. Before the court dismisses the juror and swears the jury, the objecting party should identify the juror, the protected characteristic, and the circumstances supporting an inference of discriminatory purpose. The required initial showing is not heavy, and a single challenge can be enough. Commonwealth v. Issa, 466 Mass. 1, 8 (2013).
2. Group-neutral explanation. If the objecting party makes the required showing, the party that exercised the challenge must give a group-neutral explanation.
3. Judicial findings and ruling. The judge must decide whether the explanation is adequate and genuine and place the ruling on the record.

An objection without a ruling does not create a complete record for review. If the judge declines to require an explanation, counsel should request an express ruling. The Supreme Judicial Court has urged judges to “think long and hard before they decide to require no explanation” for a challenge.

As the remedy in Soares, the Supreme Judicial Court ordered dismissal of the selected jurors and the quashing of the remaining venire so that selection could begin again. The Court described the violation of the right to an impartial jury as prejudicial per se.

Preservation

Appellate review of a jury-selection ruling depends on a record that identifies the requested question or challenge, the juror’s answers, counsel’s objection, and the judge’s ruling.

Counsel should ensure the record reflects the questions requested and any refusal to ask them, the answers given by challenged jurors, the basis stated for each challenge for cause and the ruling, the timing and content of any objection to a peremptory challenge and the judge’s findings, and any objection to the composition of the panel.

Rule 20 provides that a challenge to the array may be made only on one basis, that the prospective jurors were not selected or drawn according to law. That is a different objection from a challenge to an individual juror, and it is made before impanelment.

Where the defense exhausts its peremptory challenges and a juror the defense sought to remove is seated, counsel should say so on the record, because the exhaustion of challenges bears on the prejudice from an erroneous denial of a challenge for cause.

Juror Conduct During Trial

Jurors receive instructions not to research or discuss the case, including through online searches or social media. If counsel learns of possible juror research or communication, counsel should preserve the available information, notify the judge, and avoid direct contact with the juror. Counsel and staff must not investigate a juror in a manner that communicates with the juror or circumvents the court’s direction.

Where Jury Selection Fits

Counsel can use the jurors’ voir dire answers to prepare witness examinations and closing argument while remaining within the admitted evidence and the judge’s instructions. The next stages include opening statements and closing arguments, cross-examination, and any necessary trial motions. Cases involving texts, recordings, photographs, or social-media posts also require careful treatment of digital evidence.

Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy office is at 500 Victory Rd., Suite 400A.