Can I ask you a question? According to the SJC, starting next month, I can...

Can I ask you a question? According to the SJC, starting next month, I can...

Two weeks ago the Massachusetts Supreme Judicial Court (SJC) announced a new initiative, in the form of a Standing Order, in which trial attorneys and pro se litigants (persons representing themselves) will be able to directly participate in the jury voir dire process in Massachusetts. In other words, through this order lawyers and pro se litigants in MA courtrooms will be allowed, subject to certain guidelines, to ask prospective jurors, themselves, questions about their background, experience and issues related to the subject matter of the case during the ever-critical jury selection phase of trial. In being so allowed, MA steps away from a 10 state minority (AZ, DC, DE, MA, MD, ME, NH, NJ, SC, UT) in which voir dire was primarily (and in most situations, exclusively) conducted by the presiding judge. The Standing Order is deemed "interim" by the SJC, pending further feedback/study once interpreted. However, it is effective February 2, 2015.

Under the new rule, there are two ways in which attorney voir dire can be conducted: each prospective juror may be examined individually, or upon request by one or both of the parties, group voir dire may be conducted. Attorney voir dire is not discretionary. If requested by a party it must be granted. Nonetheless, the presiding judge may still control the scope and parameter(s) of questioning. Furthermore, there is no fixed time limit(s) for attorney questions; the judge may still use his or her discretion in this regard. Also, attorney conducted voir dire must be requested in writing, in motion form, and served on all parties. Any opposition is due two days before the final pretrial conference or no later than five days before trial, if no pretrial conference has been set.

When "moving" for attorney voir dire, counsel must pre-identify the topics he or she intends to explore/ask about. Judges can request (but are not required to) that the specific questions to be asked also be submitted.

In order to provide clarity and guidelines for the process, the SJC order sets forth general areas of "approved" questions. These include questions eliciting facts about jurors' background and experiences relevant to the case (but not about sensitive personal information or answers from confidential juror questionnaires); questions about preconceived biases or prejudices; a prospective juror's willingness to accept and apply the law as instructed. Questions the SJC deems off-limits include repeating questions already answered on juror questionnaires; questions about political views or affiliations/voting patterns; questions about religious beliefs, charitable giving, leisure time and hobbies (unless relevant to the charges). If any potential juror has served on prior juries, they may be asked about that generally, but not about any verdict/outcome or underlying deliberation. Examining attorneys may not instruct jurors on the law, or attempt to argue issues of fact or law, or try to sway, influence or encourage a preferred perspective. They may not ask jurors to speculate on factual or legal issues or attempt to embarrass a prospective juror or invade his or her privacy. In other words, attorney voir dire will still follow the same types of guidelines that currently inform and define judge conducted questioning when individual juror voir dire is requested.

What do I, as a former state and federal prosecutor, and long-time criminal defense attorney (with an actual trial practice) think about all this? Like much of the Massachusetts defense bar, I think it's great and important ,and that it's "about time” we joined the twenty-two other states (AR, AL, AK, CT, FL, GA, IA, KS, LA, MO, MT, NV, ND, NB, OR, RI, SD, TN, TX, VT, WA and WY) who have long promulgated attorney conducted juror voir dire, as well as the eighteen other states that have long promoted a combination of judge and lawyer conducted juror voir dire (CA, CO, HI, ID, IL, KY, MI, MN, MS, NM, NV, NY, OH, OK, PA, VA, WI and WV).

I actually "cut my teeth" in my first full-time job as a prosecutor in a state (NY) where attorney conducted voir dire was allowed. Yes, both sides sometimes tried to conduct "trials within trials" during jury selection, and sometimes blatantly used certain juror questions to begin to influence a juror's thinking (and/or to test the theory of their respective cases). Also, attorney conducted juror voir dire could often add weeks to the length of any given trial. Still, once I returned to my native Massachusetts (again, at first, as a prosecutor), I couldn't help but notice how little information the underlying selection process provided here in both state and federal court — often not much more than the standard "name, rank, and serial number" responses derived from brief, generic juror questionnaires (age, address, employment, spouse/partner employment, criminal record, ties to criminal justice system). Yes, judges routinely ask(ed) the standard "can you be fair; have you heard about this case; have you formed an opinion; can you follow my instructions; do you tend to believe police" questions; and in sex crime(s) and murder cases judges routinely conduct some degree of individual (side-bar) questioning - but not a lot. I couldn't help but once again contrast how much I learned about my client's prospective jury during the attorney voir dire selection process in California last year in the Clark Rockefeller murder case, and keep thinking now about how little our clients here wind up knowing about the twelve "members of the community" who are about to decide their fate and, often, their future, via a process which, amazingly, could sometimes be completed in a half of a day or less in both state and federal court here in Massachusetts.

So yes, this is not only a welcome change, but one that is extremely important to assuring an accused his or her fundamental and constitutional right to be judged by a thoroughly unbiased and impartial jury of their peers. In fact, this judicial initiative is considered so important to a defendant's right to a fair trial that Aaron Hernandez' trial attorneys are already requesting permission to utilize it for his Bristol County 1st degree murder trial in the Odin Lloyd case when jury selection begins on January 9, some twenty-three days before it becomes officially effective. It's not just good lawyering that is prompting them to do this, it's also common sense given the underlying implications of the SJC's Order — i.e., We need to get, and do, this right! For that reason, I predict Judge Garsh will agree with the defendant's request and Aaron Hernandez will no longer have the singular distinction of being the first active professional athlete in the Commonwealth's history to stand trial for first degree murder, but his will also be the first murder case in Massachusetts where this common sense practice is employed.

As a defense attorney, it's my job to question everything; now in Massachusetts, it's also my job to question everyone, including prospective jurors. I think that's a major score, or in Aaron Hernandez' case, at least a two point conversion.