January 12, 2015
With the passage of the Massachusetts Session Laws: Chapter 254 of the Acts of 2014, beginning in February 2015, attorneys licensed in Massachusetts will, for the first time, be allowed to question prospective jurors in civil and criminal trials. The questioning of prospective jurors to obtain a fair and impartial jury is called, voir dire.
Voir dire, in 17th Century French lingo, means “to speak the truth.”
Illustration by Mark Alan Stamaty
VOIR DIRE: A NOUN OR A VERB?
In law, voir dire is the act or process of asking questions of prospective jurors for jury selection reasons in civil and criminal trials. The word “voir dire” may be used interchangeably either as a noun or a verb. For example, an attorney may voir dire a potential jury member, by asking the person questions (an action verb). Voir dire may also be conducted prior to trial. In this context, voir dire is a noun because the word voir dire references the name of a particular pre-trial procedure, a thing.
NEW LAW ON VOIR DIRE IN MA
Chapter 254 of the Massachusetts Session Laws: Acts of 2014, pertains to voir dire in Massachusetts Superior Court, not the Massachusetts venue of federal court. Federal courts sometimes do things differently than state courts. Here’s how.
FEDERAL AND STATE VOIR DIRE
Due to Federalism and the Constitution of the United States, both the US federal government and each US state government each have their own court system. (Aside: Massachusetts has three federal courthouses, Boston, Worcester, and Springfield.)
Federal courts have jurisdiction over persons, places and legal subjects like appeals claims, bankruptcy petitions, constitutional claims, admiralty matters, issues involving different states, and trials involving the laws and treaties of the US, just to name a few. State courts have jurisdiction over the persons and issues dealing with state law as well as legal matters that are not federal or international. Notwithstanding jurisdiction, forum, and venue are also important, albeit often confusing legal terms.
FORUM, VENUE AND VOIR DIRE
Forum and venue play a part in how voir dire is conducted currently in Massachusetts. Forum selection pertains to which court a trial will occur in. Venue selection has to do with the geographic location of the trial. This is why we have a state forum and a federal forum. If a legal matter involves the jurisdiction of the Commonwealth of Massachusetts, the court forum will be located in the venue of Massachusetts, where voir dire is not attorney conducted.
THE TSARNAEV TRIAL VOIR DIRE
In the trial of Dzhokhar Tsarnaev, the alleged Boston Marathon bomber, (United States v. Dzhokhar Tsarnaev, No. 13-cr-10200), the forum is the federal court system or US District Court. The venue (location) is the District of Massachusetts. Hence, the Tsarnaev case is underway in the federal court of Massachusetts, a/k/a the US District Court: District of Massachusetts. In US District Court (the federal court forum), attorneys are permitted to question individual potential jury members.
Voir dire in the Tsarnaev trial will consist of several phases. The first phase of voir dire involves potential jury members filling out a typed confidential, multi-page, multi-question, juror questionnaire. Attorneys have a week, or so, to go through each group’s questionnaires to confer and agree on which jurors should be excused routinely or dismissed, for cause, for things like bias or hardship. In this context, the word “cause” means, as a matter of legal routine or common practice.
On January 15th, the next phase of voir dire involves the Hon. George A. O’Toole, presiding trial judge. Judge O’Toole will question possible jury members, individually. After Judge O’Toole completes his investigation, the attorneys for both the defense and prosecution may begin their individual voir dire. Voir dire in this phase will involve individual questions to potential jury members and 20 attorney challenges, or challenge questions. The challenges will cull out any who may be disqualified routinely, as a matter of cause.
THE HERNANDEZ TRIAL VOIR DIRE
In the Aaron Hernandez trial, regarding the Odin Lloyd murder, (Commonwealth v Aaron Hernandez, No., 1314CR002057) voir dire will be conducted a little bit differently. In the Hernandez trial, the forum is not federal court, but state court. In Fall River Massachusetts, in the Superior Court of Bristol County, the Hernandez trial is now underway. This state forum affects how voir dire is conducted for Hernandez.
As mentioned earlier, under current Massachusetts state law, legal limitations on vior dire are still in effect. Attorney conducted individual voir dire is not permitted in state court. The Hernandez’s attorneys filed a Motion (in December 2014) to ask the court for attorney conducted voir dire. However, the Hon. Susan E. Garsh, Justice of the Superior Court, denied the motion. Therefore, the Hernandez trial court is conducting voir dire, not the trial attorneys. Like in the Tsarnaev trial, the Hernandez questionnaire process of voir dire is similar but the distinction lies in the following phase of voir dire.
For Hernandez, potential jury members will be questioned individually by Judge Garsh. Defense attorneys and prosecutors will be present and may object and challenge. However, attorneys will not be permitted to ask potential jury members individual questions.
Had the Hernandez trial started only two weeks later, in February rather than January, attorney conducted vior dire would have been legally available. Funny how laws change, affecting procedural outcomes.
JUSTICE AND VOIR DIRE
Whether or not voir dire is conducted by the court or by attorneys, voir dire is part and parcel of the US constitutional right to a fair trial. Jury selection is critical to any trial. No matter how strong the case or how proficient the defendant’s attorney or legal team may be, if the right jury is not selected a defendant stands a very slim chance of winning at trial.
Voir dire is an exercise of justice. Voir dire is important and a very effective way of “culling the masses in Mass” and finding the best possible fair and impartial jury.
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