Jury selection is a critical part of any criminal trial in Massachusetts.  In Massachusetts, the rules have changed allowing greater attorney participation in jury selection.  The new rules permit Attorney conducted voir dire.  However, the judge still determines whether an individual shall be excluded for cause from a jury.  There are two ways to exclude a potential juror from sitting on a jury.  The first is through a challenge for cause.  This is a request by one of the attorney to exclude a juror based on the fact that the lawyer believes that the juror cannot be fair and impartial. 

For example, in an OUI trial, a judge may exclude a juror for cause that has been in an accident with someone thought to be under the influence of alcohol.  This would be based on the fact that the juror’s experience may bias the juror against the defense.  Some judges may try to rehabilitate the juror to keep the juror on the panel by asking if the juror can set aside that experience and still be fair and impartial.  A judge should allow a defense lawyer to ask follow up questions to determine if the experience is so ingrained that it would start the defendant off at a disadvantage with respect to this juror. 

A recent case decided by the Massachusetts Appeals Court addressed the issue of when a judge abuses his discretion for not excluding a juror for cause.  The case was Commonwealth v. Chambers, decided on August 29,2018.  

The judge asked the statutory questions set forth in Massachusetts General Laws Chapter 234 Section 28.  The judge asked the perspective jurors if they raised their hand on any questions.  A college student raised his hand answering that jury duty would significantly impact his course work.  The juror was told he would not be excluded for that reason and neither party made any challenge to that juror.  The juror then sent a note to the judge after the first day of trial.  He told the judge that he thought that the stress of missing class would result in an impartial decision on his part.  He said he was terrified that he would fail his classes and did not know if he could make a fair decision.

The judge tried to keep the juror on by telling him that other college students have served as jurors and that it was a great opportunity to be given responsibility. The juror was told that the university would make accommodation for the juror.  The judge asked the juror again if he could be fair to the defendant.  The juror said that he would do his best, but could not promise anything.  The juror said that he feared getting behind on his class work but would man up and do his best. The judge told the juror he was the perfect candidate to make sure the right result was reached; to which the juror said he simply did not know. 

The defense counsel requested that the juror be struck for cause.  The judge said that he would keep him as a work in progress but not keep the juror for deliberation if he is impaired. 

Decision of the Appeals Court in Chambers

The Appeals Court found that at its core the juror’s frustration was with having to do with jury service, but did not reflect impartiality or bias.  The Appeals Court said that even though we would have struck the juror, that the judge did not abuse his discretion in not striking the juror and could have attributed it to a run of the milll frustration of having to serve as a juror. 

The juror then sent a note to the judge after the instruction and before deliberations that he believed he had information that would affect his ability to decide the case.  The juror then explained to the judge that he heard how the jury has more power than the judge that the jury can judge based on the law but also based on what they believe it fair.  The judge explained that jury nullification is not permitted. 

The juror stated that he did not think he would have problems following the law as the judge stated.  The juror then told the judge he did not believe it should be unlawful to possess a small knife.  The judge told the jury he must follow the law even if he disagrees with it; the juror responded that he thought the jury had the power to choose whatever way to when the judge interpreted the juror and said I just told you it does not. The juror responded okay. 

At the close of the colloquy the defense and prosecution both moved to exclude the juror declined to exclude the juror. 

The Appeals Court upheld the judge’s decision not to excuse the juror. 

Judge Rubin’s Dissent critical of the position of the Majority for not reversing the conviction

Judge Rubin dissenting cited a case from the Massachusetts Supreme Judicial Court holding that it is an abuse of discretion to impanel a juror who will not state unequivocally that he or she will be fair or impartial. 

Judge Rubin in dissent stated that the closest that the juror came to saying he could be fair and impartial was that he would do his best.  The SJC in the case of Commonwealth v. Vann Long, 419 Mass. 798 (1995), found that statement inadequate to establish impartiality. 

Judge Rubin noted that the juror clearly stated that he could not be fair or impartial.  Judge Rubin noted that both parties wanted that juror off the jury and that the Commonwealth tired to file a petition to the SJC to excuse the juror, despite now trying to defend a favorable verdict.  The Chambers decision can be found here on the Justia legal resource section.

Judge Rubin criticized the majority for holding that where a juror says they cannot be fair or impartial because of frustration with the jury process they can still be seated on the jury. 

As a Massachusetts Criminal Lawyer, jury selection is a vital part of the process of obtaining a fair trial.  I would expect this decision to be reversed on appeal if appealed to the Massachusetts Supreme Judicial Court as I think the Appeals Court decision is clearly wrong and the dissenting opinion better reflects the current state of the law as interpreted by prior SJC cases.