Posts Tagged ‘“voir dire”’
Attorney Marc L. Breakstone: Assessing bias in voir dire after ‘Williams’
Attorney Marc L. Breakstone recently authored an article which appears in the May 2019 edition of MATA Journal. The journal is published by the Massachusetts Academy of Trial Attorneys.
Assessing bias in voir dire after ‘Williams’
By Marc L. Breakstone
Attorney Marc L. Breakstone
The recent Supreme Judicial Court decision in Commonwealth v. Williams, 481 Mass. 443 (2019), generated quite a buzz on the MATA Listserv. Members questioned the significance of the decision, which analyzes how a potential juror should be screened for impartiality.
The opinion suggests that, regardless of the biased opinions or beliefs expressed by a potential juror during voir dire, the juror could be deemed impartial as long as the juror pledges to either set aside or disregard their opinion, to commit to deciding the case on the evidence and to follow the court’s instructions.
Williams meticulously analyzes how trial judges should determine impartiality when a prospective juror expresses potentially interfering bias during jury selection. The majority begins with the acknowledgment that “[o]ur jurisprudence regarding how to assess beliefs or opinions expressed by prospective jurors during voir dire has been less than clear.” The opinion then promises to “set forth factors that a judge should consider when a prospective juror discloses a belief or opinion based on his or her world view.” Clarity on these important subjects is what every trial lawyer seeks.
Unfortunately, Williams raises more questions than it answers. The defendant in Williams was charged with possession with intent to distribute a class B substance. During jury selection, a prospective juror raised her hand in response to a question whether there was “anything about the subject matter or your views about the subject matter that would affect your ability to be fair and impartial in deciding the case?”
During judge-conducted voir dire, the juror stated a belief that the criminal justice system is rigged against young African American males. When asked by the judge if she could put aside that opinion and bias, the juror stated she did not think she could put it aside.
Continue reading this article in the MATA Journal. The article begins on page 2.
Attorney Marc L. Breakstone
Attorney Marc L. Breakstone has practiced law in Boston for more than 30 years and focuses on the representation of plaintiffs in personal injury and medical malpractice cases. He has long advocated for expanded attorney participation in voir dire in Massachusetts.
About Breakstone, White & Gluck
The Boston personal injury lawyers at Breakstone, White & Gluck have over 100 years combined experience representing clients who have been injured by the negligence and wrongdoing of others in Massachusetts. If you have been injured or have lost a loved one, it is critical to learn your rights. For a free legal consultation, contact our attorneys at 800-379-1244 or 617-723-7676 or use our contact form.
Attorney Marc L. Breakstone Questions Voir Dire Rule Change in Massachusetts Lawyers Weekly
Attorney Marc L. Breakstone was recently interviewed by Massachusetts Lawyers Weekly on the voir dire process.
Requiring attorneys to get pre-approval to question potential jurors is the “wrong approach,” Attorney Marc L. Breakstone said in a recent Massachusetts Lawyers Weekly article.
Breakstone was commenting on a change to the rules for voir dire in Massachusetts. Judges were long responsible for questioning prospective jurors to determine if they could sit fair and impartial in Massachusetts courts. But in 2014, the Legislature approved the introduction of attorney-conducted voir dire. For the first time, attorneys were allowed to directly question prospective jurors.
Last month, the Supreme Judicial Court approved a revised Superior Court Rule 6, which will impose new restrictions on the voir dire process. The new rule will be effective September 1.
Missing from the new rule are several recommendations submitted by the Massachusetts Bar Association and the Massachusetts Academy of Trial Attorneys (MATA). Breakstone, who sits on the MATA Board of Governors, has long advocated for attorney-conducted voir dire and helped draft the MATA recommendations.
For voir dire to be effective, state court studies have shown the lawyer must be able to maintain a conversational tone with prospective jurors, Breakstone said.
“You cannot have a ‘conversation’ with jurors if you are restricted to pre-approved, scripted questions that a judge will not permit counsel to expand on,” he said.
Breakstone said he is concerned that Rule 6 raises the standard for excusing a juror for cause.
“This new [rule] sets the bar too high,” Breakstone said. “The better approach is to err on the side of caution and, if a juror expresses disqualifying bias, whether it’s mild, moderate or severe, that should be sufficient to excuse them from the jury.”
Read more comments in Massachusetts Lawyers Weekly. Subscription access is required.
About Breakstone, White & Gluck
The Boston personal injury lawyers at Breakstone, White & Gluck have over 100 years combined experience representing those who have been injured by negligence and wrongdoing. If you have been injured, learn your rights. For a free legal consultation, contact us at 800-379-1244 or 617-723-7676 or use our contact form.
Panel Voir Dire Embraced by Judges and Attorneys in First Year
A front page story in Massachusetts Lawyers Weekly reported that judges in the Commonwealth have embraced attorney-panel voir dire. The process was introduced in February 2015 and in the first year, lawyers conducted panel voir dire in 14 percent of Superior Court jury trials.
There was a pilot project for a group of judges to use panel voir dire in most cases, except for life-felony matters or cases with good cause not to use it. While 15 Superior Court judges were part of the program, 38 of the 80 judges ended up trying panel voir dire.
“…The response of judges is extremely encouraging,” said Attorney Marc L. Breakstone.
While plaintiffs’ lawyers are seeking to use panel voir dire, defense attorneys and prosecutors requested it more frequently in criminal cases this first year. There was some form of attorney participation in voir dire in 81 percent of criminal impanelments and 54 percent of civil ones, according to Massachusetts Lawyers Weekly.
Attorney Breakstone predicted judges and attorneys will use panel voir dire for more cases going forward.
“Ultimately, judges will see its utility in every case as a time-saver and as a justice-enhancer. Lawyers and judges have a very steep learning curve,” Attorney Breakstone said.
About Attorney Marc L. Breakstone
Attorney Marc L. Breakstone has established a reputation as one of the top medical malpractice and personal injury lawyers in Massachusetts and New England. Attorney Breakstone has represented seriously injured clients in medical malpractice and personal injury cases since 1986. He is a founder and principal at Breakstone, White & Gluck since 1992. Attorney Breakstone works tirelessly to ensure that his clients receive full and fair compensation as well as achieve the most favorable medical result. He has been recognized as a Top 100 New England Super Lawyer, a Top 100 Massachusetts Super Lawyer and a Massachusetts Super Lawyer in Plaintiff’s Medical Malpractice.
About Breakstone, White & Gluck
The Boston personal injury attorneys of Breakstone, White & Gluck have over 100 years combined experience representing clients who have been seriously injured by negligence in Massachusetts. If you have been injured, it is important to learn your rights. For a free legal consultation, contact us at 800-379-1244 or 617-723-7676 or use our contact form.