I recently attended a seminar regarding the effort by some MA attorneys to become
more involved in the jury selection process. The topic of this seminar was very
intriguing to me having practiced in New York for over 11 years and
participated in dozens of jury selections.
What I came to
learn is that the jury selection process in MA is in stark contrast to the
system in New York. In New York, in particular NYC and the surrounding
areas, civil juries are selected entirely by the attorneys. Yes MA, you
heard me right, the judge is not even in the room. The attorneys are sent
to a small room full of potential jurors and left there to
select 8 jurors (6 sitting jurors and two alternates).
While there are
rules, the attorneys themselves enforce the rules, so what takes place is as
limited or expansive as the attorneys choose. If a dispute arises over a
challenge, or something said, a judge is usually available to hear the dispute,
and sometimes even makes a ruling.
Contrast this to
MA where attorneys must make a motion in
limine seeking permission from the Court to have some involvement in the
process which can mean anything from having the judge ask a few specific
questions, to very limited participation by the attorney during the questioning.
So, what does all
this mean? Who has it right and who has it wrong? I think the
answer, as any good attorney would tell you in response to any questions,
depends.
To figure it out,
we must look at the purpose of jury selection, which is and remains to find
jurors who will be...."fair and impartial."
Well, what does fair and impartial mean. The best example I can think of, and which I
have used time and time again, is the scale of justice. In order to be a perspective juror, and one
who is not removed for cause, a juror must be able to say that the scales are
balanced meaning, neither side (plaintiff or defendant) is starting ahead or
behind the other.
Clearly, certain cases are not the “right” case for some, and that
does not mean they are a bad person, just someone who cannot sit on a
particular case. This is a point that
judges and attorneys must make since nobody wants to say they cannot be fair. They are however, more likely to admit that
they cannot be fair on X case because of X Y Z, and may be better off sitting
on another type of case.
How to elicit the information needed to make the above determination is another story, and one that
could take hours (or pages) to discuss.
But suffice it to say, the objective of jury selection should be to find
jurors who can hear your case, and decide your case based on the facts presented, with an
open mind and from a starting point that is the same for both sides.
My opinion on which system better achieves that result will be
left for another day.
