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.