Voir Dire in Massachusetts State and Federal Courts: Commentary and Suggestions for Revision

In October 2011, Chief Judge for the United States District Court for the District of Massachusetts, Mark L. Wolf, issued an order overturning the death penalty sentence of Gary Lee Sampson. Judge Wolf’s order has elicited outrage from the victims’ families and from the press who feel the sentence was overturned on a technicality or to preserve the judge’s image. However, the Sampson order should also make us consider the effectiveness of jury voir dire in Massachusetts state and federal courts.A jury sentenced Sampson to death in 2004 for torturing and murdering three victims in New Hampshire and Massachusetts in 2001 during a week-long killing spree. After the conviction Sampson filed a motion for a new trial alleging that he had been “deprived of his right to have his sentence decided by an impartial jury” because three jurors had answered voir dire questions inaccurately. The court held a hearing, finding that two jurors had unintentionally answered voir dire questions inaccurately (these errors did not entitle Sampson to a new trial), and that one juror “intentionally and repeatedly answered a series of questions dishonestly.” The dishonesty of the one juror compelled Judge Wolf to “vacate Sampson’s death sentence and grant him a new trial.” Despite the outrage at Wolf’s order, the right to a fair and impartial jury is deeply ingrained in our judicial system and is a piece of the adversarial process that should not be downplayed or made light of. The right to an impartial jury is guaranteed in two places in our constitution, and yet jury selection is not a process that receives much press in the majority of cases. In light of the recent Sampson order, and our own experiences with jury duty,11 we decided to take a closer look at the voir dire process. The purpose of this paper is to consider the state of judge voir dire in Massachusetts and discuss which forms of voir dire may best preserve impartiality and guide us to fair outcomes. Over the course of three months we attended six jury empanelments in the Massachusetts federal and state courts and read transcripts from a number of other empanelments. While not intended to be a comprehensive review of different judicial practices, we use our experiences to explore the benefits and limitations of judicially controlled jury empanelments. Given that we made observations primarily from public seating, our analysis focuses entirely on voir dire leading up to preemptory challenges, but does not consider the preemptory challenges themselves. It is our belief that many of the problems that occur at the preemptory challenge stage, such as race or gender stereotyping, can be improved by allowing for more searching questioning of jurors at the causal challenge stage.In Part II we outline the doctrinal and theoretical concerns of impartiality, efficiency and juror privacy that inform voir dire. Understanding how voir dire practices bear on these considerations is essential to arriving at the best practices for voir dire, i.e., those that best harmonize the competing considerations with few trade-offs. In Part III we consider the current state of judge voir dire in Massachusetts, first reviewing different forms of jury empanelment and then critiquing a few of the essential procedures and their variations. Part IV analyzes lawyer voir dire, an alternative to judge voir dire, which has its own problems but which also may have benefits that could inform the current Massachusetts system. Finally in Part V we discuss a few areas of the voir dire process we believe need minor modifications or revisions and provide recommendations on ways the process could be adjusted.