Voice of the Judiciary
Trial lawyers and I have not always seen eye-to-eye on the purposes or methods of juror voir dire. As a trial judge, I view the overarching objective of juror voir dire as the selection of an impartial jury, with a corollary need to make sure peremptory challenges are exercised constitutionally. Many trial attorneys admit freely that they are interested in as partial a jury as possible, with the subsidiary goal of learning as much as possible about the selected jurors so that they might later tailor arguments and present their case more persuasively.
With the advent last year of attorney-conducted voir dire in Massachusetts, we now have an array of mechanisms for conducting voir dire of prospective jurors: (1) traditional, judge-controlled questioning of prospective jurors; (2) attorney-conducted voir of individual jurors (each examined one at a time by the attorney or self-represented party at sidebar or in the absence of the rest of the venire); or (3) panel voir dire (the questioning by counsel or pro se litigant of jurors as a group). There has been much recent discussion within the Superior Court and the bar about which of these methods, alone or in combination, is more effective generally or in a particular case.
I am here to say that, whatever your goals in selecting a jury and whatever mechanism you select, if you want “to learn whether [a juror] . . . has . . . formed an opinion . . . or is sensible of any bias or prejudice,” G. L. c. 234, § 28, it is the phrasing of the voir dire questions themselves that matters most. The simple truth is that questions do more than solicit information; “[q]uestions put words in answerers’ mouths.” Kellerman, Kathy, “Persuasive Question-Asking: How Question Wording Influences Answers” (2007). The slightest differences in a question’s form, phrasing, terminology, and presumptions can alter the answer the prospective juror gives. Id. If a universal aim of jury selection is to elicit truly honest answers from prospective jurors, then we trial judges and lawyers alike should be mindful of and seek out training on the type of questions that could best accomplish this shared goal.
Questions shape answers in many ways. A “suggestive question,” for example, is one that implies that a certain answer should be given in response, Copeland, James M., “Cross Examination in Extemp,” National Forensic League (2010), or includes an assumption as accepted fact, Loftus, Elizabeth F., “Eyewitness Testimony,” Harvard University Press, Cambridge, MA (1996). Asking, “Don’t you think this was wrong?,” subtly influences the respondent into answering in the affirmative, whereas a one-word variant of that question, “Do you think this was wrong?,” does not. “Repeated questions” may make interviewees think that their first answer was wrong, leading them to change their answer. See Lyon, Thomas D., “Questioning Children: The Effects of Suggestive and Repeated Questioning,” Electronic Publishing, Inc. (1999). A “forced-choice question,” e.g., “Is this yellow or green?,” forces people to choose between two options when neither choice may be true or might need more explanation. See Peterson, Carole, & Grant, Melody, “Forced Choice: Are Forensic Interviewers Asking the Right Questions?,” Canadian Journal of Behavioural Science (2001).
“Confirmatory questioning” during voir dire can be particularly risky. Confirmatory questions are those posed to support a preexisting perception. For example, if a questioner assumes a hypothesis about a respondent, such as being extroverted, he/she may slant the questions to confirm that hypothesis, e.g., “What would you do if you wanted to liven up a party?” or, “In what situations are you most talkative?” Snyder, M., & Swann, W. B., “Hypothesis Testing Processes in Social Interaction,” Journal of Personality and Social Psychology (1978). Conversely, if the interviewer wanted to make the interviewee look introverted, he/she would ask questions like, “Have you ever been left out of a social group?” or, “In what situations do you wish you could be more outgoing?” Id. In both instances, the questioner simply finds what he/she expects to find. Such an intentional or unintentional strategy can produce non-representative answers that are shaped by the questions asked. See Swann, W. B., Guiliano, T., & Wegner, D. M., “Where Leading Questions Can Lead: The Power of Conjecture in Social Interaction,” Journal of Personality and Social Psychology (1982).
Moreover, many people have a tendency to say what they believe is acceptable or appropriate. This is the so-called “social desirability bias.” Fisher, R. J., “Social Desirability Bias and the Validity of Indirect Questioning,” Journal of Consumer Research: 20, 303-315 (1993). Whether questioning jurors individually or in a group, there is a great danger that venirepersons will tell the judge, attorney, or litigant what he/she wants to hear. In addition, prospective jurors who experience difficulty discerning “desired” answers may choose not to answer at all. Marshall, L. L., & Smith, A., “The Effects of Demand Characteristics, Evaluation Anxiety, and Expectancy on Juror Honesty During Voir Dire,” The Journal of Psychology (1986).
Several states, including Texas, North Carolina, and Maryland, have adopted rules prohibiting improper “commitment” (or “stake-out” or “precommitment”) questions in juror voir dire, see, e.g., Standefer v. State, 59 S.W.3d 177, 183 (Tex. Crim. App. 2001); Hyundai Motor Company v. Vasquez, 189 S.W.3d 743, 756 (Tex. 2006); State v. Parks, 324 N. C. 420, 423 (1989); Stewart v. State, 399 Md. 146, 162 (2007); some other federal and state jurisdictions have addressed the issue in the context of “death-qualifying” juror voir dire in capital cases, see Morgan v. Illinois, 504 U.S. 719, 735-736 (1992); U.S. v. Tsarnaev, U.S. District Court No. 13-CR-10200-GAO (Dist. Mass. 2014). A commitment question is one that “commit[s] a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.” Standefer, 59 S.W.3d at 179. “[A]n improper commitment question seeks to create a bias or prejudice in the panelists before they have heard the evidence.” Rodriguez-Flores v. State, 351 S.W.3d 612, 621 (Tex. App. 2012). An example of an improper commitment question (asked by the prosecutor in a drug case) would be the following: “If the evidence, in a hypothetical case, showed that a person was arrested and he/she had in his/her pocket a crack pipe with residue in it, is there anyone who could not convict a person based on that?” Standefer, 59 S.W.3d at 179. This question asks the jurors whether they would resolve a person’s guilt based on his/her possession of a residue amount of cocaine in a crack pipe. Id. By contrast, the question, “If the alleged victim is a nun, could you be fair and impartial?,” is not an improper commitment question because it does not ask the panelist to resolve any issue in the case based on the fact that the victim is a nun, only to commit to what the law requires, i.e., being fair and impartial. Id. at 180, 181.
Not all case-specific questions are inappropriate, of course. “[T]he proper tests for whether a question is a ‘stake-out’ question are the following: (1) Does the question ask a juror to speculate or precommit to how that juror might vote based on any particular facts? or (2) Does it seek to discover in advance what a prospective juror’s decision will be under a certain state of the evidence? or (3) Does it seek to cause prospective jurors to pledge themselves to a future course of action and indoctrinate them regarding potential issues before the evidence has been presented and they have been instructed on the law?” U. S. v. Johnson, 366 F. Supp.2d 822, 845 (N.D. Iowa 2005). The line between a proper and an improper commitment question is not always a bright one.
This discussion of framing voir dire questions only scratches the surface. I am concerned that trial judges and attorneys are not well informed about or skilled at asking questions during juror voir dire. I strongly urge the courts and the bar to develop training programs on the topic of questioning prospective jurors. By learning to keep our words out of the jurors’ mouths, we can achieve a more effective, trustworthy way of choosing a jury.
Judge Linda Giles has served as an Associate Justice of the Superior Court since 1998. She is an adjunct professor of law at Suffolk University Law School and a member of the Board of Editors of the Boston Bar Journal. Judge Giles is a graduate of McGill University and New England School of Law.
Voice of the Judiciary
The role of the Judiciary is not only to do justice but to solve problems, and the sensible resolution of problems often is how we do justice. Working in close partnership with the trial court leadership team of Chief Justice Paula Carey and Court Administrator Harry Spence, we are committed to four new initiatives that we hope will assist us in our efforts to solve problems and do justice. The judiciary, however, can achieve none of these alone; each requires collaboration with and the support of the Legislature, the Executive branch, and the Bar.
Our first initiative is in the area of sentencing reform. We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism. I have asked every trial court department with criminal jurisdiction to recommend protocols for their department that will incorporate best practices, informed by social science evidence regarding which sentences reduce the risk of recidivism and which may actually increase that risk. Further, I will work with the Legislature and encourage them to abolish mandatory minimum sentences for drug offenses in favor of individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses — the problem of addiction.
The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences. Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence. As a result, where there is a mandatory minimum sentence, a prosecutor’s discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.
Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities. In 2013, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses. I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.
I expect that the abolition of mandatory minimum sentences in drug cases would likely result in some reduction in the length of incarceration in drug cases. This would free up money that could be reinvested in programs proven to reduce the rates of recidivism, in treatment programs, and in long overdue salaries increases for assistant district attorneys and CPCS attorneys.
Our second initiative involves our civil justice system. We will develop a menu of options in civil cases to ensure that litigants have cost-effective means to resolve their dispute in a court of law. I do not want a Commonwealth where those with a civil dispute think that they can resolve it efficiently and sensibly only through private arbitration rather than in our civil courts. Arbitrators generally do not publish their decisions; they make use of our common law but they generally create none of their own. If complex and difficult cases no longer come to our courts, our common law does not adapt and evolve, and our legal infrastructure becomes old and outdated. We must ensure that our courts through our published decisions, especially our appellate decisions, continue to create the common law that is the legal infrastructure of our civil society.
I have asked each trial court department to devise a menu of litigation options appropriate to the cases adjudicated by that department. That menu will include the full range — from the “three course meal” option including full discovery, a jury trial (in cases where there is a right to jury trial), and full rights of appeal, to less costly and more expeditious “a la carte” options that might offer, for instance, limited discovery, a bench trial, and, perhaps, limitations on the right or scope of appeal. With a menu of options in each department, litigants can agree on the option that makes most sense in their case, with the three course meal the fallback option if they are unable to reach agreement.
Our third set of initiatives focuses on access to justice. It is not enough to establish legal rights; we need our residents to know their rights, to know how to invoke them, and to know how to find the legal assistance or information that can help them to do so. We will soon make available to all litigants an information sheet that will help self-represented litigants find the legal resources that are available to them, including lawyer for the day programs, voluntary mediation services, limited assistance representation, and court service centers, where available. We plan to expand access to court service centers by adding four more in the coming year, and to have one in each of our fifteen largest courthouses, which serve half the litigants in the Commonwealth, by 2017. Finally, we will propose legislation to give every resident of Massachusetts access to a Housing Court. Currently, nearly one-third of our residents have no such access, which means that they have no access to Housing Court judges, housing specialists, the Tenancy Preservation Program, and no forum to enforce building and safety codes efficiently.
Our fourth initiative involves jury voir dire. An SJC Committee chaired by my colleague, Justice Barbara Lenk, is working to improve the quality of jury voir dire — to give attorneys a meaningful role in the selection of a fair and impartial jury while, at the same time, protecting the privacy and dignity of our jurors, and respecting our need to try cases in a timely and efficient manner. We shall improve the quality of voir dire in every court department, recognizing that a method of voir dire that may be sensible in one trial court department may not be sensible in all.
By February, 2015, when St. 2014, c. 254, sec. 2 takes effect, an interim Superior Court standing order will establish protocols for attorney participation in voir dire in that department. The Superior Court will also establish a pilot project in which judges who volunteer to do so will conduct “panel voir dire.” The Superior Court and the SJC Committee will monitor response to both the interim standing order and the pilot project and then make further recommendations.
As I said when I was sworn in — if we are willing to search for new ways to solve old problems, if we are willing to put our egos aside and remember that it is not about us, if we are willing to work our tails off, if we are willing to work together, I know that we can build a justice system that will not only dispense fair, sensible, and efficient justice, that will not only help to address the formidable problems faced by so many of the residents of this Commonwealth, but that will be a model for the nation and for the world.
Ralph D. Gants is the Chief Justice of the Supreme Judicial Court. Chief Justice Gants was appointed as an Associate Justice of the Superior Court in 1997 by Governor William Weld. Governor Deval Patrick first appointed him as a Justice to the Supreme Judicial Court in January 2009. In July 2014, he was appointed as the thirty-seventh Chief Justice by Governor Patrick.