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Monday, August 03, 2009

Baby Steps along the Freedom Trail

As I have mentioned in previous posts, Massachusetts is not exactly on the cutting edge when it comes to enlightened procedural rules for jury trials. The default rules call for judge-conducted group voir dire in open court. This is not a recipe for a lot of information revelation by jurors. When Diane Levesque and I conducted a workshop for Massachusetts Bar Advocates this Spring on jury selection techniques, there were lots of old-timer naysayers in the audience who were convinced that no judge would ever let them try any of the things we were advocating. It should be noted, however, that several of the Commonwealth's more noted judges were expressing a willingness to try attorney-conducted voir dire, if only someone would request it. It was clear that we were stuck in a bad equilibrium.

Maryellen Cuthbert, a board member of Middlesex Defense Attorneys, Inc., is the person who invited Diane and myself to conduct our workshop back in April. In light of the reaction we received to that program, we decided that someone needed to lead the way, showing that modern jury selection techniques could be effectively applied in Massachusetts. So, Maryellen brought me on board for a tricky statutory rape case she was defending. The case involved an alleged sexual incident between a 19 year-old recent high school graduate and a 15 year-old high school Sophomore. Due to inconsistencies in the complaining witness's story, as well as the absence of any physical evidence, the Commonwealth dropped any charges involving consent and tried only the statutory count.

I have been helping Maryellen develop presentation strategies for opening and closing statements, as well as strategies for cross-examining an alleged victim in a delicate matter -- and one in which the outcome rests entirely on the credibility of her testimony. Much of my time and input has been dedicated to jury selection.

The first order of business was to get the judge in the case to adopt procedures that had some hope of eliciting some relevant information about jurors' experiences and attitudes. In this case, we had a bit of a head start because both the nature of the charge and the fact that the defendant and complaining witness were of different races triggered some individualized voir dire. It was still up to the judge, however, to decide which questions would be asked, who would ask them, and exactly which procedures would be used. We employed a multi-pronged attack with respect to motions:

1) We submitted a request for attorney-conducted voir dire, to which we attached citations to several studies that showed empirically (a) that jurors were more forthcoming when attorneys asked questions than when judges did, and (b) that jurors often revealed pertinent information during individualized voir dire that they declined to reveal during group voir dire.

2) We submitted a list of questions to be asked by the judge during both group and individual voir dire, should our request for attorney-conducted voir dire be denied. The individual voir dire questions were generally worded in an open-ended fashion, so as to elicit detailed responses, rather than just "yeses" and "nos." Here too, we submitted a list of studies showing the superiority of open-ended questions for eliciting relevant information.

3) Given the infrequency with which jury consultants are used in Massachusetts, especially for criminal trials, I suggested to Maryellen that she inform the judge in advance that I would be sitting at counsel table for jury selection. In addition, Maryellen impressed on the judge how important it would be for me to attend sidebar sessions during voir dire, so that I would be able to evaluate the words and demeanors of prospective jurors. The judge didn't seem to know what to do with this idea, so she took it under advisement and invited both sides to submit additional material regarding such a procedure. This is the point at which the ASTC membership really came through for me. The American Society of Trial Consultants maintains a very active listserve for its members. On a Friday afternoon, I sent out a plaintiff call for lists of cases in which consultants had been permitted both at counsel table and sidebar during jury selection. Several ASTC members combed through their files over the weekend and sent me lists of cases. I put them in a nice table and Maryellen sent them to the judge on Monday morning.

4) Maryellen requested a struck method for exercising peremptory challenges. This particular charge allows each side 12 peremptory challenges in Massachusetts. Given that we were also seating alternates, each side actually had 14 strikes. We would certainly be able to emply them more efficiently if we could wait until the entire panel had been voir dired.

In the end, here's what we got:

First, the good news. I was permitted to sit at counsel table during all of jury selection. In order to work around the sidebar issue, the judge sent the entire jury panel away immediately after group voir dire. She then brought them in one-by-one for individual voir dire. The juror would sit in the witness box and the judge would explain that we were using this procedure to protect the privacy of the juror. This set of procedures was excellent from our prospective. Jurors were generally forthcoming and we had time to consult between jurors as one would leave and the next one would come in.

Now, the less good news. The judge insisted on asking all of the questions. While she did ask a few questions based on items we had submitted, she tended to revert to non-productive question structure. That is, she asked yes-or-no questions that required jurors to evaluate their own attitudes of prejudices. For instance, she asked each juror, "Do you believe that the presumption of innocence should apply equally to all races?" Obviously, no-one is going to answer "no" to such a question. There were several prospective jurors whose answers ended up being nothing more than a predictable series of "yeses" and "nos". To her credit, the judge did seem to pick up on this problem fairly early on. Unfortunately, her typical method of getting jurors to talk about themselves was to ask them about their jobs. Not generally relevant to our case. When a juror did reveal information that was directly on point, such as having a sibling who had been the victim of sexual abuse, the judge was fairly adept at getting the juror to discuss his or her feelings about the experience. The judge also required the attorneys to exercise their peremptory challenges on a juror-by-juror basis. This only hamstrung us a little. I think that we only let on one juror that we might have challenged using a struck system.

I think that the judge was actually fairly pleased with how jury selection proceeded. It went more quickly than she had feared. She also noted that several jurors who had failed to raise a hand in response to a particular group voir dire question ultimately revealed during individual voir dire that he had been holding something back. As a result, on the second day of jury selection, she asked each prospective juror whether, in thinking about the questions over night, he or she might want to change an answer. Many of them did volunteer information at this time, typically about experience with violent crime or sexual abuse. Since pretty much every person who had some experience with such abuse was excused for cause, the increased candor associated with individual voir dire definitely worked in our favor.

This case is about to go to closing arguments. So, I don't know whether we will win. I am confident, however, that we have selected a jury whose members will actually have a meaningful conversation about the relevant issues in the case. I don't think we can ask more much more than that.

I did also score a big victory on another front. While I took on this case as part of the ASTC Pro Bono Initiative, I asked Maryellen to petition the court for state funds for my services (at a substantially reduced rate). The judge actually approved the request. So, to the best of my knowledge, I am the very first trial consultant to receive state funds in Massachusetts. So, if you have a tough case for an indigent client, and you need the help of someone like me, the precedent has been set! Of course, even should the request for funds be denied, our pro bono team is still here to help.

I have two more criminal cases in the pipeline and I'll be sure to report on any progress in bringing Massachusetts criminal procedure into the 21st century.

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