MA · jury_instructions

Instruction 1.100, Criminal Model Jury Instructions for Use in the District Court

Impaneling the jury

activein force · 2023-08-01 – presentas-observed

IMPANELING THE JURY

The jury venire should be brought in and seated in the spectators’ section.

Court Officer: Hear ye. Hear ye. Hear ye. All persons having business

before the Honorable, the Justices of the ___________ District Court, draw

near, give your attendance and you shall be heard. God save the

Commonwealth of Massachusetts. Please be seated.

Clerk: In the matter of the Commonwealth of Massachusetts versus

______________________: will the defendant(s) please stand. You are

placed at the bar for trial and these good jurors whom I shall call are to

pass between the Commonwealth and you upon your trial. If you should

object to any of the jurors, you will do so after their numbers are called

and before they are sworn. You have the right to challenge two of the

jurors without giving any reason for doing so, and the Commonwealth

has the right to challenge an equal number of jurors. You also have the

right to challenge as many more as you have good cause to challenge.

You may be seated.

The judge should direct the clerk on how jurors are to be seated. They may be seated in the jury box in numeric

order at this stage, or when the individual or panel voir dire process is begun.

In a case to be tried to a jury of six persons, seven jurors must be impaneled although a lesser

number may be impaneled but only upon a finding of cause. G.L. c. 234A, § 68. A trial may

proceed with five jurors only upon the defendant’s express waiver of the right to be tried by a full

jury and the agreement of all parties. See G.L. c. 234A, § 68; Mass. R. Crim. P. 19 (b). The trial

judge must ensure, by way of a colloquy, that the defendant’s decision to proceed with less than

a full complement of jurors is knowing and voluntary. Commonwealth v. Bennefield, 482 Mass.

250, 255-256 (2019). Under Rule 19, the defendant must also file a written waiver with the court.

Mass. R. Crim. P. 19 (b).

Alternate jurors should not be identified until immediately prior to jury deliberations. G.L. c. 234A,

§ 68.

In the case of a juvenile being tried as a youthful offender to a jury of twelve persons, fourteen

jurors must be impaneled. G.L. c. 119, § 56 (e); G.L. c. 234A, § 68. Six jurors are required for a

charge of delinquency. G.L. c. 119, § 56 (e). As in a District Court trial, at least seven jurors must

be impaneled.

At a trial with multiple defendants, “the Commonwealth shall be entitled to as many peremptory

challenges as equal the whole number to which all the defendants in the case are entitled.”

Mass. R. Crim. P. 20(c)(1).

Will all potential jurors please rise and raise your right hands.

Do each of you solemnly swear or affirm under the pains and penalties

of perjury that you will make true answers to such questions as shall be put

to you by the Court in the matter now pending, so help you God? Please be

seated.

If a member of the venire prefers to omit reference to the Deity, they may be sworn by

substituting the words “under the penalties of perjury” for the words “so help you God.” See G.L. c.

233, § 19.

Judge: Ladies and gentlemen, we are about to choose a jury for the trial

of the defendant(s) __________ who [has (have) pled] not guilty to the charge

of __________. To assist you in planning, I will say that we expect to recess

by 4:30 today. If the trial does not conclude today, anyone chosen to be a

juror must return tomorrow. We usually take a lunch break between 1 and 2

o’clock and shorter breaks during the day as may be necessary or

convenient.

Would the prosecutor(s) please stand and introduce (yourself)

(yourselves) to the jury panel? Thank you.

Would the defendant’s attorney please stand with your client and

introduce each of you to the jury panel? Thank you.

Will the potential witness(es) stand when I call your name(s): [Names

and home towns] .

The jury should not be told for which party any prospective witness may appear. Commonwealth v.

Bolduc, 383 Mass. 744, 747-748 (1981); See Jury Trial Manual for Criminal Offenses Tried in the

District Court § 2.14.

Best Practice: A judge should swear in witnesses individually when they are called to the stand to testify. If

witnesses are sworn as a group, jurors may speculate as to why one or more of them did not ultimately testify,

and a witness who was not present may be mistakenly allowed to testify without being sworn.

[If witnesses are to be sworn at this time:]

Do you solemnly swear and/or affirm under the pains and

penalties of perjury that the testimony you shall give in this

matter now in hearing shall be the truth, the whole truth, and

nothing but the truth, so help you God? Thank you. You may be

seated.

Best Practice: The judge may provide a brief description of the nature of the case after conferring with counsel.

[OPTIONAL: If there is to be an attorney or party conducted voir dire, the judge may choose to

instruct the jury on the elements of all, or of the most serious, offense(s) at this point.]

The defendant is charged with __________.

To prove the offense of __________, the Commonwealth must

prove ___ things beyond a reasonable doubt:

[If there are offenses for which the judge does not list the elements, continue here.]

I will instruct you later as to what the Commonwealth must

prove for the other offense(s).

First and foremost, I instruct you that all parties stand as equals before

the bar of justice. All parties are entitled to a fair and impartial jury, that is,

jurors who will: (1) fairly evaluate the evidence; (2) follow the law as

instructed; and (3) render a fair and just verdict based solely on the evidence

presented at this trial.

Jurors, of course, are expected to bring their own life experiences,

thoughts, opinions, beliefs, and common sense to this court and the

deliberation room. Everyone, including me, makes assumptions and forms

opinions arising from our own personal backgrounds and experiences.

These biases or assumptions may have to do with any number of things,

including an individual’s race, color, nationality, ethnicity, age, disability,

socio-economic status, religious beliefs, gender, or sexual orientation. I

instruct you that a verdict must not be based on any such bias, including

conscious or subconscious bias.

Bias, whether it is conscious or subconscious, can affect how we

evaluate information and make decisions. It can impact what we see and

hear, how we remember what we see and hear, how we make important

decisions, and may even cause us to make generalizations or to pre-judge.

While each of you brings your unique life experience with you to court

today, as jurors, you must be alert to recognize whether any potential bias

might impact your ability to fairly and impartially evaluate the evidence in

this case, follow my instructions, and render a fair and just verdict that is

based solely on the evidence presented in this case.

I am now going to ask you to respond to some questions that will assist

us in obtaining a fair and impartial jury. If your answer to any of my

questions is “yes,” please hold up your juror card and the court officer will

read your juror number out loud. At the end of my questions, you may be

called up to the judge’s bench one at a time so that I can talk to you.

[1.] There are four fundamental principles which you must follow in this

case.

The first principle is that the defendant is presumed to be innocent.

The second principle is that the Commonwealth must prove the

defendant’s guilt beyond a reasonable doubt; if it does not, the jury must find

the defendant not guilty.

The third principle is that a defendant has no burden to present any

evidence and has an absolute right not to testify. If a defendant does not

testify, you may not use it against them in deciding the case.

The fourth principle is that the jury must follow the law as the judge

explains it.

Is there any potential juror who does not understand or agree to follow

these four fundamental principles?

[2.] Do any of you know or are you related to the defendant?

[3.] Do you know or are you related to (either) (any) of the lawyers, or a

witness in this case?

[4.] Have you read or heard anything about this case?

[5.] Do you have an interest that would be affected by the result of this

case?

[6.] Have you expressed or formed any opinions about this case?

[7.] Are you aware of any bias or prejudice you have towards either the

defendant or the prosecution?

[8.] Do you know of any reason why you would not be fair and impartial

in this case, or be able to render a true and just verdict, based solely on the

evidence and the law?

[9.] Is there any reason [for example, personal concerns, difficulty with

English, physical or medical concerns, or religious or ethical beliefs] which

might make it difficult for you to be a juror?

If any jurors raise their hands in the affirmative to questions 5, 6 and 7, the trial judge should

inquire further of individual jurors at sidebar after initial questioning of the venire. See Optional

Follow Up Questions to Determine Juror Impartiality at page 10.

The judge must also follow-up on any affirmative responses from any of the jurors, and any other questions thought

appropriate on voir dire (see e.g., optional inquiries 10-21 below). These may be asked either by the judge (see

Section A below) or, if conducting attorney participated voir dire, the attorneys (see Sections B and C below).

General Laws c. 234A, § 67A, requires Questions 1-7 to be posed to the venire upon motion of

either party. It also directs that inquiry be made as to any extraneous issues that might affect

impartiality including community attitudes, prejudicial material, and preconceived opinions toward

the credibility of certain classes of persons. In addition, Mass. R. Crim. P. 20(b)(1) appears to

require the court to pose Questions 1-7 sua sponte, even without request by the parties. The final

question is recommended as a final, summarizing question, but is not required.

As to when individual voir dire of prospective jurors, instead of collective inquiry of the entire venire,

is required, see note 3, infra.

Regardless of the method used, it is strongly recommended that each potential juror be brought to the sidebar prior

to being seated including jurors who did not affirmatively respond to a question and regardless of the voir dire

procedure employed. A brief individual check-in often reveals significant issues not revealed by the statutory

questions including, for example, hearing deficits or previously unidentified language issues.

The judge should make a record if a defendant waived his or her right to be present at the sidebar.

Continue with either Section A (Judge voir dire without attorney participation), Section B (Individual voir dire with

attorney participation at page 12), or Section C (Panel voir dire at page 14).

[INQUIRIES 10-21 ARE OPTIONAL]

Given the potential for some of the following questions to cause jurors to feel discomfort or embarrassment if having

to answer in front of others, consideration should be given to permitting potential jurors to disclose their answers at

sidebar rather than having them raise their card to sensitive questions.

[10.] [POLICE] Would you believe the testimony of a police (law

enforcement) officer either more or less than the testimony of other witness,

simply because the person is a police (law enforcement) officer?

[11.] [EMPLOYMENT] Are you, a close member of your family, or a close

friend employed in an area related to law enforcement or criminal defense?

[12.] Do you believe that if a person is arrested or charged with a crime,

they must be guilty?

[13.] [OUI] It is not a crime to consume alcohol and then drive, but it is a

crime to drive if one is under the influence of alcohol. Would personal,

religious or other beliefs about alcohol make it difficult for you to follow the

law as I just explained it?

[14.] [OUI] Have you, a close family member or close friend been

involved in self-help programs such as Alcoholics Anonymous, Al-Anon, or

Narcotics Anonymous or with a group that is active on issues related to

alcohol and driving such as Mothers Against Drunk Driving (known as

MADD) and Students Against Destructive Decisions (known as SADD)?

[15.] [PERSONAL EXPERIENCES] Have you, a close family member, or

a close friend been charged with [_______________] [a crime involving a

motor vehicle accident] [a crime of violence] [a crime involving dishonesty]

[a crime involving sexual misconduct] [a crime similar to that (any of those)

in this case], or been a witness in, or affected personally by a matter wherein

an individual was so charged?

[16.] [DOMESTIC] Have you, a close family member, or close friend

been involved in a situation with domestic abuse or violence, or with a

related court matter such as a Chapter 209A abuse prevention order?

[17.] [VIOLENCE/SEX] Have you, a close family member, or close friend

ever been employed by, or affiliated with, any organization that counsels or

gives assistance to victims of: [violent crimes] [sexual assaults]?

[18.] [DRUGS] Have you, a close family member, or close friend had any

contact with or concern about prescribed or illegal drugs which would affect

your ability to be fair and impartial or to follow my instructions on the law?

[19.] [HIGH PROFILE] Have you ever read, seen, or heard anything

about this case, the defendant, or the alleged victim(s) in the news media

(that is, newspapers, radio or TV), or from any other source?

[20.] Would the use of a ________ interpreter either make it difficult for

you to concentrate on the witnesses and the content of their testimony or

give rise to any bias or prejudice on your part?

[21.] [TYPE OF CASE] Is there anything about the charge(s) in this case

which would make it difficult for you to be fair and impartial?

[FINAL.] Do you know of any reason why you would not be fair and

impartial in this case, or be able to render a true and just verdict, based

solely on the evidence and the law?

Would counsel [and the defendant] please approach the sidebar?

SUPPLEMENTAL JUROR IMPARTIALITY FOLLOW-UP

1. Setting Aside Bias or Prejudice - If a prospective juror has

indicated that they have expressed or formed an opinion regarding the case,

or has an interest, bias, or prejudice related to the unique situation presented

by the case:

You raised your hand in response to a question I asked

about (opinions) (bias) (personal interest).

Can you set aside that (opinion) (bias) (interest) so as to be

impartial in this case, to fairly evaluate the evidence, and

follow the instructions on the law? Are you sure?

2. Given Opinion or Belief - If a prospective juror has expressed an

opinion or world view based upon his or her life experience or belief system,

the judge should not ask the juror to “set it aside”, but instead ask:

Given your (opinion) (beliefs) (world view), will you be able

to be impartial in this case, to fairly evaluate the evidence,

and follow the instructions on the law?

Commonwealth v. Williams, 481 Mass. 443, 448-449 (2019) (although it was error for

judge to ask juror to “set aside” their belief system or world view, error was not sufficiently

prejudicial to set aside the verdict; critical issue is whether, given their life experiences and

beliefs, the juror can remain impartial.)

INDIVIDUAL VOIR DIRE IN INTERRACIAL OR INTER-ETHNIC CASES

The judge must not pose these questions to the jury unless requested or agreed to by the

defendant. Commonwealth v. Mason, 485 Mass. 520, 524-525 (2020). Upon the defendant’s

request in interracial child sex offense cases, the court must ask these questions individually at

sidebar. See also Commonwealth v. DiRusso, 60 Mass. App. Ct. 235, 238 (2003) (“the

requirement for individual voir dire arises upon the defendant's request for such inquiry; it is not

automatic”). Upon the defendant’s request in any other case, it is within the court’s discretion

whether to allow the request. See Commonwealth v. Colon, 482 Mass. 162, 182 n. 17

(2019). The judge need not determine whether the parties are of different races or

ethnicities. Rather, any distinction can be left to the representation of the parties and resolved by

the defendant deciding whether or not to pursue inquiry into racial or ethnic prejudice. Id. at n.12.

In this case, the defendant and the alleged victim are of different races

or ethnicities. [The defendant is ________ and the alleged victim is _____.]

Are you aware of any feelings based on race or ethnicity which might

interfere with your ability to decide this case fairly and impartially?

Do you understand and accept that the presumption of innocence

applies to all races and ethnicities equally?

This case may also involve the weighing of the credibility of a witness

of one race or ethnicity against a witness of another race or ethnicity.

Might your view of the witness’s credibility or truthfulness be affected

by the witness’s race or ethnicity?

Does the fact that the defendant is of a particular race or ethnicity make

you feel that they are more or less likely to be guilty?

Can you fairly and impartially decide this case without regard to the

race or ethnicity, or the difference in the race or ethnicity, of the defendant

and the alleged victim?

INDIVIDUAL VOIR DIRE IN CHILD SEXUAL ASSAULT CASES

See Commonwealth v. Flebotte, 417 Mass. 348, 355-56 (1994).

Have you been the victim of a childhood sexual offense?

1. Have you or anyone close to you been a victim of sexual abuse?

2. Have you or anyone close to you been accused of sexual abuse?

INDIVIDUAL VOIR DIRE IN LACK OF CRIMINAL RESPONSIBILITY CASES

See Commonwealth v. Seguin, 431 Mass. 243, 249 (1995). In Commonwealth v. Ashman, 430 Mass. 736,

740 (2000), the Supreme Judicial Court declined to expand the Seguin rule to cases in which evidence of

mental illness or mental impairment is presented, but left the determination of whether to engage in

individual voir dire to the judge's discretion.

Do you have any opinion that would prevent you from returning a

verdict of not guilty by reason of insanity if the Commonwealth fails in its

burden to prove the defendant was criminally responsible at the time of the

offense?

OPTION A. JUDGE VOIR DIRE WITHOUT ATTORNEY PARTICIPATION

[After inquiring as to the statutory questions and any others deemed appropriate, challenges for cause are to be

made at this time.]

Best Practice: After conducting an individual voir dire, the judge should hear and act on challenges for cause,

make a finding that the jurors are indifferent, and then proceed to peremptory challenges. Challenges for cause

should be made out of earshot of the juror.

At sidebar: Please keep your voices down so that the jury does not

overhear. Are there any challenges for cause?

At this point the Commonwealth should exercise any challenges for cause. If any seated juror is excused, that juror

should be replaced with the next numbered juror. When the Commonwealth is satisfied, the defendant should then

exercise any challenges for cause. The judge should hear any additional challenges for cause as potential jurors

are excused and replaced. Once all challenges for cause have been resolved, the judge should make a finding that the

panel is indifferent. The parties may then exercise their peremptory challenges.

Massachusetts R. Crim. P. 20(c)(1) provides that in a case to be tried to a jury of six persons, each

defendant is entitled to two peremptory challenges. In the case of a juvenile charged with

delinquency in which the Commonwealth has proceeded by indictment, the juvenile is entitled to a

jury of twelve persons, G.L. c. 119, § 56(e), and each accused juvenile is entitled to four peremptory

challenges (or in the case of a life felony, twelve peremptory challenges plus one additional challenge

for each alternate juror impanelled). It is undecided whether a judge may discretionarily allow

additional peremptory challenges. See Commonwealth v. Lattimore, 396 Mass. 446, 450 (1985).

Best Practice: Do not require the parties to exercise peremptories until an indifferent panel has been seated.

Although not required, the Court should direct the Commonwealth to use its peremptory challenges first and until it

is content with the panel. The Court should then require the Defendant to exercise their peremptory challenges.

When the defendant is content, return to the Commonwealth to exercise any remaining challenges, but only as to

jurors who have been seated subsequent to the Commonwealth’s last challenge. Continue until all parties are

satisfied or all peremptories have been used. Once a party is satisfied, that party may not later challenge a juror

with whom he (she) was previously satisfied.

I find the panel stands indifferent.

Does the Commonwealth have any peremptory challenges?

Here the Commonwealth should exercise its peremptory challenges, and any challenged jurors should be replaced.

“The Commonwealth shall be entitled to as many peremptory challenges as equal the whole number to which all the

defendants in the case are entitled.” Mass. R. Crim. P. 20(c)(1). When the Commonwealth ceases to challenge:

Does the defendant have any peremptory challenges?

Here the defense should exercise its peremptory challenges, and any challenged jurors should be replaced.

If any jurors have been excused upon the defendant's challenge and replacements seated:

Is the Commonwealth content with the new jurors who have

been chosen?

It is common practice that the Commonwealth may challenge only the newly-drawn jurors. If the

Commonwealth does so and is satisfied:

Is the defendant content with the new jurors who have been

chosen?

It is common practice that the defendant may challenge only the newly-drawn jurors. If the

defendant does so and is satisfied:

This alternating procedure should be continued until both parties are content or have exhausted

their peremptory challenges.

[Continue on page 20.]

OPTION B. INDIVIDUAL VOIR DIRE WITH ATTORNEY PARTICIPATION

After inquiring as to any responses a juror had to the judge’s questions of the entire venire, the judge should permit

the attorneys to ask questions of each juror at the sidebar in accordance with District Court Standing Order 1-18:

Voir Dire Protocol and Addendum A (Panel Voir Dire) regarding best practices. Each juror not excused for cause

should be seated in the jury box.

Best Practice: After an individual voir dire of a juror or jurors, the judge should hear and act on challenges for

cause, make a finding that the jurors are indifferent, and then proceed to peremptory challenges. Challenges for

cause should be made out of earshot of the juror.