The Voir Dire Debate

Voir dire is the process whereby potential jurors are questioned before they are selected, to probe for biases that might impair their ability to impartially judge the facts. Voir dire has been described in a “Law Day” outline of the American Bar Association, as “one of the most important aspects of any trial.” Massachusetts is one of only a few states in the country in which voir dire is not conducted by the attorneys.

Attorney-conducted voir dire is an important trial skill. A seasoned attorney not only attempts to discover bias, but also to give the potential jurors an overview of the attorney’s case. This must be done subtly, since overt argument is not permitted. The attorney also has the opportunity to gain a rapport with his future jurors, before the formality of the trial itself. The importance of voir dire becomes apparent in cases such as medical malpractice or products liability cases, in light of the decade-long campaign of business and medical professional lobbies to convince people that these cases are bad for the economy and the country.

While Massachusetts attorneys can recommend questions for the judge to ask the jurors, the judge retains discretion over what questions to ask and how to word them. Voir dire by most judges tend to be dry and perfunctory affairs. Most jurors, when asked, “are you biased against medical malpractice plaintiffs?” will answer, “no,” regardless of their true beliefs. When attorneys can engage in a more thorough and less direct dialogue, bias is more likely to be uncovered. Unfortunately, most Massachusetts judges opposed attorney voir dire. Whether their motive is control or the often stated rationale that too much time will be consumed by the process, is unclear. While most trial attorneys would like the ability to conduct voir dire themselves, change in Massachusetts is unlikely any time soon, as Massachusetts’ budget for the judiciary is inadequate. When courts struggle to keep up with existing caseloads, changes that add process are usually not high on anyone’s list.