Jury selection and the message of 'Williams'.


Byline: Elizabeth N. Mulvey

The headline looked bad: "Believing justice system biased against black men not enough reason to exclude possible juror from black man's trial, court rules," news feed Universal Hub screamed.

The decision in question is Commonwealth v. Williams (Supreme Judicial Court, Feb. 13), which concerned a juror in a criminal case (involving a youthful-looking African-American defendant) who expressed her opinion during voir dire that the "system is rigged against young African-American males."

As the judge questioned the prospective juror further, she said that her experiences would probably make her look at the case differently. The knee-jerk opinion of many prosecutors and trial judges might be that this juror should be excused for cause; she has clearly expressed a strong opinion that is directly relevant to the case.

Not so fast, said the SJC.

The court in Williams draws the important distinction that "asking a prospective juror to put aside his or her preconceived notions about the case to be tried is entirely appropriate (and indeed necessary); however, asking him or her to put aside opinions formed based on his or her life experiences or belief system is not."

The court noted that the case law in this area is "somewhat muddled regarding the proper procedure for determining impartiality."

The message of Williams is not that jurors' pre-existing opinions, even those such as systemic bias that go to the essence of the jury system, don't matter, but that these jurors must be carefully scrutinized to assess the potential effect of those opinions on jury service.

This scrutiny may take two forms: Just as jurors who hold strong opinions should not be dismissed out of hand unless the opinions are likely to affect the decision-making process, so, too, jurors who profess impartiality should not be blindly accepted without assurance that their strong opinions will not influence their application of the law.

Justice Kimberly Budd's opinion and Chief Justice Ralph Gants' concurrence provide a road map for trial lawyers and judges struggling to separate those jurors who have strong feelings but can nevertheless fairly judge a case, from those whose opinions would cause them difficulty in following the court's instructions or "applying the law."

But as usual, the devil is in the details, and it will fall to those trial judges and lawyers in the first instance to make sure that this important but subtle distinction is recognized...

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