Evolution of the Massachusetts Jury System: An Object Lesson
Once upon a time . . .
Well, for a start, I live there. So that’s what I know is what happens here.
But from the perspective of posting an article on an education-related site in a category of paralegal/legal there is the matter of this little thing known as “precedent.” That should be one of the first terms you learnt about in pursuit of your legal training.
Back in the day, things were quite different here from what they’ve now become. The jury system evolved over time, and along the way Massachusetts’s approach to jury trials set precedents. More than one.
I don’t know the factor or combination of factors that initially prompted the changes in order of occurrence or whether they kind of coalesced at about the same time. I may have been as old as a teenager at the time, but indeed I may still have been a child. The point is that there was one jury system once. And, at least in Massachusetts, today that system is long gone. For whatever reason or reasons, somewhere along the way the folks responsible for figuring these things out did indeed figure out that if the purpose of the justice system actually was justice, the in-place system was a self-defeating one.
While I never quite got straight how the initial changeover got underway to start, and don’t recall from personal experience, start to come about it indeed did. To my best understanding the initial switcheroo had to have been classified as revolutionary rather than evolutionary. Since then, the system has continued to gradually evolve to share the burdens as equitably and palatably as the state can manage to make it.
So. How was it back then?
‘Back then’ things were different not just in the jury system but in the ways of the world in general. In particular, the world of business was very different then. Also in particular, so were the demographics of the citizenry. Back then, there were far fewer holders of college degrees or higher per capita than there are today. Back then, it was actually common to have entire extended families in which not a living soul held a college degree. Back then, there were still places . . . especially in small towns . . . where the anchor business in town was still production line manufacturing. Back then, the only sources of news were the community newspaper, limited newscasts on three network television channels, and the odd radio newscast when someone felt like tuning into it. (Unless you count church society and over-the-back fence gossip, and that either dealt with strictly local matters or else springboarded off of the aforementioned sources for regional, national, or international news reports.)
Overall, what that shall we say ‘global’ environment, in terms of the jury system, constituted was that the environment acted as an enabler. Although that’s too far back in the mists of history for me to assess, I suspect that THIS earlier system was preceded by another REALLY way back when, with some similarities to today’s system. And not doubt some differences, also. If I had to guess, I’d say that the from-my-viewpoint ‘old’ system came into being during one of the two World Wars; sometime between them; or at latest very soon after the Second World War ended and came about through perceived necessity.
So, as to the jury system, how were things ‘back then’?
Back then, Massachusetts had what eventually came to be known as “the professional juror system.” Unfortunately, a part of the reason for this involved a certain timidity among lawmakers and law enforcers in terms of enforcing upon constituents necessary civic duties. Constituency, here, referring both to individual citizens who might serve as jurors and to business owners and operators who employed those potential jurors. Effectively, lawmakers took the path of least resistance and determined that while many businesses and individuals would never willingly serve on a jury (for individuals), or part with their employees for jury service especially over an extended interval (for business owners), there was also a small segment in both instances who would voluntarily do so.
By the end of the life cycle of the ‘old’ system from today’s perspective, what Massachusetts had was a group of jurors who were willing to serve, whose employers were willing to release them for relatively long intervals of time, who had gone through some level of screening process, and who served in rotations for several months at a time in recurrent stints about 5 or so years apart. Of course, one practical problem was that employers could release the employees but not pay them and unless they were retirees they still had financial obligations that required compensation of some kind. So the state paid them instead.
Okay, class. Does anyone detect a problem(s) with this system?
You could probably get enough material out of answering that question for every term paper in every legal-related class from freshman to senior. Remember the point about demographics and college degree ratios per capita? Well, guess what. As more people got edumacated that way and learned about . . . even in general courses . . . jurisprudence principle, they started to question the value of that old style of jury system.
Eventually, someone figured “it” out. Only there are a whole bunch of “it”s going on, here.
Someone . . . more than likely a wide range of someones . . . eventually blew the whistle.
For a start, a jury pool drawn only from a very small, very limited subset of the citizenry does not “a jury of one’s peers” make. Secondly, recurrent, extended, rotating juror service ended up with the serving jurors in effect becoming a part of the court system itself rather than civilian counterbalances to potential excesses or shortfalls. Third, extended service spanning multiple trials afforded the jurors familiarity with attorneys and judges that undermined objectivity. Fourth, during the term of service, the jurors effectively became temporary employees of the state: a clear conflict of interest. There may have been additional flaws, but those four are the crucial ones. Clearly the “professional juror system” had to go. But that posed its own problems.
Indeed, in modified form, two aspects of the old system still exist in today’s system. It’s possible, though unlikely, for a juror to get impaneled such as to serve for weeks or on rare trials even months. However, it cannot be multi-trial, extended service in today’s system. Extended service occurs only if a single trial lasts for an extended interval. Secondly, if a juror does serve on an extended trial, the juror does receive a stipend from the state. In the current system, the employer is required to pay their employee/serving juror for the first three days of juror service. On the fourth day the state starts paying a stipend. Since the vast majority of trials last three court days or less, requiring employer payment for the first three days dramatically reduces the “state employee” impact.
Having determined that the professional juror system had to go, the state, knowing it faced an uphill battle, got smart.
The citizenry and businesses had long been used to a small, elite group carrying the load of the jury system. Now more people would be required to pitch in. Undaunted, the lawmakers and judiciaries of the time decided to seek innovations that would make that sea change as palatable as possible. They searched high and low to find ways to limit the inconvenience involved. In the process, the state of Massachusetts overhauled the entire existing jury system and as a part of that set precedents in terms of jury functioning. That’s precedents. Plural.
Effectively, the system decided to do some reforms of itself as a part of the system overhaul. One of the facets it tested was whether or not a 12-person jury was actually always a necessity. Eventually, the state determined it was not, and thus significantly lowered the need for jurors over any given interval of time by going to a six-person jury model for most trials. Pilot evaluation had shown that verdict accuracy was, in most trials, comparable to that of 12-juror juries.
Here’s how the Massachusetts jury system looks today.
Random selection based on county of residence. I’m on less sure ground, here, but I’m fairly certain that ‘back then’ jurors could serve in counties other than county of residence and might, indeed, serve in more than one county during their multi-trial months of service. Today, you serve in your county of residence.
Six-person jury model. Some Massachusetts jury trials still use a 12-person jury but most of those are at the Superior court level. A rare 12-person jury may appear on a district court docket, but there’d have to be a good reason(s). Six-person juries can have 0, 1, or 2 alternates also empaneled.
Option for rescheduling within certain parameters. Presumably to allow for things like business trips and higher education students scheduling during semester breaks, by contacting the Jury Commissioner a summonsed juror can reschedule at a more convenient time before the summonsed date assuming enough lead time to do so and also assuming that the requested date aligns with anticipated court needs or up to one year after the original summons date.
The three-year rule. Along with the six-person jury, this innovation was a real coup for the state. With random selection, any particular citizen could conceivably never get summonsed over the course of a lifetime although that’s rare. Most people I know in the age range have had at least one juror summons under the new system during the course of their lifetime. Also, conceivably, although also unlikely, a particular individual could get summonsed frequently if the state placed no limitations. In order to keep the new system functioning in such a way as to spread the load as broadly as possible, when the state implemented the new system it included regulations that specified than any individual can serve no more than once . . . even if s(he) would be willing to volunteer to do so . . . within the course of three years, although to my best understanding one could within that same three years potentially be summonsed to jury service in a federal court operating within Massachusetts. This factor has importance because it serves both to restrict the frequency of citizen disruption to any particular individual for recurring service; and serves to ensure a sufficiently broad random rotation to more accurately allow empaneling juries composed of “peers.” If I correctly recall the materials I’ve heard and seen on juror service in Massachusetts, the state actually made it illegal for citizens to deliberately attempt to serve again within the three-year interval after prior juror service.
The three-year rule is state-wide, meaning that if you move within the state within that three years, and that involves moving to a different county, you cannot serve on a state-level jury in the new county, either.
The one-day, one-trial system. In today’s Massachusetts system, you either serve . . . if empaneled . . . for the course of one trial; or you serve one jury pool day or part thereof until the court decides it has fulfilled its juror empanelment needs for the day; at which time the court releases all remaining potential jurors. Provided you show up timely, report to the pool, go through the little educational session required, and are prepared to serve should you be empaneled, you get certified as having fulfilled your 3-year obligation even if you are randomly released an hour after the court day starts.
Streamlining of court process. One of the effects of the newer system is that it obligated judges to become much less lenient in jury trials, with attorneys. Today’s Massachusetts judges, for the most part, tolerate very little from attorneys that might be regarded as theatrics, shenanigans, or grandstanding. Judges expect jury trials to proceed straightforwardly, on point and on target. As a net result, by far the majority of jury trials in Massachusetts last three court days or less. Judges have been known to declare mistrials simply on the basis that based on the apparent merits of a case, the trial would otherwise last longer than the judge regards as appropriate.
Option for voluntary service. Provided an individual juror has not served within the past three years as a juror on a state-level trial anywhere in the state, s(he) can voluntarily serve in the jury pool at any court in her or his jurisdiction on any day that the court has a jury pool schedule, which you can find out by a phone call to that court usually up to a week or so before but the closer to the preferred service date the better because on any given day the outcome of the court day could change anticipated upcoming needs. Besides formal rescheduling, this is also another way a potential summonsed juror can make the service fit more conveniently into his/her lifestyle. Let’s say, for example, a college student is summonsed about 3-4 months in advance and the original service date is about three weeks into the winter/spring semester. The college student can avoid missing classes and other student activities by choosing some dates during the holiday break and finding a day that the court will have a jury pool, and just attending on a walk-in basis and being mentally prepared to serve on a trial should the student get selected for such a jury. There’s an outside chance of getting empaneled onto a jury that serves long enough to cut into the semester after all, but it’s improbable. Again, most jury trials at district court level in Massachusetts last three days or less. A typical scenario is empanelment in late morning or early afternoon, most or all of the evidence being presented on the first court day, sometimes going to deliberation before the end of the first court day, if there is still evidence at the end of the first court day a usually brief evidence presentation and closing statements first thing on the second court day, deliberations on the second court day either immediately after the final evidence and closing statements or a continuation of deliberation from the first court day, and very often rendering of and acceptance by the judge of the verdict by around lunchtime on the second day.
Summonsed potential jurors must serve within the parameters of the legal rescheduling options, within a certain age range and with certain very limited exceptions for disabilities that would prevent functioning as a juror, by no later than a year after the original summons date, unless the potential juror receives a subsequent notice that cancels the summons because court needs have changed or unless through some fluke the individual has been summonsed despite having served within the last three years. Failure to do so carries potentially heavy penalties.
Employers must release summonsed jurors and pay their wages for the first three days, although an employer can wait for documentary evidence of juror service before issuing the wages for jury service days. Should the trial run into a fourth day and longer, the state pays a stipend. Employers are not supposed to interfere in any way such as direction on if, how, or when an employee chooses to reschedule service which is a decision to be made solely at the discretion of the individual summonsed to service. Any interference attempt by an employer is considered a form of jury tampering, and for an employer a potential penalty is loss of licensing to operate a business within the state.
Massachusetts was the first state in the Union to implement both the six-person jury model and the one-day/one-trial system. Other states have followed this example, since, however. Others have used modified systems based on the Massachusetts system but that better serve the needs of the individual state. (For example, Rhode Island has variable protocols depending on county some of which use the one-day one-trial system, but others use a two-day base and allow for service on more than one trial.)
The state has made adjustments along the way. In the early days of randomized selection, the state tended to vastly overrate its needs and-or had yet to accurately anticipate those needs in advance. In the early days, large quantities of potential jurors got what was known as ‘standby’ summonses. This meant they had to call an automated line after the close of court on the preceding court cay to find out if indeed they had to report. Eventually the state found out this was not a prudent element to the one-day, one-trial system. The standby system aggravated jurors and employers all over again by leaving everyone in the lurch until the last minute. Additionally, the state realized that there was a jurisprudence advantage in having more than an adequate number of juror candidates physically present at the courthouse. Within the courthouse, observers noted that on days that coincidentally they had a high number of available juror candidates, the ratio of pre-court mediated settlements or at least the case going forward to a non-jury trial spiked up in comparison to days when the jury pool had a lower ‘overflow’ condition. When the state put two and two together that physical presence of jurors for possible empaneling for multiple trials encouraging settlements and the disruption of the standby summons process meant over-summonsing for what me might call an ‘extended jury pool’ made a degree of oversummonsing an advantageous practice, the state refined the process. Today, you’ll still see an occasional standby summons, especially in fairly large courts, but it’s rare.
One outcome of the history of this at-one-time radical change from one system to the other is that today’s court personnel, generally speaking, are ferocious in their assertion of the value of juror service even if one gets only as far as the pool and is not empaneled onto a jury. Jury pool officers take their responsibilities seriously and are highly protective of the jurors and the integrity of any jury. As mentioned, the judges take a hard line with attorneys in jury trials as to any potential sidetracking. They, of course, expect the attorneys to present the full scope of admissible evidence and realize that attorneys may miscalculate what is and is not admissible in some instances, but they do not tolerate deliberate use of tactics of questionable value. The last thing any Massachusetts attorney wants in a jury trial is a judge’s “Do NOT waste the jurors’s time” glare.
Courts look for ways to ease the jurors’s experience. Some courts for example have contracted with canteen truck operators to come in so that jurors can buy a coffee and snack right about the time the educational portion of the program ends which is usually also a time that they just about finish their ‘coffee break’ when selections for potential empanelment begins. No passersby are allowed near the trucks while jury pool members are served, and God help anyone who doesn’t comprehend or respond to a jury pool officer’s order to step back and await the completion of juror orders before attempting to obtain service for themselves: such passersby are risking getting themselves shot or arrested as potential jury tamperers.
Judges often request a few final moments with the jury after a verdict has been delivered and accepted, just to thank the jurors for the service. The state is continually on the lookout for ways to improve juror service experience.
As a law student, which system would you prefer to operate within: the old “professional juror” system or today’s “one day/one trial” system?
As a potential party in a legal matter, I know which one I’d prefer.
The Massachusetts Jury System website, http://www.mass.gov/courts/jury/index2.htm
Rhode Island Judiciary website, http://www.courts.ri.gov/JuryService/default.aspx