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Articles Posted in 209A Violations

In a domestic assault and battery or 209A trial, jury select can play an important role in achieving a not guilty verdict.  Jurors fill out a questionnaire that provides Criminal Defense Lawyers very little information about them.  Attorney can request a judge to ask additional questions.

The questionnaire that jurors previously had filled out may be used in voir dire to assist the attorneys and presiding judge. However, in the recent case of Commonwealth v. Carvalho the presiding judge declined to ask a juror a question he found redundant. Defense counsel requested that the judge ask the following question of potential jurors: “have you or any family member or a friend requested a No Harassment Order or a restraining order against another person or had a No Harassment Order or a restraining order taken out against you, a family member or a friend?”

A trial judge does have broad discretion in determining how a jury will be selected and which questions will be posed to jury members. However, even with this broad discretion, the judge must ensure that the final jury is fair and impartial. As this case involved violation of a harassment prevention order, the defense counsel wanted to clarify potential jurors experience with harassment orders. Even though the juror questionnaire gives the chance to disclose involvement with the law, there is no guidance for what specifically should be disclosed. Voir dire is supposed to be a chance for counsel to ask jurors more specifically about their questionnaire answers, and to ensure that potential biases have indeed been disclosed. Because of the vagueness of the questionnaire, there should be a chance for further inquiry to ensure that the jury is fair and impartial. In the case of Carvalho, the judge should have granted defense counsel’s request to ask jurors about any personal experience with no harassment orders to give defense counsel a chance to dismiss those jurors with potential biases. Because the judge refused defense counsel’s request, the defendant was not able to ensure that he had a fair and impartial jury.  You may read the Carvalho case on the Massachusetts Lawyers Weekly Website.

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