The Massachusetts Supreme Judicial Court allows a juror to sit who was equivocal on whether the jury could be fair and impartial in a case of sexual assault on a child.  You wouldn’t loan money based solely on a borrower’s promise to make payments “to the best of their ability.” A relatively equivocal statement such as this can be sufficient to establish the impartiality of a prospective trial juror. The recent decision in ​Commonwealth v. Rios,​ No.17-P-690,Mass.App.Ct.(November12,2019)(slipop.),illustrates that the credibility of the statement of fairness is equally as important as the statement’s verbiage when determining the impartiality of a prospective juror.

It is without question that individuals charged in criminal matters have a right to have their case heard by an impartial jury. Thus, trial courts have an obligation to ensure that prospective jurors can remain impartial prior to being selected to serve in a particular case. “[A] juror may not stand indifferent” when concerns arise that a prospective juror may make decisions based on issues extraneous to the case. ​ And it is an abuse of the court’s discretion to “empanel a juror who will not state unequivocally that he or she will be impartial.” ​Commonwealth v. Colton,​ 477 Mass. 1, 17 (2017).

Ruling in the Rios Case

Rios ​again demonstrates, however, that the verbiage used in the statement of impartialityisnotdeterminativeofajuror’sbias. In​Rios,​ the defendant was charged with multiple counts of sexual assault against a child. During jury selection, a prospective juror indicated that she was the victim of a violent crime and was the mother of young children. She initially stated she would “try” to be impartial, but was unsure of the effect her prior experiences would have on her. When pressed further by the trial court, the juror would only commit to be fair and impartial to “the best of [her] ability.” Although the defense challenged her for cause, the trial court rejected this challenge, and the defense was required to use a peremptory challenge to excuse the juror.

This decision illustrates that trial courts will accept statements of impartiality by prospective jurors that are arguably equivocal. “It is well settled that a potential juror’s use of seemingly equivocal language is not determinative of the juror’s ability to be impartial.”Commonwealth v. Bannister,​ 94 Mass. App. Ct. 815, 827 (2019). Accordingly, the true test of impartiality is not the words of the juror’s commitment, but the credibility of the statement as determined by the trial court. ​See Commonwealth v. Leahy​, 445 Mass. 481, 497-499 (2005) (noting that jurors need not be excused unless “solid evidence of a distinct bias” appears).

To successfully challenge a trial court’s refusal to excuse a prospective juror for cause, trial lawyers must make a sufficient record of bias and demonstrate prejudice. Practitioners should ensure that the trial court makes an inquiry “ that could be reasonably expected to determine impartiality.” ​Commonwealth v. Auguste,​ 414 Mass. 51, 57-58 (1992). The court “may include a brief statement of the facts of the case” if it is helpful to the impartiality determination. ​See​ General Laws c. 234, § 28, second par. However, the parties must ensure

that the record clearly identifies whether a juror’s bias is based on the juror’s belief system, which is improper, or is a bias that arises from the facts of the case, which is proper. ​See​ Rule 6 (4) (h) of the Rules of the Superior Court (2017).

Finally, trial lawyers should be mindful that the record must demonstrate prejudice by the court’s refusal to excuse a juror for cause. Typically, prejudice is shown “by the use of a peremptory challenge to remove the juror who allegedly should have been excused for cause together with evidence that the defendant later was forced to accept a juror he would have challenged peremptorily but was unable to because his peremptory challenges had been exhausted.” ​Commonwealth v. McCoy​, 456 Mass. 838, 842 (2010). As such, practitioners will need to weigh the use of challenges for cause to ensure the issue is preserved for appeal, against the need to empanel a jury that affords the best opportunity for success at trial.

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