Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

7.7. PREPARING EXHIBITS

REVIEW SUPRA SECTION 3.6: ASSESSING PHYSICAL EVIDENCE

Consider:

• 
  Diagrams, Charts, and Chalks
  

of the scene of the crime in general

of the locations of blood samples, weapons, or other evidence

of the victim’s body

locating bruises and injuries

of timelines

to show cycles of violence, appeasement, tension building in a relationship; or to show the sequence of events surrounding a crime; or to clarify the defendant’s opportunity to commit the crime

• 
  Photographs
  

of the victim: if she is not testifying, any picture

of the victim: bruises, injuries

of the defendant

of the crime scene

• 
  Weapons, Items Used as Weapons
  
• 
  Items from the Scene
  

clothing

anything broken, damaged, or moved (e.g. the phone that was ripped from the wall; the pieces of the vase that were thrown at the victim)

• 
  Personal Property
  

letters, packages, gifts, personal effects and other items that can help you prove identity, opportunity, motive, timing issues, or the cycle of violence within the relationship

• 
  Clothing
  
• 
  Test results, forensics
  

7.8. IMPANELING THE JURY; VOIR DIRE

The procedures for impaneling the jury are set forth in Mass. R. Crim. Proc. 20. Generally the voir dire is examined on oath as a group to determine if any of them are related to either party, have any interest in the case, have expressed or formed an opinion, or are sensible of any bias or prejudice. Jurors are then called until a full number is seated. Excuses (I can’t leave work; I am sole care taker of my pet iguana, etc.) and challenges for cause are then considered. Finally, peremptory challenges are exercised -- first by the Commonwealth, and then by the defendant.

7.8.1.Challenges

• 
  To the Array
  

Either party may challenge the array by a motion for appropriate relief pursuant to Rule 13(c), on the ground that the prospective jurors were not selected or drawn according to law.

• 
  For Cause
  

Prospective jurors may be questioned to learn whether they are related to either party, have any interest in the case, have expressed or formed an opinion, or are sensible of any bias or prejudice. The prospective juror may be examined about extraneous issues if it appears the issues may have affected the juror’s impartiality. Either party may challenge for cause. The burden is initially on the party seeking to challenge for cause to demonstrate that such cause exists. Reynolds v. United States, 98 U.S. 145, 157 (1879). The judge then determines whether the challenge is proper -- whether the reason for the challenge would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424 (1985). In doing so, the judge is accorded wide discretion. Commonwealth v. Latimore, 396 Mass. 446, 449 (1985). The judge has the duty, so far as is possible, to see that a fair-minded, unprejudiced jury is provided for the trial of the case. Commonwealth v. Galvin, 323 Mass. 205, 213 (1948). The judge has wide discretion in determining whether or not to seat prospective jurors who indicate that they have some information, opinion or feeling about the case but assure the judge that they can hear it impartially. Commonwealth v. Wilborne, 382 Mass. 241, 254 (1981), Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978).

• 
  Peremptory
  

Each defendant is entitled to twelve peremptory challenges in a capital case, four in all other criminal cases before a jury of twelve, and two before a jury of six. The Commonwealth is entitled to “as many peremptory challenges as equal the whole number to which all the defendants in the case are entitled.” Mass. R. Crim. P. 20 (c) (1). The Soares test (see infra section 7.8.3, Improper Exclusion by Race or Gender) prohibits the use of peremptory challenges to exclude prospective jurors solely because of their sex, race, color, creed, or national origin. Commonwealth v. Soares, 377 Mass. 461, 486-489 (1979). There is no constitutional basis for challenging the exclusion of young persons, Commonwealth v. Samuel, 398 Mass. 93, 95 (1986); Soares does not prohibit the exercise of peremptory challenges based on age. Commonwealth v. Wood, 389 Mass. 552, 564 (1983).

7.8.2.Required Voir Dire

When requested, individualized voir dire of prospective jurors is required in three situations:

1. 
   Trials involving interracial sexual offenses require individualized questioning as to possible racial bias. Commonwealth v. Sanders, 383 Mass. 637, 640-41 (1981) (interracial rape).
   
2. 
   In cases involving sexual offense against a minor, the court must inquire whether each juror was a victim of a childhood sexual offense. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
   
3. 
   Where the defendant indicates he may be offering an insanity defense, the court must inquire whether each juror has any opinion which would prevent him from returning a verdict of not guilty by reason of insanity. Commonwealth v. Seguin, 421 Mass. 243, 249 (1995).
   

Outside of these three situations, a trial judge has discretion to decide whether the circumstances of a particular case require an individualized voir dire. Individualized voir dire as to possible prejudices based on ethnic, as distinguished from racial characteristics, is possible but is not required. Commonwealth v. De La Cruz, 405 Mass. 269, 274 (1989) (Hispanic defendant, white victim).

If racial issues are “inextricably bound up with the conduct of the trial,” the Sixth Amendment requires inquiry into racial bias on general voir dire. Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981) (plurality opinion)

7.8.3.Improper Exclusion by Race or Gender

Neither the defendant nor the Commonwealth may use peremptory challenges solely for reasons of race, color, gender, religion, or national origin; such a practice violates articles 1 and 12 of the Declaration of Rights. Commonwealth v. Soares, 377 Mass. 461, 486, 489 n.35 (1979). Also, under equal protection analysis, excluding a juror on the basis of gender or race is improper as it implies the juror holds stereotypical views assumed to be common to the juror’s group. See Batson v. Kentucky, 476 U.S. 79, 82-84 (1986). Peremptory challenges based on how a juror looks or a prosecutor’s “gut” feeling are rarely adequate because they can easily be pretexts for discrimination. Commonwealth v. Maldonado, 439 Mass. 460 (2003).

“The Commonwealth is equally entitled to a fairly selected and representative jury, and may challenge a defendant’s exercise of peremptory challenges, if it appears that the goal of obtaining a representative jury is being purposely thwarted.” Commonwealth v. Fruchman, 418 Mass. 8, 13 (1994). If you feel the defendant is improperly excluding potential jurors:

1. 
   You must make a prima facie showing of a discriminatory motive, by demonstrating a “pattern” of excluding members of a discrete group and the likelihood that membership in that group is the basis for the challenge. Commonwealth v. Harris, 409 Mass. 461, 467 (1991).
   

2. 
   If the court finds you have made the requisite prima facie showing, the defendant will have to provide a race or gender neutral explanation for the challenge. Commonwealth v. Vann Long, 419 Mass. 798, 807 (1995). The explanation must be “clear and reasonably specific,” Batson, 476 U.S. at 98 n.20, but a “‘legitimate reason’ is not a reason that makes sense, but a reason that does not deny equal protection” Purkett v. Elam, 115 S. Ct. 1769, 1771 (1995). The explanation need not rise to the level of a challenge for cause, but it must be based on a juror characteristic other than race or gender, and the explanation may not be pretextual. Commonwealth v. Young, 401 Mass. 390, 401 (1987).
   

3. 
   The court will decide if you have proven purposeful discrimination. If the court sustains your challenge, the remedy is in the court’s discretion. The struck juror may be reinstated, or the venire may be quashed and started again. See Commonwealth v. Fruchtman, 418 Mass. 8, 15 (1994). If improperly challenged jurors have already been excused, the judge must obtain an entirely new venire, because the objecting party is entitled to a random draw from a venire that has not been even partially stripped of members of a cognizable group by improper peremptory challenges. Comm. v. Hutchinson, 395 Mass. 568 (1985).
   

7.8.4.Jury Selection / Sample Voir Dire Questions

Jury selection is a controversial topic. Some prosecutors feel it is a critical element which greatly affects the outcome of a case; these prosecutors often have theories about which categories of people make strong or weak jurors in particular cases. Other prosecutors believe a prosecutor should basically take the jury as it comes -- let the judge ask the routine questions to excuse jurors for cause, and accept the luck of the draw out of those remaining. And of course, there are those who fall between these extremes.

Consequently, there are varied approaches to the matter of prospective voir dire questions. Some ADAs proactively submit a multitude of proposed questions and aggressively seek individual voir dire on a number of issues; some ADAs wait and submit proposed questions only if the defense counsel does so first; some ADAs avoid the process altogether. You will have to develop your own approach in your domestic violence and sexual abuse cases -- perhaps after observing trials, participating in trials, discussing jury selection issues with colleagues, reading some of the ever-increasing number of books and journal articles on the subject, and digesting your office’s training and protocol sessions.

Whatever approach you adopt, assume that a few general objectives should apply across the board to the jury selection process: you should use the opportunity to explore potential jurors’ attitudes on domestic violence and sexual assault, you should use words to re-educate them about domestic violence and sexual assault, and you should explore their backgrounds and probe for bias.
Of course, you must try to tailor your jury selection to the individual nature of your case. For example, a strong juror in a “stranger” rape may be a weak juror in an incest case. And you need a bit of clairvoyance to be able to decipher both verbal and non-verbal clues, such as body language, facial expressions, manner of dress, and the reading materials and personal objects brought to court.
Keeping all of the above caveats in mind, if you do choose to submit proposed voir dire questions for the court’s consideration, you may wish to select some from the following list.

Sample Voire Dire Questions
General Questions

• 
  Have you ever been involved in a physical altercation?
  
• 
  Have you ever had occasion to call the police for your own protection from physical violence? Do you know anyone who has had to do this?
  
• 
  Do you believe that a verbal argument before physical violence justifies the use of physical violence?
  
• 
  Do you have strong feelings about the use of violence?
  

• 
  Have you or anyone close to you ever been arrested or stopped by the police? If so, what was the disposition of the case? Do you believe the person was treated fairly by the police and the criminal justice system in general?
  
• 
  Have you or any member of your family, or any close friend, been involved in a dispute in which the police have been called?
  
• 
  Would you be able to objectively evaluate the testimony and credibility of police officers in this case?
  

• 
  In evaluating your own ability to judge a case such as this fairly, do you feel you have any stereotypes in your mind of who commits violent acts and who does not?
  

Specific Questions About Domestic Violence

• 
  Do you feel that family problems that lead to violence should be handled in the home, and not in our criminal courts?
  
• 
  Do you feel that prosecuting crimes that occur in the home, among domestic partners, is a waste of the taxpayers’ money?
  
• 
  Do you feel a person has a right to use physical force on his spouse or companion?
  
• 
  Do you think that the law allows family members to hit or punch other family members?
  
• 
  Do you think that violence that occurs between family members should be treated differently from violence that occurs between strangers?
  
• 
  Do you think society should be any more concerned or any less concerned about prohibiting violence between people who know each other than between people who are strangers?
  
• 
  Do you think that an assault in a kitchen is different from an assault in the street?
  

• 
  Have you ever experienced fear due to apprehension of violence?
  
• 
  Have you ever been abused or struck by your spouse or partner?
  
• 
  Have you ever abused or struck your spouse or partner?
  
• 
  Have you ever known a victim of domestic abuse -- a victim of abuse from a spouse, or from a girlfriend or boyfriend, or from a relative?
  
• 
  Have you ever known a domestic abuse offender?
  
• 
  Have you ever heard what you believe was a physical altercation taking place at a neighbor’s home? If so, did you call the police?
  
• 
  Have you ever had occasion to call the police for your own protection from domestic violence?
  

• 
  Would you have any negative feelings toward a witness because she (he) is testifying against her husband (wife/partner)?
  
• 
  Do you believe a woman should stay married to a man who is physically violent to her, since he is her husband?
  
• 
  Do you think a person who is being abused has an obligation to leave a violent relationship?
  
• 
  If a person is abused and does not leave the marriage (relationship), does that factor make the abuse less grievous or more tolerable?
  
• 
  If a wife (husband/partner) is abused by her husband (wife/partner), but she does not report the abuse to the police, does that factor make the abuse less grievous or more tolerable?
  

• 
  Do you believe that in a marriage (relationship) the wife (one partner) must be obedient or submissive to the husband (the other partner)?
  
• 
  Would you have negative feelings about the defendant or alleged victim because they live(d) together in an intimate relationship but are/were not married? Or because they have children together but have never been legally married?
  
• 
  If evidence is presented that convinces you beyond a reasonable doubt of the defendant’s guilt, would it be difficult for you to follow the law and convict the defendant because of your religious or philosophical beliefs?
  

• 
  Do you believe the Commonwealth should not prosecute if the victim is not present in court to testify?
  
• 
  Do you have any feelings that the government should not have the right to prosecute a case if the victim does not want the government to do so?
  
• 
  Are you familiar with the phrases, “The victim dropped charges” and “The victim pressed charges”? Do you understand that it is the Commonwealth of Massachusetts, not the victim, prosecuting the defendant for these crimes? Do you understand that a victim cannot “drop charges” or decide “not to press charges”?
  
• 
  Do you agree that the Commonwealth has a responsibility to prosecute persons who cause violence in the home even though the victim -- whether out of loyalty or love or fear or persuasion -- does not want to proceed?
  

Specific Questions About Sexual Assault

• 
  Do you have any notions about how a person would act when confronted by a rapist?
  
• 
  Do you have an opinion as to how a person should react if raped?
  
• 
  Have you heard of the myth that a woman cannot be raped if she really doesn’t want to be? What is your opinion of that myth?
  
• 
  Have you heard of the myth that all women want to be secretly raped? What is your opinion of that myth?
  
• 
  Do you have an opinion that when a woman is raped she must have done something to provoke the attack?
  
• 
  Do you have an opinion as to how much resistance a woman must offer before she can be “raped”?
  
• 
  Do you believe that any woman would want to put herself in a life-threatening or humiliating position so that she could or would be raped?
  
• 
  Do you believe that a woman must be a virgin, or sexually inexperienced, to be raped?
  

• 
  Have you ever been in a life-threatening situation yourself? Please describe it:
  

a. Did you think clearly and carefully?

b. Did you weigh every decision you made carefully during the event?

c. After you had time to reflect, is there anything you would have done differently?

d. Do you think another person would have acted in the same way?

• 
  Have you ever been in a situation where you felt helpless or felt you had lost total control of the situation? Describe your emotions at that time. Once you regained control, did you tell someone immediately? If not, why not?
  

• 
  Do you have any notions about what a rapist would look like?
  
• 
  Do you believe a person from any one race is any more likely to commit a sexual assault than a person from another race?
  
• 
  Do you believe a person from one socioeconomic group is any more likely to commit a sexual assault that a person from another socioeconomic group?
  
• 
  In evaluating your own ability to judge a case such as this fairly, do you feel you have any stereotypes in your mind of who commits violent acts and who does not?
  

• 
  Do you have an opinion about whether or not a woman can be raped by someone she knows?
  

(a) What is your opinion about whether a person can be raped by a person she met socially or is dating?

(b) If a man meets a flirtatious woman, is he entitled to believe he has the right to have sex with that woman, even if she says “no”? Is he entitled to believe that the woman wants to have sex with him, even if she says “no”?

(c) What is your opinion about whether a woman is “asking to be raped” by wearing seductive clothing?

• 
  Do you believe that a person who is “in the wrong place at the wrong time” is entitled to the full protection of the law?
  
• 
  Do you believe that a naive or foolish person is entitled to the full protection of the law?
  
• 
  Do you believe that a person who has been convicted of criminal offenses in the past, such as drug use, shoplifting, or prostitution, is entitled to the full protection of the law?