(Applicable to Superior Court and jury sessions in District Court)
(a) Motion for Appropriate Relief. Either party may challenge the array by a motion for appropriate relief pursuant to rule 13(c) . A challenge to the array shall be made only on the ground that the prospective jurors were not selected or drawn according to law. Challenges to the array shall be made and decided before any individual juror is examined unless otherwise ordered by the court. A challenge to the array shall be in writing supported by affidavit and shall specify the facts constituting the ground of the challenge. Challenges to the array shall be tried by the court and may in the discretion of the court be decided on the basis of the affidavit filed with the challenge. Upon the hearing of a challenge to the array, a witness may be examined on oath by the court and may be so examined by either party. If the challenge to the array is sustained, the court shall discharge the panel.
(b) Challenge for Cause.
(1) Examination of Juror. The court shall, or upon motion, the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror in a case to learn whether he is related to either party, has any interest in the case, has expressed or formed an opinion, or is sensible of any bias or prejudice. The objecting party may, with the approval of the court, introduce other competent evidence in support of the objection.
(2) Examination upon Extraneous Issues. The court shall examine or cause a juror to be examined upon issues extraneous to the case if it appears that the juror's impartiality may have been affected by the extraneous issues. The examination may include a brief statement of the facts of the case, to the extent the facts are appropriate and relevant to the issues of such examination, and shall be conducted individually and outside the presence of other persons about to be called or already called as jurors.
(3) Challenge of Juror. Either party may challenge an individual prospective juror before the juror is sworn to try the case. The court may for cause shown permit a challenge to be made after the juror is sworn but before any evidence is presented. When a juror is challenged for cause, the ground of the challenge shall be stated. A challenge of a prospective juror and the statement of the grounds thereof may be made at the bench. The court shall determine the validity of each such challenge.
(c) Peremptory Challenges.
(1) Number of Challenges. Upon the trial of an indictment for a crime punishable by imprisonment for life, each defendant shall be entitled to twelve peremptory challenges of the jurors called to try the case; in any other criminal case tried before a jury of twelve, each defendant shall be entitled to four peremptory challenges; and in a case tried before a jury of six, each defendant shall be entitled to two peremptory challenges. Each defendant in a trial of an indictment for a crime punishable by imprisonment for life in which additional jurors are impaneled under subdivision (d) of this rule shall be entitled to one additional peremptory challenge for each additional juror. Each defendant in a case in which several indictments or complaints are consolidated for trial shall be entitled to no more peremptory challenges than the greatest number to which he would have been entitled upon trial of any one of the indictments or complaints alone. In every criminal case the Commonwealth shall be entitled to as many peremptory challenges as equal the whole number to which all the defendants in the case are entitled.
(2) Time of Challenge. Peremptory challenges shall be made before the jurors are sworn and may be made after the determination that a person called to serve as a juror stands indifferent in the case.
(d) Alternate Jurors.
(1) Impanelling Jury with Alternative Jurors. If a jury trial is likely to be protracted, the judge may impanel a jury of not more than sixteen members and the court shall have jurisdiction to try the case with that jury.
(2) Selection of Twelve Jurors. If at the time of the final submission of the case to the jury more than twelve members of the jury who have heard the whole case are alive and not incapacitated or disqualified, the judge shall direct the clerk to place the names of all the remaining jurors except the foreman in a box and draw the names of a sufficient number to reduce the jury to twelve members. Those jurors whose names are drawn shall not be discharged, but shall be known as alternate jurors and shall be kept separate and apart from the other jurors in some convenient place, subject to the same rules and regulations as the other jurors, until the jury has agreed upon a verdict or has been otherwise discharged.
(3) Disabled Juror: Selection of Alternate. If, at any time after the final submission of the case by the court to the jury but before the jury has agreed on a verdict, a juror dies, becomes ill, or is unable to perform his duty for any other cause, the judge may order him to be discharged and shall direct the clerk to place the names of all the remaining alternate jurors in a box and draw the name of an alternate who shall take the place of the discharged juror on the jury, which shall renew its deliberations with the alternate juror.
(e) Regulation and Separation of Jurors.
(1) Sequestration. After the jurors have been sworn they shall hear the case as a body and, within the discretion of the trial judge, may be sequestered.
(2) After Submission of the Cause. Unless the jurors have been sequestered for the duration of the trial, the judge after the final submission of the case, may order that the jurors be permitted to separate for a definite time to be fixed by the judge and then reconvene in the courtroom before retiring for consideration of their verdict.
(3) After Commencement of Deliberations. After final submission of the case to the jury and after deliberations have commenced, the judge may allow the jurors, under proper instructions, to separate for a definite time to be fixed by the judge and to reconvene in the courtroom before retiring for further deliberation of their verdict.
This rule is primarily a distillation of Massachusetts statutory law. G.L. c. 234, §§ 26B , 28-29 ; former G.L. c. 277, § 47A (St.1978, c. 478, § 298). See e.g., Fed.R.Crim.P. 24; Fla.R.Crim.P. 3.370; ABA Standards Relating to Trial by Jury §§ 2.3-2.7 (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.) Rules 511-513, 532 (1974); National Advisory Commission on Criminal Justice Standards and Goals, Courts §§ 4.13-4.14 (1973).
Subdivision (a). Although G.L. c. 277, § 47A , inserted by St.1965, c. 617, § 1, abolished in terms “challenges to the array and to the manner of selection of grand or traverse jurors,” the relief formerly available thereunder remains available by a “motion to grant appropriate relief.” Despite the statutory change in nomenclature, the courts continue to refer to such motions as challenges to the array. See e.g., Commonwealth v. Underwood , 3 Mass.App. Ct. 522, 535 (1975).
A motion for appropriate relief from trial by a jury allegedly not selected in accordance with law--that is, a motion for discharge of the panel--is properly made only before trial. G.L. c. 277, § 47A . Brunson v. Commonwealth , 369 Mass. 106 (1975); Commonwealth v. Rodriquez , 364 Mass. 87, 91 (1973); Commonwealth v. Underwood , 3 Mass.App. Ct. 522, 536 (1975). Mass.R.Crim.P. 13(c).
See ABA Standards Relating to Trial by Jury § 2.3 (Approved Draft, 1968), Rules of Criminal Procedure (U.L.A.) rule 511(d) (1974) (incorporating by reference Uniform Jury Selection and Service Act [U.L.A.] § 12  ); Fed.R.Crim.P. 6(b)(1).
(b)(1). This subdivision is based upon the first paragraph of G.L. c. 234, § 28 . See Fed.R.Crim.P. 24(a); ABA Standards Relating to Trial by Jury § 2.4 (Approved Draft, 1968); ABA Standards Relating to the Prosecution Function § 5.3(c) (Approved Draft, 1971); ABA Standards Relating to the Defense Function § 7.2(c) (Approved Draft, 1971); Rules of Criminal Procedure (U.L.A.) Rule 512(b) (1974).
The purpose of G.L. c. 234, § 28 and of this rule is manifestly to determine whether prospective jurors are free from interest, bias, and prejudice in the case in which they are drawn to sit. Commonwealth v. Beneficial Finance Co. , 360 Mass. 188, 295 (1971), cert. denied, 407 U.S. 910, 914 (1972); accord Commonwealth v. Montecalvo , 367 Mass. 46, 50 (1975).
It has been consistently held that Federal Rule 24(a) permits the trial judge a large range of discretion in the latitude and manner of voir dire examination, subject to the essential demands of fairness. E.g., Eastern Renovating Corp. v. Roman Catholic Bishop of Springfield , 554 F.2d 4 (1st Cir.1977); United States v. Desmarais , 531 F.2d 632, 633 (1st Cir.1976). This comports with Massachusetts practice which has been uniformly stated to give the trial judge broad discretion “whether to refine or improve on the subjects of ... § 28, by going into more detail.” Commonwealth v. Lacy , 371 Mass. 363, 373 (1976); Commonwealth v. Harrison , 368 Mass. 366, 371 (1975). E.g., Commonwealth v. Kudish , 362 Mass. 627, 631-32 (1972). Because the trial judge has “a fair leeway in deciding how deep the probe should go, having in view the nature of the case as ... [he] apprehends it at the start,” Harrison, supra, there is no requirement that any particular form or number of questions be asked. See e.g., Commonwealth v. Hicks , 377 Mass. 1 (1979); Commonwealth v. Horton , 376 Mass. 380 (1978); Commonwealth v. McCants , 3 Mass.App. Ct. 596, 598 (1975).
The provision of this subdivision which requires the approval of the court for the introduction of extrinsic evidence is consistent with prior practice although not statutorily mandated. Commonwealth v. DiStasio , 294 Mass. 273 (1936).
Prior practice was to pose the so-called “statutory questions” to the jurors as a group in non-capital cases and individually, out of the presence of other prospective jurors, in capital cases. Commonwealth v. Ventura , 294 Mass. 113 (1936). Because the need to interrogate each juror regarding the death penalty no longer exists, there is likewise no reason in the usual case why the statutory questions may not be asked of the jurors as a group. Commonwealth v. Montecalvo , 367 Mass. 46, 48-49 (1975). See Commonwealth v. Harrison , 368 Mass. 366, 369 n. 5 (1975). Individual questioning may be commanded, however, by the facts and circumstances of the particular case. Commonwealth v. Montecalvo, supra at 50 n. 2. Compare subdivision (b)(2), infra.
Whether the questions upon voir dire are to be posed by the judge or by the parties or their attorneys is another matter fully within the discretion of the trial judge. The sole purpose of the voir dire is to provide the parties with a means of discovering grounds for challenges for cause and to enable them to intelligently exercise peremptory challenges. The procedure is subject to abuse by counsel who utilize voir dire to influence jurors, however, ABA Standards Relating to Trial by Jury, § 2.4, comment at 64 (Approved Draft, 1968), and unless carefully regulated, can consume an inordinate amount of court time. For these reasons, it is suggested that the better practice when voir dire is confined to the subjects of G.L. c. 234, § 28 is for the judge to conduct the interrogation. If further questioning is desirable, it should be by the judge upon suggestion of counsel. Compare ABA Standards, supra (judge is to submit such additional questions as he deems proper), and Rules of Criminal Procedure (U.L.A.) Rule 512(b) (1974) (judge shall permit questioning by the parties).
(b)(2). The basis of this subdivision is found in the second paragraph of G.L. c. 234, § 28 , as amended, St.1975, c. 335. The amendment of § 28 conformed the statute to the Supreme Court's decision in Ham v. South Carolina , 409 U.S. 524 (1973), which recognized that some cases present circumstances in which an impermissible threat to the fair trial guaranteed by the due process clause of the fourteenth amendment is posed when a judge refuses to question prospective jurors specifically as to racial prejudice. Ham did not announce a universally applicable rule, however, but a standard requiring assessment of the facts of each case. Ristaino v. Ross , 424 U.S. 589 (1976).
General Laws c. 234, § 28 is not limited by its terms to racial prejudice, but is directed at any bias which may result from
the impact of considerations which may cause a decision or decisions to be made in whole or in part upon issues extraneous to the case, including, but not limited to, community attitudes, possible exposure to potentially prejudicial material or possible preconceived opinions toward the credibility of certain classes of persons....
It should perhaps be noted that “community attitudes” or “exposure to potentially prejudicial material” may be so pervasive as to suggest a motion to transfer for prejudice if recognized prior to trial. Mass.R.Crim.P. 38(b)(1).
The procedure under § 28 is in two steps. It must first appear to the satisfaction of the court that a prospective juror or jurors may not be indifferent as a result of matters extraneous to the case. It is preferable that the court be apprised of the possibility of bias by a motion that prospective jurors be interrogated as to possible prejudice, see Commonwealth v. Lumley , 367 Mass. 213, 216 (1975); Commonwealth v. Rodriquez , 364 Mass. 87, 92-93 (1973), and that the motion be accompanied by an affidavit specifying the facts which defendant alleges make him subject to bias. See Commonwealth v. Pinckney , 365 Mass. 70 (1974). In Commonwealth v. Harrison , 2 Mass.App. Ct. 775 (1975), affirmed, 368 Mass. 366 (1975), the court found inadequate an affidavit which
amounted to no more than an argument of law intended to persuade the court to adopt the defendant's position on the utility of the requested questions and in no way informed the judge as to the possible injection into the case of prejudice stemming from possibly disparate political views or cultural values.
Id. at 779. Accord Commonwealth v. Pinckney, supra. See Commonwealth v. Peters , 372 Mass. 319 (1977) (“absence of even minimal substantiation”).
If the court finds that there is a basis to the allegations, “the court shall, or the parties or their attorneys may ... examine the juror specifically” as to the extraneous issues. G.L. c. 234, § 28 (emphasis added). Under prior case law, and pursuant to § 28 previous to its 1975 amendment, this specific examination was discretionary even if impaired indifference were shown.
Both under this subdivision and G.L. c. 234, § 28 the questioning of each venireman as to extraneous issues is to be conducted out of the presence of those not yet or already called.
(b)(3). The time for challenge of prospective juror is generally considered to end once the jury is impanelled. Commonwealth v. Galvin , 323 Mass. 205 (1948). It has been held, however, that the right of a judge to dismiss a juror for cause and to provide for the selection of another juror in his place continues even after the jury is impanelled but before the trial actually starts. Commonwealth v. Monahan , 349 Mass. 139 (1965); 30 MASS.PRACTICE SERIES (Smith) § 1047 (1970, Supp.1978). See ABA Standards Relating to Trial by Jury § 2.5 (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.) Rule 512(c) (1974).
Subdivision (c). The substance of subdivision (c)(1) is taken from G.L. c. 234, § 29 . See Superior Court Rule 6 (1974); ABA Standards Relating to Trial by Jury § 2.6 (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.) Rule 512(d) (1974).
“The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control.” Swain v. Alabama , 380 U.S. 202, 220 (1965). Therefore, it had been held that a claim of denial of trial by an impartial jury based on the fact that the Commonwealth utilizes its peremptory challenges to exclude a particular sex or race from the panel must fail. Commonwealth v. Mitchell , 367 Mass. 419, 420 (1975). However, in Commonwealth v. Soares , 377 Mass. 461 (1979), decided under article 12 of the Declaration of Rights rather than the equal protection clause of the fourteenth amendment, the Supreme Judicial Court held that the use of peremptory challenges to exclude prospective jurors solely by virtue of their membership in, or affiliation with, particular, defined groupings in the community is proscribed. Id. at 624-25.
[The] exercise of peremptory challenges to exclude members of discrete groups, solely on the basis of bias presumed to derive from that individual's membership in the group, contravenes the requirement [of the jury drawn from a representative cross-section of the community] inherent in art. 12 of the Declaration of Rights. In so holding, we recognize that no defendant is entitled to a petit jury proportionally representing every group in the community; nor are members of particular groups insulated from the proper use of peremptory challenges to exclude any individual on any other ground. What both parties are constitutionally entitled to expect is “a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.
Id. at 627, quoting, People v. Wheeler, 22 Cal.3d 258, 277, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). While the proper use of peremptory challenges may be presumed, that presumption is rebuttable by either party on a showing that: 1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and 2) there is a likelihood that they are being excluded from the jury solely by reason of their group membership. Id. at 628-29.
If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted. Accordingly, the court must then conclude that the jury as constituted fails to comply with the representative cross-section requirement, and it must dismiss the jurors thus far selected. So too it must quash any remaining venire, since the complaining party is entitled to a random draw from an entire venire--not one that has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges. Upon such dismissal a different venire shall be drawn and the jury selection process may begin anew.
Id. at 631-32, quoting People v. Wheeler, supra, at 282.
Subdivision (c)(2) is borrowed almost entirely from G.L. c. 234, § 29 .
It should be noted that no irregularity in a writ of venire facias or in the drawing, summoning, returning, or impanelling of jurors is sufficient to set aside a verdict unless the objecting party has been “injured” by the irregularity and unless the objection is made before verdict. G.L. c. 234, § 32 . Commonwealth v. Montecalvo , 367 Mass. 46, 51 (1975); Commonwealth v. McKay , 363 Mass. 220, 223-24 (1973).
Subdivision (d). This subdivision parallels G.L. c. 234, § 26B (as amended). Compare Rules of Criminal Procedure (U.L.A.) Rule 511(c) (1974), which provides for “additional” jurors, with ABA Standards Relating to Trial by Jury § 2.7. (Approved Draft, 1968), which has provisions for both “alternate” and “additional” jurors. Under an alternate juror system, one or more persons specifically identified as alternates are chosen in advance of trial and will be designated to take the place of a juror who is discharged prior to the time the jury retires, or in some jurisdictions, prior to verdict. ABA Standards, supra, comment at 79. See Fed.R.Crim.P. 24(c). Massachusetts employs the additional juror system, G.L. c. 234, § 26B , approved in Uniform Rule 511(c), supra, and preferred by the ABA Standards, supra, comment at 80. Subdivision (d)(3) adopts a procedure contained in Cal.Penal Code § 1089 (Deering, 1971). This practice has been rejected, however, by the ABA Standards, supra, comment at 82, and in the 1975 amendments to the Federal Rules of Criminal Procedure.
(e)(1). This subdivision reiterates prior Massachusetts practice in leaving the decision whether to sequester the jury in the discretion of the trial judge. 30 MASS.PRACTICE SERIES (Smith) § 1042 (1970); Commonwealth v. Marshall , 373 Mass. 65 (1977).
(e)(2)-(3). Drawn in part from Fla.R.Crim.P. 3.370 (1975), these subdivisions represent a significant departure from prior Massachusetts practice. In cases where sequestration is unnecessary, forcing the jury to remain in a body after submission of the case or the beginning of deliberations may cause hardship to jurors or their families which is not, in balance, necessary for protection of the defendant's interests, nor justified by the interests of justice. See Commonwealth v. Watkins , 375 Mass. 472 (1978) (defendant's motion to excuse jury from further deliberation for the evening within the discretion of judge).