Supreme Judicial Court (September 24, 2007)

Prosecutors may run CORI checks on jurors, but have a duty to share that information with defense counsel.

During protracted jury deliberations in the murder trial of two defendants for the gang-related shooting of a little girl, the foreman was dismissed after five days of deliberations; the jury later acquitted one defendant and subsequently announced it was deadlocked on a verdict on the remaining defendant. During this process, the prosecutor informed the court that CORI checks on the jurors revealed that five had criminal records (some very extensive) which the jurors had not disclosed on the jury questionnaire or during voir dire. The judge consequently excused three of those jurors and then declared a mistrial due to an insufficient number of remaining jurors.

The defendant then filed a motion to dismiss, claiming that principles of double jeopardy barred his retrial. The trial judge denied his motion and he appealed to a Single Justice of the SJC. The Single Justice denied his petition and the defendant appealed to the full bench.

Before the SJC, the principal issue was whether the Commonwealth acted properly in obtaining the jurors' criminal records and bringing them to the attention of the court. Putting aside the facts of this particular case - where an extensive voir dire probed issues of gang members, cooperating witnesses, and attitudes towards the police - the SJC quickly concluded that prosecutors, as part of a "criminal justice agency", are expressly authorized by statute (G.L. c. 6, s. 172) to access CORI records so long as their CORI inquiry is "necessary for the actual performance of [their] criminal justice duties." As the Court noted:

Inquiring into the criminal records of jurors in a criminal case for the purpose of determining their qualifications to serve and their impartiality fits squarely within the "criminal justice duties" of prosecutors. Representing the Commonwealth in criminal trials is a quintessential prosecutorial function, of which the selection of a qualified and impartial jury is an integral part. We have recognized that the prosecution has a legitimate interest in securing "a jury not unfairly biased in favor of acquittal."

The Court also noted that, where prosecutors obtain the CORI records of jurors, they must "immediately" provide that information to defense counsel. Where the prosecution obtains those records prior to trial, this duty to disclose accrues at the point of impanelment, as the exact date the trial commences determines the precise jurors who will be called.

Having determined that the prosecution properly obtained the jurors' records, the SJC concluded that double jeopardy does not bar the defendant's retrial.