One by one, the remaining potential jurors in the case against Boston Marathon bombing suspect Dzhokhar Tsarnaev will go before the court for questioning beginning Thursday. It’s a legal process called "voir dire," from old French meaning "to speak the truth."
Who gets to ask the questions of the remaining potential jurors who were not excused based on the questionnaires they filled out last week may be as critical as the questions themselves, and it's likely to be contentious.
"The idea is to find out the jurors that have opinions that really will be an obstacle to being fair," says Harvard Law professor Nancy Gertner, who has years of experience questioning prospective jurors as a criminal defense attorney and then as a federal judge.
"When a judge is asking questions in a voir dire, that aura, that superiority that a judge has impacts the way in which a prospective juror responds."Richard Campbell, former president of the Massachusetts Bar Association
So does Richard Campbell, former president of the Massachusetts Bar Association who has tried cases around the country.
"Lawyers see it as a necessary benefit," Campbell says. "They're trying to get beyond the veneer into the inner thoughts and workings of a prospective juror so they can ferret out any bias."
Since the prospective jurors have already written their answers to 28 pages of questions, you might wonder why the judge and attorneys would need to still ask more. Campbell says questioning jurors in person is the only way to get to the truth.
"The best way to determine what a person is like is to sit with that person, eyeball that person face to face, listen to him, speak to him," Campbell says. "That's how we make our judgments every day, about everything that we do."
Finding fair-minded jurors is essential to the jury trial at the core of our system of justice. But in this trial and with these stakes, where defendant Dzhokhar Tsarnaev faces the possibility of the death penalty, voir dire may well become a battleground.
"How you question, who's doing the questioning, your tone, what you say, all affects what the answer is," Gertner says. "And so who the questioner is should be carefully thought out."
For example, imagine a judge directly asking a potential juror: Are you aware of any bias or prejudice you might have?
"Which was a dopey, dopey question," Gertner says. "You're asking the juror to decide for themselves whether they can be fair."
"How many of us can think of ourselves as unfair people? We're not ready to admit that," Campbell says. "But we all have our biases, don't we? And we see it every day."
Here in the courtroom of Judge George O'Toole, the battle may be uniquely local. In the rest of the country, lawyers actively engage in voir dire — in some cases voir dire is even conducted entirely by lawyers. But not here in Massachusetts. Here, by tradition, in both state and federal court, the judge alone asks the questions.
Take that question for instance: Can you can be fair? The person who asks that question in Massachusetts wears a black robe, sits at a bench elevated above every other seat in the courtroom, and people stand whenever he or she enters or leaves the room.
"When a judge is asking questions in a voir dire, that aura, that superiority that a judge has impacts the way in which a prospective juror responds to questions," Campbell says.
People tell the judge what they think he or she wants to hear, Campbell says, but trial lawyers are likely to get more truthful answers.
"Lawyers are trained to interact with people in common parlance, to put them at ease and to extract information from them," Gertner says. "That’s what trial lawyers are good at doing. Trial judges are not trial lawyers."
Gertner relates her experience at a murder trial as a young attorney. During voir dire, a prospective juror told the judge she had read a newspaper article about the murder, but said she could be fair.
"And the judge questioned her and she said it was a lovely article in The Boston Globe, an article which showed my client shooting the cop, which wasn't true, and I ran up to the bench and [asked to question] this woman."
Gertner jokes that she looked 12 years old at the time, so had none of the judge's imposing influence.
"I turned to the juror and I said, ‘You said this was a lovely article. What did you mean?' And the juror said, 'We all know she’s guilty.' One question was all that it took," Gertner recalls. "Because I was asking the question in a non-threatening, non-dominating way."
The fairness of the process depends not just on who asks but how much one searches while asking, says Gertner.
While rejecting defense motions to move the trial or delay it, Judge O'Toole has repeatedly stated his conviction that voir dire will produce a fair and impartial jury. But the judge will not stray far from local tradition.
Though he says he "may" allow attorneys to ask a "limited" number of follow-up questions "as may be appropriate," O'Toole plans to conduct the voir dire himself.
"A judge standing before the mirror probably sees somebody who will conduct a flawless examination of prospective jurors," warns Campbell, who argues for more questions and more involvement from attorneys. "The mere mortal lawyers and parties out in the back part of the courtroom watching this flawless performance may have a different view, and it's not the judge's freedom that is at stake."
The process of finding a fair and impartial jury could take at least two more weeks, according to the judge's calculations. You can safely expect voir dire to be every bit as contentious as the rest of this trial.
This segment aired on January 15, 2015.