"The prosecutor also maintained that it was reasonable to assume that falsification of the questionnaire was an indication that the juror could not follow the rule of law in the charge and could not be fair and impartial during deliberations"
How later courts described this case
- "The prosecutor also maintained that it was reasonable to assume that falsification of the questionnaire was an indication that the juror could not follow the rule of law in the charge and could not be fair and impartial during deliberations"
- once it was verified that juror did not disclose their criminal history, "judge permissibly could have drawn the inference that the jurors had concealed their criminal histories purposefully, and thus could not be expected to be impartial or to follow the court's instructions"
Written by the judges who cited it.
The opinion
Ireland, J.
(concurring). I concur in the court’s conclusion that, pursuant to G. L. c. 6, § 172, a prosecutor has the authority to conduct criminal offender record information (CORI) checks of jurors, and that there was a manifest necessity for the judge to declare a mistrial in this case once she determined that three jurors made material misrepresentation on their juror questionnaires. I do so because there was no showing that the judge’s finding that the prosecutor in this case did not time his CORI check of deliberating jurors to goad the defendant into moving for a mistrial was clearly erroneous, and nothing in the record suggests otherwise. However, I write separately because I am concerned about the timing of CORI checks and feel there should be procedures in place governing it. The court does not *824 address this issue, although the court solicited amicus briefs asking for guidance about whether there should be procedures governing the timing of a CORI check, ante at 811 n.3. This issue has come before single justices of this court on other occasions, and I believe that guidance is necessary. See, e.g., Commonwealth vs. Vasquez, SJ-2005-0105 (Mar. 11, 2005).
In my view, there should be procedures created that limit the time in which a prosecutor could conduct a CORI check of jurors and bring it to the attention of the trial judge. The findings of the judge in this case notwithstanding, I am not comfortable with a prosecutor waiting until jurors are deliberating before conducting a CORI check.
There are a number of ways to set up such a procedure, but I believe that, at the very latest, a prosecutor must undertake a CORI check before he or she declares that the Commonwealth' is satisfied with an empanelled jury. 1 In fairness, I also believe that a judge should stay the jury’s being sworn in until such a check could be conducted. The prosecutor should be allowed to appeal the denial of the prosecutor’s request for a stay to a single justice of this court, pursuant to G. L. c. 211, § 3. This procedure would not foreclose a check on jurors later in the trial. Should a prosecutor decide not to conduct a CORI check before jurors are sworn, and information comes to light during a trial that causes concern, the trial judge could order such a check (or other inquiry) sua sponte or on the motion of the other party.
I am disappointed that the court does not address the issue of the timing of a CORI check. The one safeguard, according to the court, ante at 819, is that prosecutors must share information concerning jurors’ criminal records immediately with defense counsel. Accordingly, I concur.
General Laws c. 234A, § 67, provides, in relevant part, that no later than ten days before the scheduled appearance by jurors in a particular trial, the office of the jury commissioner is required to provide the clerk of the court with a list of the jurors expected to report for duty. The list is to contain the names, addresses, and date of birth of each potential juror, and may contain other information the jury commissioner deems appropriate. The list is available for inspection by, among others, the parties and counsel, unless a court orders otherwise.