arguing for a broader interpretation of § 28
How later courts described this case
- arguing for a broader interpretation of § 28
- encourages individual voir dire as to possible prejudice based on ethnic considerations
- Hispanic persons are not viewed as a race for purposes of jury empanelment
- "[W]hen requested, we encourage individual voir dire as to possible juror prejudice based on ethnic considerations."
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Commonwealth v. Colon, 482 Mass. 162 (2019)
employment opportunities"); Commonwealth v. De La Cruz, 405 Mass. 269, 277 (1989) (Liacos, J., concurring), abrogated on other grounds by Commonwealth v. Colon, 482 Mass. 162 (2019) ("I would take judicial notice of the
The opinion
Liacos, C.J.
(concurring). People’s prejudices do not, as the court seems to suggest, neatly fit into categories formulated by Webster’s Dictionary. By refusing to extend the rule of Commonwealth v. Sanders, 383 Mass. 637 (1981), to cases of sexual abuse involving Hispanic and non-Hispanic persons, the court today needlessly disregards social reality.
Nothing in the statute at issue, G. L. c. 234, § 28 (1986 ed.), requires us to limit the voir dire requirement to racial prejudice. Rather, it provides that “if it appears that ... the juror may not stand indifferent” because of, among other things, “community attitudes ... or possible preconceived opinions toward the credibility of certain classes of persons ... the court shall . . . examine the juror specifically with respect to such considerations, attitudes, exposure, opinions or any other matters” (emphasis added). Id. The statute includes within its scope prejudices against identifiable classes of individuals, including Hispanic persons.
We need not determine whether Hispanics comprise a racial, rather than an ethnic, group. We have recognized previously, under the Declaration of Rights of the Constitution of the Commonwealth, the threat that bias toward ethnic groups presents to a fair trial. See Commonwealth v. Soares, 377 Mass. 461 , 488-489 & n.33, cert. denied, 444 U.S. 881 (1979); art. *277 1 of the Declaration of Rights, as amended by art. 106 of the Amendments to the Massachusetts Constitution. See also Commonwealth v. Aponte, 391 Mass. 494 (1984) (grand jury selection).
I would take judicial notice of the unfortunate prevalence of prejudice against Hispanics in our Commonwealth. See Commonwealth v. Jones, 9 Mass. App. Ct. 103, 121 (1980) (Brown, J., concurring); P.J. Liacos, Massachusetts Evidence 29-34 (5th ed. 1981 & Supp. 1985), and cases cited. See also Rosales-Lopez v. United States, 451 U.S. 182, 192 (1981). It is true that we must take a cautious approach in extending the Sanders principle. See Commonwealth v. Young, 401 Mass. 390 , 398 n.8 (1987). But we should not shy away from exercising our superintendency powers to prevent prejudice against Hispanics from contaminating criminal trials.
The indictments in this case involved charges of unnatural sexual intercourse with a child under the age of sixteen (G. L. c. 265, § 23 [1986 ed.]) and indecent assault and battery of a child under the age of fourteen (G. L. c. 265, § 13B [1986 ed.]). Such charges are peculiarly apt to raise prejudice against a defendant, especially one of a different race or ethnic background from that of the alleged victim. See Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982). I would require an individual voir dire in such cases where there has been a threshold showing of potential bias due to ethnic disparity. Because I would apply this rule prospectively, see Commonwealth v. Hobbs, supra, I concur in the result of this case.