Thereafter, individual potential jurors shall be selected by lot in a sufficient number to comprise the jury, plus peremptory challenges. In the court’s discretion, several additional potential jurors may be selected by lot in the event that any of the initially selected potential jurors are subject to a further challenge for cause or in cases where alternate jurors are needed.
Thereafter, individual potential jurors shall be selected by lot in a sufficient number to comprise the jury, plus peremptory challenges. In the court’s discretion, several additional potential jurors may be selected by lot in the event that any of the initially selected potential jurors are subject to a further challenge for cause or in cases where alternate jurors are needed.
Counsel or unrepresented parties shall then be given a reasonable opportunity to direct questions to the array of potential jurors, within the topic and time parameters established by the court. If any of those jurors are excused for cause and there are not enough remaining jurors to allow for the selection of a jury, given each party’s right to peremptory challenges, additional potential jurors shall be selected by lot and may then be questioned by counsel or parties.
Me. R. Civ. P. 47
Advisory Committee’s Notes June 2, 1997
Rule 47(e) was adopted to permit note-taking by jurors during trial, subject to the discretion of the court. The subdivision is identical to M.R. Crim. P. 24(f), which has been successfully implemented at criminal trials, with the intention of making the practice uniform in criminal and civil trials.
COMMENTS
§ 47(a) -(d). Jury Selection, Challenges for Cause, Peremptory Challenges and Alternate Jurors. These subjects are discussed in Chapter 2 of the Maine JuryInstruction Manual.
§ 47(e). Juror Notetaking.
M. R.Civ.P. 47(e) gives the court discretion to allow juror notetaking in appropriate circumstances. Key provisions of 47(e) direct that, if notetaking is allowed:
– the court must instruct the jury on notetaking procedures and the appropriate uses of notes.
– absent special circumstances, jurors should be allowed to use their notes during deliberations.
– counsel may not request that jurors take notes or comment on jurors notetaking, and
– when deliberations are completed, the notes are to be immediately collected and destroyed.
M. R. Civ. P. 47(e) is based on M.R. Crim. P. 24(f). The Advisory Committee notes for the 1996 notetaking amendments to M.R.Crim.P. 24(f) make the following points:
– Notetaking by means other than writing, such as the use of an audio recording device or laptop computer, is not permitted, however, an exception can be made to reasonably accommodate a disabled juror.
– The court is expected to supply the materials necessary for jury notetaking and maintain proper control over such materials throughout the trial.
ADVISORY COMMITTEE NOTES; Maine Reporter, 669 -675 A.2d, XXXII -XXXIII, (1996).
The immediate physical destruction requirement supports the rule’s intent that jurors’ notes not be used to impeach a verdict. Such use could invade the confidentiality of the deliberation process and, if anticipated, might inhibit notetaking. This requirement follows M.R. Evid. 606(b), which excludes evidence about a juror’s thought process or their deliberative activities.
The notetaking option is most often discussed in the context of cases that are anticipated to be longer and more complex. The protections suggested are designed to avoid injection of extraneous matters into deliberations and assure confidentiality of juror thought processes and deliberations.
Because of the risk that only a few jurors in a panel may be confident in notetaking, it is important to emphasize to jurors that equal consideration be given to the views of notetakers and those who elect to rely on their recollections and observations. Notetaking, where allowed, must not result in separation of a jury panel into some who are more equal than others or risk stigmatizing those who, for whatever reason, elect not to engage in notetaking.
Before the 1996 rules, Maine had followed the common law practice of not allowing jurors to take notes. See State v. Fuller, 660 A.2d 915, 917 (Me. 1994); State v. Carey, 290 A.2d 839, 841 (Me. 1972)
Advisory Note – September 2019
Rule 47 is amended to state more explicitly that, in addition to oral questioning of prospective jurors by the court, the court may allow (i) use of written questionnaires or (ii) direct questioning of prospective jurors by attorneys or unrepresented parties. If the court makes the findings indicated to support use of a questionnaire or direct questioning by parties, the court shall allow the use of questionnaires or direct questioning, subject to the court’s authority to terminate the questioning if any of the listed problems develop.
The conference about how jury selection will proceed may occur as part of the trial management conference, or during another conference to be held sometime before the date of selection.
Unless the court orders otherwise, requests for use of written questionnaires or direct questioning of jurors must be submitted at least 21 days before the date for jury selection. Before the date of jury selection, the court will meet and confer with the attorneys or unrepresented parties to review and decide on any requests for questionnaires or direct questioning.
The types of questions that are proper to pose during jury selection-whether by the court, by the attorneys (or parties, if unrepresented), or through a questionnaire-have been addressed in State v. Roby, 2017 ME 207, 171 A.3d 1157; State v. Simons, 2017 ME 180, 169 A.3d 399; Grover v. Boise Cascade Corporation, 2004 ME 119, 860 A.2d 851; and United States v. Ramírez-Rivera, 800 F.3d 1, 38 n.32 (1st Cir. 2015). See also Alexander, Maine Jury Instruction Manual, §§ 2-4D, 2-4E, 2-4F (2018-2019 ed.).
Even if parties agree on language in a proposed written questionnaire, the court may decline to use the proposed language. Before approving written questionnaires, trial judges should carefully review all questionnaire language, particularly questions that seek responses other than “yes” or “no.”
If the court determines that any direct questioning by counsel or unrepresented parties is inappropriate or improper, it should limit or terminate the questioning or take other appropriate responsive steps. See State v. Rancourt, 435 A.2d 1095, 1098-1100 (Me. 1981); see also State v. Woodburn, 559 A.2d 343, 344 (Me. 1989) (“Considerable discretion over the conduct and scope of juror voir dire is vested in the trial court, which has the responsibility of balancing the competing considerations of fairness to the defendant, judicial economy, and avoidance of embarrassment to potential jurors.”).
In addition to the amendments to subdivision (a) of Rule 47, subdivision (b) is amended to clarify what has long been the law, that challenges for cause and exclusions for cause may occur at the end of and during voir dire. See Woolley v. Henderson, 418 A.2d 1123, 1127 (Me. 1980).
Subdivision (c) of Rule 47 is amended to outline the procedure for the exercise of peremptory challenges depending on whether questioning of jurors by attorneys or unrepresented parties has been allowed.