Reporter’s Notes:

(2008): Rule 47 has been amended to add an additional section (c) dealing with six-person juries in the District Court. Rule 47(b) applies to all courts other than the District Court. New Rule 47(c) provides for impanelling up to eight jurors. The statewide one-trial statute provides that the number of peremptory challenges is two for each party. G.L. c. 218, § 19(B)(c).

(1996): With the merger of the District Court rules into the Mass. R. Civ. P., Rule 47 has been made applicable to the District Court, to the extent that Massachusetts law permits trial by jury in District Court civil actions.

(1973): Rule 47(a) changes Federal Rule 47 and clarifies ambiguities in the controlling statute, G.L. c. 234, § 28. The statute reads in part:

“Upon motion of either party, the court shall, or the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror therein, to learn whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein; and the objecting party may introduce other competent evidence in support of the objection. If the court finds that the juror does not stand indifferent in the case, another shall be called in his stead.”

Rule 47(a) makes clear that the court, rather than the clerk, is required to ask certain questions. Prior practice, which permitted the clerk to ask the questions, did not convey to the jurors with necessary clarity the significance of the questions. Rule 47(a) has been divided into numbered classes. The court is to ask each question separately; the jurors are to respond to each question before the judge propounds the next question.

The questions themselves are taken from G.L. c. 234, § 28, Rule 47(a)(1) emphasizes not merely relation to a party, but to a participating attorney; this last relationship may be as productive of prejudice as relation to a party. Rules 47(a)(2), (3), (4) and (5) are taken almost verbatim from the statute. Rule 47(a)(6) is a catchall designed to ensure that each juror has an opportunity, under judicial interrogation, to reveal any reason for his disqualification not covered by the rest of the rule. The final sentence of Rule 47(a) allows the court to permit the parties or attorneys to make whatever direct inquiry the court may deem proper. Rule 47(a) further permits the court to submit to the jurors any question in addition to the six specified questions. An addition to G.L. c. 234, § 28, enacted in 1973 (see Chapter 919 of the Acts of 1973), provides that

“if it appears that, as a result of the impact of considerations which may cause a decision or decisions to be made in whole or in part upon issues extraneous to the case, including, but not limited to, community attitudes, possible exposure to potentially prejudicial material or possible preconceived opinions toward the credibility of certain classes of persons, the juror may not stand indifferent, the court may, or the parties or their attorneys may, with the permission and under the direction of the court, examine the juror specifically with respect to such considerations, attitudes, exposure, opinions or any other matters which may, as aforesaid, cause a decision or decisions to be made in whole or in part upon issues extraneous to the issues in the case. Such examination may include a brief statement of the facts of the case, to the extent the facts are appropriate and relevant to the issues of such examination, and shall be conducted individually and outside the presence of other persons about to be called as jurors or already called.”

Such additional questions would be likewise authorized by the last two sentences of Rule 47(a). The procedure under Rule 47(a) applies to any juror called to replace any juror challenged or otherwise excused, as well as to any alternate jurors. The net effect of Rule 47(a) will be:

(1) Initial questions will be asked by the judge;

(2) The judge on his own motion or on motion of the parties may ask any further questions; and

(3) On motion of a party the judge may (but need not) permit limited voir dire.

Under Federal Rule 47(b) the court may direct that not more than six additional jurors may be called and impanelled. Rule 47(b) adopts the existing Massachusetts practice of four additional jurors, G.L. c. 234, § 26B. Federal Rule 47(b) requires all the additional jurors to be impanelled as designated alternate jurors; under Massachusetts practice those jurors who are designated as alternate jurors, with the exception of the foreman, are not determined until the case is ready for submission to the jury. Rule 47(b) follows the Massachusetts approach; a juror is likely to be more attentive if it is probable that he will be called upon to participate in reaching a verdict.

Also, under Federal Rule 47(b), an alternate juror who does not replace a regular juror must be discharged after the jury retires to consider its verdict. Under Massachusetts practice, as incorporated in Rule 47(b), even after the case has been submitted to the jury, if a juror is unable to perform his duty, an alternate juror will be selected and the jury will renew its deliberations with the alternate juror.