The Court continued in relevant part: Defense counsel stated that “it is not a hidden fact that living in certain areas you are going to have more people who are accused of crimes, more people who are victims of crime,” and that “to hold it against F.G. that these things have happened . . . to people that he knows . . . would mean that a lot of people from Newark would not be able to serve.” The trial court denied the State’s motion, explaining that “everything F.G. said and the way he said it leaves no doubt in my mind that he . . . does not have any bias towards the State nor the defense . . . . I think he would make a fair and impartial juror.” After the court’s ruling, the prosecution ran a criminal history check on F.G.
The next day, the court explained the prosecutor “came to see me yesterday” and revealed that there were “warrants out for F.G.” and that “they were going to lock him up.” Defense counsel noted there was “one warrant out of Newark Municipal Court.” Afterward, the State renewed its application to remove F.G. for cause. When the court asked for the defense’s position, counsel responded, “I don’t oppose the State’s application.” Defense counsel expressed concern about tainting the jury and added, “I think coming to court for jury service no one expects they are going to be looked up to see if they have warrants.” The prosecutor replied that “the State is not in the habit of . . . looking at a random juror’s” criminal history, and then reiterated concerns the State had voiced the day before to explain why it ran a background check. The prosecutor denied that racial bias played a role in the State’s application to remove F.G. for cause. Defense counsel then placed on the record a “concern that the State doesn’t typically check people out, but in this case, they did single someone out to check for warrants.” Defense counsel asked the court to award defendant one additional peremptory challenge. Counsel argued that the State had an unfair advantage in that it could access databases to run a criminal history check, but defendant could not; counsel also noted that the State’s “targeting” of F.G. “implicates due process concerns . . . regarding F.G.’s rights to sit on a jury.” The court denied the request.
A little-known case law fact is that all peremptory challenges have to be used by the defense if they are to preserve jury-selection issues for appeal. That puts the defense in the potentially difficult position of being stuck with a juror that they would never allow on the panel because they previously used up all of their peremptory challenges in order to make an appellate record.