Jury Selection and Background Checks (Part 3)

Chief Justice Rabner continued in relevant part: The jury convicted defendant. The Appellate Division reversed and remanded for a new trial. 462 N.J. Super. 537, 563 (App. Div. 2020). The Court granted certification. 244 N.J. 170 (2020).

Courts, not the parties, oversee the jury selection process. On occasion, it may be appropriate to conduct a criminal history check to confirm whether a prospective juror is eligible to serve and to ensure a fair trial. That decision, though, cannot be made unilaterally by the prosecution. Going forward, any party seeking to run a criminal history check on a prospective juror — through a government database available only to one side — must present a reasonable, individualized, good-faith basis for the request and obtain permission from the trial judge. The results of the check must be shared with both parties and the court, and the juror should be given an opportunity to respond to any legitimate concerns raised. *That standard was not met here. Nor is there anything in the record that justified the State’s decision to selectively focus on F.G. and investigate only his criminal record. Based on all of the circumstances, the Court infers that F.G.’s removal from the jury panel may have stemmed from implicit or unconscious bias on the part of the State, which can violate a defendant’s right to a fair trial in the same way that purposeful discrimination can.

Defense counsel raised multiple serious concerns but should have leveled a more precise objection. Nonetheless, the Court cannot ignore the evidence of implicit bias that appears in the extensive record. Under the circumstances, defendant’s right to be tried by an impartial jury, selected free from discrimination, was violated. The Court therefore reverses his conviction and remands for a new trial.

The prosecution likely argued that a criminal history check is race-neutral on its face. On the other hand, if it was only conducted with regard to one black juror in a case with a black defendant and after the State failed to have the juror removed for cause, there is evidence of bias in the selection process.