Jury Selection and Background Checks (Part 4)

The New Jersey Supreme Court continued in relevant part: New Jersey today allows for the highest number of peremptory challenges in the nation — more than double the national average — based on a statute enacted in the late 1800s. Yet, as the United States Supreme Court acknowledged decades ago, peremptory challenges can invite discrimination. See Batson v. Kentucky, 476 U.S. 79, 96, 98 (1986). Although the law remains the same, our understanding of bias and discrimination has evolved considerably since the nineteenth century. And federal and state law have changed substantially in recent decades to try to remove discrimination from the jury selection process. See Batson, 476 U.S. 79; State v. Gilmore, 103 N.J. 508 (1986). It is time to examine the jury selection process — with the help of experts, interested stakeholders, the legal community, and members of the public — and consider additional steps needed to prevent discrimination in the way we select juries. The Court calls for a Judicial Conference on Jury Selection. The Conference will convene in the fall to assess this important issue and recommend improvements to our system of justice.

Prospective jurors are typically excused in two ways. The court can excuse jurors “for cause” when it appears that they would not be fair and impartial, that their beliefs would substantially interfere with their duties, or that they would not follow the court’s instruction or their oath. Either party can challenge a juror for cause; the trial court can also act on its own. Both parties can also exercise peremptory challenges and remove a juror without stating a reason under N.J.S.A. 2B:23-13(b). Both the Federal and State Constitutions bar discrimination based on race in the jury selection process.

It has been my experience that prospective jurors routinely lie during the jury selection process. My last trial involved one juror informing the Court that at least two other jurors admitted to lying during the selection-process questioning. Both jurors escaped without any sanctions and a mistrial was declared. Under the circumstances in which an enormous amount of time and judicial resources were expended during the trial, it would have been reasonable to at least give the jurors an administrative contempt fine, if not charge them with criminal contempt for their undermining of the criminal justice process.