The Court continued in relevant part: Under the Equal Protection Clause of the United States Constitution, no citizen can be excluded from jury service on account of race. See Batson, 476 U.S. at 84. In Batson, the Supreme Court outlined an analytical framework to examine whether allegedly discriminatory peremptory challenges violated the Equal Protection Clause. The New Jersey Constitution likewise guarantees defendants a “trial by an impartial jury without discrimination on the basis of religious principles, race, color, ancestry, national origin, or sex.” Gilmore, 103 N.J. at 524. That guarantee is rooted in Article I, Paragraphs 5, 9, and 10, which together provide defendants “the right to trial by a jury drawn from a representative cross-section of the community.” Id. at 524.
In Gilmore, the Court outlined an analytical framework to assess potentially discriminatory peremptory challenges. With certain refinements, the Court summarized the three-step process in State v. Osorio, 199 N.J. 486, 492-93 (2009): (1) the party contesting the peremptory challenge must carry the “slight” burden of “tendering sufficient proofs to raise an inference of discrimination” in the exercise of the challenge; (2) if that burden is met, then the party exercising the challenge must “prove a race- or ethnicity-neutral basis” for the challenge; and (3) the court must “determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that the contested peremptory challenge was exercised on unconstitutionally impermissible grounds of presumed group bias.” The Court reviews guidance from case law applicable to each of the three steps, as well as the remedies available to respond to impermissible uses of peremptory challenges.
Under this three-step process, trial attorneys must not be shy about contesting their adversary’s alleged reasoning. A common scenario involves one of the attorneys offering a race-neutral reason that is often based on the struck juror’s appearance or demeanor. Because jury selection is not filmed, there is the potential for reasoning to be fabricated. An example would be a prosecutor claiming that he struck a potential juror because of a political message contained in their clothing, tattoos, or jewelry. It is important for their adversary to err on the side of disputing this unless further proofs can be provided. Otherwise, the appellate record will reflect an “uncontested, race-neutral basis.”