Jury Selection and Background Checks (Part 6)

Chief Justice Rabner continued in relevant part: Batson and Gilmore address purposeful racial discrimination in jury selection. Yet parties may not be aware of their own biases. Justice Marshall highlighted the concern of implicit bias in a concurring opinion in Batson: “A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have come to his mind if a white juror had acted identically.” 476 U.S. at 106 (Marshall, J., concurring). From the standpoint of the State Constitution, it makes little sense to condemn one form of racial discrimination yet permit another. What matters is that juries selected to hear and decide cases are chosen free from racial bias — whether deliberate or unintentional.

The practice of running background checks on prospective jurors raises a question of first impression for the Court. Today, the State alone has the ability to unilaterally conduct such checks. The State represents that it is extremely rare for it to conduct background checks on prospective jurors. It relies on regulations promulgated by the Department of Law and Public Safety as the source of its authority. The Court does not question the State’s good-faith belief that it had the authority to run the background check it conducted in this case. But administrative regulations generally may not govern the intricacies of jury selection any more than they could control other aspects of a trial. New Jersey case law on the issue is sparse, and other jurisdictions have reached varied conclusions on the subject.

Here, the State likely argued that the running of a background check is a race-neutral action. Moreover, the issue can be turned on its head if the Court were implying that there are racial undertones to running a criminal background check, i.e. that prospective jurors of color are more likely to have criminal histories. The counter to that argument is that it is statistically true, but only due to inequalities in our justice system that lead similarly-situated people of color to be charged with offenses that would not apply to whites.