The New Jersey Supreme Court continued with the following in relevant part: In providing guidance on this topic, the Court attempts to accommodate multiple interests: the overriding importance of selecting fair juries that are comprised of qualified, impartial individuals; the need for an evenhanded approach that applies to all parties; the need to guard against background checks prompted by actual or implicit bias; and the importance of having a process that respects the privacy of jurors and does not discourage them from serving. With those aims in mind, the Court relies on its supervisory power to outline a framework for conducting criminal background checks of jurors, detailed in Section IV.C. of the opinion.
Here, “the prosecutor presented no characteristic personal to F.G. that caused concern, but instead argued essentially that because he grew up and lived in a neighborhood where he was exposed to criminal behavior, he must have done something wrong himself or must lack respect for the criminal justice system.” 462 N.J. Super. at 5 562. That argument, the Appellate Division observed, was not new, and historically stemmed from impermissible stereotypes about racial groups — particularly Black Americans. The trial court properly denied the State’s challenge that F.G. be removed for cause. Ordinarily, the next step would have been for the State to exercise a peremptory challenge that defendant could have challenged under Batson and Gilmore. Instead, the State ran a criminal history check on F.G. — a check that did not reveal any history that would disqualify F.G. from jury service. See N.J.S.A. 2B:20-1. By unilaterally running a criminal history check on F.G. and setting his arrest in motion, the State effectively evaded any Batson/Gilmore analysis.
The Court’s analysis begs the question of how we can prevent implicit bias from infecting the jury selection process. The nature of “implicit” bias is that it is subject to misinterpretation and disagreement.