In anticipation of the Judicial Conference on Jury Selection last week, the New Jersey State Bar Association (NJSBA) formed the Working Group on Jury Selection to take a hard look at the jury selection process and the role of bias in it. The judicial conference was called by the Supreme Court in its opinion in State v. Andujar, 247 N.J. 275 (2021), which took to task a prosecutor who ran an unauthorized background check on a Black potential juror following the lower court’s denial of a for-cause dismissal of the juror.
“In pursuit of a system that best serves the residents of this state who turn to the courts to resolve their disputes, the time has come to reframe how New Jersey effectively addresses both intentional and implicit discrimination in all of its expressions,” said the NJSBA in its report. “This endeavor can and will have historic implications for our system of justice moving forward, and it must be given the time, attention and analysis it requires and deserves.”
The Andujar opinion discussed the role of peremptory challenges in the jury selection process, noting that “New Jersey today allows for the highest number of peremptory challenges in the nation…” The working group, headed by Raymond M. Brown, of Pashman Stein Walder Hayden, and Michael G. Donohue III, of Stark & Stark, met with county bar associations, affinity bar associations, and trial lawyers throughout the state to discuss and analyze the role of bias in the jury selection process and the role of peremptory challenges in that process. Chief among the concerns is the training and education to help everyone, from judges to attorneys to jurors, understand and address implicit bias, especially as it relates to jury service, according to the report. Peremptory challenges balance that approach.
“[P]eremptory challenges by their nature act as a safeguard in a system that relies heavily upon a juror’s self-diagnosis of bias,” said the NJSBA. Their report was presented to the Supreme Court in advance of last week’s judicial conference, with seven recommendations to address jury bias:
1) Maintain the current number of statutorily afforded peremptory challenges in all matters.
2) Expand voir dire to include appropriate attorney-conducted questioning that decreases the influence and dominance of the judge in juror questioning.
3) Revisit New Jersey’s law on for-cause challenges to provide for less trial court deference to prospective jurors’ assessments of their own ability to be fair, and to err on the side of excluding jurors as to whom there is concern in this regard.
4) Study and enact meaningful reform of the analysis for peremptory challenges consistent with other states, such as Washington and California.
5) Expand the jury source list, address the loss of jurors to undeliverable summonses, and increase juror compensation to attract a diverse jury pool.
6) Expansive training for judges, attorneys and jurors on the issue of implicit bias.
7) Improve data collection and analysis that allows for pertinent information to ascertain jury demographics and for-cause and peremptory challenges.
A full copy of the report, which includes analyses on the history of peremptory challenges and a report from leading implicit bias experts, can be found at njsba.com.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.