Following a state Supreme Court decision and the first judicial conference to be held in three decades to discuss reducing bias and discrimination in the jury selection process, the Court last week released a set of recommendations to kickstart changes in many aspects of jury selection.
The New Jersey State Bar Association was vocal in its opposition to reducing peremptory challenges and issued a comprehensive report ahead of the Judicial Conference on Jury Selection, offering researched recommendations and insights in New Jersey’s approach to jury selection.
Under the Court’s new process, the first step is the introduction of three initial measures from the Supreme Court that are meant to clarify for-cause challenges, formalize the scope of juror records available before selection and specify which of those records would be excluded from public access. In addition, the Court approved a pilot program in the criminal court to explore the feasibility of an attorney-conducted voir dire (ACVD) that includes the reduction of available peremptory challenges. Finally, the Court approved a number of recommendations, supported by the NJSBA, aimed at reducing systemic barriers to jury service, encouraging a more representative pool of jurors and increasing the demographic juror data that is collected and distributed.
Court rule amendments
Rule 1:8-3 regarding juror challenges has been amended to require the party challenging the juror to state the basis for the challenge and permit the other party to state their position. Based upon this, if a court finds there is a reasonable basis to doubt the juror would be fair and impartial, the court “shall” grant the for-cause challenge and state the reason for its determination.
The NJSBA underscored the pitfalls of having to exercise a peremptory challenge for a juror who is challenged, but where the judge then asks questions to drill down on a juror’s bias—sometimes known as “rehabilitating” a juror. In arguing against eliminating peremptory challenges altogether, the NJSBA pointed out that they are a necessary tool so that “a party need not be bound by such assurances of impartiality.”
This rule amendment addresses the NJSBA’s concern, though likely in favor of a future decision to remove peremptory challenges altogether—a decision that the NJSBA does not currently support. This rule takes effect on Sept. 1.
The Court also amended R. 1:8-5 regarding the ability to review petit jury lists by including in the list the jurors who have been disqualified, excused, or deferred, as well as jurors who are scheduled to report for selection. The rule limits the availability of these lists to exclude parties.
Here, again, the NJSBA expressed concern that the general pool of jurors, including those dismissed without taking note of the demographics, may lead to a jury that is not reflective of the demographic makeup of a particular vicinage. This change allows attorneys to review the lists in anticipation of trial to ensure an accurately reflected jury pool and panel. This rule also takes effect on Sept. 1.
The Court also introduced a newly created R. 1:803A–Reduction of Bias in the Exercise of Peremptory Challenges, which will take effect Jan. 1, 2023. The rule sets out the parameters of the use of peremptory challenges, expressly prohibiting removal of a juror based on actual or perceived membership in a group protected under the federal or state constitutions or the New Jersey Law Against Discrimination. The NJSBA expressed support for the rule change, but noted the rule’s treatment of a party’s objection to the use of a peremptory challenge that unintentionally focuses on the intent of the party exercising the challenge.
The NJSBA suggested an amendment to clarify that the focus should be on the underlying basis for exercising the peremptory challenge, not the intent of either party. The rule was adopted without the suggested change.
The Judiciary will offer training for judges and attorneys focused on implicit bias in the jury selection process to assist in properly implementing the new procedures. The NJSBA recognized increased training as critical to the success of any changes to the jury selection process.
Pending statewide adoption of the rule, the Court will also relax the Court Rules to extend the provisions of the rule to cases in the attorney conducted voir dire pilot program. This rule will be effective on Jan. 1, 2023.
Pilot program coming this fall
Finally, the Court issued an order authorizing a pilot program that would allow attorneys to ask more targeted questions to ascertain relevant information about jurors.
Acknowledging that few states still use a judge-led system of voir dire, the Court has authorized pilot programs in Bergen, Camden and Middlesex vicinages. The program will involve only single-defendant criminal matters. Participation is voluntary and will require the consent of both parties. The voluntary reduction in the number of peremptory challenges is a condition for participation.
The NJSBA supports ACVD as an effective tool to elicit valuable information about specialized biases that may exist because of unique facts of the case, but urged that any pilot program focus solely on ACVD to ensure an accurate and reliable evaluation of its effectiveness. The NJSBA cautioned that the reduction of peremptory challenges, even if by consent, raises constitutional and practical issues. The program will begin Sept. 1.
The Court’s notices may be found at njcourts.gov. And the NJSBA’s Interim Report to the Judicial Conference on Jury Selection by the Working Group on Jury Selection and comments on the recommendations of the Judicial Conference Committee are available 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.