Big Updates to the New Jersey Jury Selection Process
New Jersey is taking on the inherent issues in how it selects members of the jury pool, meaning big updates and impacts for potential jurors, prosecutors, and defense lawyers statewide.
Seeking to address the jury issues raised in State v. Andujar, 247 N.J. 275, 318 (2021), the Supreme Court ordered a data collection and review of jury history. The Committee reviewed data and made recommendations regarding jury service and selection. A separate report examined the jury process for diversity and juror attrition. The review profiled those who failed to show up for jury service during the pandemic when a hybrid juror selection system was in place. The report confirmed that minorities were the largest population failing to appear for jury service in person. Inversely, those who showed up for jury service were not representative of their community. The report further concluded that aggressive use of peremptory challenges and systemic problems in jury selection led to the underrepresentation of minorities on juries in New Jersey.
What Prompted the Examination of Jury Selection in NJ?
The Andujar case involved the state’s investigation of a Black male juror following its challenge for cause, removing the juror from the potential jury. The Superior Court judge denied the removal, but the state returned with the juror’s background check, noting warrants for his arrest. When the court agreed to remove the subject juror, defense counsel requested an additional peremptory challenge and expressed concerned about tainting the jury and the prospect of jurors in a specific area high on crime worrying about showing up for jury duty. The court denied the request. After the defendant’s conviction, he filed an appeal based on racial discrimination in the jury selection process, and thus, he was denied a fair trial. The Appellate Court reversed and remanded. The Supreme Court certified the case for consideration and ruled that the state unilaterally investigated a juror without moving the court and giving defense counsel notice and opportunity to respond. The Court also focused in on the peculiar problems of numerous peremptory challenges that New Jersey permits and the susceptibility to discrimination, among other problems balancing the fairness of the jury selection process, due process, and other constitutional considerations. The Supreme Court affirmed the Appellate Court decision and remanded the case to the Superior Court.
Arising from the issues raised in the Andujar case, the Supreme Court ordered the Committee of the Judicial Conference on Jury Selection to make recommendations after collecting data on juror demographics and qualifications to measure diversity. They also addressed whether jury pools fairly represented the community from which they were drawn. The data collection and review resulted in a rewording of the juror questionnaires to gather juror race, gender, and ethnicity background information among the 25 recommendations for the Court’s approval.
Recommendations on Updates to How New Jersey Handles Jurors
In addition to reforming questionnaires and surveying juror demographics, the Court approved amendments to Rule 1:8-3, 1:8-5, and Rule 1:38-5(g). The amendments clarify when courts can dismiss jurors who appear unable to be fair and impartial. They also outlined the records used for jury selection and which ones to keep from the public. The Court confirmed new Rule 1:8-3A to reduce bias in peremptory challenges. These are the free challenges attorneys get (without cause) when it is time to impanel a jury.
Among other recommendations, the Supreme Court approved adding records from which to draw juror names, such as those from the Department of Labor (Rec 3), and allowing convicts who served their sentences eligibility for jury duty (Rec 4). Now, they may not serve as jurors. To entice jurors to appear, the Committee recommended increasing juror pay (Rec 5), reducing the service term for petit jurors (Rec 6), and adding QR codes on jury summonses for online access and information (Rec 7). While improving online access and options for juror and court administration communications (Rec 8), the Committee also recommended making printed notices more readable (Rec 9).
Addressing the jury pool expansion need, Recommendation 10 was for community education and outreach regarding jury duty, including a media campaign and juror appreciation recognition (Rec 11). Regarding transparency and the jury selection process, the Court approved recommendations for continued information and access regarding juror records to parties before the jury selection process begins (Rec 12), without public disclosure of certain records (Rec 13). Additionally, the Committee recommended efforts to get jurors to serve should continue without penalizing them for non-appearance (Rec 13). Too many jurors do not appear for jury service. In other words, the Judiciary should attract jurors and not punish them when they ignore their jury service notice, except in the worst cases of those who continually fail to report.
Other recommendations include developing a state model for attorney-conducted voir dire (ACVD) in a pilot program and dismissing jurors when it is reasonable to assume they cannot be fair and impartial (Rec 14). The pilot program was first implemented for all trials in Bergen County, Middlesex County, and Camden County. In addition, the Committee recommended distinguishing between hardship exemptions and those jurors excused for other reasons (Rec 15). Jurors who are the sole caretaker or financial providers in a household may experience extreme hardship serving on a jury and may be exempt if they make a case for it. Requiring fewer peremptory challenges is also an avenue to explore in the state model for ACVD (Rec 16).
The 17th recommendation is to add questions on the juror qualification survey regarding race, gender, and ethnicity, which addresses one issue raised in State v. Andujar. And publishing juror demographics data each year is the 18th recommendation, as well as making demographic information about potential trial jurors available to the parties pre-selection (Rec 19). To further transparency, the Committee also recommended that information about the jury screening process be open to the public (Rec 20). The remaining recommendations the Court approved concern the overall data collection method for tracking how and why jurors are dismissed for cause. And the last three recommendations encourage continued training for judges and attorneys about implicit bias in jury selection and education about implicit bias for jurors. Further, the Judiciary should incorporate information from educational materials in voir dire questions to jurors.
If I’m Charged with a Crime, Will Changes to the Jury Selection Process Help or Hurt my Case in NJ?
The committee recommendations and broader report findings reveal systemic problems in jury selection, especially in primarily minority communities and communities with higher crime rates. Most criminal trials involve multiple crimes, repeat offenders or the most severe crimes. Otherwise, plea bargains or diversionary programs tend to help resolve lesser criminal offenses. The crimes or situations that are more difficult to plea out or obtain acceptance for a diversionary program like Pre-Trial Intervention (PTI) tend to go to trial. They are also the ones with the highest stakes, as prison sentences are longer, often with mandatory minimum prison sentences. Gun crimes, serious charges involving drugs, manslaughter, arson, kidnapping, carjacking, armed robbery, and aggravated assault cases are common sources of criminal trials. Thus, the implicit bias, flawed jury pre-selection process, and peremptory challenges before, during, and after a pandemic would deprive defendants with the most to lose with unconstitutionally flawed juries and trials.
These recent findings and recommendations are complicated but have real implications for defendants’ rights to fair trials in New Jersey. Consult with an experienced criminal defense attorney at The Tormey Law Firm if you have questions regarding your criminal charges and how the process of selecting a jury can impact your case. Our firm handles criminal cases all over the state, some of which involve the most severe crimes in the New Jersey statutes. We challenge mandatory minimums, constitutional rights violations, illegal searches and seizures, Graves Act sentences, and many more of the harsh consequences that our clients may be facing.
With tested and proven defense strategies and trial experience, our attorneys can further explain upcoming jury selection changes and how we may be able to raise defenses for your trial. Our criminal law firm is committed to protecting our clients’ constitutional rights from the beginning to the end of the justice process, including fighting to ensure that you receive a fair trial before a jury of your peers. Contact us anytime, day or night, for a free legal consultation regarding your criminal case. You can reach us online or by phone at (201)-556-1570 for further information and assistance.