The Journey Towards Increasingly Fair Jury Selection in New Jersey

Aron Solomon

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In August, New Jersey’s Supreme Court made a progress report public on the issue of the state judiciary’s efforts to address racial disparities in the court system. One of the issues the court sees as among the most important is jury selection, specifically, the racial composition of juries, which often does not reflect the people who are required to appear in court before these juries.

The New Jersey State Bar Association wrote about this issue in 2020. In a piece aptly entitled “Selecting the Perfect Jury Without Bias,” the authors look at how the practice of jury selection has stayed far from the theory behind it. While all attorneys want a jury that they feel, from the selection process, will be as aligned with their side of the argument as possible:

The practice of jury selection, however, has come under scrutiny because of the potential for prosecutors to exclude jurors based on race.

Roy Konray, a trial lawyer at Team Law in New Jersey, observes that part of what has driven this is the peremptory challenge. A peremptory challenge is the right to challenge and remove a prospective juror without needing to give a reason.

Juries can be shaped in part by these challenges; where there is racial bias in jury selection, as there has been in New Jersey, the end result is juries often don’t even come close to matching the backgrounds of the people whose fate they are deciding.

In the 2020 New Jersey Action Plan for Ensuring Equal Justice, jury selection is the first point mentioned:

1. Supporting Juror Impartiality

The New Jersey Supreme Court is committed to the selection of fair and impartial juries that fully represent their communities. Having requested and considered public comments on draft proposals, the Court in July 2021 approved new jury selection questions and additions to model jury instructions to support juror impartiality and reduce the effects of implicit bias. These updated questions and instructions will be implemented later in 2021 in conjunction with a new juror orientation video on impartiality and implicit bias.

The Supreme Court in State v. Andujar (A-6-20) (decided July 13, 2021) announced a Judicial Conference on Jury Selection in late 2021. The Judicial Conference will examine implicit bias in jury selection, including but not limited to the potential effects of the allotment and exercise of peremptory challenges on juries and juror experiences in criminal trials. In State v. Dangcil (State v. Wildemar A. Dangcil A-56-20) (decided August 16, 2021), the Court also directed that juror demographic data be collected.

Anthony Gualano, a criminal lawyer at Team Law, argues that the Action Plan makes a lot of sense:

This is definitely forward motion for New Jersey. If the court system walks the walk to match this report’s talk, New Jersey could be an exceptionally good example for other states as to how to best enact juror impartiality changes.

The 2021 comments to the Action Plan add one more concrete element:

3. Requiring training on implicit bias and elimination of bias for all Judiciary employees.

The Court will evaluate a proposal to require all state court employees to complete a standardized training on recognition and elimination of explicit and implicit bias.

Given the paramount importance that must always be given to ensuring fairness and transparency in jury trials and jury selection, New Jersey is absolutely considering the right issues. How this will translate from idea to broad interpretation remains to be seen, yet the state’s courts should be acknowledged for this ongoing effort.

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Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital, who has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.

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