New Jersey v. Andujar

Annotate this Case

This appeal centered on the selection process for F.G., a Black male from Newark, New Jersey. F.G. was questioned at sidebar for about a half hour; F.G. told the court he believed he could be a fair and impartial juror. The State challenged F.G. for cause, noting that F.G. “has an awful lot of background” and “uses all of the lingo about, you know, the criminal justice system.” A second prosecutor voiced concern that F.G.’s “close friends hustle, engaged in criminal activity” because “[t]hat draws into question whether [F.G.] respects the criminal justice system” and his role as a juror. The trial court denied the State’s motion. After the court’s ruling, the prosecution ran a criminal history check on F.G. The next day, the court explained the prosecutor “came to see me yesterday” and revealed that there were “warrants out for F.G.” and that “[t]hey were going to lock him up.” Afterward, the State renewed its application to remove F.G. for cause. Defense counsel expressed concern about tainting the jury. The prosecutor replied that “the State is not in the habit of . . .looking at a random juror’s” criminal history, and then reiterated concerns the State had voiced the day before to explain why it ran a background check. Defendant Edwin Andujar was convicted as charged. On appeal, he argued he was denied the right to a fair trial because racial discrimination infected the jury selection process. In doing so, the Supreme Court addressed for the first time when a criminal history check could be run on a prospective juror. The New Jersey Supreme Court found nothing in the record that justified the State's decision to selectively focus on F.G. and investigate only his criminal record. "Based on all of the circumstances, the Court infers that F.G.’s removal from the jury panel may have stemmed from implicit or unconscious bias on the part of the State, which can violate a defendant’s right to a fair trial in the same way that purposeful discrimination can." The Court therefore reversed his conviction and remanded for a new trial.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Edwin Andujar (A-6-20) (084167)

Argued March 30, 2021 -- Decided July 13, 2021

RABNER, C.J., writing for a unanimous Court.

In this appeal, the Court considers defendant Edwin Andujar’s argument that he
was denied the right to a fair trial because racial discrimination infected the jury selection
process. In doing so, the Court addresses for the first time when a criminal history check
can be run on a prospective juror.

The appeal centers on the selection process for F.G., a Black male from Newark.
F.G. was questioned at sidebar for about a half hour. Throughout the questioning, F.G.
told the court he believed he could be a fair and impartial juror.

F.G. volunteered that he had answers to multiple voir dire questions, including
having two cousins in law enforcement and knowing “[a] host of people” who had been
accused of crimes -- five or six close friends in all. In providing details about those
accusations, F.G. used terms like “CDS” and “trigger lock.” F.G. also told the court
about three crime victims he knew. He said that two cousins had been murdered, and a
friend had been robbed at gunpoint. F.G. was asked if anything he had said would have
an impact on him as a juror. F.G. suggested that he, like every other juror, has a unique
background and perspective, which is why defendants are judged by a group. After
additional questions, F.G. was asked whether the criminal justice system was fair and
effective; F.G. responded, “I believe so because you are judged by your peers.”

The State challenged F.G. for cause and asked that he be removed. The prosecutor
noted that F.G. “has an awful lot of background” and “uses all of the lingo about, you
know, the criminal justice system.” A second prosecutor voiced concern that F.G.’s
“close friends hustle, engaged in criminal activity” because “[t]hat draws into question
whether [F.G.] respects the criminal justice system” and his role as a juror.

Defense counsel stated that “it is not a hidden fact that living in certain areas you
are going to have more people who are accused of crimes, more people who are victims
of crime,” and that “to hold it against [F.G.] that these things have happened . . . to people
that he knows . . . would mean that a lot of people from Newark would not be able to
serve.”

1
The trial court denied the State’s motion, explaining that “[e]verything [F.G.] said
and the way he said it leaves no doubt in my mind that he . . . does not have any bias
towards the State nor the defense . . . . I think he would make a fair and impartial juror.”

After the court’s ruling, the prosecution ran a criminal history check on F.G. The
next day, the court explained the prosecutor “came to see me yesterday” and revealed that
there were “warrants out for F.G.” and that “[t]hey were going to lock him up.” Defense
counsel noted there was “one warrant out of Newark Municipal Court.” Afterward, the
State renewed its application to remove F.G. for cause. When the court asked for the
defense’s position, counsel responded, “I don’t oppose[] the State’s application.”

Defense counsel expressed concern about tainting the jury and added, “I think
coming to court for jury service no one expects they are going to be looked up to see if
they have warrants.” The prosecutor replied that “the State is not in the habit of . . .
looking at a random juror’s” criminal history, and then reiterated concerns the State had
voiced the day before to explain why it ran a background check. The prosecutor denied
that racial bias played a role in the State’s application to remove F.G. for cause. Defense
counsel then placed on the record a “concern that the State doesn’t typically check people
out, but in this case, they did single someone out to check for warrants.”

Defense counsel asked the court to award defendant one additional peremptory
challenge. Counsel argued that the State had an unfair advantage in that it could access
databases to run a criminal history check, but defendant could not; counsel also noted that
the State’s “target[ing]” of F.G. “implicates due process concerns . . . regarding [F.G.’s]
rights to sit on a jury.” The court denied the request. The jury convicted defendant.

The Appellate Division reversed and remanded for a new trial. 462 N.J. Super. 537,
563 (App. Div. 2020). The Court granted certification. 244 N.J. 170 (2020).

HELD: *Courts, not the parties, oversee the jury selection process. On occasion, it
may be appropriate to conduct a criminal history check to confirm whether a prospective
juror is eligible to serve and to ensure a fair trial. That decision, though, cannot be made
unilaterally by the prosecution. Going forward, any party seeking to run a criminal
history check on a prospective juror -- through a government database available only to
one side -- must present a reasonable, individualized, good-faith basis for the request and
obtain permission from the trial judge. The results of the check must be shared with both
parties and the court, and the juror should be given an opportunity to respond to any
legitimate concerns raised.

*That standard was not met here. Nor is there anything in the record that
justified the State’s decision to selectively focus on F.G. and investigate only his criminal
record. Based on all of the circumstances, the Court infers that F.G.’s removal from the
jury panel may have stemmed from implicit or unconscious bias on the part of the State,

2
which can violate a defendant’s right to a fair trial in the same way that purposeful
discrimination can. Defense counsel raised multiple serious concerns but should have
leveled a more precise objection. Nonetheless, the Court cannot ignore the evidence of
implicit bias that appears in the extensive record. Under the circumstances, defendant’s
right to be tried by an impartial jury, selected free from discrimination, was violated. The
Court therefore reverses his conviction and remands for a new trial.

*New Jersey today allows for the highest number of peremptory challenges
in the nation -- more than double the national average -- based on a statute enacted in the
late 1800s. Yet, as the United States Supreme Court acknowledged decades ago,
peremptory challenges can invite discrimination. See Batson v. Kentucky, 476 U.S. 79,
96, 98 (1986). Although the law remains the same, our understanding of bias and
discrimination has evolved considerably since the nineteenth century. And federal and
state law have changed substantially in recent decades to try to remove discrimination
from the jury selection process. See Batson, 476 U.S. 79; State v. Gilmore, 103 N.J. 508
(1986). It is time to examine the jury selection process -- with the help of experts,
interested stakeholders, the legal community, and members of the public -- and consider
additional steps needed to prevent discrimination in the way we select juries. The Court
calls for a Judicial Conference on Jury Selection. The Conference will convene in the fall
to assess this important issue and recommend improvements to our system of justice.

1. Prospective jurors are typically excused in two ways. The court can excuse jurors “for
cause” when it appears that they would not be fair and impartial, that their beliefs would
substantially interfere with their duties, or that they would not follow the court’s
instruction or their oath. Either party can challenge a juror for cause; the trial court can
also act on its own. Both parties can also exercise peremptory challenges and remove a
juror without stating a reason under N.J.S.A. 2B:23-13(b). Both the Federal and State
Constitutions bar discrimination based on race in the jury selection process. (pp. 22-23)

2. Under the Equal Protection Clause of the United States Constitution, no citizen can be
excluded from jury service on account of race. See Batson, 476 U.S. at 84. In Batson,
the Supreme Court outlined an analytical framework to examine whether allegedly
discriminatory peremptory challenges violated the Equal Protection Clause. Id. at 93-98.
The New Jersey Constitution likewise guarantees defendants a “trial by an impartial jury
without discrimination on the basis of religious principles, race, color, ancestry, national
origin, or sex.” Gilmore, 103 N.J. at 524. That guarantee is rooted in Article I,
Paragraphs 5, 9, and 10, which together provide defendants “the right to trial by a jury
drawn from a representative cross-section of the community.” Id. at 524. (pp. 23-27)

3. In Gilmore, the Court outlined an analytical framework to assess potentially
discriminatory peremptory challenges. With certain refinements, the Court summarized
the three-step process in State v. Osorio, 199 N.J. 486, 492-93 (2009): (1) the party
contesting the peremptory challenge must carry the “slight” burden of “tender[ing]
3
sufficient proofs to raise an inference of discrimination” in the exercise of the challenge;
(2) if that burden is met, then the party exercising the challenge must “prove a race- or
ethnicity-neutral basis” for the challenge; and (3) the court must “determine whether, by a
preponderance of the evidence, the party contesting the exercise of a peremptory
challenge has proven that the contested peremptory challenge was exercised on
unconstitutionally impermissible grounds of presumed group bias.” The Court reviews
guidance from case law applicable to each of the three steps, as well as the remedies
available to respond to impermissible uses of peremptory challenges. (pp. 27-31)

4. Batson and Gilmore address purposeful racial discrimination in jury selection. Yet
parties may not be aware of their own biases. Justice Marshall highlighted the concern of
implicit bias in a concurring opinion in Batson: “A prosecutor’s own conscious or
unconscious racism may lead him easily to the conclusion that a prospective black juror
is 'sullen,’ or 'distant,’ a characterization that would not have come to his mind if a white
juror had acted identically.” 476 U.S. at 106 (Marshall, J., concurring). From the
standpoint of the State Constitution, it makes little sense to condemn one form of racial
discrimination yet permit another. What matters is that juries selected to hear and decide
cases are chosen free from racial bias -- whether deliberate or unintentional. (pp. 31-33)

5. The practice of running background checks on prospective jurors raises a question of
first impression for the Court. Today, the State alone has the ability to unilaterally
conduct such checks. The State represents that it is extremely rare for it to conduct
background checks on prospective jurors. It relies on regulations promulgated by the
Department of Law and Public Safety as the source of its authority. The Court does not
question the State’s good-faith belief that it had the authority to run the background check
it conducted in this case. But administrative regulations generally may not govern the
intricacies of jury selection any more than they could control other aspects of a trial.
New Jersey case law on the issue is sparse, and other jurisdictions have reached varied
conclusions on the subject. (pp. 34-39)

6. 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. (pp. 39-42)

7. Here, “[t]he 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

4
562. That argument, the Appellate Division observed, was not new, and historically
stemmed from impermissible stereotypes about racial groups -- particularly Black
Americans. Ibid. 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. (pp. 42-47)

8. Although no formal Batson/Gilmore evaluation was conducted before the trial court,
the detailed record reveals that the circumstances surrounding F.G.’s dismissal allowed
for an inference that his removal was based on race -- which, again, is a slight burden to
establish. F.G., a minority juror, answered all questions posed in a manner that led the
trial judge to conclude “he would make a fair and impartial juror.” The State’s
justifications for running the check and seeking F.G.’s removal did not rebut the
inference of discrimination. In fact, the trial court had already considered and discounted
the State’s reasons when the court denied its motion to remove F.G. for cause. And
throughout the appellate process, the State has not provided a convincing non-
discriminatory reason for the steps it took to keep F.G. off the jury. Finally, the evidence
in the record reveals, by a preponderance of the evidence, that F.G.’s removal and the
background check that prompted it stemmed from impermissible presumed group bias.
The Court does not find the trial prosecutors engaged in purposeful discrimination or any
willful misconduct. The record here suggests implicit or unconscious bias on the part of
the State. Defendant’s constitutional right to be tried by an impartial jury, selected free
from discrimination, was violated, and his conviction must be reversed. (pp. 47-49)

9. The Court considered implicit bias as part of the Gilmore analysis in this appeal.
Except for defendant, this new rule of law will apply only to future cases. (p. 49)

10. New Jersey today provides far more peremptory challenges than any other state,
based on a nineteenth-century law. But “there can be no dispute[] that peremptory
challenges constitute a jury selection practice that permits 'those to discriminate who are
of a mind to discriminate.’” Batson, 476 U.S. at 96. The Court asks the Director of the
Administrative Office of the Courts to arrange for a Judicial Conference on Jury
Selection to explore the nature of discrimination in the jury selection process. The Court
invites the legal community as a whole to take part in a probing conversation about
additional steps needed to root out discrimination in the selection of juries. (pp. 50-54)

AFFIRMED AS MODIFIED and REMANDED for a new trial.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER’s opinion.

5
SUPREME COURT OF NEW JERSEY
A-
6 September Term 2020
084167

State of New Jersey,

Plaintiff-Appellant,

Edwin Andujar,

Defendant-Respondent.

On certification to the Superior Court,
Appellate Division, whose opinion is reported at
462 N.J. Super. 537 (App. Div. 2020).

Argued Decided
March 30, 2021 July 13, 2021

Frank J. Ducoat, Special Deputy Attorney General/Acting
Assistant Prosecutor, argued the cause for appellant
(Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney; Frank J. Ducoat and Emily M.M.
Pirro, Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the briefs).

Joseph J. Russo, Deputy Public Defender, argued the
cause for respondent (Joseph E. Krakora, Public
Defender; attorney; Joseph J. Russo, Alison Perrone,
First Assistant Deputy Public Defender, Kevin S.
Finckenauer, Assistant Deputy Public Defender, of
counsel and on the briefs, and John Douard, Assistant
Deputy Public Defender, on the briefs).

1
Adam D. Klein, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Adam D.
Klein, of counsel and on the brief).

Karen Thompson argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Karen Thompson, Alexander Shalom, and
Jeanne LoCicero, on the brief).

Raymond M. Brown argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
(Pashman Stein Walder Hayden, attorneys; CJ Griffin, of
counsel and on the brief).

Jonathan Romberg argued the cause for amicus curiae
Seton Hall University School of Law Center for Social
Justice (Seton Hall University School of Law Center for
Social Justice, attorneys; Jonathan Romberg, on the
brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

In this appeal, defendant argues he was denied the right to a fair trial

because racial discrimination infected the jury selection process. The

Appellate Division reversed defendant’s conviction on that ground, and we

modify and affirm the court’s judgment. In doing so, we address for the first

time when a criminal history check can be run on a prospective juror.

The appeal centers on the selection process for F.G., a Black male from

Newark who was summoned for jury service. The prosecution questioned F.G.

2
extensively about people he knew who had been accused of crimes, or were

victims of crimes, and then asked the trial judge to remove him for cause. The

State argued that F.G.’s background, associations, and knowledge of the

criminal justice system were problematic, and also suggested that F.G. had

been evasive. The trial judge rejected the challenge and found F.G. “would

make a fair and impartial juror.”

Relying on the same reasons the trial judge did not accept, the State

chose to run a criminal history check on F.G. It did not investigate any other

prospective jurors in that way.

The prosecution promptly notified the trial judge and defense counsel of

what the background check revealed: F.G. had two prior arrests that did not

result in a conviction and an outstanding municipal court warrant for simple

assault. Nothing in the results disqualified F.G. from serving as a juror.

By the time court resumed the next day, however, the prosecution had

already taken steps to arrange for F.G.’s arrest. After further discussion in

court, he was removed from the jury panel and arrested. The outstanding

charges against him were dropped two months later.

Courts, not the parties, oversee the jury selection process. On occasion,

it may be appropriate to conduct a criminal history check to confirm whether a

prospective juror is eligible to serve and to ensure a fair trial. That decision ,

3
though, cannot be made unilaterally by the prosecution. Going forward, we

direct that any party seeking to run a criminal history check on a prospective

juror must present a reasonable, individualized, good-faith basis for the request

and obtain permission from the trial judge. We refer to a check of a

government database that is available to only one side. The results of the

check must be shared with both parties and the court, and the juror should be

given an opportunity to respond to any legitimate concerns raised.

That standard was not met here. Nor is there anything in the record that

justified the State’s decision to selectively focus on F.G. and investigate only

his criminal record. Based on all of the circumstances, we infer that F.G.’s

removal from the jury panel may have stemmed from implicit or unconscious

bias on the part of the State, which can violate a defendant’s right to a fair trial

in the same way that purposeful discrimination can.

We require defense counsel to make precise, timely objections during

jury selection. Here, counsel raised multiple serious concerns but should have

leveled a more precise objection. Nonetheless, we cannot ignore the evidence

of implicit bias that appears in the extensive record. Under the circumstances,

we find that defendant’s right to be tried by an impartial jury, selected free

from discrimination, was violated. We therefore reverse his conviction and

remand for a new trial.

4
This appeal highlights the critical role jury selection plays in the

administration of justice. It also underscores how important it is to ensure that

discrimination not be allowed to seep into the way we select juries. Potential

jurors can be removed for cause if it appears they cannot serve fairly and

impartially. The parties can also strike individual jurors, without giving a

reason, by exercising peremptory challenges. N.J.S.A. 2B:23-13(b).

New Jersey today allows for the highest number of peremptory

challenges in the nation -- more than double the national average -- based on a

statute enacted in the late 1800s. Yet, as the United States Supreme Court

acknowledged decades ago, peremptory challenges can invite discrimination.

See Batson v. Kentucky, 476 U.S. 79, 96, 98 (1986).

Although the law remains the same, our understanding of bias and

discrimination has evolved considerably since the nineteenth century. And

federal and state law have changed substantially in recent decades to try to

remove discrimination from the jury selection process. See Batson, 476 U.S. 79; State v. Gilmore, 103 N.J. 508 (1986).

It is time to examine the jury selection process -- with the help of

experts, interested stakeholders, the legal community, and members of the

public -- and consider additional steps needed to prevent discrimination in the

way we select juries. We therefore call for a Judicial Conference on Jury

5
Selection. The Conference will convene in the fall to assess this important

issue and recommend improvements to our system of justice.

Defendant Edwin Andujar was accused of killing his roommate in

August 2014 by stabbing him twelve times with a knife. At trial, a neighbor

from the apartment downstairs testified that she heard a noise, ran upstairs, and

saw defendant holding a bloody knife next to the victim. The victim was in a

wheelchair at the time. The neighbor heard the victim exclaim that defendant

had stabbed him and was killing him. She then ran downstairs and called 9-1-

1. When a police officer arrived, defendant reportedly said, “I stabbed him, I

couldn’t take it anymore.”

Defendant testified that his roommate had told him he had to move out

of the apartment and then came at him with a knife. Defendant claimed he

took the knife during a struggle and then swiped at the victim and stabbed him

in an effort to get the victim off of him. Defendant said he never meant to hurt

the victim, who was a friend.

Five days later, after several surgeries, the victim died from his wounds.

In June 2017, a jury convicted defendant of first-degree murder and two

6
weapons offenses. He was sentenced to forty-five years in prison with a

period of parole ineligibility of approximately thirty-eight years.

According to the State, jury selection in this case lasted eight days; the

record contains only two days of transcripts. On May 31, 2017, F.G., a

prospective juror, was questioned at sidebar for about a half hour. More than

thirty pages of the transcript from that day relate to him. Throughout the

questioning, F.G. told the court he believed he could be a fair and impartial

juror.

F.G. volunteered that he had answers to multiple voir dire questions,

which the court carefully reviewed one by one. F.G. first relayed that he had

two cousins in law enforcement -- “a Newark cop and . . . an Irvington cop.”

He said that he did not discuss their work with them and that those

relationships would not interfere with his ability to serve on the jury.

F.G. next responded to this question: “Have you, any family member, or

close friend ever been accused of committing an offense other than a minor

motor vehicle offense?” He reported that he knew “[a] host of people” who

had been accused of crimes -- five or six close friends in all.

One had been accused of selling what F.G. referred to as “CDS” -- a

controlled dangerous substance -- five or six months before in Newark. F.G.

7
did not know the details of the case aside from the outcome: “[T]hey get

locked up after that it ain’t got nothing to do with it.” F.G. had gone to high

school with the person and believed he had been treated fairly. F.G. did not

know whether the individual was still in jail because F.G. had “moved away.”

A second friend had also been charged with selling drugs in Newark the

prior summer. F.G. assumed the result was the same as the first matter. He

explained he had no impression whether the second person had been treated

fairly, noting, “[h]onestly, I don’t have any problem as long as I stay out of it.”

F.G. believed the third person sold a “CDS” together with the second

individual and assumed both had been treated fairly. He did not know the

details of the cases and told the court, “I don’t get into their case. I don’t get

into their business.”

A fourth friend had been charged with gun possession about seven years

before in Newark. F.G. assumed he had been found guilty “[b]ecause he went

away for some years.” F.G. added, “I don’t know if he pleaded guilty. All I

know he got trigger locked and he went away.” 1 F.G. saw the person when he

1 Since the 1990s, federal prosecutors and agencies have partnered with state
and local law enforcement to investigate and prosecute firearms offenses as
part of a gun violence reduction strategy. Among other names, the program
has been known as “Project Triggerlock” and “Operation Triggerlock.” See
U.S. Dep’t of Just., Summary of District Gun Violence Reduction Strategies,
https://www.justice.gov/archive/opd/AppendixA.htm (last visited July 7,
2021).
8
came home again but did not speak with him about the offense or how he

thought he had been treated. In response to a follow-up question, F.G. said, “I

know he had three gun charges. I know after the third one he went to the

feds.” When asked about his familiarity with the term “trigger lock,” F.G.

explained, “I’m familiar with it. I grew up in a neighborhood where it just

ain’t good. You learn a lot of things from the streets.”

F.G. did not recall “[a]nybody else charged.” He then told the court

about three crime victims he knew. He said that two cousins had been

murdered. One was stabbed to death in Newark about fifteen years earlier.

The person accused of the crime was acquitted at trial. F.G. said he was upset

by the verdict but did not have any resentment toward the criminal justice

system. He added that he stayed away and wanted no part of the matter.

Another cousin had been shot to death a year or two afterward in

Kentucky. The accused in that case went to trial and was convicted. Both

matters involved domestic disputes.

The third victim, a friend of F.G.’s, had been robbed at gunpoint in

Newark two years ago. No one was charged in the case. When asked what he

thought about that, F.G. responded, “[a] lot of my friends live that lifestyle, so

I think it just come with the territory.”

9
The court then asked F.G. if “the fact that you know a lot of people who

are accused of crimes and lot of people who are victim[s] of crimes . . . would

make you a better juror than someone who hasn’t had that kind of experience

in their life.” F.G. responded, “No.” When asked if anything he had said so

far would have an impact on him as a juror and on the way he would view the

evidence, F.G. said, “the same as anybody else, background would affect

them.” In response to a question, he later clarified his answer:

What I was saying was, like, everybody in here,
jurors and everybody, got a background. And, you
know, this is different, that is why you getting judged
by what 14, 13, and everybody got different
perspectives about everything.

So, you know, what I’m saying, mine’s might be
a little different than the next person. The next person’s
might be little different according to where they grew
up and how they grew up.

F.G. also clarified his comment about the “lifestyle” his friends lived:

“A lot of my -- a lot of friends I grew up in neighborhood, they hustle, they

selling drugs; that is what I meant by the lifestyle.”

In response to the balance of the jury questionnaire, F.G. explained that

he worked for the Department of Public Works in East Orange. Previously, he

had been a security guard at high schools in Newark for about ten years and a

postal worker. F.G. added that he attended but did not finish college, and he

coached football in Newark in his spare time.
10
For the final question -- whether the criminal justice system was fair and

effective -- F.G. responded, “I believe so because you are judged by your

peers.”

After the above exchange, the State challenged F.G. for cause and asked

that he be removed. The prosecutor offered the following justification:

He has an awful lot of background. He says that
he wants no parts of any of this, but he has a host, using
his own language, of friends and family that have been
accused of crimes, same as being victims.

But when asked to give a number, he just kind of
guessed at the number, Judge, he gave us a number that
would satisfy us, the State submits. And I just felt that
there is more people that he knows are accused and
even more that could be victims. I think on a case like
this he has had two cousins that were murdered, one
was involved in a stabbing and a domestic dispute. It
sort of mirrors the facts of this case. It is a risk to take
a chance on somebody that might have a, you know,
problem with his cousin getting murdered in a domestic
dispute when we have the same set of facts in this case
almost mirroring it.

You know, he has -- he uses all of the lingo about,
you know, the criminal justice system, talked about
people getting picked up, talked about people getting
trigger locked, talked about CDS, talks about the
lifestyle. I just think that given his background and his
extensive background in the criminal justice system
with friends and family and knowing what the
testimony in this case is going to be is problematic.
And I think the juror should be excused for cause based
on his answers to those questions.
11
A second prosecutor then added,

What I think is very concerning his close friends hustle,
engaged in criminal activity. That is how his friends
make a living. That draws into question whether he
respects the criminal justice system, whether he
respects what his role is here, and whether he is going
to uphold all of the principles that he was instructed by
your Honor.

Additionally, I don’t think that he was as
forthcoming about his knowledge of the system. I
know towards the end after probing by counsel and by
your Honor, he did admit he knew a term such as
“trigger locking” and the way things worked. But in
the beginning he seemed to just be not forthcoming, no,
I don’t really know, I know they are locked up, I don’t
hear anything. I don’t think he was being fully honest.

In response, defense counsel called “the State’s position . . . untenable in

the sense that it means that no black man in Newark would be able to sit on

this jury.” When challenged by the prosecution, defense counsel took back her

comment about race and continued,

The people that he is around, because of where he lives,
the socioeconomic status of those people, their
interactions with the criminal justice system, it is not a
hidden fact that living in certain areas you are going to
have more people who are accused of crimes, more
people who are victims of crime. I think he was very
patient with us and went through the people that he
could remember.

The fact that he said things like you get picked
up, uhmm, that is just a fact of his life. He was the one
who volunteered the word or the term “trigger locked.”
12
He explained that he knew that term. It is not that he is
part of this milieu if we will use that term.

And he also mentioned that, a lot of my friends
live that lifestyle. But he also, you know, when he was
explaining that, he says that he likes to stay out of it, he
doesn’t like to involve himself in that. So I think to
hold it against him that these things have happened
around him to happen to people that he knows is not a
position that I think your Honor should entertain,
because I think it would mean that a lot of people from
Newark would not be able to serve.

The trial court then rejected the State’s motion and explained,

I don’t think there has been any reason at all that this
juror should be excused for cause.

Everything he said and the way he said it leaves no
doubt in my mind that he’s not expressed or does not
have any bias towards the State nor the defense for
anything. What he said, how he said it. I think he
would make a fair and impartial juror. I don’t have any
reason to doubt it, so that application is denied.

After the court’s ruling, the prosecution ran a criminal history check on

F.G. On the next day of jury selection, June 1, 2017, the court explained the

prosecutor “came to see me yesterday afternoon” and revealed that F.G. “had

been arrested before. He had warrants out for him. They were going to lock

him up.” The court noted the State provided incident reports and some

printouts as corroboration. The judge also stated that he had directed the

prosecutor “to tell [defense counsel] the same thing.”
13
Defense counsel corrected the record and noted there was “one warrant

out of Newark Municipal Court.” Afterward, the State renewed its application

to remove F.G. for cause. When the court asked for the defense’s position,

counsel responded, “I don’t oppose[] the State’s application.”

Much of the discussion that immediately followed focused on how to

avoid having F.G.’s arrest taint the jury pool. The prosecution represented that

F.G. would not be arrested in the jury’s presence. The prosecutor revealed the

following as well: that she had disclosed the information to a sergeant to

“contact[] Newark fugitive”; and that she “made a call this morning to find out

if, in fact, he was apprehended to avoid him having to come here.” In other

words, before the discussion in court on June 1, the prosecution had taken

steps to have the prospective juror arrested on a municipal court warrant.

To avoid any taint, the court suggested it would bring all the jurors into

the courtroom and excuse F.G. Once he returned to the first floor of the

courthouse, law enforcement would take over.

The following exchange occurred during that discussion. Defense

counsel expressed concern about tainting the jury and added, “I think coming

to court for jury service no one expects they are going to be looked up to se e if

they have warrants.”

14
The prosecutor replied, “just so the record is clear, the State is not in the

habit of doing what counsel just suggested where we are looking at a random

juror’s” criminal history. The prosecutor then reiterated concerns the State

had voiced the day before to explain why it ran a background check: F.G. ’s

“background and his acknowledgment that he hangs out with people that are in

a lifestyle and hustling drugs and getting arrested, the dozens of criminal

elements that he produced here at sidebar raised the concern for the State.”

The prosecutor again denied that racial bias played a role in the State’s

application to remove F.G. for cause. After the request had been denied the

day before, the prosecutor stated, “[w]e did do a look up on him. He turned up

to have an open warrant . . . plus additional arrests in the past, both for

domestic violence where it seems he has an alleged habit of beating up

women.”2

Defense counsel then placed on the record a

concern that the State doesn’t typically check people
out, but in this case, they did single someone out to
check for warrants. I think that is a concern, and I don’t
know what the remedy is for that. But it is troubling
that this person, this potential juror was singled out.

After a short recess, during which defense counsel consulted her office,

she asked the court to award defendant one additional peremptory challenge.

2
The record on appeal contains no support for this statement.
15
Counsel argued the State had an unfair advantage in that it could access

databases to run a criminal history check, but defendant could not. According

to defendant, “[t]he State clearly would have used a peremptory strike for this

potential juror” for the reasons they expressed at sidebar; instead, they “used

their resources” and did not have to “use a peremptory strike.” An additional

peremptory challenge, counsel argued, would partly “fix that imbalance.” It

would not, however, “address the concern that the State is record checking

people that they don’t like.” In response to a question from the court, defense

counsel confirmed that the only remedy she sought was an additional

peremptory challenge.

The prosecution opposed the request, and the court reserved decision on

the issue. The judge then brought the jury panel into the courtroom and

excused F.G., as planned.

The court later heard additional argument from the parties. Defense

counsel again noted the unfairness of allowing one side to conduct background

checks when the other could not, and added that the State “selectively

target[ed] one potential juror and look[ed] up information about that potential

juror. They didn’t have to do that. They chose to do that. They targeted that

juror. I think it implicates due process concerns. It implicates constitutional

16
concerns regarding that person’s rights to sit on a jury.” Counsel submitted

that F.G. had no criminal convictions and could sit on a jury.

In addition, counsel argued that there was no evidence that F.G. knew

about the prior charges, so it did not appear that he was dishonest by not

revealing them to the court. To the contrary, counsel argued, F.G. continued to

show up for jury duty, which suggested he did not know about the outstanding

bench warrant.

The State argued that F.G. had an open warrant for his arrest, had been

processed, and was no longer available to serve as a juror. The State also

observed that defense counsel had consented to the renewed challenge for

cause.

Defense counsel disagreed. “I believe I deferred to the court with the

understanding that he was going to be arrested. . . . I did put my opposition to

the fact that he was going to be arrested. I still don’t think that that is the

correct way to have dealt with this.” The court then reviewed counsel’s earlier

response and noted she had not objected.

Later the same day, the court denied defendant’s application for an

additional peremptory challenge. The court again observed “that defense

[counsel] did not object to [F.G.] being excused for cause.” Nor did defendant

present “any controlling authority” that “dictate[d] the defense should receive

17
an extra challenge.” At the end of the process, the State had one peremptory

challenge left and defendant had two. As noted earlier, after the jury

considered the evidence, it convicted defendant.

Defendant appealed. The Appellate Division reversed his conviction and

remanded the matter for a new trial. State v. Andujar, 462 N.J. Super. 537,

563 (App. Div. 2020).

The court initially confirmed that defendant had properly preserved a

challenge to the composition of the jury. Id. at 549-51. The Appellate

Division did “not reach the question whether a criminal record check is

authorized during jury voir dire” but recommended that a more complete

record be made in such an instance. Id. at 555. The court added that “the

State should not have undertaken . . . measures that . . . render[ed] a seated

juror unavailable without leave of court.” Ibid.

The Appellate Division noted that an analysis should have been done

under the Batson/Gilmore framework, which we discuss later, and that

defendant could have presented a prima facie case of discrimination relating to

the State’s treatment of F.G. -- a member of a protected group who alone “was

subjected to a record check.” Id. at 561-62.

18
Based on the record, the Appellate Division could not “determine with

certainty whether the prosecutor applied her reasons” for challenging F.G.

“evenhandedly to all prospective jurors.” Id. at 562. Nonetheless, “relief

[was] available to rectify the matter,” and the Appellate Division found the

trial court “could have refused to grant a dismissal for cause even in the face

of the juror’s potential arrest . . . on a municipal warrant.” Id. at 563.

Because the trial “court made no findings of fact concerning the

prosecution’s selective use of a criminal record check and granted no relief to

the defense,” the Appellate Division reversed defendant’s conviction and

remanded the case for a new trial. Ibid.

We granted the State’s petition for certification. 244 N.J. 170 (2020).

We also granted leave to the Attorney General, the American Civil Liberties

Union of New Jersey (ACLU), the Association of Criminal Defense Lawyers

of New Jersey (ACDL), and the Seton Hall University School of Law Center

for Social Justice (CSJ) to participate as friends of the Court.

II.

The State contends that prosecutors may conduct criminal history checks

of prospective jurors based on N.J.A.C. 13:59-2.1(a). The State also asserts

that it moved to strike F.G. for cause based on race-neutral reasons, including

information learned during the background check it ran. Defendant cannot

19
establish a prima facie case of discrimination under the circumstances,

according to the State. And if he could, the State maintains, it is essential to

hold a hearing pursuant to Batson/Gilmore. The State therefore submits that

defendant’s conviction should be reinstated or, in the alternative, that the

matter should be remanded to the trial court for a hearing.

The Attorney General focuses in particular on criminal history checks.

The Attorney General maintains that prosecutors should be able to access a

juror’s criminal history if they reasonably believe it may cast doubt on the

person’s ability to serve impartially; if challenged, “prosecutors . . . must be

able to articulate a legitimate, good-faith belief why” the record check was

appropriate. The Attorney General also proposes that best practices be

adopted for the rare occasions when records checks are conducted.

Defendant counters that prosecutors do not, and should not, have the

authority to perform independent criminal background checks on jurors. Such

investigations, defendant asserts, will discourage jury service and likely have a

disproportionate effect on Black Americans. Defendant argues that the State’s

actions amounted to a colorable claim of discrimination for which the only

viable remedy at this time is the reversal of his conviction. Defendant also

submits that the Batson/Gilmore framework should be modified to include an

20
“objective observer” standard in order to address the test’s shortcomings. See

State v. Jefferson, 429 P.3d 467, 480 (Wash. 2018).

The ACLU contends that the State’s selective use of a criminal

background check denied defendant his constitutional right to equal protection

of the law and to a trial by a jury comprised of a fair cross-section of the

community. The organization also asks the Court to impose new rules to

protect jurors from unwarranted criminal history checks.

The ACDL maintains that this case shows how prosecutors can evade

review under Batson/Gilmore and why reforms are needed to the jury selection

process. The group points to potential changes to combat implicit bias and

urges the Court to exercise its supervisory powers to prevent the State from

conducting background checks on jurors.

The CSJ contends that discriminatory background checks on prospective

jurors violate the State Constitution; that the State violated Gilmore because

the case’s underlying principles extend to background checks; that implicit

bias is a form of racially disparate treatment; and that the Court should adopt

new rules to protect against bias in jury selection.

III.
Because of the manner in which jury selection unfolded in this case,

defendant and amici contend that F.G.’s removal inappropriately evaded

21
review under Batson and Gilmore. Those cases involve peremptory

challenges.

Prospective jurors who are otherwise qualified to serve are typically

excused in two ways. The court can excuse jurors “for cause” when it appears

that they would not be fair and impartial, that their beliefs would substantially

interfere with their duties, or that they would not follow the court’s instruction

or their oath. State v. Simon, 161 N.J. 416, 465 (1999); State v. DiFrisco, 137 N.J. 434, 460 (1994). Either party can challenge a juror for cause; the trial

court can also act on its own. Both parties can also exercise peremptory

challenges and remove a juror without stating a reason under N.J.S.A. 2B:23- -

13(b).

To provide relevant context, we start with an overview of the case law

and principles relating to jury service and the selection process.

A.
Among the most important responsibilities we have as citizens is the

obligation to serve on a jury. Jury service provides a “substantial opportunity

. . . to participate in the democratic process.” Flowers v. Mississippi, 588 U.S.

___, 139 S. Ct. 2228, 2238 (2019). It also “guards the rights of the parties”

and fosters respect for the law. Powers v. Ohio, 499 U.S. 400, 407 (1991).

Bringing together a diverse group of jurors with different life experiences and

22
insights not only preserves “the right to trial by a jury drawn from a

representative cross-section of the community” but also helps achieve

impartiality. Gilmore, 103 N.J. at 524-25.

Both the Federal and State Constitutions bar discrimination based on

race in the jury selection process. The challenge is how to implement that

mandate effectively.

Under the Equal Protection Clause, no citizen can “be excluded from

jury service on account of . . . race.” Powers, 499 U.S. at 407; see Batson, 476 U.S. at 84; U.S. Const. amend. XIV, § 1. The Clause “forbids” prosecutors

from challenging potential jurors based solely on their race. Batson, 476 U.S.
at 89. Although jurors do “not have a right to sit on any particular . . . jury,”

they do “possess the right not to be excluded from one on account of race.”

Powers, 499 U.S. at 409. And a defendant is denied “equal protection of the

laws when . . . [placed] on trial before a jury from which members of his race

have been purposefully excluded” on the basis of race. Batson, 476 U.S. at 85

(citing Strauder v. West Virginia, 100 U.S. 303 (1880)).

Those principles have evolved over time. Strauder set forth basic

concepts against discrimination more than a century ago when the Supreme

Court struck down a state law that allowed only “white male persons” to serve

23
on juries. 100 U.S. at 305, 310. Yet discrimination in jury selection continued

long after in a “more covert” way -- “often accomplished through peremptory

challenges in individual courtrooms rather than by blanket operation of law .”

Flowers, 588 U.S. at ___, 139 S. Ct. at 2240.

In Swain v. Alabama, decided eighty-five years after Strauder, the

Supreme Court observed that “purposeful discrimination [could] not be

assumed” and imposed a high burden on defendants to establish a

constitutional violation. 380 U.S. 202, 205 (1965). The Court, in particular,

“held that a defendant could not object to the State’s use of peremptory strikes

in an individual case,” Flowers, 588 U.S. at ___, 139 S. Ct. at 2240, and that

prosecutors were not required to explain their reasons for challenging jurors in

a given case, Swain, 380 U.S. at 222.

Two decades later, the Court’s decision in Batson overruled parts of

Swain. Batson, 476 U.S. at 92-93; see also Flowers, 588 U.S. at ___, 139 S. Ct. at 2240. Batson recognized that “prosecutors’ peremptory challenges

[were then] largely immune from constitutional scrutiny” because “the

teaching of Swain” had led trial courts to place “a crippling burden of proof”

on defendants. 476 U.S. 92-93. The Court went on to outline an analytical

framework to examine whether allegedly discriminatory peremptory

challenges violated the Equal Protection Clause.

24
Under Batson, defendants must first establish “a prima facie case of

purposeful discrimination by showing that the totality of the relevant facts

gives rise to an inference of discriminatory purpose.” Id. at 93-94. The

burden then “shifts to the State to come forward with a neutral explanation

for” the peremptory challenge. Id. at 97. Next, the trial judge decides whether

“the defendant has established purposeful discrimination.” Id. at 98. In doing

so, the court “must determine whether the prosecutor’s stated reasons were the

actual reasons or instead were a pretext for discrimination.” Flowers, 588 U.S.

at ___, 139 S. Ct. at 2241.

The Supreme Court reaffirmed the above standard in Powers and

Flowers. Powers explained that it is not necessary for the defendant and the

excluded juror to be of the same race in order to assert a Batson challenge, 499 U.S. at 406, and that a defendant has standing to raise equal protection claims

on behalf of jurors who are excluded because of their race, id. at 415.

Flowers noted, among other things, “that disparate questioning can be

probative of discriminatory intent.” 588 U.S. at ___, 139 S. Ct. at 2247. As

the Court observed,

[d]isparate questioning and investigation of prospective
jurors on the basis of race can arm a prosecutor with
seemingly race-neutral reasons to strike the prospective
jurors of a particular race. In other words, by asking a
lot of questions of the black prospective jurors or

25
conducting additional inquiry into their backgrounds, a
prosecutor can try to find some pretextual reason -- any
reason -- that the prosecutor can later articulate to
justify what is in reality a racially motivated strike.

[Id. at 2247-48 (citation omitted).]

The Court added that “disparate questioning or investigation alone does not

constitute a Batson violation,” but it can, “along with other evidence, inform

the trial court’s evaluation of whether discrimination occurred.” Id. at 2248.

Flowers also underscored certain basic principles. The Supreme Court

observed that “even a single instance of race discrimination against a

prospective juror is impermissible” under the Equal Protection Clause. Id. at

2242. And the Court reaffirmed that “[e]qual justice under law requires a

criminal trial free of racial discrimination in the jury selection process .” Ibid.

The New Jersey Constitution likewise guarantees defendants a “trial by

an impartial jury without discrimination on the basis of religious principles,

race, color, ancestry, national origin, or sex.” Gilmore, 103 N.J. at 524. That

guarantee is rooted in Article I, Paragraphs 5, 9, and 10 of the State

Constitution, which provide as follows: “No person shall be denied the

enjoyment of any civil . . . right, nor be discriminated against in the exercise of

any civil . . . right, . . . because of religious principles, race, color, ancestry or

26
national origin,” N.J. Const. art. I, ¶ 5; “The right of trial by jury shall remain

inviolate,” N.J. Const. art. I, ¶ 9; and “In all criminal prosecutions the accused

shall have the right to a speedy and public trial by an impartial jury,” N.J.

Const. art. I, ¶ 10; Gilmore, 103 N.J. at 524.

Those guarantees together provide defendants “the right to trial by a jury

drawn from a representative cross-section of the community.” Gilmore, 103 N.J. at 524. That principle is meant to promote impartiality, by having jurors

with “diverse beliefs and values” interact, and to enhance public respect for the

court process. Id. at 525 (quoting People v. Wheeler, 583 P.2d 748, 761 (Cal.

1978)).

Two months after Batson was decided, this Court in Gilmore outlined a

similar analytical framework to assess potentially discriminatory peremptory

challenges. The Court anchored its decision to the State Constitution, which it

noted provides greater protection for individual rights than the Federal

Constitution. Id. at 522-23.

With certain refinements, the Court later summarized the three-step

process in State v. Osorio:

Step one requires that, as a threshold matter, the party
contesting the exercise of a peremptory challenge must
make a prima facie showing that the peremptory
challenge was exercised on the basis of race or
ethnicity. That burden is slight, as the challenger need
only tender sufficient proofs to raise an inference of
27
discrimination. If that burden is met, step two is
triggered, and the burden then shifts to the party
exercising the peremptory challenge to prove a race- or
ethnicity-neutral basis supporting the peremptory
challenge. In gauging whether the party exercising the
peremptory challenge has acted constitutionally, the
trial court must ascertain whether that party has
presented a reasoned, neutral basis for the challenge or
if the explanations tendered are pretext. Once that
analysis is completed, the third step is triggered,
requiring that the trial court weigh the proofs adduced
in step one against those presented in step two and
determine whether, by a preponderance of the evidence,
the party contesting the exercise of a peremptory
challenge has proven that the contested peremptory
challenge was exercised on unconstitutionally
impermissible grounds of presumed group bias.

[ 199 N.J. 486, 492-93 (2009).]

The updated standard modified Gilmore’s first step. Rather than presume the

constitutionality of a peremptory challenge and require a defendant to show

there was “a substantial likelihood” the challenge was based on group bias, see

Gilmore, 103 N.J. at 535-36, Osorio made clear that challengers need only

present “sufficient proofs to raise an inference of discrimination,” 199 N.J. at
492. Osorio imported that change from Johnson v. California, 545 U.S. 162,

170-72 (2005) (“[A] defendant satisfies the requirements of Batson’s first step

by producing evidence sufficient to permit the trial judge to draw an inference

that discrimination has occurred.”). The revised standard is “far less

exacting.” Osorio, 199 N.J. at 502.

28
Gilmore identified a number of factors courts can consider to assess

whether a defendant has made a prima facie showing:

(1) [whether] the prosecutor struck most or all of the
members of the identified group from the venire; (2)
[whether] the prosecutor used a disproportionate
number of his or her peremptories against the group; (3)
[whether] the prosecutor failed to ask or propose
questions to the challenged jurors; (4) [whether] other
than their race, the challenged jurors are as
heterogenous as the community as a whole; and (5)
[whether] the challenged jurors, unlike the victims, are
the same race as defendant.

[See Osorio, 199 N.J. at 503-04 (quoting State v.
Watkins, 114 N.J. 259, 266 (1989)).]

The factors, of course, apply to challenges by either side. See Georgia v.

McCollum, 505 U.S. 42, 59 (1992); State v. Andrews, 216 N.J. 271, 273

(2013). No party in a criminal or civil case can use peremptory challenges to

remove a juror on the basis of race or gender. Edmonson v. Leesville Concrete

Co., 500 U.S. 614, 616 (1991); J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 130-

31 (1994); Andrews, 216 N.J. at 273.

To carry its burden on step two, a party “must articulate clear and

reasonably specific explanations of its legitimate reasons for exercising each

of the peremptory challenges.” Osorio, 199 N.J. at 504 (quoting Gilmore, 103 N.J. at 537). Trial judges must be mindful that unexplained “hunches” and

“gut reactions” “may be colloquial euphemisms for the very prejudice that

29
constitutes impermissible presumed group bias or invidious discrimination.”

Gilmore, 103 N.J. at 539.

For the final step, the trial court must balance “whether the proffered

explanations are 'genuine and reasonable grounds’” to remove biased jurors or

simply “sham excuses.” Osorio, 199 N.J. at 504-05 (quoting Gilmore, 103 N.J. at 537-38).3

Trial judges can select from a number of remedies to respond to

“impermissible uses of peremptory challenges,” such as

dismissing the empaneled jury member(s) and the
venire and beginning jury selection anew; reseating the
wrongfully excused juror(s); reseating the wrongfully
excused juror(s) and ordering forfeiture by the
offending party of his or her improperly exercised
peremptory challenge(s); permitting trial courts to
require challenges to prospective jurors outside the
presence of the jury; granting additional peremptory
challenges to the aggrieved party, particularly when
wrongfully dismissed jurors are no longer available; or
a combination of these remedies as the individual case
requires.

[Andrews, 216 N.J. at 293.]

3
Defendant asks the Court to replace the subjective inquiry in Batson’s final
step with a “objective observer” test. See Jefferson, 429 P.3d at 470 (holding
the trial court must ask, for Batson’s third step, “whether an objective observer
could view race or ethnicity as a factor in the use of the peremptory strike”).
We refer that question to the Judicial Conference on Jury Selection discussed
in Section VII.
30
The remedy chosen “must assure a fair trial to all and eliminat[e] . . . the taint

of discrimination.” Ibid.

Batson and Gilmore address purposeful racial discrimination in jury

selection. 476 U.S. at 93-94; 103 N.J. at 537. Yet parties may not be aware of

their own biases.

Although individuals may not be willing to admit they harbor racial bias,

“[e]xplicit . . . bias is consciously held.” State v. Berhe, 444 P.3d 1172, 1181

(Wash. 2019). Implicit or unconscious bias is different. “Implicit bias refers

to . . . attitudes or stereotypes that affect our understanding, actions, and

decisions in an unconscious manner.” Cheryl Staats et al., Kirwan Inst. for the

Study of Race and Ethnicity, Implicit Bias app. at 62 (2015), http://

kirwaninstitute.osu.edu/wp-content/uploads/2015/05/2015-kirwan-implicit-

bias.pdf. Such biases “encompass both favorable and unfavorable

assessments, [and] are activated involuntarily and without an individual’s

awareness or intentional control.” Ibid. In other words, a lawyer or self-

represented party might remove a juror based on an unconscious racial

stereotype yet think their intentions are proper.

Justice Marshall highlighted this concern in a concurring opinion in

Batson: “A prosecutor’s own conscious or unconscious racism may lead him

31
easily to the conclusion that a prospective black juror is 'sullen,’ or 'distant,’ a

characterization that would not have come to his mind if a white juror had

acted identically.” 476 U.S. at 106 (Marshall, J., concurring). In this appeal,

counsel likewise cite articles about the danger of implicit bias in jury selection.

It is important for the New Jersey Judiciary to focus with care on issues

related to implicit bias. They include an array of legal questions worthy of

attention, and we outline a process to address them in Section VII. For now,

we simply recognize that implicit bias is no less real and no less problematic

than intentional bias. The effects of both can be the same: a jury selection

process that is tainted by discrimination.

From the standpoint of the State Constitution, it makes little sense to

condemn one form of racial discrimination yet permit another. What matters is

that juries selected to hear and decide cases are chosen free from racial bias --

whether deliberate or unintentional. Gilmore’s reasoning, therefore, logically

extends to efforts to remove jurors on account of race either when a party acts

purposely or as a result of implicit bias. In both instances, a peremptory

challenge can violate the State Constitution, depending on the circumstances.

As in Gilmore, our conclusion rests on the State Constitution, which in

some settings affords greater protection for individual rights than the Federal

32 Constitution. 103 N.J. at 522-23; cf. Jefferson, 429 P.3d at 470; see also State

v. Saintcalle, 309 P.3d 326, 335-37 (Wash. 2013).

The courts, not the parties, oversee jury selection. See Pellicer v. Saint

Barnabas Hosp., 200 N.J. 22, 40 (2009) (“The chief responsibility for

conducting jury selection rests with the trial judge.” (quoting State v. Wagner,

180 N.J. Super. 564, 567 (App. Div. 1981))).

Various statutes address the court’s administration of the jury selection

process. See, e.g., N.J.S.A. 2B:20-3 to -9, -11, -13, -15 (noting the

Assignment Judge’s role relating to questionnaires, selection, certification,

summoning, excuses, and discharge of jurors); N.J.S.A. 2B:23-2, -3, -10, -14

(setting forth the court’s role relating to the selection, empanelment,

examination, and challenging of petit jurors); see also In re Supervision &

Assignment of Petit Jury Panels, 60 N.J. 554, 559-62 (1972). In addition, Rule

1:8-3(a) directs judges to question prospective jurors. In the court’s discretion,

the parties may supplement the court’s questions. R. 1:8-3(a).

Of particular note here, “the job of enforcing Batson rests first and

foremost with trial judges.” Flowers, 588 U.S. at ___, 139 S. Ct. at 2243.

They have “the primary responsibility to . . . prevent racial discrimination from

seeping into the jury section process.” Ibid.

33
IV.

The practice of running background checks on prospective jurors raises a

question of first impression for the Court.

All parties have an interest in seating “as impartial a jury as possible.”

State v. McCombs, 81 N.J. 373, 375 (1979). Collectively, the court and

counsel must strive to ensure the selection of jurors who are unbiased and will

search for the truth.

The process of voir dire -- of questioning prospective jurors -- is

intended to identify and exclude people who cannot be impartial. To that end,

trial judges pose a mix of pointed and open-ended questions to elicit relevant

information from prospective jurors. Administrative Directive #4-07: Jury

Selection -- Model Voir Dire Questions -- Revised Procedures and Questions

(May 16, 2007).

The process must also be respectful of jurors who do not expect that by

appearing for jury duty, they will be subject to a criminal history check. See

State v. Bessenecker, 404 N.W.2d 134, 138 (Iowa 1987). If that were the case,

many qualified jurors would be less willing to serve, and some might not

appear altogether.

34
Today, the State alone has the ability to unilaterally conduct criminal

history checks on prospective jurors. Although defendants may search for

public information that is available online, they cannot access official

databases with the most accurate data. Under the current system, therefore,

both sides do not operate under the same set of rules.

The State represents that it is extremely rare for it to conduct

background checks on prospective jurors. It relies on regulations promulgated

by the Department of Law and Public Safety as the source of its authority. The

regulations restrict “[a]ccess to criminal history record information for

criminal justice purposes . . . to criminal justice agencies.” N.J.A.C. 13:59-

2.4(a) (emphasis added). Criminal justice agencies may obtain that

information “for purposes of the administration of criminal justice.” Id. at -

2.1(a) (emphasis added). The highlighted terms encompass “[t]he detection,

apprehension, detention, . . . prosecution, [or] adjudication . . . of accused

persons or criminal offenders.” Id. at -1.1. Because jury selection is a part of

the adjudicative process, the State contends, it has the power to run criminal

history checks on prospective jurors.

There is very little case law on the subject. We therefore do not question

the State’s good-faith belief that it had the authority to run the background

check it conducted in this case. But administrative regulations generally may

35
not govern the intricacies of jury selection any more than they could control

other aspects of a trial.

The State Constitution authorizes the Legislature to pass general, but not

special, laws relating to “[s]electing, drawing, summoning or empaneling

grand or petit jurors.” N.J. Const. art. IV, § 7, ¶ 9(4).4 At the same time, the

Constitution directs that “[t]he Supreme Court shall make rules governing the

administration of all courts in the State and, subject to the law, the practice and

procedure in all such courts.” N.J. Const. art. VI, § 2, ¶ 3; see also Winberry

v. Salisbury, 5 N.J. 240, 243-48, 255 (1950) (noting that the area of practice

and procedure is exclusively within the Court’s rulemaking power); In re

Supervision of Petit Jury Panels, 60 N.J. at 559-62 (discussing various statutes

but noting that “the Constitution reposes in the Supreme Court the

responsibility to see that all aspects of jury procedure -- so uniquely vital to

our system of judicial administration -- are preserved, maintained and

developed to play their essential part in meting out justice”).

The above regulations are therefore not determinative of how and when

background checks can be done of prospective jurors.

4 N.J.S.A. 53:1-20.6(a), which enables the Superintendent of the State Police
to adopt rules and regulations relating to the “dissemination . . . of criminal
history record background information” is not a source of authority for the
process of selecting jurors.
36
B.

New Jersey case law on the issue is sparse. One reported Law Division

decision rejected the State’s request for a list of dates of birth for members of

the jury pool. In re State ex rel. Essex Cnty. Prosecutor’s Off., 427 N.J. Super.
1, 26 (Law Div. 2012). The State intended to use the information to run

criminal background checks on prospective jurors. Id. at 4.

The court noted that individuals summoned for jury service have

reasonable privacy concerns, id. at 19, and that providing information only to

the prosecution raised due process issues, id. at 24-25. The court also

observed that granting the State full “discretion to decide which jurors to

research and for what reasons” raised concerns addressed in Batson and

Gilmore. Id. at 25. In the end, the court held that “[t]he neutrality of the

Judiciary, fundamental notions of fairness, due process protections afforded to

criminal defendants, and the potential for abuse in the uneven sharing of

information” counseled against giving “private juror information to the State.”

Id. at 25-26.

Other jurisdictions have considered background checks on prospective

jurors. The Iowa Supreme Court held that prosecutors may run a criminal

history check only if they first obtain a court order. Bessenecker, 404 N.W 2d

at 138 (interpreting a state statute). To justify the request, prosecutors must

37
show “there is a reasonable basis for believing that the rap sheet may contain

information that is pertinent to the individual’s selection as a juror and that is

unlikely to be disclosed through voir dire or through juror questionnaires.”

Ibid.

To avoid possible abuses, the Supreme Judicial Court of Massachusetts

has held that prosecutors must obtain court approval to perform criminal

record checks on jurors after a jury is sworn. Commonwealth v. Hampton, 928 N.E.2d 917, 930-31 (Mass. 2010). If a check is run during jury selection,

prosecutors must immediately share the information with defense counsel.

Commonwealth v. Cousins, 873 N.E.2d 742, 750 (Mass. 2007).

Other jurisdictions also require prosecutors who access criminal history

records to disclose that information to defense counsel. See State v. Goodale,

740 A.2d 1026, 1030-31 (N.H. 1999); Losavio v. Mayber, 496 P.2d 1032,

1034-35 (Colo. 1972) (en banc); Tagala v. State, 812 P.2d 604, 612-13 (Alaska

Ct. App. 1991); see also State v. Second Jud. Dist. Ct., 431 P.3d 47, 50-52

(Nev. 2018) (requiring disclosure of criminal history information from a

government database that is unavailable to the defense upon a defense motion);

Bessenecker, 404 N.W 2d at 139 (requiring disclosure to defendant “unless

good cause is shown to the contrary”); cf. People v. Murtishaw, 631 P.2d 446,

38
465 (Cal. 1981) (holding trial judges “have discretionary authority to permit

defense access to jury records and reports”).

Yet other courts impose no such limits on the prosecution. See Coleman

v. State, 804 S.E.2d 24, 30 (Ga. 2017); Charbonneau v. State, 904 A.2d 295,

319 (Del. 2006); State v. Smith, 532 S.E.2d 773, 779-80 (N.C. 2000); People

v. Franklin, 552 N.E.2d 743, 750-51 (Ill. 1990); State v. Jackson, 450 So. 2d 621, 628 (La. 1984); Salmon v. Commonwealth, 529 S.E.2d 815, 819 (Va. Ct.

App. 2000); State v. Hernandez, 393 N.W.2d 28, 29-30 (Minn. Ct. App. 1986).

In providing guidance on this topic, we attempt 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, we rely on the Court’s supervisory power to

outline the following framework for conducting criminal background checks of

jurors. See N.J. Const. art. VI, § 2, ¶ 3; In re Supervision of Petit Jury Panels,

60 N.J. at 561-62.

39
Going forward from today, any party seeking to run a criminal history

check on a prospective juror must first get permission from the trial court. For

requests made before the jury has been empaneled, the prosecution or defense

should present a reasonable, individualized, good-faith basis to believe that a

record check might reveal pertinent information unlikely to be uncovered

through the ordinary voir dire process. See Bessenecker, 404 N.W 2d at 138.

The Attorney General agrees that mere hunches are not sufficient to justify a

criminal record check.

Opposing counsel must be notified of the request. If counsel objects, the

court should give both sides an opportunity to be heard. As a general rule, we

do not envision a full-blown Batson/Gilmore hearing at this phase of the

proceedings. Trial judges have discretion to limit or expand the scope of an

argument based on the circumstances presented and the interests set forth

above.

Certain requests can be dispensed with quickly. The Attorney General

appropriately conceded that prosecutors should not seek to check “jurors’

criminal histories just because they deny having been arrested, charged with a

crime, or convicted of a crime.” Nor would there be a reasonable basis to

conduct a background check simply because a prospective juror had prior

contact with law enforcement officers; expressed distrust of law enforcement;

40
has a close relationship with individuals who have been accused of or were

victims of crime; lives in a high-crime neighborhood; has a child outside of

marriage; receives public benefits; or is not a native English speaker. See

Wash. Gen. R. 37(h). We adopt those presumptively invalid reasons in large

part from a rule the Washington Supreme Court enacted in the context of

peremptory challenges. See ibid.

As a practical matter, the Judiciary does not have the ability to conduct

background checks on its own. If the court grants a party’s request, the

prosecution will ask the appropriate law enforcement official to run a criminal

history check. To ensure a level playing field, the results are to be shared with

all parties and the court.

If the results raise legitimate concerns about a person’s ability to serve,

the trial judge should question the prospective juror. See Andujar, 462 N.J.

Super. at 555. Some individuals may simply not qualify for jury service under

the law.5 In other cases, the outcome may be far from clear. Jurors, therefore,

5 N.J.S.A. 2B:20-1 lists the statutory requirements for jury service. To be
eligible, a person must (1) be 18 years of age or older, (2) be able to read and
understand English, (3) be a citizen of the United States, (4) be a resident of
the county in which the individual was summoned, (5) not have been convicted
of any indictable offense, and (6) not have any mental or physical disability
that would prevent the person from serving. A prior arrest or outstanding
warrant does not automatically bar an individual from serving on a jury.
41
should generally be afforded an opportunity to explain and provide context for

the results of a background check.

Judges are to question prospective jurors on the record and may invite

counsel to supplement the inquiry, consistent with Rule 1:8-3(a). Afterward,

either party can seek to remove the juror for cause or use a peremptory

challenge. At that point, a party may raise a Batson/Gilmore challenge.

In very rare cases, a party may ask the court for leave to perform a

criminal record check on a juror after a jury is empaneled. To avoid any

possible efforts to manipulate the make-up of a sitting jury, requests for

background checks of empaneled jurors should be granted only when

compelling circumstances exist. See Hampton, 928 N.E 2d at 930-31. If, for

example, a party learned during trial that a sitting juror had been convicted of

an indictable offense, the situation would present a compelling circumstance.

Under the circumstances here, we find that defendant was denied his

right under the State Constitution to a fair and impartial jury selected free from

discrimination. The record reveals that implicit or unconscious racial bias

infected the jury selection process in violation of defendant’s fundamental

rights.

42
Earlier in the opinion, we recounted the voir dire process for F.G. at

length and set out different concerns the State and defense counsel voiced.

Among other reasons, it appears from the record that the State did not want

F.G. seated as a juror because of his relationships with multiple individuals

who had committed crimes or were victims of crime. F.G., a Black male from

Newark, admitted he grew up in a neighborhood where many residents sold

drugs, including a number of his friends. He said he knew them and was

familiar with their lifestyle but explained he did not follow their path. He also

explained that he was familiar with certain language used in the criminal

justice system, like “CDS” and “trigger lock,” from the “neighborhood.”

None of that disqualified F.G. from serving on a jury. Growing up in

high-crime area is not a basis to be removed from a jury panel. Having friends

who broke the law is not either. Just the same, understanding actual terms that

relate to drug and firearms offenses is not a reason to be kept off a jury.

F.G., an employee at the Department of Public Works who coached

football in his spare time, made clear that he believed the criminal justice

system was fair and effective “because you are judged by your peers.” Yet the

prosecution suggested his background and associations “dr[ew] into question

whether he respect[ed] the criminal justice system” and the rule of law. Taken

43
as a whole, the State’s arguments during the voir dire process to remove F.G.

reflected implicit or unconscious bias about race.

As the Appellate Division aptly noted, “[t]he 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.” Andujar, 462 N.J. Super. at
562. That argument, the court observed, was not new, and historically

stemmed from impermissible stereotypes about racial groups -- particularly

Black Americans. Ibid.

The prosecution also speculated that, based on F.G.’s answers, it “felt”

as though he knew more people who had been accused or were victims of

crimes and had not been forthcoming about them. Defense counsel, in

response, pointed out the obvious: that living in a high-crime area exposes a

person to certain facts of life. Counsel noted that “to hold it against him that

. . . things have happened around him to people that he knows . . . would mean

that a lot of people from Newark would not be able to serve.”

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

44
Batson and Gilmore. Instead, the State ran a criminal history check on F.G. In

doing so, it relied on reasons the trial court had rejected. To be clear, the State

would not have been able to run a criminal history check under the standard

outlined above. It has yet to offer a reasonable, individualized basis for

conducting a record check of F.G. As a result, to the extent the State relies on

the results of the check to justify F.G.’s removal, its argument lacks force.

The series of events raises another serious concern as well. According

to the record, the State did not randomly search prospective jurors for their

criminal history. It focused on a single juror, F.G. As the Supreme Court has

explained, disparate investigations of minority jurors may turn up “seemingly

race-neutral reasons to strike the prospective jurors of a particular race.”

Flowers, 588 U.S. at ___, 139 S. Ct. at 2248. Disparate investigations may

also indicate that discrimination has occurred during jury selection. See ibid.

F.G.’s record check uncovered two prior arrests and an outstanding

warrant from Newark Municipal Court issued in 2015. F.G. had no prior

convictions, and the open warrant for simple assault was dismissed eight

weeks later. His history did not disqualify him from jury service. See

N.J.S.A. 2B:20-1.

The State appropriately alerted the judge and defense counsel to the

results. But it also contacted law enforcement in an apparent effort to have

45
F.G. arrested before jury selection resumed. With F.G.’s arrest set in motion,

the discussion in court the day after F.G.’s voir dire shifted to how his arrest

should be carried out.

Defense counsel did not object to the State’s renewed application to

remove F.G. for cause. Counsel, however, did place a number of concerns on

the record: that the State singled out F.G. to check for a criminal record; that

it chose to run a background check on a juror it did not like; and that

selectively targeting F.G. implicated constitutional concerns. When the

prosecution renewed its motion to remove F.G. for cause, counsel should have

presented a more crisp, precise objection, which the defense has since

advanced. At the time, despite the broader concerns counsel asserted, defense

counsel asked only for an additional peremptory challenge.

Under settled case law, counsel must present a timely objection during

jury selection. See Gilmore, 103 N.J. at 535 (concerning objections to

peremptory challenges); Osorio, 199 N.J. at 501. We do not relax that

requirement. An objection prompts the timely review of any questionable

challenges under Batson/Gilmore. Here, however, by unilaterally running a

criminal history check on F.G. and setting his arrest in motion, the State

effectively evaded any Batson/Gilmore analysis. In light of the framework

outlined for future background checks, what took place at defendant’s trial is

46
unlikely to happen again. Nonetheless, we cannot look away from evidence

suggesting implicit bias in the jury selection process that appears in the

extensive record before the Court.

Although no formal Batson/Gilmore evaluation was conducted before

the trial court, the record relating to F.G.’s removal is unusually detailed. An

extended series of arguments over the course of two days sets forth the parties’

positions and explains their actions. That record reveals that the circumstances

surrounding F.G.’s dismissal allowed for an inference that his removal was

based on race -- which, again, is a slight burden to establish. See Batson, 476 U.S. at 97 (noting that a party’s “questions and statements during voir dire

examination and in exercising [the party’s] challenges may support or refute

an inference of discriminatory purpose”); Osorio, 199 N.J. at 492.

F.G., a minority juror, answered all questions posed in a manner that led

the trial judge to conclude “he would make a fair and impartial juror.” The

judge added, “[e]verything he said and the way he said it leaves no doubt in

my mind that he[] . . . does not have any bias towards the State nor the defense

for anything.” The State nonetheless selectively conducted a background

check on F.G. alone, based on a hunch F.G. could not be impartial because of

his background, associations, and familiarity with the criminal justice system.

See Flowers, 588 U.S. at ___, 139 S. Ct. at 2247-48; Gilmore, 103 N.J. at 539.

47
For reasons already discussed, the State’s justifications for running the

check and seeking F.G.’s removal did not rebut that inference of

discrimination. Osorio, 199 N.J. at 492, 504. In fact, the trial court had

already considered and discounted the State’s reasons when the court denied

its motion to remove F.G. for cause. And throughout the appellate process, the

State has not provided a convincing non-discriminatory reason for the steps it

took to keep F.G. off the jury.

Finally, weighing the evidence in the record as a whole reveals, by a

preponderance of the evidence, that F.G.’s removal and the background check

that prompted it stemmed from impermissible presumed group bias. Id. at

492-93. Plus, as noted earlier, the background check itself did not uncover

information that disqualified F.G. from serving on a jury.

To be clear, we do not find the trial prosecutors engaged in purposeful

discrimination or any willful misconduct. The record, instead, suggests

implicit or unconscious bias on the part of the State. In the end, we find that

defendant’s constitutional right to be tried by an impartial jury, selected free

from discrimination, was violated.

There are a limited number of remedies available now. During jury

selection, a trial court can return an excused juror to the jury box, forfeit one

side’s peremptory challenges, grant the other side additional ones, or start the

48
selection process anew. See Andrews, 216 N.J. at 293. None of those options

exist at this time. We agree with the Appellate Division that defendant’s

conviction must be reversed and the case remanded for a new trial. Andujar,

462 N.J. Super. at 563.

No showing of prejudice is required. Wagner, 180 N.J. Super. at 567.

The violation of defendant’s constitutional right in this case is not subject to a

harmless error analysis. Gilmore, 103 N.J. at 544.

VI.

For reasons noted earlier, we have considered implicit bias as part of the

Gilmore analysis in this appeal. Defendant is entitled to the benefit of this

new rule of law. Except for him, we apply the rule only to future cases -- that

is, cases in which a jury has not yet been selected -- because of the effect that

retroactive application would have on a potentially large number of cases with

incomplete records and the effect on the administration of justice overall. See

State v. Henderson, 208 N.J. 208, 300-02 (2011). The Court plans to provide

additional guidance on how trial courts should assess implicit bias after the

Judicial Conference discussed in the following section. The new rule will go

into effect when that guidance is available. See id. at 302 (implementing a

new rule thirty days after “this Court approves new model jury charges on

eyewitness identification”).

49
VII.

A defendant’s right to a properly selected jury is precious and must not

be tainted by discrimination. Osorio, 199 N.J. at 492. In the same way, no

citizen should be denied the right to serve because of the person’s religious

principles, race, ethnicity, national origin, gender, sexual orientation, or some

other impermissible basis. See Powers, 499 U.S. at 409 (noting jurors have

“the right not to be excluded . . . on account of race”); Gilmore, 103 N.J. at
526 n.3 (identifying, at a minimum, certain cognizable groups). The harm in

both instances extends beyond the defendant and the excluded juror. It

“touch[es] the entire community” and “undermine[s] public confidence in the

fairness of our system of justice.” Batson, 476 U.S. at 87.

The criminal justice system rests on having cases decided by impartial

jurors, who are drawn from a representative cross-section of the community

and selected free from discrimination. To give meaning to those principles, we

must acknowledge that discrimination can infect the existing jury selection

process. And we must take steps to address that serious problem.

As discussed above, qualified jurors can be excused in two ways. The

court may excuse them for cause if it appears they cannot serve as fair and

impartial judges of the facts. And attorneys, in their discretion, can use

peremptory challenges to strike individual jurors without stating a reason.

50
Federal and state courts both allow for peremptory challenges. In non-

capital felony cases, federal courts grant ten challenges to defendants and six

to the government. Fed. R. Crim. P. 24(b)(2). In state courts, the national

average for peremptory challenges in non-capital felony trials is approximately

seven. Nat’l Ctr. for State Cts., Comparative Data: Peremptory Challenges,

https://www.ncsc-jurystudies.org/state-of-the-states/jury-data-viz (last visited

July 7, 2021).

The number of peremptory challenges in New Jersey stems from a

statute enacted more than a century ago. See L. 1898, c. 237, §§ 80-83; see

also Brown v. State, 62 N.J.L. 666, 672 (E. & A. 1899). The nineteenth-

century law granted defendants twenty challenges and the State twelve for

various serious crimes. Ibid. New Jersey still allows the same number of

challenges for serious offenses. See N.J.S.A. 2B:23-13(b).6

Our state today provides far more challenges than any other in the nation

-- more than twice the national average, and twice the practice in federal court.

But as the Supreme Court has recognized, “there can be no dispute[] that

6 The 1898 law listed these offenses: treason, murder, misprision of treason,
manslaughter, sodomy, rape, arson, burglary, robbery, forgery, perjury, and
subornation of perjury. L. 1898, c. 237, § 80. N.J.S.A. 2B:23-13(b) covers a
similar, broader list of offenses: kidnapping, murder, aggravated
manslaughter, manslaughter, aggravated assault, aggravated sexual assault,
sexual assault, aggravated criminal sexual contact, aggravated arson, arson,
burglary, robbery, forgery (in the third degree), and perjury.
51
peremptory challenges constitute a jury selection practice that permits 'those

to discriminate who are of a mind to discriminate.’” Batson, 476 U.S. at 96

(quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)). As the Court further

explained, “[t]he reality of practice, amply reflected in many state- and

federal-court opinions, shows that [peremptory] challenge[s] may be, and

unfortunately at times [have] been used to discriminate against black jurors.”

Id. at 98.

Although the law in New Jersey has not changed since 1898, society

now has a greater appreciation for the role of implicit or unconscious bias in

general, and the danger of discrimination in the jury selection process. Some

sources observe that discriminatory challenges persist after Batson and that

“peremptory challenges have become a cloak for race discrimination.”

Saintcalle, 309 P.3d at 334. Others maintain that peremptory challenges offer

“very real protections against juror bias.” N.J. State Bar Ass’n, Pandemic

Task Force Report of the Committee on the Resumption of Jury Trials 3 (July

2, 2020) https://tcms.njsba.com/personifyebusiness/Portals/0/

2020%20Pandemic%20Task%20Force/NJSBA%20RJT_Jury%20Selection%2

0Proposal.pdf.

It is time for a thoughtful, comprehensive discussion of the issue. In the

past, the Judiciary has arranged Judicial Conferences to consider significant

52
issues and make improvements in the justice system. Topics have included

speedy trial, Probation, Family Court, alternative dispute resolution, and

juvenile justice, among others.

Today, we ask the Director of the Administrative Office of the Courts to

arrange for a Judicial Conference on Jury Selection to convene this fall. Rule

1:35-1 outlines the Conference’s membership. In addition to the officials,

organizations, and public members the Rule identifies, the Court will invite

legal experts, scholars, and interested advocacy groups to participate,

including organizations that regularly appear before the Court as amici curiae.

The Conference will explore the nature of discrimination in the jury

selection process. It will examine authoritative sources and current practices

in New Jersey and other states, and make recommendations for proposed rule

changes and other improvements. 7 The purpose of the Conference is

straightforward: to enhance “public respect for our criminal justice system and

the rule of law” by “ensur[ing] that no citizen is disqualified from jury service

because of . . . race” or other impermissible considerations. Batson, 476 U.S.
at 99.

7
At this time, we decline to adopt rule changes that defendant and amici
recommend. Their suggestions as well as others may be raised at the Judicial
Conference where all interested parties will have an opportunity to weigh in.
53
We invite the legal community as a whole to take part in a probing

conversation about additional steps needed to root out discrimination in the

selection of juries.

VIII.

For the reasons set forth above, we modify and affirm the judgment of

the Appellate Division and remand the case for a new trial. We also call for a

Judicial Conference on Jury Selection.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER’s opinion.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.