NEW BRUNSWICK - The New Jersey State Bar Association urged the Judiciary to take a holistic and comprehensive approach in the effort to reduce bias in the jury selection process to ensure defendants in criminal cases face a more fair and representative jury.
NJSBA President Domenick Carmagnola delivered a powerful speech to the Judiciary’s Judicial Conference on Jury Selection held last week. He said it is critical to collect and examine data, as well as remain open-minded and thoughtful in the path to reform the system for the better, especially for Black criminal defendants who, in New Jersey, are incarcerated 12 times more often than their white counterparts – the highest disparity in the nation.
“We believe this conversation and effort should be expansive, thoughtful, and comprehensive in its focus on rooting out bias – both implicit and explicit. The pursuit of a representative justice system, one that all of our citizens can trust and believe in – and be proud of – requires a complex, deep dialogue in order to determine the best ways to rid our system of the systemic and harmful presence of implicit bias and prejudice in jury selection. … We sincerely hope these matters are not pre-ordained and that this is the start of a meaningful journey to reform and improve our system of justice,” he testified. “Action for the sake of action is not the answer, and the wrong action could damage our justice system significantly and have dire consequences for the lives and the liberty of participants in it. We agree that this is the time to act – but we must do so with the goal of getting it right… An appropriate starting point is the means which the pool of jurors is created; greater diversity can most immediately be achieved by the expansion of that pool, and by an examination of the persons who are excused from jury duty, as the Supreme Court required in Dangcil. A critical area of study should be the voir dire process and how courts address challenges, both for-cause and peremptory. Reducing or eliminating peremptory challenges, which have long been viewed as the only tool available to Black and other criminal defendants of color to ensure unbiased juries, should certainly not be viewed as the only available mechanism when, as we have heard, and as we discuss in our interim report, other means achieve these essential goals.”
The NJSBA’s report examines the role bias plays in the jury selection process, the function of for-cause and peremptory challenges in the justice system, and reforms to the process for jury selection underway around the country. It also offers recommendations about steps forward. The recommendations include:
1.Maintain the current number of statutorily afforded peremptory challenges in all matters because they act as a safeguard in the system; 2.Expand voir dire to include appropriate attorney-conducted questioning that decreases the influence and dominance of the judge in juror questioning; 3.Revisit New Jersey’s law on for-cause challenges to provide for less trial court deference to prospective jurors’ assessments of their own ability to be fair, and to err on the side of excluding jurors as to whom there is concern in this regard; 4.Study and enact meaningful reform of the analysis for peremptory challenges consistent with other states such as Washington and California; 5.Expand the jury source list, address the loss of jurors to undeliverable summonses, and increase juror compensation to attract a diverse jury pool; 6.Provide expansive training for judges, attorneys and jurors on the issue of implicit bias; and 7.Improve data collection and analysis that allows for pertinent information to ascertain jury demographics and for-cause and peremptory challenges.
The groups in support of the report and its findings and recommendations are:
Association of Black Women Lawyers of New Jersey Association of Criminal Defense Lawyers of New Jersey Bergen County Bar Association Cape May County Bar Association Essex County Bar Association Association of the Federal Bar of New Jersey Garden State Bar Association Hispanic Bar Association of New Jersey Hudson County Bar Association Mercer County Bar Association Middlesex County Bar Association Monmouth Bar Association Morris County Bar Association National Employment Lawyers Association of New Jersey New Jersey Association for Justice New Jersey Defense Association New Jersey Women Lawyers Association Passaic County Bar Association Somerset County Bar Association South Asian Bar Association of New Jersey Sussex County Bar Association Union County Bar Association