- Joseph A. Del Russo, JD
Professor Del Russo serves on NJ Supreme Court’s JUDICIAL CONFERENCE ON JURY SELECTION
Privileged to be among those representing the Passaic County Bar Association, including President Michael J. Pasquale, at the NJ Supreme Court’s NEW JERSEY JUDICIAL CONFERENCE ON JURY SELECTION. The primary goal is to address bias in the jury selection process. Under review, among many issues regarding jury selection, are preemptory challenges which involve the exclusion of a potential juror without the need for any reason or explanation.
The interesting chart below addresses prosecutor challenges in NJ. The data is not surprising. Using it by way of example: Above the red line, the prosecution exercised six (6) peremptory challenges in 10.06% of cases. In 74.47% of criminal trials, the prosecution exercised six (6) or fewer peremptory challenges.
BTW- In Anglo-American jurisdictions, there are more than a few who have eliminated these challenges completely. The vibe I’m getting is that there will be a reduction, but they will survive. Nevertheless, SCOTUS Justice Thurgood Marshall in one of the leading cases—Batson v. Kentucky, 476 U.S. 79 (1986)– made the following observation:
—-“In his concurrence, Justice Marshall “applaud[s] the Court’s holding that the racially discriminatory use of peremptory challenges violates the Equal Protection Clause” but expresses the view that “only by banning [peremptory challenges] entirely can such discrimination be ended.”
Justice Marshall explains that, after the Court invalidated a statute that prohibited black citizens from serving as jurors in Strauder v. West Virginia, 100 U.S. 303 (1880), “[s]tate officials then turned to somewhat more subtle ways of keeping blacks off jury venires” and that “[m]isuse of the peremptory challenge to exclude black jurors has become both common and flagrant.” Id. at 103. Justice Marshall observes, “Black defendants rarely have been able to compile statistics showing the extent of that practice, but the few cases setting out such figures are instructive.” Id. at 103-04 (collecting cases). And, Justice Marshall writes, the “[e]xclusion of blacks from a jury, solely because of race, can no more be justified by a belief that blacks are less likely than whites to consider fairly or sympathetically the State’s case against a black defendant than it can be justified by the notion that blacks lack the ‘intelligence experience, or moral integrity’ to be entrusted with that role.” —-