demographic characteristics of the proposed venue
insofar as they may effect the likelihood of a fair trial by
an impartial jury; and any other factor which may be
required by the interests of justice. State v.
Timmendequas, 161 N.J. at 557-58; State v. Harris, 282
N.J. Super. 409 (App. Div. 1995).
Although racial characteristics always should be
considered, in cases in which the victim and defendant
are of the same race, this factor should not be given pre-
emptive weight. State v. Timmendequas, 161 N.J. at 561.
The trial judge may take into account any hardships
on the victim’s survivors in selecting the venue so long as
the defendant’s right to a fair trial is not infringed. Id. at
555-56.
C. Mid-Trial Publicity
As a matter of course, trial courts admonish jurors not
to read about or listen to reports about the case. These
publicity-related warnings may not be sufficient when
inherently prejudicial information has been released or
published during trial. State v. Harris, 156 N.J. at 151;
State v. Bey I, 112 N.J. at 81.
When a trial court is confronted with a mid-trial
request to question the jury about its exposure to trial
publicity, it should conduct a two-part inquiry. It must
examine the information disseminated to determine
whether it has the capacity to prejudice defendant. If the
court determines that it does, the court must determine
whether there is a realistic possibility that the jurors are
aware of it. That requires considering the extent,
notoriety and prominence of the media coverage.
If a trial court decides that there is a realistic
possibility that the jurors know of the publicity, then it
must conduct a voir dire of the jurors, preferably in camera
and individually, to learn what, if anything, jurors have
read or heard and whether they nonetheless are able to
fulfill their fact-finding duties in a bias-free manner. State
v. Bey I, 112 N.J. at 81-87. When there is no evidence of
jurors’ exposure to publicity, a collective voir dire may be
sufficient rather than individual questioning of jurors.
State v. Harris, 156 N.J. at 153-54.
D. Jury Voir Dire
It is constitutional to “death qualify” a jury, i.e., to
exclude individuals who cannot impose the death penalty
from both the guilt and penalty phase. Wainwright v.
Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841
(1985); State v. Ramseur, 106 N.J. at 248-53.A juror may not be challenged for cause based on his
or her views about capital punishment unless those views
would prevent or substantially impair the potential
juror’s duties as a juror in accordance with the trial court’s
instructions and the juror’s oath. Wainwright v. Witt,
469 U.S. at 424-25, 105 S.Ct. at 852-53, 83 L.Ed.2d
841; State v. Koedatich I, 112 N.J. at 296; State v. Ramseur,
106 N.J. at 255-56. This standard applies to both pro
and anti-death penalty prospective jurors. State v.
DiFrisco II, 137 N.J. 434, 464 (1994). Juror bias need
not be shown with unmistakable clarity because some
potential jurors cannot articulate their beliefs that
eloquently. State v. Koedatich I, 112 N.J. at 293.The purpose of voir dire is to determine if potential
jurors have biases or predispositions about a particular
case to be tried. State v. Moore, 122 N.J. 420, 448
(1991). The court should allow open-ended questions
on the issue of the victim’s status (e.g., victim a child or
a pregnant woman) to expose potential prejudices which
would prevent a fair evaluation of the case at the guilt or
penalty phase. Id. at 451. Suspicion of a defendant’s
criminal record is not automatic grounds for excusal. If
a potential juror indicates that the information can be put
aside and will deliberate fairly, then the trial judge has the
discretion to allow the juror to remain on the venire. State
v. Timmendequas, 161 N.J. at 572.When insanity or mental disease or defect will play a
part in the trial, the court should ask questions to screen
out any prospective jurors who would not consider those
defenses. State v. Moore, 122 N.J. at 454. With regard
to the “essentials” of the trial, like presumption of
innocence, burden of proof and reasonable doubt, a court
has the option either of orienting potential jurors about
these concepts and then asking if any potential jurors
have reservations about these basic principles or of using
the jury questionnaire to set forth these principles and
then asking the potential jurors about their ability to
comply with these requirements. Id. at 456.During death qualification, a court should give
prospective jurors an overview of the death penalty
statute, explaining the concept of capital murder,
bifurcated proceedings and aggravating and mitigating
factors. State v. Papasavvas, 163 N.J. 565, 584-85
(2000). This overview will provide jurors with a common
base of understanding from which to answer questions. It
is “unwise” for a trial judge to tell prospective jurors what
will excuse them from jury service. State v. Williams II,