- Examples
a. Trial courts cannot fail to conduct or permit
further juror voir dire if responses to standard inquiries
indicate that grounds for bias exist. State v. Deatore, 70
N.J. 100, 105-06 (1976); see State v. Singletary, 80 N.J.
55, 64 (1979) (juror’s profession of impartiality
accorded a great deal of weight). In capital cases the trial
court controls individual voir dire of the potential jurors,
and in its discretion may permit or restrict supplemental
questioning. R. 1:8-3(a); State v. Koedatich, 112 N.J.
225, 290-92 (1988), cert. denied, 488 U.S. 1017 (1989);
State v. Zola, 112 N.J. 384, 395-97 (1988), cert. denied,
489 U.S, 1022 (1989). Trial courts may estimate the
trial’s length and exclude jurors unable to serve in a
protracted matter. State v. Biegenwald, 106 N.J. at 30.
Trial court’s failure to examine or excuse a juror observed
crying during rape victim’s testimony does not warrant
reversal. State v. Grice, 109 N.J. 379, 386 (1988).
b. Jurors who have formed an opinion as to
defendant’s guilt or innocence must be excused. State v.
Williams, 93 N.J. 39, 61 (1983).
c. To establish a prima facie claim of purposeful racial
discrimination against potential jurors, defendant
essentially must show that he or she is a member of a
cognizable group and raise an inference that the
prosecutor used a jury selection process to exclude
potential jurors based on their race. Batson v. Kentucky,
476 U.S. 79, 96 (1986); see State v. Clark, 316 N.J.Super.
462, 468 (App. Div. 1998); State v. Gilmore, 103 N.J.
508, 522, 526-39 (1986) (in context of state
constitution, potential jurors excluded were members of
a cognizable group and substantial likelihood existed that
peremptory challenges were based on assumptions about
group bias; once defendant makes out a prima facie claim,
State shoulders burden to prove that peremptory
challenges are justifiable); State v. Hughes, 215 N.J.Super.
295, 299-00 (App. Div. 1986). The test involves (1) the
establishment of a prima facie claim of racial
discrimination, (2) the burden shifting to the party
seeking to strike the potential juror to come forward with
a race-neutral reason, and (3) if such a reason is proffered,
the trial court determines if the party challenging the
strike has proven purposeful racial discrimination.
Purkett v. Elem, 514 U.S. 765, 767 (1995); State v. Clark,
316 N.J.Super. at 469 (as to second prong, Gilmore
requires prosecutor to give reasons reasonably relevant to
the case). If defendant establishes under Gilmore that the
prosecutor improperly excluded potential jurors based
on race, the entire panel must be dismissed. State v. Scott,
309 N.J.Super. 140, 149-52 (App. Div.), certif. denied,
154 N.J. 610 (1998). Defendant cannot exclude
potential jurors because of group bias, either. Georgia v.
McCollum, 505 U.S. 42, 48-59 (1992); State v. Johnson,
325 N.J.Super. 78, 84-87 (App. Div. 1999), certif.
granted in part, 163 N.J. 393 (2000).d. Gender and ethnicity, like race, are
unconstitutional proxies for juror competence and
impartiality. Using peremptory challenges to exclude
potential jurors based on gender or ethnicity violates
equal protection of the law. J.E.B. v. Alabama, 511 U.S.
127, 128-31 (1994); Hernandez v. New York, 500 U.S.
352, 355 (1991); State v. Clark, 316 N.J.Super. at 467-
68 n.1.e. Party denied fair trial when juror on voir dire fails
to disclose potentially prejudicial material. State v.
Cooper, 151 N.J. 326, 349 (1997); In re Koslov, 79 N.J.
232, 234-39 (1979). Defendant need not prove actual
prejudice because harm comes from loss of opportunity
to excuse juror and failure of impartial jury to judge
accused. Id. at 239; see State v. Deatore, 70 N.J. at 105-
06; State v. Scher, 278 N.J.Super. at 264.f. Defendant is not entitled to new trial because
codefendants at joint trial were denied their proper
number of peremptory challenges. State v. Hoffman, 82
N.J. 184, 187 (1980).g. Rule may permit challenge for cause after
presentation of evidence where cause was not previously
discoverable or occurred after commencement of trial,
provided there are sufficient untainted jurors. See R. 1:8-
3; cf. State v. Boiardo, 111 N.J.Super. 219 (App. Div.),
certif. denied, 57 N.J. 130 (1970), cert. denied, 401 U.S.
948 (1971); State v. Brewer, 142 N.J.Super. 70, 75 (App.
Div. 1975), aff’d o.b. 70 N.J. 329 (1976).h. Defendant improperly denied right of a
peremptory challenge where trial court denied challenge
for cause based upon the proposed venireman’s jury
service during the prior year and thereby forced
defendant to exercise a peremptory challenge that he
would not have otherwise used. State v. Williams, 113
N.J. at 443; State v. Pereira, 202 N.J.Super. 434, 437-39
(App. Div. 1985); see N.J.S.A. 2A:69-4 (repealed 1995).i. Defendant’s right to maintain a numerical
advantage regarding peremptory challenges in a final
round of jury selection is not absolute. For example, it
was not error for a trial court to require a defendant to
exercise two challenges and the State one for the first eight