113 N.J. 393, 412 and n.5 (1988). A judge must inquire
into whether a juror could consider mitigating evidence
if the State established that defendant committed a
certain type of crime such as aggravated sexual assault, id.
at 417, or kidnapping. State v. Martini I, 131 N.J. 176,
212 (1993).
When a defendant is a member of a minority group,
a more probing inquiry on racial prejudice should be
conducted if requested. State v. Williams II, 113 N.J. at
427-28. A capital defendant charged with an interracial
crime is entitled to have prospective jurors informed of
the race of the victim and questioned on the issue of racial
bias. Turner v. Murray, 476 U.S. 28, 37, 106 S.Ct. 1683,
1689, 90 L.Ed.2d 27 (1986). A capital defendant who
does not specifically request more extensive voir dire on
racial prejudice cannot complain on appeal when the trial
judge does not sua sponte more thoroughly question the
jury on this issue. State v. Loftin I, 146 N.J. at 340-42.
There is no constitutional right to attorney-
conducted voir dire, State v. Biegenwald II, 106 N.J. at 28-
29; State v. Hunt,115 N.J. 330, 347-48 (1989), and
there is no rule that requires excusal for cause of any
potential juror who has read or heard about the case. State
v. Timmendequas, 161 N.J. at 572; State v. Koedatich I,
112 N.J. at 285.
A struck jury system, i.e., using peremptory
challenges only when an adequate number of potential
jurors, i.e., enough jurors to permit the defendant to
exercise 20 challenges, the State to exercise 12 jurors and
for 12 jurors to sit, State v. Bey II, 112 N.J. 123, 151
(1988), is a valid method of seating jurors in capital cases
since it allows parties to exercise peremptory challenges
with a better perception of the total jury composition.
However, failing to employ a struck jury system is not
constitutional error. Id. at 150-51; State v. Ramseur, 106
N.J. at 241-42.
A juror who expresses qualms about the death
penalty possesses a view that the State may find
antagonistic to its goals at trial and, therefore, the State
properly can utilize a peremptory challenge to remove the
juror. State v. McDougald, 120 N.J. 523, 556 (1990).
When a trial court erroneously fails to excuse a juror
for cause, the defense then expends a peremptory
challenge to remove the juror and the defense eventually
uses all its allotted peremptory challenges, a reversal of
the conviction will occur only if the defendant proves
prejudice, i.e., that he or she was tried by a jury which
included at least one partial juror. State v. DiFrisco II, 137
N.J. at 466-67, 470-71. A claim that a juror who sat on
the jury was biased will be rejected if the defendant did
not challenge the juror for cause or expend a peremptory
challenge when one was available. Id. at 471.In order to establish a prima facie equal protection
violation regarding the composition of grand or petit
juries in a county, a defendant must identify a
constitutionally cognizable group, prove substantial
under-representation of that group over a significant
period of time and demonstrate a discriminatory purpose
for that under-representation. To establish a violation of
the fair cross-section requirement, defendant must
identify a constitutionally cognizable group which has
unfairly and unreasonably been under-represented over
time and systematically excluded. State v. Bey III, 129
N.J. at 583-84. A prima facie case cannot be based upon
the affidavits of public defenders setting forth their
personal observations of jury pools in the county. Id.The Court has ruled that challenges to a juror for
cause based upon bias or partiality should be asserted at
sidebar. State v. Biegenwald II, 106 N.J. at 26-27.E. When Two Juries Are Needed
When the State alleges the aggravating factor of prior
murder, N.J.S.A. 2C:11-3c(4)(a), the guilt and penalty
phases must proceed before two juries. State v. Loftin I,
146 N.J. at 334; State v. Erazo, 126 N.J. 112, 133
(1991); State v. Biegenwald IV, 126 N.J. 1, 44-45
(1991). With regard to the guilt phase jury,
individualized voir dire is not required. State v. Loftin I,
146 N.J. at 339. However, unless waived by defense
counsel, the trial judge should give a guilt phase jury a
“severely restricted” death qualification, specifically not
informing the jury of defendant’s prior murder
conviction. Id. at 336.Such a procedure “commends itself” whenever the
guilt phase evidence is so prejudicial that the same jury
could not sit fairly on both phases of the trial. State v.
Erazo, 126 N.J. at 133. A defendant may choose to waive
the protection of the two juries for strategic reasons. In
that circumstance, one court suggests that the trial judge
conduct an in camera inquiry of the defendant regarding
the decision to forego the two juries and ascertain
whether that decision was made knowingly and
voluntarily. The State would not be present at the
hearing and the record would be sealed until appellate
review. State v. Parker, 256 N.J. Super. 336, 339-41 (Law
Div. 1992).