prejudice. Intentional discrimination on the basis of
gender in use of peremptory strikes in jury selection
violates equal protection clause.
Georgia v. McCollum, 505 U.S. 42 (1992). Criminal
defendant’s exercise of peremptory challenges was “state
action” for purposes of equal protection clause, despite
adversary relationship between defendant and prosecu-
tion and defendant’s exercise of challenge to further
interest in acquittal; in exercising peremptory challenge,
defendant was wielding power to choose governmental
body. See also Hernandez v. New York, 500 U.S. 352
(1991).
In State v. Bey III, 129 N.J. 557 (1992), defendant
failed to make prima facie showing that prosecutor
exercised his peremptory challenges unconstitutionally,
where prosecutor exercised one peremptory challenge
against black potential juror and another four against
potential jurors who were not black, and at least one
prospective black juror was excused for cause on motion
of defense counsel.
Powers v. Ohio, 499 U.S. 400 (1991). Under equal
protection clause, defendant has standing to object to
race-based exclusions of jurors through peremptory
challenges whether or not defendant and excluded jurors
share same race. Race-based peremptory challenges do
not survive equal protection scrutiny merely because
members of all races are subject to like treatment, which
is to say that white jurors are subject to same risk of
peremptory challenges based on race as are all other
jurors.
Batson v. Kentucky, 476 U.S. 79 (1986), held the
systematic exclusion of African-Americans from a black
defendant’s jury through the use of the prosecution’s
peremptory challenges violated defendant’s equal
protection guarantee. The Equal Protection Clause
precludes a prosecutor from challenging potential jurors
solely on account of race or on the assumption that those
of a particular race will be unable to fairly decide the
State’s case against a member of their race.
A prima facie case of purposeful racial discrimination
may be made solely on the basis of the selection process
employed in his case. Defendant must establish that he
is a member of a cognizable racial group, that the
prosecutor has eliminated members of that group
through the use of peremptory challenges and that the
relevant circumstances support an inference that the
veniremen were excluded on account of race. The burden
then shifts to the State to provide a neutral explanation for
the manner in which its challenges were exercised.
Accord, State v. Gilmore, 103 N.J. 508 (1986) (reaching
the same result under the New Jersey Constitution). See
Allen v. Hardy, 478 U.S. 255 (1986) (rejecting a
retroactive application of Batson to a collateral
proceeding).- Composition of Grand and Petit Jury Panels
State v. Timmendequas, 161 N.J. 515 (1999).
Empaneling a foreign jury from county with low African-
American population, rather than county with racial
composition similar to county of defendant’s residence,
did not violate the equal protection clause or the Sixth
Amendment in capital-murder prosecution; the chosen
county was closer to the home of the victim’s parents,
selecting the other county would increase the risk to
jurors from crime, the defendant and victim were the
same race, and nothing indicated racial motivation by the
judge or anticipation of a racially discriminatory effect.State v. Paige, 256 N.J. Super. 362 (App. Div. 1992).
Alleged racial disparity between composition of venire
panel and percentage of minorities in county’s total
population would not alone violate fair cross-section
requirement or equal protection clause; there was no
demonstration of pattern of racially disparate treatment.In State v. Bey III, 129 N.J. 557 (1992), defendant
failed to adduce sufficiently reliable statistical data to
establish discriminatory underrepresentation of blacks
on petit jury panels, as required to establish prima facie
equal protection claim, and failed to adduce sufficiently
reliable statistical data to establish unfair and
unreasonable representation over time and systematic
exclusion, as required to make out prima facie fair cross-
section claim, and therefore, defendant was not entitled
to evidentiary hearing on motion to challenge racial
composition of petit jury panels.To establish prima facie claim of denial of equal
protection in underrepresentation of group on petit jury
panel, defendant must establish constitutionally
cognizable group, substantial underrepresentation over
significant period of time and discriminatory purpose.
Fact that percentage of blacks on defendant’s petit jury
panel was lower than their proportionate representation
in the county was insufficient to establish prima facie
denial of equal protection or of jury composed of fair
cross-section of community. See also State v. Hightower I,
120 N.J. 378 (1990); State v. Coyle, 119 N.J. 194
(1990); State v. Ramseur, 106 N.J. 123 (1987) (Under
equal protection clause, selection of both grand and petit