rounds of voir dire, rather than alternate the exercise of
peremptory challenges between defendant and the State
on a one-to-one basis throughout. State v. Brunson, 101
N.J. 132, 143-45 (1985); see State v. Papasavvas, 163
N.J. at 600-05.
j. Trial court cannot interview prospective jurors at
sidebar without counsel’s presence, State v. Lomax, 311
N.J.Super. 48, 50-56 (App. Div. 1998), and defendant is
entitled to be present with counsel during any voir dire.
State v. Dishon, 297 N.J.Super. 254, 266-75 (App. Div.),
certif. denied, 149 N.J. 144 (1997).
k. Trial court’s limitation of number of defendant’s
peremptory challenges does not require per se reversal of
convictions, particularly where challenges allotted were
not all used. State v. Wilson, 266 N.J.Super. at 682-86.
l. Presence on jury of some members of a group
alleged to have been improperly excluded does not relieve
trial court of responsibility to determine if any
prospective juror was peremptorily challenged on a
discriminatory basis. State v. McDougald, 120 N.J. 523,
556 (1990); State v. Clark, 324 N.J.Super. 558, 568
(App. Div. 1999), certif. denied, 163 N.J. 10 (2000).
B. Voir Dire Examination on Particular Topics
- Death Penalty (See also, CAPITAL PUNISH-
MENT, this Digest)
a. Motion seeking order prohibiting “death
qualification” of jurors and limiting prosecutor’s use of
peremptory challenges against minority groups denied.
State v. Bass, 191 N.J.Super. 343 (Law Div. 1983) (citing
Dobbert v. State, 409 So.2d 1053 (Sup. Ct. Fla. 1982),
and Dobbert v. Strickland, 532 F.Supp. 545 (M.D.Fla.
1982)); see Adams v. Texas, 448 U.S. 38 (1980); State v.
Simon, 161 N.J. 416, 465, 474 (1999).
b. Prospective juror must be individually questioned
in voir dire, apart from other prospective jurors, as to his
or her attitudes about the death penalty. State v. Feaster,
156 N.J. 1, 55 (1998); State v. Timmons, 192 N.J.Super.
141 (Law Div. 1983). Potential jurors biased in favor of
the death penalty must be removed for cause at
defendant’s request. Morgan v. Illinois, 504 U.S. 719,
729 (1992); State v. Marshall, 148 N.J. 89, 333 (1991)
(Handler, J., dissenting), cert. denied, 522 U.S. 850
(1997). Trial courts may not impose a time limit for voir
dire questioning in a death penalty case. State v. Erazo,
126 N.J. 112, 129 (1991).
c. In a capital murder trial where the court has
decided to impanel 16 jurors who have been death
qualified, the number of peremptory challenges allotted
to both defendant and the State should be increased
proportionately. State v. Halsey, 218 N.J.Super. 149,
159-60 (Law Div. 1987); R. 1:8-3(d).- Racial Prejudice
a. Fourteenth Amendment requires trial judge, on
defendant’s request, to interrogate prospective jurors on
voir dire regarding racial prejudice and thereby expose
potential bias. Ham v. South Carolina, 409 U.S. 524
(1973); State v. McDougald, 120 N.J. 523, 551 (1990);
State v. Loftin, 287 N.J. Super. at 105; State v. Horcey, 266
N.J.Super. 415, 421 (App. Div. 1993). But trial judge
not required to put the question in any particular form,
or to ask any particular number of questions on the
subject. Ham v. South Carolina, 409 U.S. at 527; State
v. McDougald, 120 N.J. at 551. And questioning
regarding racial prejudice is mandated only where the
circumstances of particular case present “constitutionally
significant likelihood” defendant may be denied due
process by State’s failure to impanel impartial jury.
Ristaino v. Ross, 424 U.S. 589, 596 (1976). When
defendant is charged with committing a racially
motivated crime such as ethnic terrorism (N.J.S.A.
2C:33-10 and 11), the trial court should exercise
extraordinary care in questioning potential jurors. State
v. Davidson, 225 N.J.Super. 1, 9-10 (App. Div.), certif.
denied, 111 N.J. 594 (1988).Fact that victim was white and defendants were black
did not automatically suggest significant likelihood that
racial prejudice might infect trial. See State v. Long, 137
N.J.Super. 124, 128-33 (App. Div. 1975) (absent
request by counsel, trial court not required on own
motion to pose questions on voir dire relating to any
specific type of prejudice, racial or otherwise, but where
defendant requests voir dire as to potential prejudice
because of color or other physical characteristics, better
practice is for court to accede to the request under exercise
of its discretion), certif. denied, 70 N.J. 143 (1976); see
also State v. Murray, 240 N.J.Super. 378, 392 (App. Div.),
certif. denied, 122 N.J. 334 (1990).b. A sentencing judge in a capital case, by refusing
defense counsel’s request to question potential jurors
concerning racial prejudice, fails to adequately protect
defendant’s right to an impartial jury. Turner v. Murray,
476 U.S. 28 (1986); see State v. Perry, 124 N.J. 128, 157-
58 (1991).