by Daryl E. Lucas
One of the guarantees of the Sixth Amendment to the U.S. Constitution is the right of the accused to be tried by an impartial jury.
According to a video on juror impartiality produced by the New Jersey Courts, “The fairness of a jury’s verdict depends on the impartiality of the jurors who serve.” In 2021, the New Jersey State Supreme Court decided the case of State of New Jersey v. Andujar, which raised concerns about explicit and implicit bias in the jury system—among judges, attorneys, and potential jurors. The case prompted the court to call for reforms.
About State v. Andujar
In State v. Andujar, the defendant—Edwin Andujar—contended that he was denied a fair trial because the sole Black juror, called F. G. in court filings, was removed from the jury. In 2017, Andujar was convicted of the 2014 killing of his roommate. He was sentenced to 45 years in prison.
“The State [prosecution] challenged the juror for cause, alleging that his background, associations, and knowledge of the criminal justice system were problematic, and also suggested that F.G. had been evasive [during the jury selection process],” explains Michael G. Donohue, a certified civil trial attorney who practices in Hamilton, NJ.
There are certain legal grounds for which a juror may be challenged “for cause” and excused from a jury. For example, if a juror is incapable of being impartial due to prior dealings with a witness or the attorney involved in the case, they would be excluded from the jury. In other words, “for cause” simply means there is a specific justification for excluding a potential juror.
In the case of “for cause” exemptions, the side calling for the juror’s exclusion must provide a valid reason for the exclusion and the judge will rule on it. In addition, each side can excuse a certain number of jurors without providing a reason. That type of exclusion is called a peremptory challenge. If a trial judge does not allow an attorney’s challenge of a juror “for cause,” then the attorney must either accept the juror or use one of their peremptory challenges.
According to Donohue, the trial judge in Andujar’s case rejected the State’s “for cause” challenge and found F.G. “would make a fair and impartial juror.” The next day, the prosecutor in the case ran a criminal background check on the juror and discovered he had an outstanding municipal court warrant. As a result, F.G. was arrested and did not serve on the Andujar jury.
The New Jersey Supreme Court sided with Andujar, finding that he did not receive a fair trial because the state prosecutors improperly removed F.G. during jury selection.
In the court’s majority opinion, issued in July 2021, Chief Justice Stuart Rabner wrote that the juror’s removal “may have stemmed from implicit or unconscious bias on the part of the State which can violate a defendant’s right to a fair trial in the same way purposeful discrimination can.” In addition, the court ruled that in the future background checks would need to be approved by a judge.
Edwin Andujar received a new trial in January 2024. He was again convicted of murder and other weapons charges.
Call for reform
The impropriety of the criminal background check of a potential juror was the focus of the Andujar appeal to the New Jersey Supreme Court; however, the case came to represent much more.
“Although the law remains the same, our understanding of bias and discrimination has evolved considerably since the nineteenth century,” the New Jersey Supreme Court’s opinion stated. “It is time to examine the jury selection process and consider additional steps needed to prevent discrimination.”
In addition to ruling on the merits of the case, the New Jersey Supreme Court’s Andujar opinion called for a Judicial Conference to address the issue of implicit bias in jury selection. Donohue was the co-chair of the New Jersey State Bar Association’s Working Group on Jury Selection, which submitted a report with its recommendations to the Committee of the Judicial Conference on Jury Selection.
“In Andujar, the New Jersey Supreme Court recognized that implicit (or unconscious bias), not just explicit (or intentional) bias, could lead to discrimination against a juror because of race or other improper reasons,” says Donohue. He explains that the court used Andujar to highlight implicit bias and whether the State’s reasons in its “for cause” challenge against F.G. (background, associations, and knowledge of the criminal justice system) as well as the decision to run the background check in the first place were the product of implicit bias.
Making recommendations
In November 2021, legal scholars, attorneys, legislators, judges, as well as members of advocacy groups, such as the NAACP, the American Civil Liberties Union and the New Jersey Institute for Social Justice, participated in a two-day conference to discuss the means of combatting implicit bias in the jury selection process and to make juries more representative of the communities they serve. The Committee of the Judicial Conference on Jury Selection ultimately submitted a 63-page report where it made 25 recommendations to the New Jersey Supreme Court. The court adopted all of them; however, some recommendations require the New Jersey Legislature to pass laws and others are being implemented gradually.
Among the recommendations suggested at the Judicial Conference was the requirement of implicit bias training for judges and attorneys, as well as educating jurors on implicit biases. Potential jurors are now shown a seven-minute video before the jury selection process begins that is devoted to explaining implicit and explicit bias.
Another recommendation made was in how voir dire is conducted. Voir dire is the part of the jury selection process where potential jurors are questioned by either the judge or the lawyers in the case. It is a French phrase that is literally translated as “to speak the truth.”
During this process, jurors might be asked if they know any of the parties in the case, if they’ve ever been involved in a civil or criminal trial before, or what their beliefs are about the legal system. The questions are intended to determine whether a juror can be impartial during the trial. Depending on the potential juror’s answers, either side can ask for a potential juror to be excused from the jury. This is when the “for cause” and peremptory challenges come in.
In New Jersey, voir dire has been led by the trial judge—one of eight states and the District of Columbia that conducts the process this way. In the rest of the states, voir dire is led by the attorneys in the case.
In September 2022, the New Jersey Supreme Court instituted an Attorney-Conducted Voir Dire (ACVD) pilot program. The pilot was launched in Bergen, Camden and Middlesex counties to start. Under ACVD, both parties must consent to participate and accept a reduced number of peremptory challenges. NJSBA’s Working Group on Jury Selection made the suggestion to switch to an attorney-led voir dire process. The thought was that jurors may not be truthful when judges ask them questions and that attorneys are more skillful at asking targeted questions that would lead to relevant information for that specific trial.
The ACVD program expanded to Monmouth County in March 2023 and to Atlantic, Cape May, Burlington, and Hudson counties in April 2024.
Jury representation
Several recommendations to address the demographics of New Jersey juries were made at the Judicial Conference. The concern was that the jury pool—where those who are chosen for jury duty come from—is not reflective of all the people in a community. The race, ethnicity, and gender will now be collected for potential jurors.
“By collecting juror information at the earliest possible stage, New Jersey will for the first time have a clear picture of the degree to which our jury pools align with their communities,” Judge Glenn A. Grant, Acting Administrative Director of the Administrative Office of the Courts, said in a statement. “Attorneys and parties in a trial will be able to obtain demographic data in advance of a trial to determine if there is an underrepresentation of a particular race, ethnicity, or gender in a jury pool.”
In the past, the jury pool was developed from voter registration lists, driver’s license information, tax returns and property tax rebate applications. To increase the jury pool, it will now also be compiled from state labor records, as well as lists of those receiving public assistance.
Legislation needed
Currently, New Jersey residents are barred from jury service if they have been convicted of an indictable offense, or have pled guilty to or been convicted of a federal crime. According to the Judicial Conference report, this disproportionately impacts New Jersey’s communities of color from serving on juries, which led to a recommendation to increase the jury pool by restoring eligibility for anyone who has completed their parole or probation supervision. This recommendation would require the New Jersey Legislature to pass a law.
A New Jersey Assembly bill would remove the automatic disqualification of formerly incarcerated persons, so long as they have served their sentences. The proposed legislation makes two exceptions—convictions for murder or aggravated sexual assault would still be disqualifying.
“There is no rational reason, in my opinion, to categorically bar from jury service the persons this bill seeks to include.” Donahue says.
The bill passed the New Jersey Assembly in the last legislative session; however, it died after substantial debate on the issue. The bill was reintroduced in the current legislative session and remains pending.
Addressing compensation
Another barrier to jury service has also historically been the poor compensation provided for service. In New Jersey, all employees are entitled to time off for jury duty; however, most employers are not required to pay their employees for that leave. According to the New Jersey Office of the Public Defender, New Jersey compensation for jury service is one of the lowest pay in the nation—$5 per day for the first three days of a trial and $40 a day for every day thereafter.
The New Jersey Supreme Court recommended increasing compensation for jury service; however, the New Jersey Legislature would also need to pass a law for that to happen.
Donahue says providing citizens the opportunity to serve on a jury in their community is the most important right to protect. It fulfills a civic duty for all Americans and is a fundamental part of the justice system.
Discussion Questions
- According to the video produced by the New Jersey Courts, “The fairness of a jury’s verdict depends on the impartiality of the jurors who serve.” What do you think of that statement? If you were called for jury duty, do you think you would be able to be impartial? Explain your answer.
- How does having a diverse jury pool benefit the judicial system? Do you think a diverse jury is important? Why, or why not? Explain your answer.
Glossary Words
appeal — legal proceeding where a case is brought from a lower court to a higher court to be heard.
defendant — in a legal case, the person accused of civil wrongdoing or a criminal act.
indictable offense — an offense that requires a determination of whether to prosecute.
legislation—the enactment of law by a legislative body (ie., Congress or a state legislature).
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
parole — a conditional release from prison which allows a person to serve the remainder of his or her sentence outside of an institution but under state supervision.
peremptory challenge – objection to a proposed juror, made without needing to give a reason.
probation — a non-jail sentence that judges can impose on someone who has been convicted of a crime.
This article was originally published in the spring 2024 edition of Respect.