Right to a Meaningful Trial is Under Attack Redux

Authored by Craig M. Aronow, Esq.

In November of 2015, in my first “President’s Column,” I wrote: “The right to a meaningful trial, bench or jury is under attack from within and without.” As the top policy makers in our judiciary continue to focus on the speed of case resolution, the quality of New Jersey’s justice suffers, which means that the people who seek justice in our courts suffer. The pressure being placed on trial court judges to “move cases” and “try more cases faster,” is both unfair to the trial court judges, litigants and lawyers. It isn’t the idea of re‐ solving cases more swiftly that is the problem; the measures being implemented to achieve this goal is the problem.

For at least the third time that I can recall, there is an effort on the part of the leaders of the judiciary to reduce the number of peremptory challenges available to attorneys. The argument in the past has been couched in terms of the “excessive” number of challenges afforded to criminal defendants, especially in multi‐defendant cases, which result in a lengthy jury selection process. We have also heard about concerns regarding jurors “being wasted” when lawyers use challenges to excuse “perfectly good jurors.” As an aside, if a trial lawyer feels that a juror will not be impartial and uses one of their precious challenges, the juror isn’t being “wasted,” they are being excused out of fairness concerns. Nonetheless, in State v. Andujar, a case that had nothing to do with peremptory challenges, our Supreme Court announced, that among other aspects of the jury selection process, they were going to be re‐ viewing the use of peremptory challenges.

As President Ed Testino has been writing about, the Court is holding a Judicial Conference early this month to address bias in the jury selection process. Peremptory challenges appear to be squarely in their sights again. If you haven’t read the Andujar decision, you should. It is an important decision, and as we learn more about bias and the role it plays in our justice system, I believe that we will see the topics it addresses more frequently, both in opinions and legal publications.

A reading of Andujar quickly demonstrates that the case could have easily been decided and limited to its own facts and the prosecutorial actions at issue. Nonetheless, the Court chose to issue an opinion calling for a Judicial Conference and reinstituting an effort to reform the use of peremptory challenges. The Court, in rendering its decision, at 247 N.J. 275, 315‐16 (2021) said the following about the competing rights of defendants and jurors:

A defendant’s right to a properly selected jury is precious and must not be tainted by discrimination. Osorio, 199 N.J. at 492. In the same way, no citizen should be denied the right to serve be‐ cause of the person’s religious principles, race, ethnicity, national origin, gender, sexual orientation, or some other impermissible basis. See Powers, 499 U.S. at 409.

The law already provides for some protections against the abuse of peremptory challenges in a discriminatory fashion. The Court can provide additional guidance to judges to police peremptory challenge usage and put law‐ yers on notice of practices that are not permitted. I don’t believe it was necessary to frame the issue in this way, but it has been and nearly every lawyers’ organization in the State has come out against elimination/reduction of peremptory challenges.

In or about 2018, New Jersey’s Judiciary, working with several professors, including Mary R. Rose, Ph.D., began a study of the representativeness of our State’s juries. The work resulted in “Final Report on New Jersey’s Empirical Study of Jury Selection Practices and Jury Representative‐ ness,” dated June 1, 2021. Andujar was decided on July 13, 2021. In Andujar, the Court included the following language, at p. 317:

Some sources observe that discriminatory challenges persist after Batson and that “peremptory challenges have become a cloak for race discrimination.” Saintcalle, 309 P.3d at 334. Others maintain that peremptory challenges offer “very real protections against juror bias.” N.J. State Bar Ass’n, Pandemic Task Force Report of the Committee on the Resumption of Jury Trials 3 (July 2, 2020).

Dr. Rose’s report indicates as one of its findings that peremptory challenges are “sporadically” linked to minority juror attrition, they are not a primary reason for it. In fact, one of the primary reasons for it is the sources that we use for identifying potential jurors. Recently, A4275, a bill that has been percolating in the Assembly since June of 2020 passed the full Assembly. That bill, if passed into law, will expand the sources from which we get our potential jurors to include several government aid programs.

Currently, it is clear that a lack of diversity in many county jury pools is an institutional issue and not a trial lawyer abuse of peremptory challenges issue.

There is also a significant discussion in Andujar about the number of peremptory challenges afforded criminal defendants in New Jersey as compared to the federal courts and other states’ courts. New Jersey has the most. It is also noteworthy that the discussion about number of challenges appears to be a tangent, as the focus of the decision is on bias, and more specifically, implicit bias. If peremptory challenges were responsible in a significant way for depriving members of our minority communities of their right to serve on our juries, would a reduction of a couple of challenges change the alleged implicit bias that was driving the excusal of jurors?

As a trial lawyer who has sat next to clients from diverse backgrounds, while they were judged by juries that did not include anyone that looked like them, it was not peremptory challenges which created those conditions, it was the homogeneity of the original jury venire, coupled with the financial hardship hourly paid workers endure when taken from their jobs for several days.

There are many issues affecting our clients’ abilities to get a fair and meaningful trial. The affect of peremptory challenges on jury composition is certainly not at the top of that list. Reducing the pressure on trial judges to “move cases” and evaluating them on “productivity” would be a good start. Because if that happened, judges could spend more time on challenges for cause, we could expand open‐ ended questions in voir dire to get to the real bias of some jurors and not have the process truncated when there are only a couple of jurors left in the original panel and we are getting to the end of the day.

Fewer and fewer cases are resolved by trial. There are fewer and fewer trial lawyers. It is as if the jury trial is a nuisance and not the crown jewel of our justice system. It is the last resort for resolving a criminal or civil dispute, often with high stakes. We should treat it as such and give it the time and resources that it needs.

Bias, including implicit bias, is a problem. The solution is discussion and education to reach those that can be reached, and ensuring that our justice system affords all litigants a fair trial by a jury of their peers. Peremptory challenges, exercised lawfully, advance that goal. At the end of the day, trial judges are humans, trial lawyers are humans, litigants are humans and jurors are humans. Humans have biases and prejudices. Unless we are going to turn our jury trial system over to a computer driven algorithm, we are always going to have bias in our trials. For those of us that sit next to people who are anxious and gambling their future before a jury, we know that it is important that those people have a say in who is judging them and the only say they truly have in that process is the peremptory challenge.

By Craig Aronow, Esq. – As published in The Middlesex Advocate.