Rule text
a. A party may exercise a peremptory challenge for any reason, except that a party shall not use a peremptory challenge to remove a prospective juror based on actual or perceived membership in a group protected under the United States or New Jersey Constitutions or the New Jersey Law Against Discrimination. This Rule applies in all civil and criminal trials.
b. Upon the exercise of a peremptory challenge, the court or any party who believes that the challenge may violate paragraph (a) above may call for review of the challenge pursuant to this Rule.
c. Any such review shall take place outside the hearing of the jurors.
d. In the review of a contested peremptory challenge,
1. The party exercising the peremptory challenge shall give the reasons for doing so; and
2. The court shall determine, under the totality of the circumstances, whether a reasonable, fully informed person would find that the challenge violates paragraph (a) of this Rule.
e. A peremptory challenge violates paragraph (a) of this Rule if a reasonable, fully informed person would believe that a party removed a prospective juror based on the juror’s actual or perceived membership in a group protected under that paragraph.
f. If the court finds that a reasonable, fully informed person would view the contested peremptory challenge to violate paragraph (a) of this Rule, the court shall impose an appropriate remedy. No finding of purposeful discrimination or bias is required.
Notes
Note: Adopted July 12, 2022 to be effective January 1, 2023.
Official Comment (July 12, 2022)
1. Paragraph (a) of this Rule prohibits the exercise of a peremptory challenge to remove a prospective juror based on the juror’s actual or perceived membership in groups protected by the United States or New Jersey Constitutions and the New Jersey Law Against Discrimination. Currently, the statute protects against discrimination on the basis of race or color; religion or creed; national origin, nationality, or ancestry; sex, pregnancy, or breastfeeding; sexual orientation; gender identity or expression; disability; marital status or domestic partnership/civil union status; and liability for military service. The Rule is intended to also cover any future amendments to the statute.
2. Consistent with RPC 3.1, any call for a review of a peremptory challenge should be advanced in good faith.
3. In considering the reasons given for a peremptory challenge pursuant to paragraph (d)(1) of the Rule, the court shall bear in mind that the following reasons have historically been associated with improper discrimination, explicit bias, and implicit bias in jury selection and are therefore presumptively invalid: “(i) having prior contact with law enforcement officers; (ii) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling; (iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime; (iv) living in a high-crime neighborhood; (v) having a child outside of marriage; (vi) receiving state benefits; (vii) not being a native English speaker”; (viii) having friends or family members who were victims of crime; and (ix) understating the degree to which the juror or the juror’s family or friends have been victims of crime, based on a belief that only serious violent crime results in victimization. See Wash. Gen. R. 37(h). A party exercising a challenge on one of those bases may overcome the presumption of invalidity by demonstrating to the court’s satisfaction that the challenge was not exercised in violation of paragraph (a), but rather based on a legitimate concern about “the prospective juror’s ability to be fair and impartial in light of particular facts and circumstances at issue in the case.” See Conn. Proposed New Rule (h). The court shall also consider that certain conduct-based reasons for peremptory challenges have also historically been associated with improper discrimination, explicit bias, and implicit bias in jury selection. “Such reasons include allegations that a prospective juror: was sleeping, inattentive, staring, or failing to make eye contact; exhibited a problematic attitude, body language, or demeanor; or provided unintelligent or confused answers.” Wash. Gen. R. 37(i).
4. In making its determination as to a contested peremptory challenge pursuant to paragraph (d)(2), the court should consider circumstances that include, but are not limited to: (i) “the number and types of questions posed to the prospective juror,” including whether and how “the party exercising the peremptory challenge… questioned the prospective juror about the alleged concern; (ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the” challenged juror in comparison to other jurors; (iii) whether other prospective jurors gave similar answers but were not challenged by that party; (iv) whether a reason might be disproportionately associated with a protected group identified in paragraph (a); and (v) “whether the party has used peremptory challenges disproportionately against” members of a protected group as defined in paragraph (a). See Wash. Gen. R. 37(g).
5. Paragraph (f) of the Rule calls upon the court to impose an appropriate remedy for a violation of paragraph (a). The following remedies may be applied in response to a court determination that a party has impermissibly exercised a peremptory challenge: (i) reseat impermissibly challenged juror(s); (ii) reseat impermissibly challenged juror(s) and order forfeiture of challenges; (iii) require subsequent peremptory challenges to be exercised at sidebar; (iv) grant additional peremptory challenges to non-offending party or parties; (v) dismiss empaneled jurors and start voir dire over; and (vi) combine multiple remedies. State v. Andrews, 216 N.J. 271 (2013).