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In 2004 the Supreme Court appointed the Special Committee on Peremptory Challenges and Jury Voir Dire to evaluate what steps might be taken to improve the jury selection process in both civil and criminal cases. The Court also asked the Special Committee to evaluate the number of peremptory challenges allowed in both civil and criminal cases. The Special Committee, chaired by Appellate Division Judge Joseph A. Lisa, filed its report and recommendations with the Supreme Court on May 16, 2005. The Court has authorized publication of the Special Committee’s report and recommendations for comment. The report is published with this Notice. It also may be reviewed on the Judiciary’s Internet website (njcourtsonline.com). As set forth in its report, the Special Committee has made a series of ten recommendations. Recommendation 1 consists of five proposed Jury Selection Standards. Recommendation 2 calls for the Court to establish a standing committee on jury selection. Recommendation 3 is for development of a jury selection manual. Recommendation 4 consists of the Special Committee’s recommendation that the proposed standing committee be responsible for proposing any revisions to the standard jury selection questions included within the proposed Jury Selection Standards. Recommendation 5 calls for a comprehensive jury selection training program for judges. Recommendation 6 proposes development of a jury selection training program for attorneys. Recommendation 7 proposes a rule amendment (Rule 1:8-3(f)) to expand the pretrial voir dire conference to also include written submission of proposed voir dire questions and to require the trial judge to rule on proposed voir dire questions on the record. Recommendation 8 proposes reductions in the number of peremptory challenges in criminal trials (in cases with a single defendant, eight peremptory challenges for defendant and six for the State; in cases with multiple defendants, four challenges for each defendant, with the State permitted three challenges for each defendant). Recommendation 9 proposes the reduction of the number of peremptory challenges in civil trials to four challenges per party. Recommendation 10 proposes a rule amendment (Rule 1:8-3(c)) to authorize the trial judge in multiple-party trials to decrease or increase the number of peremptory challenges available to the parties where the judge determines such reduction or increase to be appropriate. Comments on the Special Committee’s report and recommendations are being sought by the Court for its consideration prior to taking any action. The deadline for the submission of comments is September 15, 2005. Please submit them to me at:
Hon. Philip S. Carchman, J.A.D. Acting Administrative Director of the Courts Administrative Office of the Courts Hughes Justice Complex, Box 037 Trenton, NJ 08625-0037
Comments may also be submitted via Internet e-mail to the following address: [email protected]. The Supreme Court will not consider comments submitted anonymously. Thus, those submitting comments by mail should include their name and address and those submitting comments by e-mail should include their name and e-mail address. Comments submitted in response to this notice will be maintained in confidence only if the author specifically requests confidentiality. In the absence of such a request, the author’s identity and his or her comments may be subject to public disclosure after the Court has acted on the proposed recommendations. Hon. Philip S. Carchman, J.A.D. Acting Administrative Director of the Courts Dated: June 16, 2005 Editor’s Note: The appendices to the report are not printed here but are available on the state judiciary’s Web site, http://www.judiciary.state.nj.us/.
REPORT OF THE SPECIAL SUPREME COURT COMMITTEE ON PEREMPTORY CHALLENGES AND JURY VOIR DIRE
May 16, 2005 COMMITTEE MEMBERS Honorable Joseph F. Lisa, J.A.D., Chair Carlos H. Acosta Jr., Esquire – Hispanic Bar Association of New Jersey Honorable Linda G. Baxter, P.J.Cr. Abbott S. Brown, Esquire – Association of Trial Lawyers of America – NJ Honorable Marilyn C. Clark, P.J.Cr. Honorable Elaine L. Davis (P.J.Cr., Retired) Honorable Harriet E. Derman, P.J.Cv. Honorable Frederick P. DeVesa, P.J.Cr. Honorable Peter E. Doyne, J.S.C. John C. Eastlack Jr., Esquire – New Jersey State Bar Association Judith B. Fallon, Esquire – Association of Criminal Defense Lawyers of NJ Honorable Travis L. Francis, P.J.Ch. Honorable Maurice J. Gallipoli, A.J.S.C. C. Judson Hamlin (J.S.C., Retired) – Trial Attorneys of New Jersey Glenn R. Jones, Esquire – Assistant Attorney General Joseph E. Krakora, Esquire – Assistant Public Defender Philip R. Lezenby, Esquire – New Jersey Defense Association Honorable John F. Malone, J.S.C. Raymond E. Milavsky, Esquire – County Prosecutors Association of New Jersey Michael F. Garrahan, Esquire, Administrative Office of the Courts, Staff TABLE OF CONTENTS Summary of Recommendations I Preamble II Introduction III Findings IV Recommendations Recommendation 1: Jury Selection Standards
Standard 1. Voir Dire Method Standard 2. Standard Questions Standard 3. Supplemental Questions Standard 4. Attorney Participation Standard 5. Challenges for Cause

Recommendation 2: Standing Committee Recommendation 3: Jury Selection Manual Recommendation 4: Revisions to Standard Questions Recommendation 5: Training Program for Judges Recommendation 6: Training Program for Attorneys Recommendation 7: Expansion of R. 1:8-3(f) Conference Recommendation 8: Number of Challenges in Criminal Trials Recommendation 9: Number of Challenges in Civil Trials Recommendation 10: Revisions to R. 1:8-3(c) V Conclusion ATTACHMENTS 1. Model Voir Dire Questions, Criminal 2. Model Voir Dire Questions, Civil APPENDIX A. Committee Charge in Memorandum from Judge Williams B. Table Showing Peremptory Challenges in Other Jurisdictions C. Solicitation for Attorney Comment (NJ Law Journal and NJ Lawyer) D. Summary of Responses from Attorneys (not members of the Committee) E. Solicitation for Comment by Association Representatives on the Committee F. Copies of Committee Members’ Association Responses G. Question to Presiding Judges re: Standard Voir Dire Practices H. Summary of Responses from Presiding Judges I. Voir Dire Survey Questionnaire to Criminal and Civil Trial Judges J. Survey Responses from Criminal and Civil Trial Judges

1. Questions and Summary of Judges’ Responses 2. Categorization of Judges’ Comments to Question #25

K. Statistical Information

1. Table of Average Panel Sizes 2. Data on Time Required for Voir Dire 3. Information on Juror Dispositions at Voir Dire

L. Weiss Report M. Minority Report on behalf of the County Prosecutors Association of New Jersey N. Minority Report on behalf of the Association of Criminal Defense Lawyers of New Jersey and the Office of the Public Defender

SUMMARY OF RECOMMENDATIONS
RECOMMENDATION 1 The Special Committee has developed proposed Jury Selection Standards for the purposes of improving jury selection and making it more uniform statewide. The Committee recommends that the Supreme Court approve these proposed standards. Upon approval, they should be distributed to all trial judges as a separate document. (Each standard is accompanied by extensive commentary.) Standard 1. Voir Dire Method The method chosen to conduct voir dire must assure a thorough and meaningful inquiry into jurors’ relevant attitudes so the court and counsel can identify jurors who may possess a bias, prejudice, or unfairness with regard to the trial matter or anyone involved in the trial. Standard 2. Standard Questions When questioning prospective jurors, the judge must include the model jury selection questions approved by the Supreme Court for that type of trial, which are attached. Standard 3. Supplemental Questions Counsel shall be encouraged to submit relevant supplemental questions for the court’s consideration at the pre-voir dire conference; the judge shall review all proposed questions and determine whether to include each one, setting forth the determination on the record. Standard 4. Attorney Participation At the discretion of the trial judge, if requested by counsel, at least some participation by counsel in the questioning of jurors should be permitted. Standard 5. Challenges For Cause Jurors should be excused for cause, either by the court sua sponte or upon a party’s request, when it appears that it will be difficult or impossible for the juror to be fair and impartial in judging the case. RECOMMENDATION 2 The Special Committee recommends that the Supreme Court establish a standing committee, suggested to be called the Committee on Jury Selection in Criminal and Civil Trials, to provide continuing oversight of this important area – first with respect to the implementation of any approved Special Committee recommendations and, thereafter, to continue to work to assure uniformity in statewide practices. Several specific standing committee responsibilities are identified in the discussion accompanying this recommendation and in subsequent recommendations. RECOMMENDATION 3 The Special Committee recommends that the Supreme Court authorize the development of a jury selection manual that will address the specifics of jury selection for judges and attorneys. RECOMMENDATION 4 The Special Committee recommends that the Supreme Court authorize the proposed Committee on Jury Selection in Criminal and Civil Trials (Recommendation 2, above) to be responsible for proposing any revisions to the standard jury selection questions that are included within the Jury Selection Standards proposed in Recommendation 1. That responsibility will include any changes to questions that are approved, as well as expansion to cover additional case types beyond those contained in the standards. RECOMMENDATION 5 The Special Committee recommends that the Supreme Court approve a jury selection training program for judges that will include separate program components covering not only the existing program that is conducted for new judges and programs that may be conducted at the annual New Jersey Judicial College, but also a training program component that will provide for continuing education of judges assigned to the civil and criminal divisions. RECOMMENDATION 6 The Special Committee recommends that the Supreme Court direct the proposed Committee on Jury Selection in Criminal and Civil Trials to develop a jury selection training program for attorneys. RECOMMENDATION 7 The Special Committee recommends that the Supreme Court approve a rule change that will expand the pre-trial voir dire conference required by R.1:8-3(f) to also include:
� Submission in writing by attorneys of proposed voir dire questions; and � Require the trial judge to rule on the proposed questions on the record.

RECOMMENDATION 8 The Special Committee recommends the reduction of the number of peremptory challenges in criminal trials to 8 challenges for a defendant being tried alone, with 6 challenges permitted to the State. Where there are multiple defendants, each defendant will be permitted 4 peremptory challenges, with the State permitted 3 challenges for each defendant. RECOMMENDATION 9 The Special Committee recommends the reduction of the number of peremptory challenges in civil trials to 4 per party. RECOMMENDATION 10 The Special Committee recommends that the Supreme Court approve its proposed revision to R.1:8-3(c) that will authorize the trial judge to also be able to decrease the number of peremptory challenges available to the parties (as well as increase that number), when the judge has determined that it is appropriate to adjust the number of peremptory challenges in multiple party trials.

I. Preamble
The New Jersey Supreme Court appointed the Special Committee on Peremptory Challenges and Jury Voir Dire in early 2004. The Court appointed Judge Joseph F. Lisa, J.A.D. as Chair. The Committee’s membership includes nine other judges with extensive experience in presiding over jury trials, both civil and criminal, and nine attorneys. The Court selected the attorneys based upon recommendations from various bar associations and attorney organizations. Therefore, in addition to personally having significant trial experience, each attorney member also represents an important constituency in New Jersey’s legal community. The attorney members represent the Office of the Attorney General, Office of the Public Defender, Hispanic Bar Association of New Jersey, Association of Trial Lawyers of America – NJ, New Jersey State Bar Association, Association of Criminal Defense Lawyers of New Jersey, Trial Attorneys of New Jersey, New Jersey Defense Association, and County Prosecutors Association. The Committee is staffed by Michael F. Garrahan, Esq., of the Administrative Office of the Courts. Upon completion of the selection of members, the Committee held its first meeting on April 7, 2004. The Committee’s charge, as reflected in the letter to the Chair from the Honorable Richard J. Williams, J.A.D., Administrative Director of the Courts (See Appendix A), was to examine the subject of peremptory challenges and voir dire practices in New Jersey. The Committee was also asked to evaluate whether the 2000 amendment to R. 1:8-3, which added subparagraph (f), requiring a pre-voir dire conference, has resulted in any impact on the conduct of voir dire. The Committee’s charge did not extend to the trial of capital cases, and nothing in this report pertains to the number of peremptory challenges or voir dire practices in those cases. The Committee’s work is now complete. This report was approved at the Committee’s final meeting on April 26, 2005. Minority reports were then filed by Committee representatives of the County Prosecutors Association of New Jersey (see Appendix M) and the Association of Criminal Defense Lawyers of New Jersey and the Office of the Public Defender. (See Appendix N). The minority reports express disagreement only with respect to Recommendation 8. The report will describe the work of the Committee in detail. Before doing so, it is deemed helpful to generally describe the process followed by the Committee and some of the conclusions reached, and to summarize the Committee’s recommendations. First of all, it can be succinctly stated that R. 1:8-3(f) has had no demonstrable impact on the manner in which voir dire has been conducted before and after its adoption in 2000. Next, it should be noted that the Committee first turned its attention to the quality of the voir dire process. It was recognized from the outset that the quality of the voir dire process is inextricably intertwined with the appropriate number of peremptory challenges. The more thorough and meaningful the voir dire process in ferreting out juror bias, the less need for peremptory challenges. Thus, many months before the Committee even broached the subject of the number of peremptory challenges, extensive analysis was conducted about the voir dire process and ways of improving it. This emphasis is reflected in the Committee’s recommendations. Seven of the ten recommendations made by the Committee pertain to the quality of the voir dire process. Most notably, those recommendations include the approval and implementation of a comprehensive set of voir dire standards to be utilized by all trial judges. The proposed standards include the required use of standard questions as a baseline, with encouragement to judges to supplement them on a case-specific basis, including with input from the attorneys. The encouragement of some level of attorney participation is included. The standards recommend an expansive granting of excusals for cause. Also notable is the recommendation that a standing jury selection committee be established, with representation from the bench and bar, to monitor compliance with the standards and recommend appropriate modifications from time to time. The standing committee would draft a voir dire manual for use by judges and attorneys and develop revisions and additions to standard questions. The recommendations also include expanded training for judges as well as attorneys and enhancement and expansion of the pre-voir dire conference procedures. With respect to the number of peremptory challenges, it is plain to the most casual observer that the numbers allowed in New Jersey are far out of the mainstream of those allowed in the other forty-nine states, the District of Columbia, and the Federal judicial system. As shown in Appendix B, in civil trials, only 10 out of 52 jurisdictions 6 allow more than 4 peremptory challenges per party. This includes New Jersey, which currently allows 6. Fourteen jurisdictions allow 4; twenty-six jurisdictions allow 3; and two jurisdictions allow 2. This discordance is further amplified by the fact that out of the seven jurisdictions that allow 6 challenges, New Jersey is the only one that has 6 deliberating jurors, instead of 12. On the criminal side, New Jersey is even farther out of the mainstream. As reflected in Appendix B, the comparison to other jurisdictions is more complicated in criminal because some jurisdictions vary the number allowed depending on the seriousness of the charge and the number of jurors required to return a verdict. For trials of more serious cases (designated in Appendix B as “Felonies”), the median number of peremptories for defendants nationwide is 6 and the mean number is 7.4. New Jersey now allows 20 for a single defendant in enumerated cases deemed more serious. For trials of less serious cases (designated in Appendix B as “Misdemeanors”), the nationwide median is 4 and the mean is 4.2. New Jersey now allows 10 in the nonenumerated cases, which are deemed less serious.[fn1] The Committee has determined that reductions should be made. In addition to the expected improvement in the voir dire process, other factors also inform this conclusion. The Committee is not recommending the elimination of peremptory challenges. The Committee believes that allowing a reasonable number of peremptory challenges provides litigants with a “safety net” in the jury selection process and engenders confidence in litigants’ acceptance of the final verdict because they have been given a direct role (apart from the court) in selecting those who will decide their fate. The Committee is also mindful of the trend in judicial decisions in the last two decades recognizing abuses in the use of peremptory challenges to discriminate based on race, gender, ethnicity and religion. See State v. Fuller, 182 N.J. 174 (2004). These decisions have prohibited such improper use of peremptory challenges by all parties in both criminal and civil trials. Ibid. The Committee is of the view that the judicially recognized abuse of peremptory challenges provides an independent basis for reduction in the numbers allowed. With a large number of peremptory challenges allowed, parties are better able to camouflage their improper discriminatory use. Conversely, with fewer allowed, there will be a greater deterrent and diminished ability to misuse peremptory challenges for prohibited purposes. On the civil side, when the size of juries was reduced from 12 to 6, no corresponding change was made in the number of peremptory challenges, thus, in effect, doubling the proportionate number of peremptory challenges available to civil litigants. On the criminal side, the rules presently in effect provide for a two-tier system. For crimes deemed more serious, the defendant gets 20 peremptory challenges and the State 12; for the less serious crimes, the defendant and the State get 10 peremptory challenges each. The Committee determined that the two-tier system should be eliminated, and the same criteria should apply for all indictable offenses (except capital offenses, which are not part of the Committee’s consideration). Elimination of the two-tier system is appropriate because (1) with offense-specific and other mandatory sentencing provisions, many of the so-called less serious offenses carry much more substantial penalties than those deemed more serious; and (2) even if an effort were made to establish more rational classifications in each tier, procedures designed to select a fair jury and provide the parties with a fair trial should be equally applicable in all criminal trials. It is incongruous to suggest that the process should be “more fair” in more serious cases. If the process is fair, it is fair. Further, the number of peremptories allowed in New Jersey for the more serious cases is very far out of the national mainstream and most in need of reform by substantial reduction. Other factors bearing upon the decreased need by defendants for peremptory challenges in this modern era are the significant changes in the criminal justice system that have evolved over the many decades since these numbers were originally set. All defendants are now represented by counsel. Indeed, indigent defendants in New Jersey are very well represented by very competent and experienced attorneys provided by the Office of the Public Defender. The pool of jurors has been broadly expanded and now includes a broad cross-section of society, many of whom are more likely than those in the previous pools to identify with and be sympathetic to defendants in criminal trials. Along these same lines, societal attitudes have changed to be less favorable to law enforcement and government than in past times. The rights of the accused are safeguarded much more in current times by decisional law providing, for example, for the inadmissibility of confessions, suppression of evidence, etc. than in prior times. In addition to these and other changing circumstances over the years, the State continues to bear the burden of proving the charge beyond a reasonable doubt to a unanimous jury. These factors persuaded the Committee to reduce the number of peremptory challenges in criminal trials. However, notwithstanding these factors, a majority of the Committee held to the view that there remains some residual advantage to the State in a criminal trial. (The State represents “the people,” including, in a broad sense, the jurors; the police are there to keep all of us, including the jurors, safe; although accepting the legal principle of presumption of innocence, if the case has come this far, to trial, there must be significant evidence of guilt; etc.) For these reasons and because the right to trial by jury is a right possessed by the defendant, the Committee determined that defendants should receive more peremptory challenges than the State. The Committee recommends reduction of peremptory challenges in civil trials from 6 per party to 4 per party. The Committee also recommends that judges have the discretion to decrease, as well as increase, the numbers allowed in multiple-party trials to avoid injustice. The number may never be decreased below 3 per party. In criminal trials, the Committee recommends that defendants receive 8 and the State 6 peremptory challenges in one-defendant cases. In multi-defendant cases, each defendant would receive 4, and the State would receive 3 for each defendant. The Committee has determined that these reductions, coupled with the improved jury selection process, will not be detrimental to the litigants and will not adversely affect the interests of fairness and justice. The Committee believes that the reduction will enhance in the eyes of the public the credibility of our system of administering justice by curtailing the “turnstile” process by which juror after juror, deemed acceptable by the court, is dismissed by the attorneys for no apparent reason. The reductions will decrease by many thousands over the course of each year the number of citizens called to jury service. This will also result in a corresponding saving in the expenditure of public funds and reduce the administrative burden associated with jury service. As discussed later in this report (see Recommendations 8 and 9), using conservative assumptions, the number of jurors required to actually report for duty each year will be reduced by about 27,000. Based on experience, approximately 1 out of 3 persons summoned meets the statutory qualification criteria to serve as a juror and can serve on the summons date. Therefore, about 80,000 fewer citizens per year would need to be summoned for jury duty. A few final comments bear noting at the beginning of this report: (1) The Committee’s recommendations are not geared to save time in jury selection. If anything, in many courtrooms, where the procedure has become very truncated and perfunctory, utilization of the standards will increase the amount of time to pick a jury. (2) The interdependent recommendations of the Committee, if fully implemented, will improve, not impair, the selection of fair jurors. (3) Approval and implementation of the recommendations to reduce the number of challenges will be over the objection of the bar. There is a clear dichotomy here. The judges on the Committee and the judges who have responded to the Committee’s solicitation for input have overwhelmingly favored reduction in peremptory challenges, deeming the number presently allowable unreasonable, unnecessary and counterproductive. Just as overwhelmingly, the attorney members of the Committee and attorneys who have responded to solicitations for input oppose any reduction. [fn2] The bar is of the view that there is nothing in the number of peremptory challenges presently allowed that “needs fixing,” that if many peremptory challenges remain unused, that is not a problem, and in some cases, they need all they can get. Thus, the recommended reductions are not the product of a “give-and-take negotiation” resulting in a common ground agreement, although the final numbers were arrived at with a clear consideration and concern by the entire Committee of the views expressed by the attorney members. This situation is not unique to New Jersey and has been noted in reports from other jurisdictions and in articles. The reactions reflect the different responsibilities and viewpoints of the two groups. Attorneys are advocates for their clients and it is not surprising that they do not favor reducing what they see as an advantage to those clients. With these preliminary comments, we proceed to a broader discussion of the Committee’s purpose, a description of its work, and a more detailed enumeration and analysis of its recommendations.
II. Introduction
In its charge to the Committee, the Court referred to various proposals it had received over a period of years recommending reductions in the number of peremptory challenges in civil and criminal trials, together with proposals for more effective voir dire. The Court specifically directed the Committee’s attention to a proposal contained in a 1997 report from a committee of the Conference of Assignment Judges, commonly known as the “Weiss Report,” which is reproduced in Appendix L. The Court also directed the Committee’s attention to a recommendation submitted in 2002 in a report of the Conference of Criminal Presiding Judges. In its charge, the Court specifically directed that this Committee review and evaluate the prior reports in considering any further recommendations. (See Appendix A). After the Weiss Report was submitted, the Court asked the Civil and Criminal Practice Committees to review the proposals advanced and suggest appropriate action. The Court later approved those groups’ joint recommendation to amend R. 1:8-3 to include new subsection (f), which became effective September 5, 2000, and required trial judges to conduct a pre-voir dire conference on the record to determine areas of inquiry during voir dire and, if requested, whether and to what extent attorneys would be permitted to participate in the questioning of prospective jurors. Although the Weiss Report recommended substantial reductions in the number of peremptory challenges in civil and criminal trials, no action was taken at that time regarding the number of challenges permitted. Specifically, the Weiss Report recommended reduction in civil trials to 3 per side or, alternatively, to 2 per party. In criminal, it recommended reduction in trials for the enumerated more serious crimes to 8 per side plus 1 additional to each side for each additional defendant, and for the other less serious crimes reduction to 5 per side plus 1 additional to each side for each additional defendant. The report also recommended that judges be given discretion in criminal trials to allow additional peremptories “when justified.” The Weiss Report also recommended that reductions in peremptory challenges “should be accompanied by a re-examination of the voir dire presently being conducted by courts. Courts must be cognizant of the need for more meaningful voir dire.” The report further recommended that programs on conducting voir dire should be part of judicial education and training and that counsel should be encouraged to submit additional proposed questions. No further specific recommendations along these lines were included. The 2002 report of the Conference of Criminal Presiding Judges expressed the conclusion that the number of peremptory challenges allowed is excessive, leads to prolonged jury selection without improving the quality of justice, and impacts negatively on the criminal justice system. The negative impacts identified were: (1) Unnecessary prolongation of the jury selection process, often resulting in running out of prospective jurors, thus necessitating a second panel and often spilling over into a second day of jury selection. This not only delays resolution of the particular case but also interferes with the movement of other cases in the courthouse. (2) A negative financial impact by having to summon such a large number of jurors to service. (3) Identified as perhaps the most important negative impact factor, “the Conference believes that jurors observing high numbers of challenges being exercised often leave their jury service term with a diminished or even negative view of the process.” The Conference of Criminal Presiding Judges recommended reduction in accordance with the recommendations contained either in the Weiss Report or other previously submitted reports, such as those emanating from the Supreme Court Criminal Practice Committee. That committee has considered the issue approximately seven times since 1984 and has repeatedly recommended reductions. In 1998, for example, it recommended reduction to 5 for each defendant and 4 for the prosecution, to be accompanied by a more extensive voir dire and more liberal granting of challenges for cause. With that background and history in mind, and recognizing that its consideration was part of the Court’s charge, the Committee proceeded with its work. The Court’s charge also directed the Committee to “review other jurisdictions’ jury selection processes involving peremptory challenges, review relevant case law, and consider any objective or anecdotal information involving the jury selection process.” (See Appendix A). The Committee has identified and considered pertinent information from other jurisdictions and case law and has developed and considered objective data. Further, all Committee members, who collectively have participated in thousands of jury trials, brought to the table anecdotal information from their diverse backgrounds and perspectives, which the Committee considered as directed in our charge. We will forego in this report a discussion of the purpose of peremptory challenges. The historical background of peremptory challenges is discussed in the Weiss report and need not be repeated here. Since that report, additional evolving case law has placed further restrictions on the use of peremptory challenges. See State v. Fuller, 182 N.J. 174 (2004). Also of note, in England, from whom we inherited the practice of allowing peremptory challenges, the practice has now been eliminated. Our current voir dire practices derive from State v. Manley, 54 N.J. 259 (1969). Prior to that time, the attorneys played a substantial role in questioning jurors, and, as the practice evolved, abuses became rampant, with attorneys taking the opportunity to indoctrinate jurors to their point of view. The Court stated:
The situation in New Jersey is substantially the same as in other states. In many instances it has taken as long or longer to empanel a jury as to try the case. The impression is inescapable that the aim of counsel is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury favorable to the party’s point of view as indoctrination through the medium of questions on assumed facts and rules of law can accomplish. [Id. at 281.]

The Court directed that under the newly revised R. 1:8-3(a), “[t]he basic intent is to have the voir dire conducted exclusively by or through the trial judges to the extent reasonably possible,” and, although “supplementary questioning by counsel personally is not foreclosed entirely, control over its scope and content is left to the experienced judgment and discretion of the trial judge to be exercised with the history and purpose of the rule in mind.” Id. at 282-83. A “guarded exercise of discretion,” id. at 283, was prescribed “to restore the fundamental basis for preliminary questioning, i.e., an expedient selection of a fair and impartial jury, .” Id. at 280 (emphasis added). Since 1969, trial judges have exclusively or at least substantially questioned jurors in the voir dire process. Many judges conduct the process in a thorough and meaningful way, to the satisfaction of the attorneys and litigants involved. There is, however, a lack of consistency. For some judges, there has been too much emphasis on expedience, and the process has become too truncated, and its vitality has been compromised. There is a perception, and to some extent a reality, that in the three-andone- half decades since Manley, the pendulum has swung too far, away from an overlyprotracted abusive process to one that is too limited. In the context of a capital trial, our Supreme Court has recently described the problem this way:

In recent years, we have taken occasion to correct the misapplication of Manley by trial courts in capital cases. See, e.g., State v. Biegenwald, 126 N.J. 1, 33, 594 A.2d 172, 188 (1991) ( Biegenwald IV) (“Regrettably, we perceive from the records in many of the cases coming before us that trial courts have read Manley to limit voir dire to the bare minimum necessary to qualify a juror.”); State v. Moore, 122 N.J. 420, 455, 585 A.2d 864, 882 (1991) (“Although Manley may be read as discouraging [the questioning of prospective jurors concerning their understanding of the burden of proof and presumption of innocence] capital cases require a thorough and searching inquiry in regard to voir dire.”) (internal quotations marks omitted). Once again, we do so here. In capital cases, “[c]ounsel must be afforded the opportunity for a thorough voir dire to evaluate and assess jurors’ attitudes in order to effectively participate in jury selection. If counsel is unable to screen out prejudice and bias, that inevitably leads to unfair jurors.” Williams II, supra, 113 N.J. at 409, 550 A.2d at 1179. We are unwilling to undermine the integrity of the trial process, even where the evidence of guilt is compelling. Ibid. The right to a fair trial does not depend on the nature of the crime charged or the quantum of evidence produced against a defendant. Ibid. [ State v. Fortin, 178 N.J. 540, 577-78 (2004) (emphasis added).]

While the scope of voir dire in non-capital trials is obviously much more limited than in capital trials, the broad principles expressed by the Court in Fortin apply in all jury trials. More than a “bare minimum” is required. Although aware that the following comment was made in the capital context, we nevertheless acknowledge the Court’s admonition in Fortin: “Expedience can never trump the considered and thoughtful selection of jurors whose impartiality and fairness must be beyond reproach. The extra time necessary to empanel twelve dispassionate jurors in this case would have been a small price to pay for the assurance of a fair trial.” Id. at 581. With these considerations in mind, the Committee embarked upon a process to give priority to the portion of the Committee’s charge requesting recommendations to improve the voir dire process. It is worth repeating that many judges in the State currently conduct voir dire in a thorough and meaningful manner, with an appropriate level of attorney participation, propounding relevant questions requested by counsel and allowing at least some questioning by attorneys by way of follow up (usually at sidebar). The issues involved in the voir dire process are infrequent subjects of reported decisions (except in capital cases). The Committee believes there are two reasons for this: (1) Because of the large number of peremptory challenges, attorneys can usually cure what they deem to be error in the judge’s refusal to grant challenges for cause; and (2) Trial judges are granted very broad discretion in excusing jurors, and there is little chance of success on this issue on appeal. These issues also do not lend themselves to court rules. Accordingly, the Committee embarked upon a process of developing standards which, if approved, will be required to be followed by all judges throughout the State. If so, it is anticipated that this will bring all judges up to the appropriate “high common denominator” now exhibited by those judges who are performing the function well. On the issue of improving the voir dire process, as might be expected, the attorney members of the Committee were fully supportive. By the same token, the judge members were equally supportive, recognizing that there is room for improvement. This aspect of the Committee’s work progressed with a very cooperative effort from all participants. As will be reflected in the body of the report, below, the Committee was very much interested in members’ views, the views of attorneys outside the Committee, information relating to other jurisdictions, and statistical information relating to current New Jersey practices. Early on in its discussions, the Chair invited comment from member attorneys, on behalf of their respective organizations, on ten questions regarding current voir dire practices, asking specifically about the following issues, as well as any others deemed appropriate (See Appendix E): � the use of written questionnaires � jurors responding in writing as opposed to verbally � trial judges’ allowing attorneys to participate in initial questioning of jurors � use of open-ended initial questions versus those requiring a yes or no answer � initial questions asked individually rather than en banc � whether trial judges permitted supplemental questions proposed by counsel � whether the determinations regarding those supplemental questions were made on the record � whether counsel were permitted to ask follow-up questions in court as opposed to only at sidebar or in chambers � whether follow-up questions were open-ended � whether attorney participation was permitted with respect to follow-up questions Attorneys who were not members of the Special Committee were also invited to comment on those questions through solicitations placed in the NJ Law Journal and NJ Lawyer. (See Appendix C). Presiding judges in the civil and criminal divisions were asked to respond to a questionnaire asking about standard jury selection procedures in their vicinages and, if such existed, to comment on the same questions asked of attorneys. (See Appendix G). Additionally, the Committee obtained approval to send a 25 question survey to trial judges in the civil and criminal divisions asking specific questions about their voir dire practices and their views on both specific questions and on jury selection practices generally. (See Appendix I). Those materials were developed following initial discussions with members and provided significant information that, together with the insights provided by Committee members, provided a strong basis on which to move forward. In addition to the above, the Committee also received information regarding jury selection through the assistance of the trial judges, jury managers, and court clerks, who helped to provide information relating to two 17 areas: (1) the amount of time required to complete jury selection, and (2) the disposition of jurors at jury selection, i.e., whether the jurors sent to voir dire were challenged for cause by the trial judge, removed by the exercise of a peremptory challenge (and by which party based on case type), seated as a trial juror, or not reached for questioning at voir dire. (See Appendix K). All of the information reviewed by the Committee is discussed in detail below as it relates to the determinations and recommendations set forth by the Committee. The Committee’s consideration of the number of peremptory challenges took into account the numbers presently permitted in New Jersey, the numbers permitted in other jurisdictions throughout the country, and, as required by our charge, the recommendations in the Weiss report. New Jersey currently provides each party in a civil trial with 6 peremptory challenges and requires that where parties are represented by the same attorney that they be considered one party for purposes of the number of challenges provided. Where there are multiple parties represented by different attorneys but having a substantial identity of interests, the trial judge may, upon application of counsel, provide additional challenges to the adverse party. New Jersey currently provides a criminal defendant being tried alone with 20 peremptory challenges when tried for kidnapping, murder, aggravated manslaughter, manslaughter, aggravated assault, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, aggravated arson, arson, burglary, robbery, third degree forgery, or perjury, with the State receiving 12 challenges. When there are multiple defendants being tried for the crimes enumerated above, each defendant shall receive 10 peremptory challenges and the State shall receive 6 challenges for each 10 afforded to the defense. When a defendant, or defendants, are tried for a crime other than those enumerated above, each defendant shall receive 10 peremptory challenges and the State shall receive 10 challenges for every 10 provided to the defense. Where a criminal matter is tried with a foreign jury (i.e., a jury drawn from another county), each defendant shall receive 5 peremptory challenges and the State shall receive 5 challenges for every 5 provided to the defense. The number of peremptory challenges in civil and criminal trials is set forth in both statute and court rule, N.J.S.A. 2B:23-13 and R.1:8-3, respectively. In New Jersey, 12 deliberating jurors are required in criminal trials and 6 deliberating jurors in most civil trials, although the trial judge, for good cause, may order that a civil matter be heard by 12 jurors, and the parties may elect, in civil trials, to not select alternates (if more than 6 jurors remain) but to instead allow all remaining jurors to deliberate. In those latter instances, the parties shall also agree on the number of jurors required to return a verdict. In addition, as noted above, section (f) of R.1:8-3 requires that the trial judge, prior to examination of the prospective jurors, ” … shall hold a conference on the record to determine the areas of inquiry during voir dire.” That rule further requires the trial judge to ” … determine whether the attorneys may participate in the questioning of the prospective jurors and, if so, to what extent.” With regard to numbers of peremptory challenges in criminal trials in other jurisdictions, information obtained from a publication of the National Center for State Courts shows that no jurisdiction has as great a number of peremptory challenges in non-capital criminal trials of more serious case types as does New Jersey. (See Appendix B). That information includes fifty-two jurisdictions (the fifty states plus the federal system and the District of Columbia) and is categorized as being for “Felony” and “Misdemeanor” trials, which are considered for purposes of our analysis to be generally equivalent to New Jersey’s breakdown between enumerated (deemed more serious) crimes and other crimes. (See n.1, supra). The median number of peremptory challenges authorized for more serious criminal trials in the fifty-two jurisdictions is 6 and the mean number of challenges is 7.4. Considering New Jersey’s non-enumerated crimes to be the general equivalent of misdemeanor trials in Appendix B, it can be observed in the National Center materials that New Jersey and only one other state permit 10 challenges and that no other jurisdiction permits more than 6 challenges. For these less serious criminal cases, the median number of peremptory challenges is 4 and the mean number is 4.3. The Weiss Report recommended retaining the current breakdown of crimes and reducing the number of challenges for the enumerated crimes to 8 for a single defendant (with 1 additional challenge for every additional defendant in multiple defendant trials) and 5 challenges for a single defendant for the remaining crimes (again adding one challenge per additional defendant in multiple defendant trials). The Weiss Report recommended that New Jersey not retain the disparity in the number of challenges provided to the defense and the prosecution. With regard to a disparity between the number of challenges permitted to the defense and the prosecution, forty of fifty-two jurisdictions (77%) provide an equal number of challenges to each side in trials of the more serious cases and fifty of fifty-two jurisdictions (96%) provide an equal number of challenges to each side in trials of the less serious cases. In civil trials, the information from the National Center for State Courts shows that New Jersey is one of seven jurisdictions that permit 6 peremptory challenges. Only one state permits more challenges, with that number being 8. But of those other six jurisdictions that permit 6 challenges in civil trials, New Jersey is the only jurisdiction that has 6 deliberating jurors rather than 12 in those civil trials. Of the fourteen jurisdictions that have six person civil juries, ten allow only 3 challenges. The median number of peremptory challenges is 3 and the mean is 3.8. The Weiss Report recommended that the number of peremptory challenges in civil trials be limited to 3 per side but also proposed, as an alternative, that the number might instead be set at 2 per party in multiple-party civil trials. In terms of another national measure, the American Bar Association’s Standards Relating to Juror Use and Management (1993) provide in Standard 9(a) that peremptory challenges ” . . . should be limited to a number no larger than necessary to provide reasonable assurance of obtaining an unbiased jury.” Standard 9(e) then states that the number in civil cases with fewer than 12 jurors should not exceed 2 for each side (3 per side where there are 12 jurors in a civil trial; standard 9(c)). Standard 9(d)(ii) provides that the number of challenges should be 5 for each side when the possible sentence may be incarceration greater than six months (excluding capital trials). It is worth noting that the number recommended for capital trials is 10 for each side (Standard 9(d)(i)). The standards also call for allowing an additional challenge for every two alternates that are seated in either civil or criminal trials and for allowing the trial judge authority to allow additional peremptory challenges “ when justified”. Although not specifically included as a standard, the ABA standards provide for an equal number of challenges per side in civil as well as criminal trials. (The ABA standards are included as an attachment to the Weiss Report, Appendix L.) 21

III. Findings
The Special Committee, as part of its review of peremptory challenges, undertook to obtain information from a number of different sources on issues relevant to its mandate. These efforts included seeking comment from attorneys, including attorneys who were Committee members, as well as attorneys not affiliated with the Committee, and from judges, including the presiding judges of the Criminal and Civil Divisions. The Committee, through its early discussions, identified a series of questions relating to ten specific voir dire practices and asked those questions of each of the groups noted above. Analysis of data from various sources was evaluated by a Subcommittee on Statistical Analysis chaired by C. Judson Hamlin, a retired Superior Court judge serving on the Committee as an attorney representing the Trial Attorneys of New Jersey. Comments on Voir Dire Practices by Member Attorneys on Behalf of their Organizations In his May 26, 2004 memorandum to members of the Special Committee who were representing attorney organizations, Judge Lisa requested information on voir dire practices, specifically asking these members, in furtherance of discussions at the Committee’s May 10 meeting, ” … to solicit reaction and comment from your respective constituents … ” and report back. The memorandum asked for comment – favorable or unfavorable � on the following ten voir dire practices, as well as any others deemed appropriate (See Appendix E): � the use of written questionnaires � jurors responding in writing as opposed to verbally � trial judges’ allowing attorneys to participate in initial questioning of jurors � use of open-ended initial questions versus those requiring a yes or no answer � initial questions asked individually rather than en banc � whether trial judges permitted supplemental questions proposed by counsel � whether the determinations regarding those supplemental questions were made on the record � whether counsel were permitted to ask follow-up questions in court as opposed to only at sidebar or in chambers � whether follow-up questions were open-ended � whether attorney participation was permitted with respect to follow-up questions The responses from attorneys were helpful in further identifying issues and working towards development of positions. The responses of attorney members are reproduced in Appendix F. With regard to the specific questions, the responses showed some interest in use of written questionnaires, but also a recognition that the attorneys would like to observe jurors’ verbal replies to questions. There was not significant interest in attorney participation in initial questioning but there clearly was interest in attorney participation in follow-up questions and with regard to supplementing voir dire questioning. Responses reported varying experiences regarding judges’ approval of supplemental questions. One report included a constituent comment that supplemental questions are approved so infrequently that the attorney now considers it to be ” … a waste of time … ” to continue to submit them. Attorneys noted significant interest in greater use of open-ended questions generally and certainly with respect to follow-up questioning. Several attorneys commented that some judges move voir dire too quickly and it was noted, in that regard, that such interest could also influence requests for open-ended questions, attorney participation, or other efforts to expand voir dire. The handling of challenges for cause prompted comments as well – noting that there is little uniformity among judges, even within vicinages, that judicial efforts to “ rehabilitate” a juror are sometimes too extensive, and that time should not be wasted in convincing jurors to serve who have indicated a hardship in serving, or a substantial disinterest. The attorney comments also note an interest in greater uniformity in voir dire statewide, greater attorney participation, particularly in follow-up questioning and use of supplemental questions. Comments on Voir Dire Practices by Attorneys In addition to the request to attorneys representing organizations, the Committee also placed a solicitation for comment in the NJ Lawyer and NJ Law Journal asking about the same specific areas addressed to the organizations and the presiding judges (See Appendix C). Sixteen attorneys responded. Most demonstrated a connection to ATLA and their responses were included within Abbott Brown’s report, as ATLA-NJ’s representative, to the Committee at its June 14, 2004 meeting and in his written response to Judge Lisa. The individual responses included those made by the organizations but also included additional comments, such as: requesting equal numbers of challenges, per side, in multiple party civil trials; placing jurors under oath when they are questioned on areas of potential bias; asking voir dire questions intended to assist attorneys in exercising peremptory challenges, not just identify bias; and not having the trial judge participate in jury selection, as is the practice in federal court; asking “straight forward questions” about jurors’ beliefs and notions about the civil justice system; and a comment from an attorney who disfavors the use of written questionnaires because the attorney: ” … wants to hear a juror talking as much as possible.” (See Appendix D). Several letters from attorneys that were not submitted in response to the published notices were also received by the Committee Chair, and some letters to the editor from interested members of the bar appeared in legal publications. These were also considered. Comments from Presiding Judges to the Chair’s Question about Voir Dire Practices The Chair also wrote to the presiding judges of the Civil and Criminal Divisions to ask the following question: “Has your Vicinage established standard voir dire and jury selection procedures which trial judges are required to follow?” (See Appendix G). Each of the responding judges noted that no standard practices had been established that were required to be followed, i.e., mandatory. There were two vicinages in which the Criminal presiding judge reported that there were standard procedures that had been developed in the vicinage over time and that were being substantially followed by the judges – but that they were not required. One of those responses included questions asked about jurors’ newspapers, sports, and hobbies, and a summary question about any other reason why the juror could not serve in that case. (See Appendix H). Amount of Time Required for Jury Selection One of the issues raised in early Committee discussions was the impression of some attorneys that some judges rushed through voir dire out of concern for how long it would take. Judges noted that there was no pressure with regard to jury selection but noted an overall interest in efficiency and not taking unnecessarily long to complete jury selection. In order to address this issue, the Committee reviewed information regarding the amount of time required for voir dire, with that information coming from two sources: (1) data from actual jury selections that was obtained from court clerks by jury managers, with the cooperation of operations managers and trial judges; and (2) estimates provided by trial judges in response to questions on a survey of voir dire practices that was developed and distributed by the Special Committee with the approval of Judge Richard J. Williams, Administrative Director of the Courts. (See Appendix J and K). The survey of judges regarding their voir dire practices included the following two questions that asked the judges’ estimates of how much time was required to complete jury selection – both as to civil and criminal matters that were less complex as well as those that were more complex: Question #20: In a relatively simple civil trial or a single defendant criminal trial, how long does it typically take you to complete jury selection (the point at which the jury is empanelled)? Question #21: In a complex civil trial, or a multi-defendant criminal trial, how long does it typically take you to complete jury selection (the point at which the jury is empanelled)? The Committee reviewed the responses to these questions, broken out by case type and by whether the case was relatively simple civil / single criminal defendant or complex civil / multiple criminal defendants. Question #20 produced valid responses from 73 judges assigned to the civil division and 47 judges assigned to the criminal division. Question #21 produced valid responses from 68 judges assigned to the civil division and 42 assigned to the criminal division. The median and mean responses times are provided below:
� Relatively simple civil trial
Median response was 90 minutes (1.5 hours) Mean response was 91 minutes (1.5 hours)

� Single defendant criminal trial

Median response was 150 minutes (2.5 hours) Mean response was 151 minutes (2.5 hours)

� Complex civil trial

Median response was 210 minutes (3.5 hours) Mean response was 263 minutes (4 hours and 23 minutes)

� Multiple defendant criminal trial

Median response was 300 minutes (5 hours) Mean response was 499 minutes (8 hours and 19 minutes)

In addition to the survey responses from trial judges, the Committee obtained information on jury selections as they occurred, beginning in July, 2004, through court clerks reporting that information to jury managers who then provided it to Committee staff. That information was reported when there was information from 263 civil trials (without a characterization of whether relatively simple or complex) and 142 criminal trials (without categorization of whether the trial involved one defendant or multiple defendants). The information available from that source showed the following:

� Civil trials
Median response was 90 minutes (1 hour and 30 minutes) Mean response was 125 minutes (2 hours and 5 minutes)

� Criminal trials

Median response was 165 minutes (2 hours and 45 minutes) Mean response was 224 minutes (3 hours and 44 minutes)

The Committee found that the information from the two sources was not only sufficiently similar but was in line with the general experience of members, including attorneys, although there clearly were instances in which jury selection took more time or less time than the results indicated above. In light of this information, and the fact that there were a decreasing number of trials in both divisions, the Committee determined that the amount of time required for jury selection should not be an issue with regard to ensuring that a thorough and complete voir dire is completed in each trial. Judges’ Responses to Voir Dire Survey The Committee, as noted above, obtained approval to ask trial judges assigned to the criminal and civil divisions to complete a twenty-five-question survey pertaining to their voir dire practices. A copy of the survey and complete survey results are included in the appendix to this report. The survey was significant in a number of ways because the responses helped to direct the efforts of the Committee. For example, judges were asked to submit copies of standard questions that they were currently using for certain case types and the common questions among those selections, by case type, formed the first draft of the uniform jury selection questions. The responses also provided information on how judges conducted initial questioning of jurors, follow-up questioning and whether the judges permitted direct questioning by attorneys. The survey also provided estimates on how often attorneys exhausted their allotted peremptory challenges and judges’ responses on the impact of R.1:8-3(f), requiring a conference regarding voir dire questions and attorney participation, made effective in September, 2000. Responses were received from 132 judges, which was 55% of the number of judges assigned to those divisions at the time that the survey was distributed. The responses were reviewed by the Committee, including by division and by category of response, and the key findings that helped drive Committee determinations and recommendations include those shown below: � In response to Question #3 about displaying or providing a print copy of the standard questions to jurors, 64% of the responding judges stated that they never display the standard set of questions nor provide a print copy. The breakdown by division was that 68% of civil judges and 56% of criminal judges responded that they never display or provide printed copies of the questions. Overall, 26% of the responses indicated that they always take that action. � In response to Question #4 about having jurors answer jury selection questions in writing, 81% of the responding judges stated that they never request voir dire responses in writing. � In response to Question #9 about whether the judge reviews the complete set of questions with each juror (if not providing a print copy or displaying them), 52% stated that they always reviewed the questions with each juror. The responses included that 61% of civil judges said that they always take that action but 45% of responding criminal judges stated that they never ask each juror each question. � In response to Question #10 about how they initially questioned jurors, the civil and criminal judges each had a combined 85% response for the “en banc” and “ individually in open court responses, with criminal judges’ responses being 10% greater for en banc. � 86% of judges (92% of criminal, 82% of civil) responded to Question #10 by stating that they always ask jurors a summary question such as “Given all you’ve heard, is there any reason why you believe that you cannot serve as a juror in this trial? � In response to Question #13 asking about the nature of follow-up questions that are asked at voir dire, 67% of responding judges identified their questions as open-ended. � Responding judges estimated, in response to Question #14, asking for an estimate of the percentage of trials in which attorneys propose supplemental questions, that they do so in 50% of trials – but that includes 75% of civil trials and 20% of criminal trials. � In response to Question #15, the judges responded that where attorneys propose supplemental questions that they allow at least one of the questions in 90% of the trials. � In response to Question #16, asking how often they allow attorneys to ask questions to jurors, after first approving supplemental questions, 74% of judges stated that they never permit attorneys to ask questions directly to jurors. � Question #17 followed-up by asking how often attorneys declined to ask direct questions, when offered the opportunity, and the judges’ responses were that in the limited number of such instances (35) no attorney had declined the opportunity. � Question #22 asked – “If you were presiding over trials prior to the [R.1:8-3(f) amendment], have you experienced any change in practice as a result of the amendment?” and 92 judges responded (indicating they had trial experience before and after the rule amendment). Of those responding, 95% stated that they had experienced no change. There were 35 criminal judges who responded to that question and none reported a change in practice as a result. However, 10% of civil judges did state that they experienced change following the enactment of the rule.

IV. Recommendations
Purpose � These recommendations are presented to the New Jersey Supreme Court in response to the Court’s mandate to the Special Committee. They are submitted for approval for the purpose of implementing procedures that will improve the quality of jury selection in a uniform and consistent manner for the benefit of trial judges, attorneys, litigants, jurors, and the justice system generally. Recommendation 1 The Special Committee has developed proposed Jury Selection Standards for the purposes of improving jury selection and making it more uniform statewide. The Committee recommends that the Supreme Court approve these proposed standards. Upon approval, they should be distributed to all trial judges as a separate document in the following form, with the approved standard questions attached. APPROVED STANDARDS FOR JURY SELECTION Approved by the Supreme Court ________, 200_ The Supreme Court Special Committee on Peremptory Challenges and Jury Voir Dire has developed these standards. Part of the charge of the Committee is to make recommendations on ways to improve current jury selection practice. The Committee has discussed the issue extensively and elicited input from trial judges, organized bar association groups, and individual members of the bar. The Committee has reviewed case law, but, other than in capital cases, jury selection issues are infrequently the subject of reported decisions. From our discussions and review of information received, the Committee is of the view that jury selection practices now vary significantly from courtroom to courtroom and county to county. The purpose of jury selection is to obtain a jury that can decide the case without bias against any of the involved parties, that will evaluate the evidence with an open mind, and that will apply the law as instructed by the judge. Voir dire practices must be geared to eliciting meaningful information from prospective jurors so those with a real potential for bias can be excused. The process should be designed to provide the attorneys and judge with sufficient information to appropriately excuse jurors for cause. The process should also provide the attorneys with sufficient information to intelligently exercise peremptory challenges. It should be noted that in many courtrooms, judges are currently conducting voir dire in a thorough and meaningful manner. However, some judges conduct the process in a more perfunctory manner, that is not properly geared to achieve the purpose of voir dire. In those courtrooms, a more expansive practice is required. The role of counsel in proposing questions and participating in the voir dire process should not be unduly restricted. Judges and counsel should be mindful that the jury selection process is an important part of the trial. Indeed, in the eyes of many attorneys, it is the most important part of the trial. Attorneys have also noted that they are more familiar than the court with the cases prior to trial and that their requests regarding voir dire should be duly considered for that reason. Over the last decade or more, there have been in New Jersey several Committees and task forces that evaluated the number of peremptory challenges allowed in our trials. Recommendations have been made in each study to reduce the number. Each study has also recommended that improvements be made in the voir dire process, which would, in turn, reduce the need for the number of peremptory challenges currently permitted. Judicial education programs have been conducted, and some strides have been achieved in improving the process. But we believe that more should be done, although as stated, many judges conduct the process in an exemplary manner, which has been recognized by practicing attorneys. The Committee has developed these standards for use in all civil and non-capital criminal trials. The standards incorporate and require use of features that are deemed reasonably suited to achieving a meaningful and thorough voir dire process. The standards will establish uniform practices, but retain a reasonable measure of flexibility and allow for an appropriate exercise of judicial discretion in the jury selection process. This process is a fluid one, and utilization of a rigid “script” would be counterproductive. There must be an ability for the trial judge and attorneys to deal with circumstances as they evolve during the process. Some degree of latitude to allow for variation in style is acceptable, so long as the essential ingredients of a thorough and meaningful voir dire are included. Compliance with the standards requires accountability. Assignment judges and presiding judges shall be responsible for implementing, monitoring and assuring continued compliance with the standards. The Committee believes that adherence to these standards will provide a sufficient measure of uniformity and predictability to the jury selection process throughout the State, will assure that the process is thorough and meaningful, and will allow for reasonable flexibility and exercise of judicial discretion. The Committee further believes that compliance with these standards will not add significant time to jury selection. Finally, compliance will further the interests of justice because jurors will be selected in a process that elicits sufficient meaningful information about jurors, their background, relevant views, opinions and life experiences to assure, as best we can, that they will be able to decide the case before them in a fair and impartial manner; and it will be a process which attorneys, litigants, and citizens called to jury service will recognize as sensible, serious, meaningful, and geared to its purpose, selection of a fair jury. The Committee was also charged with recommending whether the number of peremptory challenges presently allowed should be changed. After careful consideration of the issue and much discussion and debate, the Committee has recommended substantial reductions, especially in criminal trials. A significant factor informing that recommendation is the anticipated improvement of the quality of the voir dire process that will be achieved by the implementation of these standards. The two work hand-in-hand. With improved and more expansive voir dire and more liberal excusals for cause, the need for peremptory challenges will be significantly diminished. STANDARD 1. VOIR DIRE METHOD The method chosen to conduct voir dire must assure a thorough and meaningful inquiry into jurors’ relevant attitudes so the court and counsel can identify jurors who may possess a bias, prejudice, or unfairness with regard to the trial matter or anyone involved in the trial. Unlike some other jurisdictions, in New Jersey, the trial judge presides over and is responsible for the conduct of the jury selection process. The judge is vested with discretion in the manner in which the process is conducted. That discretion, however, is not unbridled and must be exercised in a manner that will achieve the important purpose of the process. Our practice provides, in non-capital cases, that jurors shall be examined as follows: “For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court’s interrogation in its discretion.” R. 1:8-3(a). Two basic practices have evolved. Some judges, after calling the required number to the box, question those jurors en banc, with jurors raising their hands to respond in a particular manner as directed by the judge. Where appropriate, follow-up questions are posed to those jurors. Other judges, after calling the required number to the box, address each juror in turn, asking specific questions. Either method may be utilized, subject, however, to the following. No method may rely on jurors’ memory of questions previously posed to other jurors. Such a practice is unreliable in eliciting the required information from each juror. Each juror must be asked each question, either individually, en banc, or a combination of the two. Judges may, in their discretion, reduce the questions to written form (handout or easel) or projected form as an aid, but this may not serve as a substitute for orally asking each question to each juror. Thus, for example, the originally-seated panel may be questioned en banc, with appropriate follow-up questions posed to those who respond affirmatively to particular questions. Additionally, as discussed in Standard 2, each juror who gets through the initial screening should be asked at least one or more open-ended questions intended to elicit narrative responses. These questions, of course, must be directed to and answered by each juror individually. Also, each juror should be asked individually whether there is anything about the nature of the case or the participants in the trial that would make it difficult or impossible for that juror to judge the case fairly or impartially or whether there is anything in the juror’s mind (whether or not covered by the questions) that the juror thinks the judge or attorneys ought to know about before deciding whether that juror should serve. As jurors are excused, the newly-seated jurors must be questioned in the same manner. If, for example, three new individuals are seated at the same time, it is permissible to question those three as a group, with the same two exceptions as noted in the preceding paragraph. It is not permissible, however, as the sole basis for eliciting responses, to simply ask whether the newly-seated juror(s) heard the questions asked of previous jurors and would answer any of them differently. There is nothing wrong with posing that type of question as an initial inquiry, because it might elicit a response that results in an expeditious disqualification and thus conserve time. But if the question is utilized and does not result in disqualification, all of the questions must be posed. The judge shall not pose the questions to the entire array, before seating the original panel in the box. The one exception to this prohibition is that for a particularly long trial, the judge may address the issue of hardship excusals to the entire array before seating the initial panel in the box. When addressing the array, the judge should inform jurors that it is important that, when called to the box, they answer all questions truthfully, accurately, and fully. The jurors should be told that if any question is of a personal or sensitive nature, they can simply ask that they discuss it with the judge (and attorneys) at sidebar. After making the introductory comments to the array, including the remarks approved by the Supreme Court, the initial panel should be drawn and called to the box. At that point, the judge should instruct those remaining in the gallery to listen closely and carefully to the questions so that if one of them is called upon to replace an excused juror they will be able to bring to the court’s attention the questions to which they would have answered yes. Then the judge should begin questioning the jurors seated in the box. As stated, under no circumstances should the questions be posed to the entire array as a substitute for asking the questions to each juror in the box, nor may the asking of each question to each juror in the box be dispensed with before that juror is qualified. Left to the judge’s discretion is the extent to which sidebar discussions are conducted. Of course, when requested by a juror because of the sensitive or personal nature of the question, sidebar should be utilized. Sidebar should also be utilized when deemed appropriate to avoid discussion of subject matter that has the capacity to taint the remainder of the panel. Generally, however, the give-and-take in the process should be conducted in open court. Challenges for cause should be conducted at sidebar if requested by counsel. The use of written questionnaires – i.e. those answered in writing by prospective jurors – is a permitted practice but should be used only in exceptional circumstances. This practice is routinely used in capital trials, where an extremely thorough voir dire is required to evaluate death-eligibility. These trials are very lengthy and the voir dire process usually spans several weeks or months, with jurors scheduled to return for voir dire on a specific date. The judge and attorneys typically receive and review the answered questionnaires in advance to enable them to prepare for the voir dire of each juror. In non-capital criminal trials and in civil trials, the time required and administrative burdens attendant to this practice are not generally warranted. If the process is rushed, without allowing the attorneys and judge time for advance review of the answered questionnaires, the process is inefficient and ineffective. In addition, the effort involved can be made unnecessary if counsel still want to observe the jurors responding verbally to questions in order to get a better “feel” regarding the jurors. The Committee has not received a widespread request for the use of this practice in routine cases. The practice should be used, in the judge’s discretion, only in substantial, complex cases that require unusually probing voir dire and only where, in relation to the overall trial, the time and administrative burden are warranted. STANDARD 2. STANDARD QUESTIONS When questioning prospective jurors, the judge must include the model jury selection questions approved by the Supreme Court for that type of trial, which are attached hereto. The approved questions provide a common basis for voir dire questioning but are not intended to constitute all of the questions asked of jurors. These questions are intended as a base and are provided, at this time, for (a) all criminal trials, (b) all civil trials, and (c) additional questions for civil trials relating to (1) slip and fall cases, (2) auto cases, and (3) medical malpractice cases. Included within the model questions are inquiries of each juror whether he or she meets the juror qualifications set forth in N.J.S.A. 2B:20-1. Even though these questions are contained on the qualification questionnaire returned by prospective jurors and generally asked of jurors while in the juror assembly area, they are included here as a further safeguard to ensure that all trial jurors are fully qualified. The model questions have been developed after extensive debate and discussion, and with particular attention to the specific wording utilized. In developing the model questions, the Committee had the benefit of standard questions that were submitted by trial judges in response to the Committee’s survey of judges’ voir dire practices. As we have stated, judges are not required to follow a rigid “script.” Therefore, while some deviation would not be objectionable, judges are encouraged to utilize the wording prescribed in the model questions. It is important that, as part of the process, each prospective juror who gets through the initial screening and appears to be potentially qualified must be asked one or more open-ended questions. Before being qualified, each juror has to be asked questions intended to have them open up and talk about such things as their background, their attitudes about the subject matter of the trial, their feelings about the court system generally, and the like. The jurors, in responding in narrative fashion to the variety of subjects presented in the question, will also provide important information by self-selecting what they choose to talk about. If a juror is not responsive, it is expected that the judge will again attempt to elicit a response to the summary question. It is also important to ask appropriate follow-up questions where a “yes” response is given to standard questions. Intrusive questions, which unnecessarily invade the privacy interest of jurors, should be avoided. The Committee recognizes that in some civil cases, the parties may wish to expedite the voir dire process, either because the nature of the case, in their view, does not warrant an extended process, because they are near settlement, or for any other reason. These are private disputes, and, with the consent of counsel and the approval of the judge, full use of the model questions in civil trials may be waived. Of course, the waiver discussion and determination should be on the record. STANDARD 3. SUPPLEMENTAL QUESTIONS Counsel shall be encouraged to submit relevant supplemental questions for the court’s consideration at the pre-voir dire conference; the judge shall review all proposed questions and determine whether to include each one, setting forth the determination on the record. Supplemental questions are those not included in the model questions but relevant to the particular trial, including questions about trial issues, the parties, or other relevant issues. Supplemental questions should be submitted in writing and discussed and ruled upon at the pre-voir dire conference. R. 1:8-3(f). See also R. 4:25-7(b) (requiring in civil trials written submission of proposed voir dire questions.) Supplemental questions should be balanced and neutral, should not be geared to “conditioning” the jury to a party’s position in the case, and should not be duplicative or of limited relevance. However, it is desirable to include supplemental questions, proposed by the parties or by the court, which will assist in selecting a fair jury. Many judges have accumulated a stockpile of supplemental questions they ask in particular circumstances. For example, in criminal trials, judges typically have certain questions they ask in trials involving drugs, sexual assaults, instances where the defendant and victim are of different races, etc. Such supplemental questions, of course, are appropriate and should be included. Attorneys, with knowledge of the expected evidence, may be aware of issues of which the judge is not aware and which should be explored in the voir dire. This circumstance often leads to important supplemental questions. The other side of the coin is that attorneys sometimes present to the court a long list of boilerplate proposed supplemental questions, many or most of which are repetitive, of little significance or relevance to the case, etc. When presented with such proposals, judges are understandably not receptive. Attorneys should tailor their proposed supplemental questions to the case, with a view to model questions to avoid repetition, and they should keep the questions neutral and balanced. STANDARD 4. ATTORNEY PARTICIPATION At the discretion of the trial judge, if requested by counsel, at least some participation by counsel in the questioning of jurors should be permitted. Since 1969, the conduct of jury voir dire, which had previously allowed extensive attorney participation, has been primarily in the hands of the trial judge. State v. Manley, 54 N.J. 259 (1969). There is no suggestion that we should revert to the pre- Manley practices or anything close to them. During the Committee’s work, there has been no outcry from the bar to allow attorney participation. Some practitioners have requested at least some involvement. R. 1:8-3(a) allows attorney participation, and R. 1:8-3(f) requires discussion of the practice, if requested by counsel, during the pre-voir dire conference. The admonitions of the Court in Manley are as true today as they were thirty-six years ago. The undue consumption of time and the undesirable practice of juror indoctrination as consequences of attorney participation must be avoided. The judge should continue to exercise the primary role in questioning jurors. The Committee encourages the allowance of some attorney participation if requested. But whether to allow it and, if allowed, the manner and scope of the practice remain discretionary with the trial judge. The most common aspect of attorney participation utilized by some judges involves follow-up questions. This occurs mostly at sidebar, but sometimes also in open court. When a prospective juror is called to sidebar, it is typically to discuss an issue that calls for follow-up questioning. This fluid process makes subsequent questions appropriate based upon answers given by the juror. Attorneys should be permitted, if they wish, to participate in these sidebar discussions with jurors. Typically, sidebar discussions are more conversational and much less formal than colloquy that is conducted in open court. With the court’s permission, they should also be permitted limited participation in follow-up questioning in open court. Greater restraint should be placed upon requests for attorney participation in initial questioning. In this regard, all of the initial questions will have been resolved in the pre-voir dire conference, and there is no demonstrable reason why the questions would be better posed by counsel than by the judge. This remains a discretionary issue, but the Committee does not envision widespread use of attorney participation in initial questioning. STANDARD 5. CHALLENGES FOR CAUSE Jurors should be excused for cause, either by the court sua sponte or upon a party’s request, when it appears that it will be difficult or impossible for the juror to be fair and impartial in judging the case. The Committee has found that in courtrooms where judges liberally grant challenges for cause, the jury selection process moves along more quickly, the use of a large number of peremptory challenges is avoided, and the parties’ satisfaction with the final composition of the jury is high. While the appropriate legal standard should be applied for excusing a prospective juror for cause, liberality is encouraged. Judges should avoid extensive efforts to “rehabilitate” a juror or to reject reasons given implicitly or explicitly by the juror for not serving, recognizing that such efforts indicate that there are significant issues about that juror. When there is something particular about the juror that raises a red flag in a particular case type (e.g. a police officer in a criminal case, a nurse in a medical malpractice case, etc.), follow-up questioning should be sufficiently probative to ferret out the ability of the individual to fairly judge the case; merely asking whether, notwithstanding the apparent impediment, he or she could be fair and impartial, with a conclusory answer, is not sufficient. Jurors who express hardship problems (childcare issues, absence from work without pay, etc.) should be liberally excused, particularly where the trial is anticipated to require more than two or three days or extend into the following week. As noted, the Committee has recommended substantial reductions in the number of peremptory challenges allowed, especially in criminal trials. With fewer peremptory challenges available, excusals for cause are more important. There has been a practice, at least implicitly, in which judges have withheld excusals for cause where the issue is reasonably debatable because the attorney seeking the excusal has a large number of peremptory challenges available. With the reduction in the number of peremptory challenges, this practice must end. “As the defendant approaches the exhaustion of his or her peremptory challenges, the trial court should become increasingly sensitive to the possibility of prejudice from its failure to dismiss the juror for cause. That heightened sensitivity should lead to a more generous exercise of discretion as defendant approaches the exhaustion of his or her peremptory challenges.” State v. Bey, 112 N.J. 123, 155 (1987). With the reduced number of peremptory challenges available, judges should be more liberally disposed to excusing jurors for cause where the issue is a close one. Trial judges are given substantial deference in their determination of the suitability of individuals to serve as jurors. This is because the judge is, in effect, making a credibility determination whenever there is a cause challenge. Obviously, if the juror says that he or she cannot judge the case fairly, the juror will be excused. It is in those cases where the jurors give the “right” answer, i.e., that they can be fair, where the judge must evaluate the reliability of that answer in light of all of the other answers the juror has given, the juror’s background, and the juror’s demeanor. Judges must not mechanistically accept the “right answer” if it is placed in significant doubt by the other relevant circumstances. Recommendation 2 The Special Committee recommends that the Supreme Court establish a standing committee, suggested to be called the Committee on Jury Selection in Criminal and Civil Trials, to provide continuing oversight of this important area – first with respect to the implementation of any approved Special Committee recommendations and, thereafter, to continue to work to assure uniformity in statewide practices. Several specific standing committee responsibilities are identified in the discussion accompanying this recommendation and in subsequent recommendations. The Committee recognizes that the recommendations it is proposing will, if approved, require substantial change in jury selection procedures. It recognizes, as well, that jury selection, as a critical part of a jury trial, will benefit from greater uniformity in practices statewide. For those reasons, the Committee recommends that the Court establish a new standing committee devoted to jury selection. The mandate of the proposed committee will be, initially, the oversight of the implementation of recommendations approved by the Court, and its later efforts will be directed towards continuing that oversight as that process advances, in order to assure statewide uniformity in this area, address new jury selection issues that arise, coordinate its work with related committees, where appropriate, and provide a ready forum for review of any proposed changes that may be generated by court decisions, committee recommendations, or other proposals. The Committee believes that a new committee, separate from the Criminal and Civil Practice Committees, will provide an appropriate focus on jury selection and assure that any issues relating to this area are able to be addressed in a timely manner by a group that will have the opportunity to develop an expertise with respect to jury selection issues, as well as a relationship among the members. The membership of the proposed committee should include judges and attorneys who have significant jury trial experience, who represent relevant attorney organizations, and whose work covers both the criminal and civil areas. It is recommended that the group be known as the Committee on Jury Selection in Criminal and Civil Trials, a title that will indicate that its scope is not limited to either trial type. It is also recommended that the proposed committee have close association with the Civil and Criminal Practice Committees so that efforts can be coordinated where practical and so that the groups can prevent duplication of effort where similar issues or interests are involved. The new committee would have no jurisdiction regarding capital trials, which would remain under the auspices of the Trial Judges Committee on Capital Causes. Recommendation 3 The Special Committee recommends that the Supreme Court authorize the development of a jury selection manual that will address the specifics of jury selection for judges and attorneys. This Committee believes that it is necessary to create greater uniformity in jury selection procedures being used throughout the state. For that reason, it has made several recommendations for efforts that will assure more uniform jury selection practices. The recommendation for the development of a jury selection manual is another effort that is intended to help develop the greater uniformity in procedures and the greater consistency in practices that was noted so often by attorneys in Committee discussions and comment to survey instruments. The Committee believes that the development of a jury selection manual, drafted in a cooperative way by judges and attorneys, in a manner similar to the development of the Manual for Capital Causes, will significantly advance the greater procedural uniformity and consistency sought by the Committee by providing trial judges and attorneys with guidelines relating to jury selection practices. It is contemplated that the standing committee will continually update the manual based on experience with implementation of the jury selection standards and use of the standard questions and suggestions from the bench and bar. The manual will also be updated with relevant court decisions and other authorities. The Committee believes the manual will constitute a valuable reference source for judges and attorneys. Recommendation 4 The Special Committee recommends that the Supreme Court authorize the proposed Committee on Jury Selection in Criminal and Civil Trials (Recommendation 2, above) to be responsible for proposing any revisions to the standard jury selection questions that are included within the Jury Selection Standards proposed in Recommendation 1. That responsibility will include any changes to questions that are approved, as well as expansion to cover additional case types beyond those contained in the standards. Much thought and effort went into the drafting and refining of the standard questions, which are included as Attachments 1 and 2. Judge Linda G. Baxter, Criminal Presiding Judge of the Camden Vicinage, chaired the Standard Jury Selection Questions Subcommittee. The subcommittee included criminal and civil judges and attorneys representing plaintiffs and civil defendants and prosecutors and criminal defendants. Judge Lisa also participated in discussions along with Committee staff. The subcommittee met several times and drafted questions addressing the concerns of all elements. It was a cooperative effort, and the questions represent a consensus, common ground agreement. The entire Committee analyzed and discussed the questions at several meetings, making various revisions before the final versions were approved. The Committee believes the questions are balanced and fair and provide a good baseline to elicit relevant information from prospective jurors. Of course, supplementation is encouraged, and appropriate follow-up questioning is necessary. Some judges on the Committee used them and distributed them to judges in their vicinages for use. All feedback was very favorable. The Committee believes these standard questions provide an excellent foundation for their intended purpose. The Committee recognizes that the proposed standard jury selection questions, if approved, will need to be revised, modified, supplemented, or re-evaluated on an ongoing basis – to either address changes necessitated by court decisions, statutory revisions, changes in court rules, or in order to remain viable and effective. Additionally, there may be interest in expanding the current set of specific additional questions to include further civil case types or criminal case types. Subject to approval by the Court, the new standing committee should be assigned the responsibility for this task. The Committee makes this recommendation at this time in an effort to address this matter at this early point in order to avoid any later confusion or delay. Recommendation 5 The Special Committee recommends that the Supreme Court approve a jury selection training program for judges that will include separate program components covering not only the existing program that is conducted for new judges and programs that may be conducted at the annual New Jersey Judicial College, but also a training program component that will provide for continuing education of judges assigned to the civil and criminal divisions. The Special Committee is aware that the Judiciary covers jury selection in the training program provided for new judges and that it sometimes includes courses involving jury selection in its annual Judicial College. The Committee believes, however, that judicial training programs should be augmented and upgraded with regard to jury selection, particularly with regard to specific courtroom practices. It is recommended that the proposed standing Committee on Jury Selection in Criminal and Civil Trials, proposed above, be charged with the responsibility to make recommendations regarding the materials and other relevant matters relating to judicial training programs, including the program for new judges and Judicial College courses. It is recommended, as well, that the proposed Committee work with those currently engaged in that area within the Administrative Office of the Courts, especially those who organize the annual Judicial College, with regard to courses and course materials. It is also recommended that these ongoing efforts be expanded to include an additional training resource for judges that will provide access to materials during the remainder of the year. In this regard, it is recommended that consideration be given to the development of a program, subject to any technical limitations, that will permit trial judges to review courtroom videotape of their jury selections, or jury selections by other judges, for the purpose of self-evaluation and continuing education with regard to jury selection procedures and techniques. Recommendation 6 The Special Committee recommends that the Supreme Court direct the proposed Committee on Jury Selection in Criminal and Civil Trials to develop a jury selection training program for attorneys. Although attorneys have generally indicated a desire and willingness to participate in juror questioning during jury selection, either in initial questioning or in follow-up questioning, many have expressed reluctance because they have not had experience in this area. Judge-conducted voir dire has been in place in New Jersey since State v. Manley, 54 N.J. 259, (1969), and most attorneys are not experienced in questioning jurors at voir dire since it has not been done in New Jersey since that time. This effort can be coordinated with interested groups, such as the Institute for Continuing Legal Education, but it is recommended that the Court direct the proposed Committee on Jury Selection in Criminal and Civil Trials, if approved, to develop the content of the training and its general development � in recognition of the attorneys’ role in jury selection. The program would be directed at informing attorneys regarding jury selection information, particularly with respect to new items such as the proposed manual and the proposed jury selection standards. Recommendation 7 The Special Committee recommends that the Supreme Court approve a rule change that will expand the pre-trial voir dire conference required by R.1:8-3(f) to also include:
� Submission in writing by attorneys of proposed voir dire questions; and � Require the trial judge to rule on the proposed questions on the record.

The current R.1:8-3(f) states the following:

(f) Conference Before Examination. Prior to the examination of the prospective jurors, the court shall hold a conference on the record to determine the areas of inquiry during voir dire. If requested, the court shall determine whether the attorneys may participate in the questioning of the prospective jurors and, if so, to what extent. During to (sic) course of the questioning, additional questions of prospective jurors may be requested and asked as appropriate under the circumstances.

The Committee recommends that the court rule be amended to include a requirement that attorneys submit, in writing, proposed voir dire questions and the judge rule on the questions on the record. The civil rules already contain such a provision, see R. 4:25-7(b), but there is no such provision in the criminal rules. The requested amendment will require the judge to rule on the proposed questions on the record. Although there is no need for an extended dissertation, reasons should be given, see R. 1:7-4. Proposed questions might be rejected, for example, because they are repetitive, irrelevant, unduly inflammatory, unduly intrusive to the jurors’ privacy, of limited significance, or any other justifiable reason. Proposed questions may be combined with others, either standard or supplemental. As stated in the proposed jury selection standards, appropriate requests should be granted. If there is an objection, the reasons for allowing the questions should be stated. In making this recommendation, the Committee is responding to members’ interests in specifying that attorneys submit proposed questions no later than at the conference and that trial judges memorialize the determinations they make at the conference by stating them on the record at its conclusion. Attorneys, including members, commented that judges do not always note their conference determinations on the record. Some attorneys commented that the lack of response to the proposed questions and general lack of approval of questions created a reluctance to continue to submit questions at the conference. The Committee has drafted proposed language to accomplish the changes that it has proposed be made to R.1:8-3(f):*

(f) Conference Before Examination. Prior to the examination of the prospective jurors, the court shall hold a conference on the record to determine the areas of inquiry during voir dire. Attorneys shall submit proposed voir dire questions in writing in advance. If requested, the court shall determine whether the attorneys may participate in the questioning of the prospective jurors and, if so, to what extent. During [to] the course of the questioning, additional questions of prospective jurors may be requested and asked as appropriate under the circumstances. The judge shall rule on the record on the proposed voir dire question and on any requested attorney participation.

*Note: Material proposed to be deleted is placed in brackets. Material proposed to be added is underlined. Recommendation 8 The Special Committee recommends the reduction of the number of peremptory challenges in criminal trials to 8 challenges for a defendant being tried alone, with 6 challenges permitted to the State. Where there are multiple defendants, each defendant will be permitted 4 peremptory challenges, with the State permitted 3 challenges for each defendant. Note: The Committee has drafted proposed new language to accomplish the revisions to R.1:8-3 and N.J.S.A. 2B:23-13 that will be required in order to effect this change. Those proposed revisions are included following the discussion below. In order to fully address the complexities in the current rule and statute relating to peremptory challenges in criminal trials, including the numbers currently authorized, the Chair appointed the Criminal Issues Subcommittee and asked Judge Frederick J. DeVesa, Criminal Presiding Judge in the Middlesex Vicinage, to chair that group. The subcommittee included three judges (including the Chair), the members representing the County Prosecutors’ Association, the Office of the Public Defender, and the New Jersey Defense Association, and requested the assistance of the Assistant Director for the Criminal Practice Division within the Administrative Office of the Courts, Joseph J. Barraco, Esq., who had worked with the Criminal Practice Committee for a number of years. Judge Lisa also participated in discussions along with Committee staff. The subcommittee had the benefit of discussions that had taken place at meetings of the full Committee and, after several meetings, recommended the following to the full Committee: (1) that there should no longer be different numbers of peremptory challenges authorized based on the crime charged; (2) that there should no longer be a disparity between the number of challenges provided to the defense and to the State; and (3) that there should no longer be fewer challenges provided where a foreign jury is ordered. The subcommittee recommended 6 peremptory challenges for each side in a one-defendant trial. In multi-defendant trials, each defendant would get 3 and the State would get 3 per defendant. When it considered the recommendations of the subcommittee and the underlying issues, the full Committee made the determinations shown below, which are reflected in Recommendation 8, agreeing with some of the recommendations but coming to a different determination with regard to others. The number of peremptory challenges in criminal trials merits a reduction, especially in light of the changes proposed by this Committee with regard to how voir dire is conducted. The Supreme Court clearly identified the focus of the Committee in its mandate as well as its title. It was to focus on peremptory challenges and voir dire – two areas identified by earlier committee and conference reports as being closely linked. The Committee, early in its efforts, identified voir dire as its initial focus and the actions that it has proposed will, if approved, provide for uniform jury selection procedures, including a set of uniform voir dire questions, a set of standards that cover areas such as attorney participation and granting cause challenges, education programs for judges and attorneys, a standing committee devoted to voir dire, and that committee’s development of a voir dire manual. The Criminal Issues Subcommittee, following a strongly contested discussion, recommended that both the defendant and the State, where the defendant is being tried alone, receive 6 peremptory challenges. Discussion of that recommendation at the full Committee resulted in a draft recommendation for 6 challenges for the defendant and 4 challenges for the State when a defendant is tried alone. Because some members were unable to attend the meeting at which these votes were taken, the Chair agreed to provide the opportunity for reconsideration at the next meeting. That reconsideration resulted in this recommendation that the defense receive 8 peremptory challenges and the State 6 peremptory challenges when a defendant is tried alone. It is not surprising that there are opposing views on the issue of whether to reduce the number of peremptory challenges in criminal trials, but it should be stated that the disagreement appears to not be the result of blind adherence to established positions but instead appears to be a sincere difference in viewpoints. Judges noted the numbers of jurors not questioned at voir dire and described the disappointment shown by many jurors who are dismissed through the exercise of a peremptory challenge as well as the numbers who are assigned to voir dire but not reached for questioning. Attorneys have commented that their concern is with the jurors selected to sit on the trial and not those challenged or not questioned. Data from judge surveys and actual jury selections are consistent in pointing out that attorneys usually do not exhaust their allotted challenges. Attorneys’ opposition to reducing the current number of challenges is rooted in the belief that the system is working well, producing good results, and therefore does not require the proposed change. But judges, when viewing that same data tend to focus instead on the fact that large numbers of jurors are not questioned at voir dire, that those dismissed through the exercise of a peremptory challenge are often angry, disappointed, and view the trial process and the justice system in a negative way. They are concerned about eroding public confidence in the justice system when more jurors experience that part of the trial process than serve on trials. Data from 389 criminal trials from September 2004 through January 2005 shows that there were an average of 26 jurors sent to each voir dire who were not questioned during jury selection. The same data shows that the average number dismissed through the exercise of peremptory challenges (by both sides) was 12. Therefore, 38 jurors were either not questioned or removed by peremptory challenge at the typical trial during this period. Another 21 jurors were challenged for cause in the average trial and 14 were selected to sit as jurors at trial. The impact of the proposed change will be to reduce the number of peremptory challenges in single defendant trials for enumerated crimes from 32 challenges to 14, a difference of 18 challenges per jury selection. In single defendant trials for other crimes, the number of challenges will be reduced from 20 challenges to 14. There were 1,489 voir dires initiated during calendar 2004 for criminal trials. Because there is no breakdown available that shows which voir dires involved enumerated crimes (18 fewer challenges per voir dire) and which involved trials for other crimes (6 fewer challenges per voir dire) or how many defendants were being tried, the impact of these proposed changes can only be estimated. But even if all trials are assumed to involve a single defendant and half were for enumerated crimes and half were not, an estimated 17,862 fewer juror days would be needed for voir dires in a typical year if the proposed changes were made. Additionally, the proposed reductions will also result in a reduction in the number of persons summoned to report as jurors since approximately 1 out of 3 persons summoned, based on experience, meets the statutory qualification criteria to serve as a juror and can serve on the summons date. Therefore, the above estimate translates to about 54,000 fewer citizens per year who would have to be summoned for jury duty, attributable to criminal trials alone. There should no longer be different numbers of peremptory challenges authorized based on the crime charged. There presently is a two-tier system in which the defendant gets 20 peremptory challenges and the State gets 12 for crimes deemed more serious; and the defendant and the State get 10 peremptory challenges each for the less serious crimes. The Committee determined that the two-tier system should be eliminated, and the same criteria should apply for all indictable offenses (except capital offenses, which are not part of the Committee’s consideration). Elimination of the two-tier system is appropriate because: (1) with offense-specific and other mandatory sentencing provisions, many of the so-called less serious offenses carry much more substantial penalties than those deemed more serious; and (2) even if an effort were made to establish more rational classifications in each tier, procedures designed to select a fair jury and provide the parties with a fair trial should be equally applicable in all criminal trials. It is incongruous to suggest that the process should be “more fair” in more serious cases. If the process is fair, it is fair. Further, the number of peremptories allowed in New Jersey for the more serious cases is very far out of the national mainstream and most in need of reform by substantial reduction. There should continue to be a disparity in the number of peremptory challenges permitted the defense as compared to the prosecution. Notwithstanding the fact that the Committee identified significant changes that evolved within the criminal justice system over the many decades since the numbers of peremptory challenges were originally set, including provision of counsel for indigent defendants, expansion of the jury pool to include additional persons who are more likely to identify with criminal defendants, societal attitudes that are generally less favorable to law enforcement and government than in past times, and greater legal protections for the accused, such as the inadmissibility of confessions or suppression of evidence, a majority of the Committee held to the view that there remains some residual advantage to the State in a criminal trial. For those reasons, and in recognition that the right to trial is a right possessed by the criminal defendant, the Committee determined that defendants should receive more peremptory challenges than the State. The lesser number of peremptory challenges provided for trials involving a foreign jury should not be retained. As noted above, the current court rule provides for 5 peremptory challenges per side where there is a foreign jury. The Committee does not believe that there is a basis for continuing the lesser number provided to defendants when tried with a foreign jury. Further, except in capital trials, the foreign jury practice is rarely utilized. Indeed, no Committee member has ever seen or heard of it being used in a non-capital trial. Proposed Revisions to N.J.S.A. 2B:23-13b and c:* Peremptory challenges Upon the trial of any action in any court of this State, the parties shall be entitled to peremptory challenges as follows: [b. Upon an indictment for kidnapping, murder, aggravated manslaughter, manslaughter, aggravated assault, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, aggravated arson, arson, burglary, robbery, forgery if it constitutes a crime of the third degree as defined by subsection b. of N.J.S.2C:21-1, or perjury, the defendant, 20 peremptory challenges if tried alone and 10 challenges if tried jointly and the State, 12 peremptory challenges if the defendant is tried alone and 6 peremptory challenges for each 10 afforded the defendants if tried jointly. The trial court, in its discretion, may, however, increase proportionally the number of peremptory challenges available to the defendant and the State in any case in which the sentencing procedure set forth in subsection c. of N.J.S. 2C:11-3 might be utilized.] b. Except as provided in c., in any criminal action where a defendant is tried alone, the defendant shall have 8 peremptory challenges and the State shall have 6 peremptory challenges. Where defendants are tried jointly, each individual defendant shall have 4 peremptory challenges and the State shall have 3 peremptory challenges for each defendant being tried. [c. Upon any other indictment, defendants, 10 each; the State, 10 peremptory challenges for each 10 challenges allowed to the defendants. When the case is to be tried by a jury from another county, each defendant, 5 peremptory challenges, and the State, 5 peremptory challenges for each 5 peremptory challenges afforded the defendants.] c. In any case in which the sentencing procedure set forth in subsection c. of N.J.S.2C:11-3 might be utilized, the defendant shall have 20 peremptory challenges if tried alone and 10 if tried jointly; and the State shall have 12 peremptory challenges if the defendant is tried alone and 6 peremptory challenges for each 10 afforded the defendants if tried jointly. The trial court, in its discretion, may, however, increase proportionally the number of peremptory challenges available to the defendant and the State in any such case. Proposed revisions to: R. 1:8-3(d):* Number of Peremptory Challenges (d) Peremptory Challenges in Criminal Actions. [Upon indictment for kidnapping, murder, aggravated manslaughter, manslaughter, aggravated assault, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, aggravated arson, arson, burglary, robbery, forgery if it constitutes a crime of the third degree as defined by N.J.S.A. 2C:21-1b, or perjury, the defendant shall be entitled to 20 peremptory challenges if tried alone and to 10 such challenges when tried jointly; and the State shall have 12 peremptory challenges if the defendant is tried alone and 6 peremptory challenges for each 10 afforded defendants when tried jointly. In other criminal actions each defendant shall be entitled to 10 peremptory challenges and the State shall have 10 peremptory challenges for each 10 challenges afforded defendants.] In any criminal action where a defendant is tried alone, the defendant shall have 8 peremptory challenges and the State shall have 6 peremptory challenges. Where defendants are tried jointly, each individual defendant shall have 4 peremptory challenges and the State shall have 3 peremptory challenges for each defendant being tried. Provided, however, that in any case in which the sentencing procedure set forth in subsection c. of N.J.S. 2C:11-3 might be utilized, the defendant shall have 20 peremptory challenges if tried alone and 10 if tried jointly; and the State shall have 12 peremptory challenges if the defendant is tried alone and 6 peremptory challenges for each 10 afforded the defendants if tried jointly; and in such cases, the trial court, in its discretion, may increase proportionally the number of peremptory challenges available to the defendant and the State. The trial judge shall have the discretionary authority to increase proportionally the number of peremptory challenges available to the defendant and the State in any case in which the sentencing procedure set forth in subsection c. of N.J.S. 2C:11-3 might be utilized. [When the case is to be tried by a foreign jury, each defendant shall be entitled to 5 peremptory challenges, and the State 5 peremptory challenges for each 5 peremptory challenges afforded defendants.] *Note: Material proposed to be deleted is placed in brackets. Material proposed to be added is underlined. Recommendation 9 The Special Committee recommends the reduction of the number of peremptory challenges in civil trials to 4 per party. Note: The Committee has drafted proposed new language to accomplish its proposed revisions to R.1:8-3(c) and N.J.S.A. 2B:23-13. Those proposed revisions are included following the discussion below. The issues relating to the number of peremptory challenges in civil trials are not as complex as with criminal trials and the Chair did not establish a separate subcommittee to review issues relating to civil voir dires. The 6 challenges provided in civil trials have, like the numbers in criminal trials, been in place for many years. It was noted that there was no adjustment made to the number of challenges when the court rule was revised to reduce the number of deliberating jurors from 12 to 6 in nearly all civil trials. That revision significantly increased the impact of peremptory challenges in civil trials because a party then had 6 peremptory challenges for 6 seated jurors as compared to formerly having 6 challenges for 12 seated jurors. Data available for 673 voir dires conducted in civil trials during the period from September 2004 through January 2005 showed that the average voir dire panel consisted of 43 jurors and that 11 were challenged for cause, 6 were challenged through the exercise of a peremptory (3 per side), 8 were seated, and 18 were not questioned. The responses from judges to the Committee’s voir dire survey and Committee members’ responses also supported the data with respect to the fact that parties rarely exhausted their peremptory challenges. The Committee in its initial vote on the recommended number of peremptory challenges in civil trials set that number at 3 per party but after further discussion and reconsideration, the Committee recommends that the number be set at 4 peremptory challenges per party, regardless of the number of parties. Part of the consideration in this regard was the Committee’s recognition of attorney members’ assertion that they retain a challenge during jury selection in almost all trials “just in case” and that the data confirmed that they rarely exhaust their challenges. The Committee agreed to provide an additional challenge, moving to recommending 4 per party, in recognition of that point and other issues raised in discussion. According to the National Center for State Courts’ information on the numbers of peremptory challenges (see Appendix B), only 10 of 52 jurisdictions have more than 4 challenges in civil trials. Fourteen jurisdictions currently provide 4 challenges in civil trials; twenty-six jurisdictions provide 3; and two jurisdictions provide 2. It was also made clear during discussions of the appropriate number that greater uniformity in judges’ granting of challenges for cause would make it less necessary to use peremptory challenges to remove jurors about whom they have concerns. The impact of allowing fewer peremptory challenges in civil trials cannot be fully assessed because no data is available on the number of parties participating at trial, but allowing 2 fewer challenges per party, even where there are only two parties at trial, will mean 4 fewer peremptory challenges per trial, or 8,668 fewer challenges in a typical year based on the number of civil voir dires initiated during calendar 2004. Applying the experience-based ratio of approximately 3 summoned jurors to each qualified juror, this translates to about 26,000 fewer jurors who would have to be summoned for jury service, attributable to civil trials alone. Proposed Revisions to N.J.S.A. 2B:23-13a:* Peremptory challenges Upon the trial of any action in any court of this State, the parties shall be entitled to peremptory challenges as follows: a. [In any civil action, each party, 6.] In civil actions each party shall be entitled to 4 peremptory challenges. Parties represented by the same attorney shall be deemed 1 party for the purposes of this rule. Where, however, multiple parties having a substantial identity of interest in one or more issues are represented by different attorneys, the trial court in its discretion may, on application of counsel prior to the selection of the jury, accord the adverse party such additional number of peremptory challenges as it deems appropriate in order to avoid unfairness to the adverse party. Proposed Revisions to R. 1:8-3(c):* Number of Peremptory Challenges (c) Peremptory Challenges in Civil Actions. In civil actions each party shall be entitled to [6] 4 peremptory challenges. Parties represented by the same attorney shall be deemed 1 party for the purposes of this rule. Where, however, multiple parties having a substantial identity of interest in one or more issues are represented by different attorneys, the trial court in its discretion may, on application of counsel prior to the selection of the jury, accord the adverse party such additional number of peremptory challenges as it deems appropriate in order to avoid unfairness to the adverse party. *Note: Material proposed to be deleted is placed in brackets. Material proposed to be added is underlined. Note: If Recommendation 10 is approved, the additional revisions to N.J.S.A. 2B:23-13a and R. 1:8-3(c), as set forth under that Recommendation, will be required. Recommendation 10 The Special Committee recommends that the Supreme Court approve its proposed revision to R.1:8-3(c) that will authorize the trial judge to also be able to decrease the number of peremptory challenges available to the parties (as well as increase that number), when the judge has determined that it is appropriate to adjust the number of peremptory challenges in multiple party trials. The language of R.1:8-3(c) is the following:

(c) Peremptory Challenges in Civil Actions. In civil actions each party shall be entitled to 6 peremptory challenges. Parties represented by the same attorney shall be deemed 1 party for the purposes of this rule. Where, however, multiple parties having a substantial identity of interest in one or more issues are represented by different attorneys, the trial court in its discretion may, on application of counsel prior to the selection of the jury, accord the adverse party such additional number of peremptory challenges as it deems appropriate in order to avoid unfairness to the adverse party.

During its discussions relating to the issue of the appropriate number of peremptory challenges in civil trials where there are multiple parties involved, the Committee determined that the portion of the rule that allows the court to provide additional challenges in order to avoid unfairness with regard to the number of challenges that are authorized, in response to a party request, should be amended to also permit the court to reduce the number otherwise provided. The Committee intends this change to provide an alternative. Instead of being limited to addressing unfairness only by increasing the number of peremptory challenges (as currently permitted), the proposed revision would allow the court to also decrease the number of challenges in order to address unfairness. This alternative will give trial judges greater flexibility and will be particularly useful in trials with numerous parties. The Committee included the following provisions in its recommended revisions to the court rule: (1) that where the court reduces the number of peremptory challenges that it provide an equal number to each party on that side; and (2) that where the court reduces the number of peremptory challenges in order to avoid unfairness, that it not reduce the number of challenges to fewer than three per party. The Committee makes this recommendation independent of its recommendation to change the number of peremptory challenges authorized in civil trials. The proposed revisions shown below do not presume approval of its recommendation that the number of peremptory challenges authorized to the parties be reduced to four challenges. The Committee proposes the following revisions to R.1:8-3(c):* (c) Peremptory Challenges in Civil Actions. In civil actions each party shall be entitled to 6 peremptory challenges. Parties represented by the same attorney shall be deemed 1 party for the purposes of this rule. Where, however, multiple parties having a substantial identity of interest in one or more issues are represented by different attorneys, the trial court in its discretion may, on application of counsel prior to the selection of the jury, [accord the adverse party such additional] increase or decrease the total number of peremptory challenges as it deems appropriate in order to avoid unfairness to the [adverse party] parties. Where the court decreases the number of peremptory challenges, each party on one side shall be accorded an equal number of challenges, which shall not be fewer than 3 for each such party. The Committee proposes the following revisions to N.J.S.A. 2B:23-13a:* Peremptory challenges Upon the trial of any action in any court of this State, the parties shall be entitled to peremptory challenges as follows: a. [In any civil action, each party, 6.] In civil actions each party shall be entitled to 6 peremptory challenges. Parties represented by the same attorney shall be deemed 1 party for the purposes of this rule. Where, however, multiple parties having a substantial identity of interest in one or more issues are represented by different attorneys, the trial court in its discretion may, on application of counsel prior to the selection of the jury, [accord the adverse party such additional] increase or decrease the total number of peremptory challenges as it deems appropriate in order to avoid unfairness to the [adverse party] parties. Where the court decreases the number of peremptory challenges, each party on one side shall be accorded an equal number of challenges, which shall not be fewer than 3 for each such party. *Note: Material proposed to be deleted is placed in brackets. Material proposed to be added is underlined. Note: If both Recommendations 9 and 10 are approved, the proposed statutory and rule changes shall be combined. V. Conclusion The areas of inquiry entrusted to the Special Committee – peremptory challenges and jury voir dire – are not new territory for review, as noted in the Court’s mandate. A number of groups have, in earlier reports, recommended reducing the number of peremptory challenges permitted in New Jersey and there continue to be calls for that action. Peremptory challenges are not established constitutionally. They are, however, authorized by both statute and court rule in New Jersey and have been in existence, in the numbers currently provided, for more than one hundred years. Every state provides for some peremptory challenges, but the number of challenges authorized in New Jersey, in both criminal and civil trials, are the highest, or among the highest, in the nation. The Supreme Court, in directing the Committee’s efforts to the evaluation of peremptory challenges and voir dire, recognized that the relationship of challenges and voir dire practices is the one that the Committee would need to address in order to advance its efforts. The Committee, in its initial sessions, focused its efforts on voir dire practices. In order to obtain information, it solicited comment from attorneys and presiding judges on specific voir dire practices, surveyed judges assigned to the criminal and civil divisions on their jury selection methods, collected and reviewed data on how long it took to complete voir dire, and engaged in lengthy discussion among its members about their collective experiences with jury selection. It learned from both judges and attorneys that there are no standard voir dire practices in the vicinages. But it also learned that attorneys, as well as judges, desire greater certainty regarding how voir dire will be conducted statewide. It learned, as well, that attorneys desire more expansive questioning of prospective jurors (including open-ended questions), full consideration of supplemental voir dire questions they submit, more opportunities to participate in jury selection (particularly with regard to follow-up questions), and greater consistency regarding granting of challenges for cause. Attorneys noted that their interest in retaining the current numbers of peremptory challenges is in order to protect their clients against what they see as questioning that may fail to discern juror bias or provide insufficient information on which to base the exercise of peremptory challenges. In its recommendations, the Committee has addressed the interests of attorneys and judges through recommendations that include: proposed jury selection standards (including uniform questions, some participation by counsel in questioning, and liberal granting of cause challenges within legal standards), establishing a standing Supreme Court committee devoted to jury selection, a jury selection manual, voir dire training for judges and attorneys, expansion of the R.1:8-3(f) conference, and allowing the court to also decrease total challenges in multi-party civil trials. It also recommends reducing the number of peremptory challenges in criminal and civil trials. The Committee believes that its recommendations will significantly improve jury selection practices statewide, that those practices will offset fewer peremptory challenges, and that the reduced impact on jurors (particularly those who will no longer sit unquestioned in a courtroom) will promote greater juror satisfaction and greater respect for the justice system among those citizens who serve as jurors. Footnotes: 1. The Committee recognizes that classifications of more serious and less serious criminal cases, by whatever nomenclature or enumeration, vary from jurisdiction to jurisdiction. Accordingly, comparisons are not precise. However, for purposes of our analysis, the comparisons reflected in Appendix B are reasonable and reliable in assessing New Jersey’s relative position in the nation in the number of peremptory challenges allowed in criminal cases. The table in Appendix B was compiled by the National Center for State Courts for the very purpose for which the Committee has utilized it, to compare jurisdictions. 2 But see the minority report of the County Prosecutors Association of New Jersey, which “concurs with the recommendation that the number of peremptory challenges should be reduced in all criminal jury trials.” (See Appendix M). STANDARD JURY VOIR DIRE (CRIMINAL) When the trial will last more than a week or two, the Committee recommends that judges consider asking the hardship question (which is #2 below) before any of the substantive questions. This will allow an early excusal of jurors who will be unable to serve on a lengthy trial, thereby enabling them to become available to other courtrooms picking juries. (Otherwise, it can be asked toward the end). 1. In order to be qualified under New Jersey law to serve on a jury, a person must have certain qualifying characteristics. A juror must be:

� Age 18 or older � A citizen of the United States � Able to read and understand the English language � A resident of ____________ county ( the summoning county)

Also, a juror must not:

� Have been convicted of any indictable offense in any state or federal court � And must not have any physical or mental disability which would prevent the person from properly serving as a juror.

Is there any one of you who does not meet these requirements? 2. a. This trial is expected to last for __________ to ________ weeks. Is there anything about the length or scheduling of the trial that would interfere with your ability to serve? b. Do you have any medical, personal or financial problem that would prevent you from serving on this jury? c. Is there anything that would make it difficult for you to sit, listen or deliberate for two hours without a break? 3. Introduce the lawyers and the defendant. Do any of you know either / any of the lawyers? Has either / any of them or anyone in their office ever represented you or brought any action against you? Do you know Mr. / Ms _________________________(Name of defendant)? 4. Read names of potential witnesses. Do you know any of the potential witnesses? 5. I have already briefly described the case. Do you know anything about this case from any source other than what I’ve just told you? 6. Are any of you familiar with the area or address of the incident? a. If yes, can you sit and decide this case based solely on the evidence admitted during the trial and the law as explained to you by the Court and not on any impression gained from prior knowledge? 7. Have you ever served on a jury before today, here in New Jersey or in any state court or federal court? If yes: Was it a Civil or Criminal trial? When? What type of case was it? Were you a deliberating juror? Was there anything about the trial, the jury deliberation process or anything you may have learned afterward that would interfere with your ability to be fair and impartial as a juror in this trial? 8. Have you ever sat as a grand juror? When? If the answer is yes: Do you realize that the duties as a member of a petit jury are vastly different from those of a member of a grand jury? Do you feel that your prior experience as a grand juror would in any way affect or prevent you from sitting on this jury as a fair and impartial juror? 9. Do you know anyone else in the jury box other than as a result of reporting here today? 10. Would your verdict in this case be influenced in any way by any factors other than the evidence in the courtroom, such as friendships or family relationships or the type of work you do? 11. Is there anything about the nature of the charge itself that would interfere with your impartiality? 12. Have you ever been a witness in a criminal case, regardless of whether it went to trial? 13. Have you ever testified in any court proceeding? 14. Have you ever applied for a job as a state or local police officer or with a sheriff’s department or county jail or state prison? 15. Have you, or any family member or close friend, ever worked for any agency such as a police department, prosecutor’s office, the FBI, the DEA, or a sheriff’s department, jail or prison, either in New Jersey or elsewhere? 16. As a general proposition, do you think that a police officer is more likely, less likely, or as likely, to tell the truth than a witness who is not a police officer? 17. Would any of you give greater or lesser weight to the testimony of a police officer merely because of his or her status as a police officer? 18. Have you or any family member or close friend ever been accused of committing an offense other than a minor motor vehicle offense? 19. Have you or any family member or close friend ever been the victim of a crime, whether it was reported to law enforcement or not? If yes, was anyone arrested? How long ago was it? Where did it occur? Were you satisfied with the outcome? 20. Would you have any difficulty following the principle that the defendant on trial is presumed to be innocent and must be found not guilty of that charge unless each and every essential element of an offense charged is proved beyond a reasonable doubt? 21. The indictment is not evidence of guilt. It is simply a charging document. Would the fact that the defendant has been arrested and indicted, and is here in court facing these charges, cause you to have preconceived opinions on the defendant’s guilt or innocence? 22. I have already given you the definition of reasonable doubt, and will explain it again at the end of the trial. Would any of you have any difficulty in voting not guilty if the State fails to prove the charge beyond a reasonable doubt? 23. If the State proves each element of the alleged offense(s) beyond a reasonable doubt, would you have any difficulty in returning a verdict of guilty? 24. The burden of proving each element of a crime beyond a reasonable doubt rests upon the prosecution and that burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his / her innocence or offer any proof relating to his / her innocence. Would any of you have any difficulty in following these principles? 25. A defendant in a criminal case has the absolute right to remain silent and has the absolute right not to testify. If a defendant chooses not to testify, the jury is prohibited from drawing any negative conclusions from that choice. The defendant is presumed innocent whether he testifies or not. Would any of you have any difficulty in following these principles? Note: The defendant has the right to waive this question. The defendant’s decision in that regard should be discussed during the voir dire conference. 26. Would you have any difficulty or reluctance in accepting the law as explained by the Court and applying it to the facts regardless of your personal beliefs about what the law should be or is? 27. Is there anything about this case, based on what I’ve told you that would interfere with your ability to be fair and impartial? 28. The purpose of questioning you as prospective members of the jury is to select a jury which will be fair and impartial. Is there anything, not covered by the previous questions, which would affect your ability to be a fair and impartial juror or in any way be a problem for you serving on this jury? If so, please raise your hand so that the attorneys and I can discuss it with you privately? 29. Is there anything else that you feel is important for the parties in this case to know about you? Biographical The following questions should be asked of each potential juror, one by one, in the jury box: You have answered a series of questions about criminal trials and criminal charges. Now we would like to learn a little bit about each of you. Please tell us the type or work you do; whether you have ever done any type of work which is substantially different from what you do now; who else lives in your household and the type of work they do; whether you have any children living elsewhere and the type of work they do; which television shows you watch; any sources from which you learn the news, i.e. the newspapers you read or radio or TV news stations you listen to; if you have a bumper sticker that does not pertain to a political candidate, what does it say; what you do in your spare time and anything else you feel is important. (NOTE: This question is intended to be an open-ended question which will allow and encourage the juror to speak in a narrative fashion, rather than answer the question in short phrases. For that reason, it is suggested that the judge read the question in its entirety, rather than part by part. If the juror omits a response to one or more sections, the judge should follow up by asking, in effect: “I notice you didn’t mention [specify]. Can you please tell us about that?”). STANDARD JURY VOIR DIRE (CIVIL) When the trial will last more than a week or two, the Committee recommends that judges consider asking the hardship question (which is #2 below) before any of the substantive questions. This will allow an early excusal of jurors who will be unable to serve on a lengthy trial, thereby enabling them to become available to other courtrooms picking juries. (Otherwise, it can be asked toward the end). Note: In some civil cases, the parties may wish to expedite the voir dire process, either because the nature of the case, in their view, does not warrant an extended process, because they are near settlement, or for any other reason. These are private disputes, and, with the consent of counsel and the approval of the judge, full use of the model questions in civil trials may be waived. The waiver discussion and determination must be on the record. 1. In order to be qualified under New Jersey law to serve on a jury, a person must have certain qualifying characteristics. A juror must be:

� Age 18 or older � A citizen of the United States � Able to read and understand the English language � A resident of ____________ county ( the summoning county)

Also, a juror must not:

� Have been convicted of any indictable offense in any state or federal court � And must not have any physical or mental disability which would prevent the person from properly serving as a juror.

Is there any one of you who does not meet these requirements? 2. a. This trial is expected to last for __________ to ________ weeks. Is there anything about the length or scheduling of the trial that would interfere with your ability to serve? b. Do you have any medical, personal or financial problem that would prevent you from serving on this jury? c. Is there anything that would make it difficult for you to sit and listen for two hours without a break? 3. Introduce the lawyers and the parties. Do any of you know either / any of the lawyers? Has either / any of them or anyone in their office ever represented you or brought any action against you? Do you know Mr. / Ms _____________________(Names of Parties)? 4. Read names of potential witnesses. Do you know any of the potential witnesses? 5. I have already briefly described the case. Do you know anything about this case from any source other than what I’ve just told you? 6. Are any of you familiar with the area or address of the incident? If yes, can you sit and decide this case based solely on the evidence admitted during the trial and not on any impression gained from prior knowledge? 7. Have you or any family member or close personal friend ever filed a claim or a lawsuit of any kind? 8. Has anyone ever filed a claim or a lawsuit against you or a member of your family or a close friend? 9. Have you or a family member or close personal friend either currently or in the past been involved as a party . . . as either a plaintiff or a defendant . . . in a lawsuit involving damages for personal injury? If yes:

(a) Were you (or did you know) the plaintiff or defendant? (b) How did the injury occur? (c) Has the case been resolved? (d) Were you satisfied with the outcome? (e) Was there anything about that experience that would prevent you from being fair and impartial in this case? (f) If yes, please state reasons.

10. A plaintiff is a person or corporation [or other entity] who has initiated a lawsuit. Do you have a bias for or against a plaintiff simply because he or she has brought a lawsuit? If the answer to Question No. 10 is affirmative, ask the following question at sidebar: If so, what are your feelings? 11. (a) A defendant is a person or corporation [or other entity] against whom a lawsuit has been brought. Do you have a bias for or against a defendant simply because a lawsuit has been brought against him or her? If the answer to Question No 11 is affirmative, ask the following question at sidebar: If so, what are your feelings? Note: If the defendant is a corporation, the following should be asked: (b) The defendant is a corporation. Under the law, a corporation is entitled to be treated the same as anyone else and is entitled to be treated the same as a private individual. Would any of you have any difficulty in accepting that principle? 12. The court is aware that there has been a great deal of public discussion [in print and in the media] about something called Tort Reform (laws that restrict the right to sue or limit the amount recovered). Do you have an opinion, one way or the other, on this subject? If the answer to Question No. 12 is affirmative, ask the following question at sidebar: If so, what are your feelings? 13. If the law and evidence warranted, would you be able to render a verdict in favor of the plaintiff or defendant regardless of any sympathy you may have for either party? 14. Based on what I have told you, is there anything about this case or the nature of the claim itself, that would interfere with your ability to be fair and impartial and to apply the law as instructed by the court? 15. Can you accept the law as explained by the Court and apply it to the facts regardless of your personal beliefs about what the law is or should be? 16. Have you ever served on a trial jury before today, here in New Jersey or in any state court or federal court? If yes: Was it a Civil or Criminal trial? When? Were you a deliberating juror? Was there anything about the trial, the jury deliberation process or anything you may have learned afterward that would interfere with your ability to be fair and impartial as a juror in this trial? Did the jury reach a verdict? What was the verdict? 17. Do you know anyone else in the jury box other than as a result of reporting here today? 18. Would your verdict in this case be influenced in any way by any factors other than the evidence in the courtroom such as friendships or family relationships or the type of work you do? 19. Have you ever been a witness in a civil matter, regardless of whether it went to trial? 20. Have you ever testified in any court proceeding? 21. New Jersey law requires that a plaintiff has to prove fault of a defendant before he or she is entitled to recover money damages from that defendant. Do you have any difficulty accepting that concept? 22 If the evidence warrants awarding no money damages to the plaintiff, will you be able to return such a verdict? 23. The purpose of questioning you as prospective members of the jury is to select a jury which that will be fair and impartial. Is there anything, not covered by the previous questions, which would affect your ability to be a fair and impartial juror or in any way be a problem for you in serving on this jury? If so, please raise your hand so that the attorneys and I can discuss it with you privately. 24. Is there anything else that you feel is important for the parties in this case to know about you? The following questions should be asked of each potential juror, one by one, in the jury box: You have answered a series of questions about civil trials and civil cases. Now we would like to learn a little bit about each of you. Please tell us the type or work you do; whether you have ever done any type of work which is substantially different from what you do now; who else lives in your household and the type of work they do, if any; whether you have any children living elsewhere and the type of work they do; which television shows you watch; any sources from which you learn the news, i.e. the newspapers you read or radio or TV news stations you listen to; if you have a bumper sticker that does not pertain to a political candidate, what does it say? What you do in your spare time and anything else you feel is important. (NOTE: This question is intended to be an open-ended question which will allow and encourage the juror to speak in a narrative fashion, rather than answer the question in short phrases. For that reason, it is suggested that the judge read the question in its entirety, rather than part by part. If the juror omits a response to one or more sections, the judge should follow up by asking, in effect: “I notice you didn’t mention [specify]. Can you please tell us about that?”).

STANDARD JURY VOIR DIRE (AUTO, SLIP & FALL, MEDICAL MALPRACTICE)
Auto 1. How many of you are licensed drivers? 2. Have you or any family member or close personal friend ever been involved in a motor vehicle accident in which an injury resulted? What type of accident? Injuries? Lawsuit? Settled? Tried? Was the resolution of the claim satisfactory? Would it affect your ability to be fair and impartial? 3. (a) Have you or a family member or close personal friend ever been involved in litigation or filed a claim of any sort? (b) Has anyone ever filed a claim or lawsuit against you or a family member or close personal friend? 4. Have you or a family member or close personal friend sustained an injury to the _______ or have chronic problems with __________? 5. Ask if applicable: Have you or a family member or close personal friend utilized the services of a chiropractor? 6. The Court is aware that there has been a great deal of public discussion in print and in the media about automobile accident lawsuits and automobile accident claims. Do you have an opinion, one way or the other on this subject? If the answer to Question No. 6 is affirmative, ask the following question at sidebar: If so, what are your opinions about automobile accident cases? Slip and Fall 1. Is anyone a tenant? 2. Is anyone a landlord? Commercial? Residential? 3. Is anyone a homeowner? 4. Have you or a family member or close personal friend ever been involved … as either a plaintiff or a defendant … in a slip and fall accident in which an injury resulted? Type of accident? Location? Injuries? Lawsuit? Settled? Tried? Was the resolution of the claim satisfactory? Would it affect your ability to be fair and impartial? 5. Have you or a family member or close personal friend ever been involved in litigation or filed a claim of any sort? 6. Have you or a family member or close personal friend sustained an injury to the _______ or have chronic problems with __________? Medical Malpractice ( NOTE: It is expected that the parties will submit a few specific questions seeking juror attitudes towards particular injury claims, such as pecuniary loss for wrongful death or a claim for emotional distress, if applicable, or juror attitudes about other particular types of claims, such as wrongful birth or informed consent issues. In particular, wrongful birth claims might require a questionnaire or separate voir dire to address attitudes about termination of pregnancy.) ( Note: Before asking the questions below, explain that the trial involves a claim of medical negligence, which people sometimes refer to as medical malpractice and that the terms both mean the same thing.) 1. Have you, or family member, or a close personal friend, ever had any experience, either so good or so bad, with a doctor or any other health care provider, that would make it difficult for you to sit as an impartial juror in this matter? 2. If the law and the evidence warranted, could you award damages for the plaintiff even if you felt sympathy for the doctor? 3. Regardless of plaintiff’s present condition, if the law and evidence warranted, could you render a verdict in favor of the defendant despite being sympathetic to the plaintiff? 4. Have you, any family member, or close personal friend ever worked for:
Attorneys Doctors, Hospitals or Physical Therapists Any type of health care provider Any ambulance / EMT / Rescue

5. Have you, or any members of your family, been employed in processing, investigating or handling any type of medical or personal injury claims? If so, please describe: 6. (a) Is there anything that you may have read in the print media or seen on television or heard on the radio about medical negligence cases or caps or limits on jury verdicts or awards that would prevent you from deciding this case fairly and impartially on the facts presented? If the answer to Question No. 6 is affirmative, ask the following question at sidebar: (b) If so, what did you hear or read? (c) Did the news coverage affect your thinking about medical malpractice cases in any way? (d) How? 7. This case involves a claim against the defendant for injuries suffered by the plaintiff as a result of alleged medical negligence. Do you have any existing opinions or strong feelings one way or another about such cases? If the answer to Question No. 7 is affirmative, ask the following question at sidebar: If so, what are your opinions? 8. Have any of you or members of your immediate family ever suffered any complications from [specify the medical field involved]? 9 Do you have any familiarity with [specify the type of medical condition involved] or any familiarity with the types of treatment available? 10. Are you, or have you ever been, related (by blood or marriage) to anyone affiliated with the health care field? If so, please describe: 11. Have you or any relative or close personal friend ever had a dispute with respect to a health care issue of any kind with a doctor, chiropractor, dentist, nurse, hospital employee, technician or other person employed in the health care field? 12. Have you or any relative or close personal friend ever brought a claim against a doctor, chiropractor, dentist, nurse or hospital for an injury allegedly caused by a doctor, dentist, nurse or hospital? 13. Have you or any relative or close personal friend ever considered bringing a medical or dental negligence action but did not do so? 14. Have you or any relative or close personal friend ever been involved with treatment which did not produce the desired outcome?

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