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A New Jersey Supreme Court panel is studying whether to cut back on the generous portions of peremptory challenges served up at state trials, and trial lawyers don’t like it one bit. No sooner had the Special Committee on Peremptory Challenges and Jury Voir Dire begun its sessions than the Trial Attorneys of New Jersey launched a vitriolic opposition campaign on its Web site. “New Jersey’s trial lawyers are about to lose their right to conduct voir dire,” it shouted. “The proposals are alarming!” “I think it’s fair to say we’re concerned about where it’s going,” says TANJ president Edwin Matthews, a solo in Florham Park. The committee’s mission, as stated by its chairman, Appellate Division Judge Joseph Lisa, is to conduct a thorough review of voir dire and peremptory challenges, “with its efforts leading to recommendations on ways to improve current jury selection practice.” Lisa says it’s too soon to draw conclusions about where the effort is headed. “All I can say is there are no proposals formulated yet. It’s a work in progress,” he says. “It’s not a charge of the committee to diminish voir dire.” But Matthews says TANJ’s concern is warranted, as this is the second judiciary panel to study the subject, perhaps with a favorable eye to reducing challenges. In 1997, a committee of assignment judges, chaired by Essex County’s Alvin Weiss, called for cutting peremptories to three in civil matters; eight in trials on kidnapping, murder, manslaughter, aggravated assault, sexual assault, arson, burglary or robbery charges; and five in other criminal cases. New Jersey at present allows six peremptories per party in civil trials, compared with a 50-state average of 3.75. In criminal trials, the defense gets 20 and the prosecution 12, whereas the national average is 6.8 for the defense and 6.1 for the prosecution, according to a report by the Bureau of Justice Statistics of the U.S. Department of Justice. The Weiss report said the justification for peremptory challenges was diminished by the broad jury pool, drawn from voter lists, driver’s license records and tax records, and by a recent reduction in the people who are exempt. The report also noted that peremptory challenges were eliminated in England in 1988 because defense attorneys were misusing the system to fill juries with people who favored their side. The report also cited the criminal trials of O.J. Simpson and Rodney King as examples of jury “stacking.” But the report also noted that no state has done away with peremptory challenges entirely. “Although desirable, it is the view of this committee that it would be impractible to advocate the total elimination of peremptory challenges. The hue and cry which would arise from the Bar could prove an obstacle to obtaining any changes in the use of peremptory challenges,” Weiss’ report said. The 1997 report was submitted to a joint subcommittee of the Civil and Criminal Practice Committees but the recommendations didn’t advance. Weiss, now at Porzio, Bromberg & Newman in Morristown, says he doesn’t know why, having left the bench soon after making his report. But trial lawyers raised objections in 1997 and — mindful of the courts’ insatiable appetite for faster calendar movement — are girding for battle again. Matthews says reduction of peremptory challenges doesn’t mean shorter trials. “The reality is it rarely takes more than a half a day or a day to pick a jury, and in those cases where it takes more, it’s because you need more,” he says. The Association of Criminal Defense Lawyers-New Jersey is also against cutting the number of peremptory challenges, says President John McDonald. In fact, the ACDL would like to see lawyers have a broader role in voir dire. Unlike other states, like New York, lawyers don’t ask questions in New Jersey voir dire unless the court consents. “We’d like to see voir dire expanded and not contracted. We think the peremptory challenges have worked well, and why tinker with something that works so well?” he says. Burlington County Prosecutor Robert Bernardi, president of the county prosecutors’ association, says his colleagues don’t have strong views about voir dire or peremptory challenges but don’t consider jury selection particularly time-consuming. Bernardi says he’s hopeful the committee will streamline the voir dire process by advancing options such as prescreening of jurors with printed questionnaires. Lisa’s committee includes representatives from the Attorney General’s Office, the County Prosecutors’ Association, the Association of Trial Lawyers of America-New Jersey and the Hispanic Bar Association of New Jersey, among others. To gather input, the committee has invited all attorneys to complete a questionnaire about voir dire practices. The form solicits comments — favorable or no — on voir dire practices such as use of written questionnaires; jurors answering questions in writing as opposed to verbally; attorney participation in initial questioning; open-ended rather than yes-no initial questions; initial questions posed to jurors individually versus en banc; the outcome when judges are asked to permit supplemental questions; on-the-record responses to each requested supplemental question; follow-up questions in open court as opposed to at sidebar or in chambers; open-ended, rather than yes-no follow-up questions; and attorney participation in asking follow-up questions. Comments are to be sent to Michael F. Garrahan in the Office of Trial Court Services at the Administrative Office of the Courts in Trenton. TANJ is represented by retired Middlesex County Superior Court Judge C. Judson Hamlin, who says he is approaching his job with an open mind. “I don’t know what this committee is going to do yet,” he says. He says it would be improper to share his perceptions before the committee issues its report.

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