A proposed rule change would make it crystal clear to judges that juries must be selected in open court, even when courtroom space is dear.
The state Supreme Court Committee on Jury Selection in Civil and Criminal Trials is recommending a new subsection (g) for Rule 1:8-3, requiring that the public "be provided reasonable access to the courtroom during that portion of the trial."
Exclusion of the public would be prohibited absent "a compelling need." A judge making that determination would have to consider "reasonable alternatives," like moving to a larger courtroom or permitting public observation through "electronic means." The judge also would have to give reasons for limiting or denying public access.
The proposed amendment would not preclude the judge from conducting individual voir dire in an on-the-record sidebar or in writing.
Public comments on the Feb. 25 proposal are due by April 1.
Michael Garrahan, chief of the Administrative Office of the Courts’ Jury Management Unit, says open proceedings have always been required but are not addressed in the court rules.
"This is just looking to make that a little better known and communicated more directly," says Garrahan, the AOC staff member assigned to the committee.
When voir dire proceedings are closed, "it’s done generally in the interest of saving courtroom space," he adds.
Timothy Donohue, president of the Association of Criminal Defense Lawyers of New Jersey, says the proposal is "just memorializing what everyone has understood for a number of years."
But "to the extent that it clarifies that the public has a right to be present … it’s a worthwhile amendment," says Donohue, a partner at Arleo, Donohue & Biancamano in West Orange.
"You will encounter certain courts where, when they bring up the entire jury pool, they take up every row," he says, adding that courtrooms can become overcrowded, especially in older facilities, during high-profile cases.
Scott Leonard, a partner at Leonard & Leonard in Morristown and president of the New Jersey Association for Justice, which represents civil plaintiff lawyers, says, "we support open and full access to the jury selection process as long as necessary safeguards are in place to protect potential jurors and preserve the integrity of the jury system."
New Jersey State Bar Association spokeswoman Kate Coscarelli says the proposal has been circulated to various sections but the board of trustees has taken no official position yet.
The state Attorney General’s Office, through spokesman Paul Loriquet, declines comment.
Middlesex County Prosecutor Bruce Kaplan, president of the County Prosecutors Association of the State of New Jersey, and Assistant Mercer County Prosecutor Michelle Gasparian, president of the Assistant Prosecutors Association of New Jersey, each did not return a call seeking comment.
Garrahan says he cannot recall any New Jersey cases where a closed voir dire had been an issue, but the committee’s action was prompted in part by other cases that addressed public access to jury selection.
The U.S. Supreme Court, in Presley v. Georgia, 130 S.Ct. 721 (2010), upended a criminal conviction because the courtroom had been closed to the public during voir dire.
Eric Presley was charged with cocaine trafficking in DeKalb County Superior Court.
Just before jury selection, the judge saw one observer, Presley’s uncle, and ordered him out of the courtroom and off of that floor of the courthouse to make room for the 42-member juror pool and prevent his comingling with them.
The judge invited him to return after voir dire and other pretrial issues were addressed. Presley’s counsel objected, but the judge persisted.
Convicted, Presley moved for a new trial, claiming his constitutional right to a public trial had been violated.
The judge denied the motion, citing his discretion to exclude family members when prospective jurors are present.
The Georgia Court of Appeals affirmed, finding no abuse of discretion.
The Georgia Supreme Court, too, affirmed, though with two justices dissenting. The majority pointed to the trial judge’s interest in insulating potential jurors from prejudicial remarks from observers and said it was Presley’s burden to offer alternatives to shuttering the courtroom, which he did not.
The U.S. Supreme Court, in a per curiam decision, reversed and remanded.
Trial judges are "obligated to take every reasonable measure to accommodate public attendance at criminal trials," the court ruled.
It continued, "Nothing in the record shows that the trial court could not have accommodated the public at Presley’s trial.
"Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members."