NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2353-21
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION AS REDACTED v. November 16, 2023 APPELLATE DIVISION WILLIAM J. SILVERS, III, a/k/a WILLIAM J. SILVERS, 111, WILLIAM J. SILVER, III, and WILLIAM SILVER,
Defendant-Appellant. ____________________________
Argued September 26, 2023 – Decided November 16, 2023
Before Judges Sabatino, Mawla and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 19-07-0813.
Margaret Ruth McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret Ruth McLane, of counsel and on the briefs).
Leslie-Ann Marshall Justus, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Leslie-Ann Marshall Justus, of counsel and on the brief). Appellant filed a pro se supplemental brief. The opinion of the court was delivered by
SABATINO, P.J.A.D.
The main issue in this criminal appeal is whether the trial court erred
during jury selection in denying defense counsel's requests to remove for cause
two potential jurors who are police officers. The officers are employed by police
departments in different municipalities from where the alleged offenses
occurred, investigated, and were prosecuted, but within the same county.
We reject defendant's contention that because interaction with the county
prosecutor's office is inherently a "necessary component of their jobs as police
officers," active-duty police officers who work in the same county where the
criminal charges arose must be stricken for cause from juries upon a defendant's
request.
Instead of applying a categorical bar, we continue the tradition of State v.
Reynolds, 124 N.J. 559, 565 (1991), in which the Supreme Court recognized the
concerns about the potential bias of police-officer-jurors, but which also
declined to endorse a strict policy to remove them for cause. The Court in
Reynolds instructed judges "should be inclined to excuse a member of the law
enforcement community" from the jury upon a defendant's request, leaving it to
the trial courts to perform an individualized assessment of each juror's ability to
be fair and impartial. Ibid.
A-2353-21 2 Extending the nuanced approach of Reynolds, we hold that a per se finding
of cause to strike a criminal juror in law enforcement should only apply to
employees of the same police department or prosecutor's office that investigated
or prosecuted the charged offense. To aid trial judges and counsel, we present
non-exhaustive factors that should be considered in evaluating, on a juror -by-
juror and case-by-case basis, whether there is cause to remove a juror employed
in law enforcement. If, on the whole, those factors establish cause, the trial
court "shall" remove the juror, as is required under the recently reinforced
language of Rule 1:8-3(b).
Applying these principles, we affirm the trial court's decision to deny
defendant's request to strike for cause one of the two police officers, as his voir
dire elicited insufficient grounds to do so. We do find error with respect to the
other officer, based on the responses from that officer during his own voir dire.
However, because the latter officer was never summoned to the jury box, the
court's error in failing to remove the juror for cause was harmless.
In the unpublished portion of this opinion, we address unrelated
arguments raised by defendant on appeal alleging evidentiary and sentencing
errors. Having found those arguments lack merit, we consequently affirm
defendant's convictions and sentence.
I.
A-2353-21 3 This prosecution of defendant William J. Silvers, III stems from an
altercation in which he punched and allegedly tried to choke his then-girlfriend,
R.S.1, on a boat docked on a pier by the Hudson River, and then allegedly threw
her off the boat into the river.
At the time of the incident, R.S. and defendant had been in a relationship
for about six weeks. According to her account, R.S. left work at around 11:30
p.m. on October 1, 2018. She went to meet defendant, who had brought vodka
for each of them. They walked together for about thirty minutes to defendant's
boat, where he was living at the time, which was docked on a pier in Hoboken.
During the walk, the two of them talked and drank the vodka. According to
R.S., she consumed about a half a pint of vodka during the walk but did not feel
intoxicated.
R.S. and defendant went to the boat's cabin to sleep. While in bed
together, they were conversing. R.S. requested that defendant give her the
money from her paycheck that she said he owed her. According to R.S.'s
testimony, she had arranged for defendant to deposit her paychecks into his bank
account because she had lost her identification, and that he had agreed he would
pay her the money afterwards. However, defendant began to argue with and yell
at R.S. in response to her request in the boat cabin that he pay her the money.
1 We use initials to protect the victim's privacy. R. 1:38-3(c)(12).
A-2353-21 4 R.S. ended the conversation, rolling over onto her side to go to sleep.
Defendant continued to yell at R.S. When she turned towards him, he allegedly
grabbed her by the throat with both hands, choking her. R.S. could not breathe
and struggled to choke him back or pull his hands off her. Defendant removed
his hands but began punching her in the face and back of the head.
As described by R.S., she tried to escape, but defendant kept hitting her,
striking her chest and back, and blocked the exit of the cabin by kicking and
pushing her back into the boat. She eventually made it out of the cabin to the
side of the boat. Realizing she could not safely get off the boat, R.S. shouted
for help.
According to R.S.'s trial testimony 2, defendant then picked her up by her
shorts and the back of her neck and threw her into the Hudson River. R.S. swam
to shore, but defendant was waiting for her. Defendant left R.S. to get a rescue
tube, giving her an opportunity to climb a fence and escape. R.S. made her way
to a nearby apartment building, where the concierge called 9-1-1.
A patrolman from the Hoboken Police Department responded to the call
at around 2:30 a.m. Observing that R.S. was wet and visibly injured, he called
for an ambulance. EMTs arrived and attended to R.S. After receiving medical
2 By contrast, the defense presented trial testimony from an EMT who stated that R.S. told her "she fell from a boat," rather than being thrown.
A-2353-21 5 treatment briefly at a local hospital, R.S. filed a criminal complaint against
defendant.
The Hudson County Prosecutor's Office procured an indictment against
defendant, charging him with second-degree aggravated assault by purposely
attempting to cause serious bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree
aggravated assault by obstructing the victim's breathing, N.J.S.A. 2C:12-
1(b)(13); and third-degree criminal restraint, N.J.S.A. 2C:13-2(a).
The case was tried before a Hudson County jury over four days in August
2021. The State presented four witnesses: R.S., the concierge, the Hoboken
police officer who had responded to the 9-1-1 call, and a detective from the
Hoboken Police Department who investigated the case. Defendant did not
testify on his own behalf. He called two EMTs and a physician's assistant who
had attended to R.S., the custodian of records from the local hospital, and the
Hoboken police detective who was the lead investigator on the case.
Defense counsel argued in summation that R.S.'s account of the incident
was implausible. Counsel asserted it was unlikely that defendant, who is short
in stature, could have hoisted R.S. and thrown her into the river in the manner
R.S. described. Counsel also noted that R.S. admitted that defendant had offered
to bring her a rescue tube when she was in the water. The defense submitted
that the couple merely had an argument, and that R.S. was biased and angry at
A-2353-21 6 defendant because she thought he owed her money. The defense argued that
R.S. was intoxicated after drinking about five shots of vodka, and that her
recollection of the events was untrustworthy. Through the medical witnesses
and records, the defense further asserted R.S. was not seriously injured in the
incident, and she had sustained only minor bruises, a contusion on her nose, and
a loose tooth.
In addition, defense counsel argued the police had conducted a shoddy
investigation. Among other things, counsel noted the lead detective admitted to
speaking with R.S. before taking her recorded statement and misplacing his
interview notes, which he failed to turn over in alleged violation of Attorney
General Guidelines. The detective did not try to find video surveillance footage
that might have captured the events or bank deposit records that might have
corroborated her narrative.
The jury found defendant guilty of the lesser included offense of third -
degree aggravated assault (which requires proving only a risk of significant
bodily injury, not serious bodily injury), and criminal restraint. The jury
acquitted defendant of the charge of aggravated assault by obstruction of
breathing.
At sentencing in January 2022, the trial court found defendant qualified
as a persistent offender under N.J.S.A. 2C:44-3 because he had been convicted
A-2353-21 7 of at least two crimes since turning the age of eighteen and had been released
from confinement only seven-and-a-half years before the present offenses. The
court noted defendant had several previous instances of domestic violence, some
of which resulted in final restraining orders.
The court found several pertinent aggravating factors: two, N.J.S.A.
2C:44-1(a)(2) (severity of harm to victim); three, N.J.S.A. 2C:44-1(a)(3) (risk
of recidivism); six, N.J.S.A. 2C:44-1(a)(6) (extent and severity of defendant's
prior criminal history); and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence).
The court identified no mitigating factors.
Based on this analysis, the court sentenced defendant to a custodial term
of five years, with two-and-a-half years of parole ineligibility. At the same
hearing, the court sentenced defendant in a separate matter, pursuant to a plea
agreement, to a concurrent four-year custodial term for third-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(12), of a different victim, an offense which had
occurred while he was on pretrial release for the present case.
On appeal, defendant argues the following points in his counseled brief:
POINT I
THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENSE REQUEST TO STRIKE FOR CAUSE TWO ACTIVE-DUTY HUDSON COUNTY POLICE OFFICERS.
POINT II
A-2353-21 8 THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL AFTER THE COMPLAINING WITNESS TESTIFIED THAT DEFENDANT HAD PREVIOUSLY DONE THE EXACT THING FOR WHICH HE WAS ON TRIAL.
POINT III
THE FAILURE TO STRIKE ULTIMATE-ISSUE TESTIMONY THAT THE COMPLAINING WITNESS WAS ASSAULTED REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT IV
DEFENDANT MUST BE RESENTENCED BECAUSE THE COURT IMPROPERLY CONSIDERED ARRESTS THAT DID NOT LEAD TO CONVICTIONS IN FINDING AGGRAVATING FACTORS.3
II.
A.
The especially lengthy jury selection in this case consumed ten days in
late July and early August 2021. The first stage of jury voir dire was conducted
3 Defendant has also submitted a handwritten pro se supplemental brief. Although it is repetitive and fails to designate which arguments were not raised below, he essentially argues that: (1) his case should have been prosecuted under maritime jurisdiction; (2) the case was poorly investigated; (3) the victim's statement was improperly taken; (4) his arrest was illegal, for unspecified reasons; (5) the State's evidence was inadequate; and (6) the victim was not seriously injured and at most he only should have been charged with simple assault. A-2353-21 9 remotely by videoconference before the process continued in the courthouse.
Five times during the selection process, a prospective juror with a law
enforcement occupation was interviewed. The first one, a United States
Customs and Border Patrol agent, was readily excused without a formal
challenge because she stated she "probably" would not have an open mind about
the case. The other four jurors with law enforcement positions were challenged
for cause by defense counsel. Two of those four jurors were excused by the
court.
The first such juror excused by the court was a county correctional officer
who was working at the same Hudson County facility that was holding
defendant. Although the juror attested he could be fair and impartial, the trial
court released him because he might encounter defendant at the correctional
facility.
The other law enforcement officer removed from the jury pool by the court
for cause was a Port Authority police officer. He disclosed that he recognized
the name of the lead detective from a work-related email chain and admitted
that, given the nature of his work and training, he "possibly" could not have an
open mind about this case.
The two prospective jurors employed in law enforcement who are the
subject of this appeal are a Jersey City police officer, R.M., and a Union City
A-2353-21 10 police officer, A.A. 4 We detail information elicited from them and the efforts
by defense counsel to remove them.
Juror R.M.
During voir dire, Juror R.M. told the court that he was an active-duty
police officer in Jersey City. He had been on the police force for six years. R.M.
stated that he did not know any of the people involved in the case. He
maintained that he would treat police-officer-witnesses just like any other
witness, and that he could remain fair and impartial.
R.M. volunteered that his unit "answer[s] a lot of calls in regards to
domestic violence." He also disclosed that he is "familiar with criminal
restraints and aggravated assault" and had "dealt with them especially through
domestic violence a lot" in the course of his employment.
R.M. asserted that jury charges and the law were "very self-explanatory
and . . . it's not really very hard to follow what is written on both criminal
restraints or aggravated assault," numerically citing to the court both statutory
provisions. R.M. attested that he could set aside his understanding of the law:
"I personally don't believe that this is going to affect my ability in any way, but
4 As is the present custom, we use initials for these prospective jurors.
A-2353-21 11 I just wanted to make it clear, you know, to [t]he [c]ourt." The court directed
R.M. to return for the in-person jury selection scheduled for the following week.
Defense counsel moved to excuse R.M. for cause because of his police
experience. In particular, defense counsel noted that R.M. (1) cited to the
criminal statutes; (2) has "great experience" responding to the incidents of
domestic violence and abuse; and (3) "likely knows what the penalties are."
Counsel argued "even if [R.M.] says he can set aside his own experience it's
impossible for him not to bring his vast experience with these types of issues
and . . . his independent knowledge of New Jersey [l]aw to his deliberations in
this case." Counsel also cited the Supreme Court's opinion in Reynolds, which
we will discuss more in Part II(B).
The trial court rejected these entreaties, finding that "the fact that [R.M.
is] a police officer . . . shouldn't exclude him, just like it wouldn't exclude a
lawyer just because he might be a criminal defense attorney" and that "nothing
that he stated . . . would suggest that he couldn't be fair and impartial."
On the next court date, defense counsel renewed her motion to strike R.M.
from the jury for cause. Among other things, counsel stressed that Jersey City
police officers such as R.M. are supervised by the Hudson County Prosecutor's
Office that was prosecuting defendant. She argued both law enforcement
A-2353-21 12 entities work "incredibly closely" with each other and are considered one entity
with respect to discovery obligations.
The prosecutor responded that the chains of command in the Hudson
County Prosecutor's Office and the Jersey City Police Department "would likely
not believe" that prosecutors "supervise" local police officers. The prosecutor
also noted the Jersey City Police Department is one of thirteen different law
enforcement agencies, albeit the largest one, that works with his office.
The trial court again denied defendant's motion to strike R.M. for cause,
finding that the law enforcement entities involved were "separate."
Juror A.A.
Juror A.A.'s voir dire occurred two court days later. His examination was
more abbreviated than that of R.M.
A.A. told the court that he had been working as a patrolman for three years
in the Union City Police Department. A.A. stated he believed that a police
officer is "equally" likely to tell the truth as a witness who is not a police officer.
He also attested that he could remain impartial and believed that he had to
consider the charges and the law with an open mind. He did not mention the
types of cases that he worked on as an officer.
Defense counsel moved to strike A.A. for cause from the jury panel. She
noted that he is on active duty with a police department located in Hudson
A-2353-21 13 County, which means that he must work with County prosecutors, even if he had
never dealt with the assistant prosecutor assigned to defendant's case.
The trial court rejected defendant's arguments and empaneled A.A. for the
in-person jury selection phase. At that proceeding, defense counsel renewed her
request to strike A.A. for cause when he was called up to the sitting jury.
Counsel cited to Reynolds and reiterated that the Prosecutor's Office works
closely with all police agencies in the county.
The court again denied the request, finding A.A.'s demeanor and
responses to questioning reflected that he would be fair and impartial.
Defense counsel then used her tenth peremptory challenge to remove A.A.
from the jury. A.A. was accordingly excused. R.M. was never placed in the
jury box, so there was no occasion for the defense to use a peremptory strike to
remove him.
Defense counsel exhausted the remainder of her twenty peremptory
challenges on other seated jurors. The court and the prosecutor made defense
counsel aware of that depletion of peremptories after she responded "No" when
the court asked if she was done. The record does not reveal which empaneled
jurors defense counsel would have struck if more peremptories had been
available. In any event, it is undisputed that neither R.M. nor A.A. were on the
empaneled jury that convicted defendant.
A-2353-21 14 B.
The juror removal issue posed here, which is the focus of defendant's
primary argument for reversal, concerns important constitutional and legal
principles.
The Sixth Amendment of the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution both guarantee criminal defendants
the right to trial by an impartial jury. State v. Little, 246 N.J. 402, 414 (2021)
(citing State v. Williams, 93 N.J. 39, 61 (1983)). A defendant is "entitled to a
jury that is free of outside influences and [that] will decide the case according
to the evidence and arguments presented in court in the course of the cr iminal
trial itself." Williams, 93 N.J. at 60.
To achieve these constitutional objectives, a trial court has an
"independent obligation . . . 'to take all appropriate measures to ensure the fair
and proper administration of a criminal trial' . . . ." Little, 246 N.J. at 414
(quoting Williams, 93 N.J. at 62). "A 'vital aspect' of that responsibility is to
ensure the impaneling of only impartial jurors by ferreting out potential and
latent juror biases." Ibid. (quoting Williams, 93 N.J. at 62-63).
A critical responsibility of the trial court's supervisory function is to
decide whether a juror should be removed for cause. The parties can move to
A-2353-21 15 strike a juror for cause, or the court can sua sponte excuse a juror on that basis.
State v. Andujar, 247 N.J. 275, 296 (2021).
For-cause excusal of jurors is appropriate "when it appears that they would
not be fair and impartial, that their beliefs would substantially interfere with
their duties, or that they would not follow the court's instruction or their oath."
Ibid. After a comprehensive study of juror selection practices in our State
sparked by Andujar, the Supreme Court revised Rule 1:8-3(b) in 2022 to now
read, "If the court finds there is a reasonable basis to doubt that the juror would
be fair and impartial, the court shall grant the for-cause challenge . . . ."
(emphasis added).
The use of the word "shall" within the revised Rule strengthened the trial
court's obligation to assure that jurors are not empaneled when cause for their
dismissal is apparent. This change was part of systemic reforms adopted by the
Court to promote a fairer jury selection process and to reduce bias and
discrimination. The reforms include new presumptive restrictions on the
exercise of peremptory challenges based on discriminatory or improper
stereotypes, see Rule 1:8-3A, but are accompanied by "a low threshold . . . for
the granting of a for-cause challenge." Report & Recommendations of the
Subcommittee on Voir Dire & Peremptory Challenges 3 (2022) (emphasis
added). The subcommittee unanimously recommended "a liberal standard in
A-2353-21 16 dismissing jurors for cause," recommending the "relaxed" Rule 1:8-3(b)
language that the Court ultimately adopted. Id. at 8-9.
Case law instructs that "[a]n appellate court reviews the trial court's jury-
related decisions under the abuse of discretion standard." State v. Brown, 442
N.J. Super. 154, 182 (App. Div. 2015) (citing State v. R.D., 169 N.J. 551, 559
(2001)). "[T]he trial court is vested with broad discretionary powers in
determining the qualifications of jurors and [so] its exercise of discretion will
ordinarily not be disturbed on appeal." State v. Jackson, 43 N.J. 148, 160 (1964).
Challenges to excuse jurors for cause are thus reviewed for abuse of discretion.
State v. Simon, 161 N.J. 416, 466 (1999).
Notwithstanding that general deference, "an appellate court is not bound
by a determination when the 'particular circumstances present such a strong
likelihood of prejudice that, as a matter of law,' the juror should have been
removed." State v. Loftin, 191 N.J. 172, 192 (2007) (quoting State v.
Biegenwald, 106 N.J. 13, 91 (1987)). Moreover, defendant's arguments in this
appeal implicate generic questions of law about the eligibility of active -duty
police officers to serve on criminal juries in the counties where they work. We
consider those generic questions of law de novo. Manalapan Realty, L.P. v.
Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995), see also State v.
Hyland, 238 N.J. 135, 143 (2019).
A-2353-21 17 Before the applicable statutes were revised in 1995, police officers and
persons "directly or indirectly connected with the administration of justice,"
along with other various classes of persons, were categorically ineligible to
serve on juries in this State. See N.J.S.A. 2A:69-1 (amended by L. 1995, c. 44).
That broad swath of categorically ineligible jurors produced serious difficulties
in yielding eligible jurors, more severely within certain counties. The system
also placed undue burden on citizens not covered by the statutory exemptions
by repeatedly asking them to serve.
A 1982 Report of the Jury Utilization and Management Task Force
commissioned by the Supreme Court found the exercise of then-existing
statutory exemptions resulted in excusal rates across counties of 7% to as high
as 56% during the 1980-1981 court year. 111 N.J.L.J. Index 37 (1983). The
Task Force recommended the reform of those occupation-based exemptions,
noting "[t]here is little sound basis for the across-the-board exemption of
occupations." Ibid. The Task Force recognized arguments that the exemptions
for police, fire and medical personnel were grounded in the public necessity of
the services they provide. Ibid. However, the Task Force noted that vacations,
holidays, and medical absences ordinarily can be accommodated within those
occupations without endangering the public, and the same accommodations
could be arranged when their members are called to jury service. Ibid.
A-2353-21 18 Despite the 1982 Report, the statutory exemptions remained unchanged
for over a decade. In June 1992, the New Jersey Law Revision Commission
issued a Report and Recommendation Relating to Juries (the "Law Revision
Report"). That report echoed the 1982 Task Force's criticisms of the broad
occupational exemptions. Id. at 2-3. The Law Revision Report recommended
replacing those exemptions with provisions permitting excusal from jury service
for severe hardship and deferral of service to a future date. Id. at 3. The
Commission noted that "[a] person's occupation is a factor to be considered in
relation to a person's suitability to sit on a particular jury, not as an absolute bar
to jury service." Id. at 4. (emphasis added).
In 1995, the present statute, N.J.S.A. 2B:20-1, was enacted, which
substantially narrowed the classes of persons ineligible for jury service. Among
other things, the categorical exemptions for police personnel and for persons
connected to the administration of justice were removed, as the Task Force
Report and the Law Revision Report had advocated. See L. 1995, c. 44.
Apart from these statutory developments, case law has addressed the
question of whether a citizen employed in law enforcement should be removed
for cause from a criminal jury because of that citizen's occupation. The leading
opinion in our State is Reynolds, a case which both parties have cited to us. 124
N.J. at 565.
A-2353-21 19 In Reynolds, the Court addressed whether the trial court in a murder case
should have stricken for cause two criminal jurors—a Deputy Attorney General
in the Division of Law assigned to represent the Lottery Commission, and an
investigator in the Division of Criminal Justice. Id. at 563. Neither juror was a
police officer. Under the then-existing statute, the Court concluded that neither
juror, although a "member[] of the law-enforcement community," was covered
by the statutory exemption for persons connected to the administration of
justice. Id. at 564.
Reynolds addressed whether the two jurors were otherwise ineligible "for
cause." Both jurors knew defense counsel in the case professionally from
previous litigation involving the Lottery Commission and as past colleagues in
the Division of Criminal Justice. Id. at 565. The investigator was also
challenged because, as defense counsel argued to the trial judge, his connections
with "the enforcement of the penal laws of this State" allegedly resulted in a
"proclivity to assume that State Police don't lie." Id. at 566.
The trial judge declined to remove either juror for cause. Id. at 565-66.
In doing so, the judge found credible the jurors' sworn assurances that they
would remain fair and impartial, noting their demeanor in responding to
questions during voir dire reflected impartiality and fairness. Id. at 566-67. The
A-2353-21 20 Court upheld the trial court's decision. However, the Court issued the following
guidance:
To avoid challenges such as this, we believe that in criminal cases a court, on request of a defendant, should tend to favor excusal of a member of the law- enforcement community.
[Id. at 568 (emphasis added).]
In adopting this "tendency" approach, the Court observed in Reynolds that, in
contrast to parties in civil cases, "a criminal defendant would not be so easily
assuaged" by law enforcement jurors' affirmations of impartiality. Id. at 565.
"Although strictly speaking an excusal for cause may not be required, prudence
counsels that a court, on request of a defendant in a criminal case, should be
inclined to excuse a member of the law enforcement community." Ibid.
The practice of other states on this police-as-jurors issue is varied. 5 Most
states currently do not have case law or statutes prohibiting officers from serving
on juries in criminal cases. Courts more commonly perform case-by-case
analyses to determine if law enforcement officers summoned as jurors have
actual biases that require their excusal for cause. Circumstances that indicate
5 See Law Enforcement Officers as Qualified Jurors in Criminal Cases, 72 A.L.R.3d 895 (1976) (discussing the varied practices among the states).
A-2353-21 21 an officer may be impermissibly biased include a relationship with a witness, a
close connection to the prosecutor's office, and a "pro-police" mentality.
That said, some states categorically prohibit police officers from sitting
on juries in criminal trials because of the potential for—or appearance of—
partiality on the jury. 6
The only state with a statutory prohibition, Oklahoma, provides that
"[j]ailers, or municipal or state law enforcement officers . . . shall be eligible to
serve on noncriminal actions only." 38 Okla. Stat. Ann. § 28 (emphasis added).
6 See, e.g., King v. State, 328 S.E.2d 740, 741 (Ga. Ct. App. 1985) (holding that "if a police officer were challenged for cause in a criminal case, the challenge [must] be granted"); Glover v. State, 552 S.E.2d 804, 806 (Ga. 2001) (reaffirming "that a full-time police officer who is challenged for cause in a criminal case must be excused," though declining to extend this rule to other law enforcement personnel who do not have the power to arrest); Ellis v. State, 736 S.E.2d 412, 420-21 (Ga. 2013) ("A prospective juror must be excused for cause if he is employed as 'a full-time police officer with arrest powers.' . . . That rule does not require a trial court, however, to strike for cause a former law enforcement officer."); State v. Butts, 159 S.W.2d 790, 793 (Mo. 1942) ("It seems incompatible with justice that a defendant who has been apprehended by the police, and against whom police officers are going to testify, should be tried by a jury made up of police officers [from that same police department]."); Commonwealth v. Jones, 383 A.2d 874, 877 (Pa. 1978) (holding that the trial court erred in refusing to strike a police officer forcause where the officer was a member of the same police force which had officers testifying in the case and the credibility of the police was a key issue); Rippy v. State, 550 S.W.2d 636, 642 (Tenn. 1977) (noting that "active or career police officers tend to have an inherent prejudice that should preclude their [jury] service.").
A-2353-21 22 By contrast, opinions from many other jurisdictions expressly do not limit
police from serving on juries in criminal trials. 7 In these more permissive
jurisdictions, additional circumstances are generally required to demonstrate
that an officer's potential bias warrants excusal for cause. See, e.g., Edwards,
7 See, e.g., State v. Hill, 848 P.2d 1375, 1381 (Ariz. 1993) (reviewing a police officer's inclusion in a criminal jury for abuse of discretion, even on request for forcause removal); State v. Benedict, 119 A.3d 1245, 1250-54 (Conn. App. Ct. 2015) (declining to excuse a municipal police officer despite at least some supervision of his department by state police who investigated the case because insufficient detail linked the potential juror to any officer involved in the case); Hall v. State, 12 A.3d 1123, 1125-27 (Del. 2010) (recognizing "law enforcement officers are not automatically disqualified from serving as jurors in criminal cases" but holding the juror, a correctional officer, should have been excused because defendant was charged with assault of another inmate in the same facility where the juror worked, incentivizing the juror to convict to "promote[] a less hostile work environment and the personal safety of the officer."); State v. Ballard, 747 So.2d 1077, 1079-80 (La. 1999) (overruling precedent automatically disqualifying police from serving on criminal juries in favor of a juror-specific approach); Commonwealth v. Ascolillo, 541 N.E.2d 570, 573 (Mass. 1989) ("We decline to adopt a rule that the mere fact that a prospective juror is a police officer, in the absence of a showing of prejudice or partiality, or connection with the particular facts involved at trial, would form the basis to sustain a challenge for cause."); State v. Hinojosa, 242 S.W.2d 1, 7 (Mo. 1951) (limiting the holding in Butts, 159 S.W.2d at 793, to a preference that police officers not be taken from their official duties to fill a jury panel); State v. Edwards, 716 S.W.2d 484, 488 (Mo. Ct. App. 1986) ("the connection of prospective jurors with law enforcement should be carefully scrutinized[,]" not subject to automatic disqualification); State v. Montez, 789 P.2d 1352, 1372 (Or. 1990) (rejecting the argument that "common sense and human experience" suggest police officers cannot be fair and impartial jurors in criminal cases); Commonwealth v. Kelly, 134 A.3d 59, 61-65 (Pa. Super. Ct. 2016) ("A prospective juror's status as a law enforcement officer in and of itself is insufficient to require disqualification as a juror in a criminal case . . . [I]f a police officer has a 'real relationship' to the case, he must automatically be excluded"). A-2353-21 23 716 S.W.2d at 486-88 (holding that "additional circumstances" indicating
partiality were needed to justify excusal for cause); Shane v. Commonwealth,
243 S.W.3d 336, 338 (Ky. 2007) (as modified Apr. 9, 2008) (holding trial court's
denial of challenge for cause to excuse juror who said "he was 'absolutely' pro-
police and that he did not believe an officer would lie under oath" was abuse of
discretion).
Turning back to our own state, we bear in mind the systemic changes to
jury selection adopted by our Supreme Court after the comprehensive review
prompted by Andujar. Among those reforms is the adoption of a new provision
regulating peremptory challenges, Rule 1:8-3A. The Official Comment to Rule
1:8-3A explains that certain associations historically used by counsel to strike
jurors peremptorily can reflect conscious or unconscious improper
discrimination and are presumptively invalid. Pressler & Verniero, Current N.J.
Court Rules, off. cmt. on R. 1:8-3A (2024). The new provision places a burden
on the party using such a peremptory challenge to show that the reason for the
strike is related to the demands of being a juror in that particular case. Ibid. The
comment cites Wash. R. Gen. Application 37(h) for those presumptively invalid
reasons for a peremptory strike. Ibid. Some reasons that relate to relationships
with law enforcement include:
(i) having prior contact with law enforcement officers; (ii) expressing a distrust of law enforcement or a belief
A-2353-21 24 that law enforcement officers engage in racial profiling; (iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime; (iv) living in a high-crime neighborhood; . . . (viii) having friends or family members who were victims of crime . ...
[Wash. R. Gen. Application 37(h).]
This provision, although not expressly applicable to challenges for cause,
heralds a new post-Andujar approach in which past experiences with the
criminal justice system—whether as a crime victim or as a person accused of an
offense—do not automatically justify for-cause excusal. Instead, our present
revised system disfavors the invocation of traditional stereotypes and relies
more upon the individual responses and characteristics of the juror. To be sure,
we do not equate a juror's status as a law enforcement officer with membership
in a group that has historically been discriminated against in jury selection. Our
point instead is that since Andujar, the process is now more focused upon the
experiences and voir dire responses of individual prospective jurors.
The circumstances in this case suggest it may be useful for the case law
of our own state to be amplified, in light of the Court's general guidance thirty -
two years ago in Reynolds, and the more recent developments reforming jury
selection after Andujar. The Court's decision in Reynolds to eschew a
categorical ban on police officers serving as criminal jurors remains unaltered.
124 N.J. at 565. So does the Court's admonition in Reynolds that trial courts,
A-2353-21 25 on a criminal defendant's request, "should be inclined to excuse" a juror who is
a member of the law enforcement community. Ibid.
What factors should guide this inclination? The Public Defender argues
that active-duty police officers within the same county in which a criminal
defendant is being prosecuted "must work closely with" the prosecutor's office
"on a regular basis" as "a necessary component of their jobs." As argued by the
Public Defender, that relationship is indicative of an inability as jurors to
consider the evidence "with the measure of impartiality required by the law."
(citing Jackson, 43 N.J. at 160). On the other hand, the State, through the
Attorney General, maintains that a case-by-case and juror-by-juror assessment
of impartiality is more appropriate than presuming that police officers from
other municipalities within the same county cannot be fair and impartial jurors.
Having considered these arguments, the diverse practices of other states,
and the less-categorical thrust of the post-Andujar jury selection reforms, we
offer the following non-exclusive factors to guide the trial court's individualized
assessments of whether sufficient cause exists to remove a criminal juror
employed in law enforcement:
• whether the juror works for a federal or state agency, rather than a municipal or county law enforcement agency;
• whether the juror has a civil enforcement position, rather than a job focused on the enforcement of criminal laws;
A-2353-21 26 • the scope and nature of the juror's job functions, and whether the juror is on active duty;
• the frequency and nature of the juror's interactions, if any, with the county prosecutor's office;
• subject to confidentiality restrictions, the nature and extent of any involvement by the juror in internal affairs investigations conducted by the prosecutor's office;
• whether the case involves any subjects or criminal laws that have been encountered by the juror within the scope of employment;
• whether a law enforcement officer is alleged to be a victim or defendant in the case;
• the nature of the State's case and the anticipated defenses, including whether the investigation will be criticized as deficient;
• the juror's responses to the court's voir dire questions and whether they suggest partiality;
• the court's perception of the juror's candor and demeanor;
• any other pertinent information bearing on the juror's ability to be fair and impartial.
These factors are neither complex nor surprising. They align with several
of the considerations mentioned in Reynolds or noted in the out-of-state cases.
When developed through open-ended queries, the relevant information may
readily emerge from the prospective juror's narrative responses. No one factor
is dispositive, although the factor concerning the extent of the juror's
interactions with the prosecutor's office ordinarily should have prominent
weight. By illustration, it can be pertinent whether the juror works in the police
A-2353-21 27 records room or as a school crossing patrol, rather than in the homicide or sex
crimes units that regularly interact with prosecutors. We anticipate this list of
factors will aid judges and attorneys to suitably develop the record in future
cases.
We reject the Public Defender's approach to require the for-cause removal
of active-duty police officers from other municipalities within a county because
those officers might interact with the county prosecutor's office. That approach
is overbroad and out of step with post-Andujar reforms that disfavor categorical
removals.
That said, we do endorse one categorical principle. Specifically, if the
juror is employed in any capacity by the same police department or the same
prosecutor's office that is involved in the present case, that juror must be excused
for cause upon counsel's request. There is too close a nexus and too high a risk
of partiality in those same-office circumstances. See, e.g., Jones, 383 A.2d at
877; Butts, 159 S.W.2d at 793-94.
C.
We proceed to apply these principles to the trial court's rulings declining
to strike jurors R.M. and A.A. for cause. As a threshold matter, we are satisfied
that defendant has standing to appeal those rulings, even though neither R.M.
nor A.A. sat on the empaneled jury. The fact that defendant used a peremptory
A-2353-21 28 challenge on A.A., and thereafter exhausted the remainder is sufficient prejudice
to enable the appeal. State v. Bey, 112 N.J. 123, 154 (1988).
With respect to R.M., we conclude the trial court erred in denying
defendant's request to strike him for cause. His voir dire answers reflected "a
lot" of experience with criminal investigations, such as the present case,
concerning domestic violence. He exhibited strong familiarity with the pertinent
criminal statutes, even referring to them by section number ("12-1 or 13-2").
Although R.M. did not personally know the officers and detectives
involved in this case, and his past interactions with the prosecutor's office were
not explored, we agree with defendant that his special job-related knowledge of
domestic assault situations and the applicable criminal laws raised substantial
concerns about his eligibility to serve. In addition, as we noted above in
describing defense counsel's trial strategy and summation—including calling the
lead police detective as a hostile witness—the defense argued this case was
poorly investigated for multiple specific reasons.
Bearing in mind the Court's adoption in Reynolds of a general inclination
to grant defendants' requests to remove police officers for cause, we conclude
the trial court misapplied its discretion in denying defendant's request to remove
R.M. That error, however, was harmless because defense counsel did not
A-2353-21 29 expend a peremptory challenge to remove R.M., and he was not on the jury that
tried the case.
The circumstances of A.A. present a closer call. As we noted, the voir
dire of A.A. was brief and shorter than R.M.'s questioning. A.A. was not
familiar with any of the witnesses and said nothing about past or present
interactions with the prosecutor's office. Unlike R.M., A.A. did not say he had
substantial experience with domestic violence investigations. He had only been
a police officer for three years. Additionally, unlike R.M., A.A. did not cite or
refer to the criminal statutes.
Based on his responses and commitment to be open-minded and fair, the
court denied defendant's request to excuse A.A. for cause. We do not regard
this ruling to be an abuse of discretion on the limited record that was developed.
We therefore affirm the ruling.
[At the direction of the court, the published version of this opinion omits Part III. R. 1:36-3.]
Affirmed.
A-2353-21 30