NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0930-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWIN ANDUJAR,

Defendant-Appellant.

_____________________________

Argued January 15, 2020 – Decided

Before Judges Koblitz, Whipple, and Mawla.

On appeal from the Superior Court of New Jersey, 

Law Division, Essex County, Indictment No. 15-05-

1096.

John Douard, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; John Douard, of counsel 

and on the briefs).

Frank J. Ducoat and Emily M. M. Pirro, Special 

Deputy Attorney Generals/Acting Assistant 

Prosecutors, argued the cause for respondent 

(Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney; Frank J. Ducoat and Emily M. 

M. Pirro, of counsel and on the brief).

The opinion of the court was delivered by

February 24, 2020

APPROVED FOR PUBLICATION

February 24, 2020

APPELLATE DIVISION
A-0930-17T1 2

WHIPPLE, J.A.D.

Defendant Edwin Andujar appeals from an August 17, 2017 judgment of 

conviction entered after a jury found him guilty of first-degree purposeful or 

knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2); fourth-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Because the State 

performed a criminal background check on the one Black juror it 

unsuccessfully sought to exclude for cause, and the trial court then allowed an 

unverified municipal warrant to result in the juror's exclusion, we now reverse. 

Defendant raises the following issues on appeal.

POINT I

DURING JURY SELECTION, THE PROSECUTOR 

PERFORMED A RECORD AND WARRANT 

CHECK ON ONLY ONE PROSPECTIVE JUROR, A 

YOUNG [BLACK] MAN WHO ACKNOWLEDGED 

DURING VOIR DIRE THAT HE HAD FRIENDS 

AND FAMILY WHO HAD CONTACTS WITH THE 

CRIMINAL JUSTICE SYSTEM, THEREBY 

VIOLATING THE SPIRIT OF BATSON/GILMORE1

BY DENYING ANDUJAR HIS RIGHT TO A JURY 

OF HIS PEERS AND DENYING THE JUROR HIS 

RIGHT TO SERVE ON THE JURY. MOREOVER, 

THE PROCEDURE PURSUED BY THE 

PROSECUTOR, IF PERMITTED, IS LIKELY TO 

1

 Batson v. Kentucky, 476 U.S. 79 (1986); State v. Gilmore, 103 N.J. 508 

(1986) (adopting Batson framework).
A-0930-17T1 3

REDUCE JUROR PARTICIPATION FOR FEAR OF 

REPRISALS BY THE STATE.

POINT II

IMPROPER COMMENTS MADE BY THE 

PROSECUTOR IN SUMMATION EXCEEDED THE 

BOUNDS OF PROPRIETY BY INFLAMING AND 

MISLEADING THE JURY, THEREBY DEPRIVING 

THE DEFENDANT OF HIS RIGHTS TO DUE 

PROCESS AND A FAIR TRIAL.

POINT III

THE JUDGE DEPRIVED DEFENDANT OF HIS 

RIGHTS TO PRESENT A DEFENSE, TO DUE 

PROCESS, AND TO A FAIR TRIAL BY 

IMPROPERLY PRECLUDING DEFENSE 

COUNSEL FROM INTRODUCING EVIDENCE 

THAT [DECEDENT]'S DEATH WAS A RESULT OF 

HIS PREEXISTING MEDICAL CONDITIONS, AND 

DELAY IN TRANSPORTING HIM TO THE 

HOSPITAL; AND FURTHER, BY FAILING TO 

PROVIDE THE DEFENDANT'S VERSION OF 

CAUSATION IN THE FINAL JURY CHARGE. U.S. 

CONST. AMENDS. V, XIV; N.J. CONST. ART.1 

PARS.1,10.

A. After Permitting Evidence That 

[Decedent]'s Preexisting Medical 

Conditions Combined With The Delay In 

Transporting Him To The Hospital For 

Surgery Were Contributing Factors In 

Causing His Death, The Judge Barred 

Defense Counsel From Arguing The 

Causation Issue In Her Summation.

B. The Judge's Jury Charge On Causation 

Only Provided The Jury With The State's 

Theory Of Causation, And Explicitly Told 
A-0930-17T1 4

The Jury Not To Consider [Decedent]'s 

Medical Condition As An Intervening 

Cause Of His Death.

POINT IV

THE [FORTY-FIVE] YEAR AGGREGATE PRISON 

TERM, WITH A [THIRTY-EIGHT] YEAR PERIOD 

OF PAROLE INELIGIBILITY WAS MANIFESTLY 

EXCESSIVE AND UNDULY PUNITIVE.

Having reviewed all defendant's arguments and the record presented, we 

determined points two, three and four lack sufficient merit to warrant 

discussion in a written opinion, Rule 2:11-3(e)(2). Therefore, we concern 

ourselves here only with the jury selection process and whether defendant was 

denied his right to a fairly selected jury.

During jury selection, prospective juror F.G.2 was called to seat number 

thirteen. F.G. told the court that there was no reason he could not be fair and 

impartial in this case. He stated that he answered affirmatively to voir dire 

questions 29, 30, and 31.3 When asked about question 29, he explained that he 

2

 We use the prospective juror's initials to protect his identity.

3

 The relevant portion of the jury questionnaire read:

29. Have you or any family member, close friend, or 

acquaintance ever worked for an agency such as 

a police department, prosecutor's office, the 

FBI, DEA, a sheriff's department, jail, prison, 

the Innocence Project, ACLU, private 
A-0930-17T1 5

had one cousin who worked as a Newark police officer and another cousin who 

worked as an Irvington police officer. He said he did not discuss their work 

with them and that nothing about his relationship with them would interfere 

with his ability to be fair and impartial. When asked who was accused of a 

crime in regard to question 30, he responded: "A host of people." He also 

stated "I know a host of people. I got two cousins too,"

4 when asked who the 

victim was in regard to question 31.

The court called F.G. to sidebar to discuss his responses in more detail. 

The judge asked F.G. how many people were accused, and F.G. answered: "I 

know a lot of people." When pressed for numbers, F.G. estimated that five or 

six close friends were accused and three were victims. The court asked: 

"[W]ith regard to the way anybody was a victim[,] . . . was accused[, or] was 

treated by the criminal justice system[, does] that provide any reason for you 

investigator's office or criminal defense 

attorney, in N[ew] J[ersey] or elsewhere?

30. Have you, any family member or close friend 

ever been accused of committing an offense 

other than a minor motor vehicle offense?

31. Have you, any family member or close friend 

ever been the victim of a crime, whether it was 

reported to law enforcement or not?

4

 We do not correct the statements made by F.G.
A-0930-17T1 6

to say you might not be able to be a fair and impartial juror in this case?" F.G. 

responded: "No. No." F.G. addressed each of the close friends one at a time.

Regarding the first accused friend, F.G. said the friend had been selling 

drugs in Newark; he remarked: "I don't know about the case. I just—they get 

locked up after that it ain't got nothing to do with it." F.G. did not know 

whether the friend pled guilty or had been tried, but he said he believed the 

friend had been treated fairly by the justice system. As to his relationship with 

this friend, F.G. said: "I went to high school with him, told him to come by 

my mother's, hey, what is up, keep it moving." He said he had not seen the 

friend since he was arrested.

F.G. stated that a second friend was also arrested for selling a controlled 

dangerous substance (CDS). He did not know what happened with him, but he 

assumed it was the same as with his first friend. He said he had no impression

concerning whether the second friend was treated fairly by the judicial system: 

"Honestly, I don't have any problem as long as I stay out of it." He also did 

not know whether the second friend was tried or pled guilty. F.G. stated that 

he believed the third friend was arrested for selling drugs at the same time as 

the second friend and that the third friend was home, so he assumed he had 

been treated fairly. When asked if these friends had been prosecuted by the 
A-0930-17T1 7

Essex County Prosecutor's Office, F.G. explained that he did not know because 

he did not "get into their business" and did not go to their court cases.

F.G. recalled that a fourth friend was charged with gun possession about 

seven years earlier. He had no impression of whether the friend had been 

treated fairly and they never talked about his case. He said "I don't know if he 

pleaded guilty. All I know he got trigger locked and he went away." He 

explained "trigger locked" meant that the friend had three gun charges against 

him, and "after the third one he went to the feds." When asked how he knew 

about "trigger locked," he said "I grew up in a neighborhood where it just ain't

good. You learn a lot of things from the streets."

F.G. could not think of anyone else who had been charged with a crime. 

Regarding the victims, he stated that he had two cousins who were murdered. 

One was stabbed in Newark fifteen years earlier, and the person arrested and 

tried for the murder was acquitted. He stated he was upset the individual was 

not convicted but he mostly stayed away from the whole situation. The other 

cousin was shot in Kentucky thirteen years earlier and the perpetrator was 

convicted and sent to prison. F.G. also recalled that a friend of his was robbed 

two years earlier and no one was apprehended for the crime. When asked what 

he thought about that, he stated "[a] lot of my friends live that lifestyle, so I 

think it just come with the territory."
A-0930-17T1 8

When the court asked if F.G. thought the fact that he knew people who 

were accused of crimes and who were the victims of crimes would make him a 

better juror than someone without those life experiences, F.G. said: "No" and 

that he would view the evidence "the same as anybody else, background would 

affect them." When asked for an explanation, he stated:

What I was saying was, like, everybody in here, jurors 

and everybody, got a background. And, you know, 

this is different, that is why you getting judged by 

what [fourteen], [thirteen], and everybody got 

different perspectives about everything.

So, you know, what I'm saying, mine's might be 

a little different than the next person. The next 

person's might be a little different according to where 

they grew up and how they grew up.

With regard to his background specifically and the "lifestyle" he 

referenced, F.G. explained "a lot of friends I grew up in neighborhood, they 

hustle, they selling drugs; that is what I meant by the lifestyle."

F.G. went over his answers to the remainder of the jury questionnaire. 

He stated that he graduated from high school and attended some college 

classes. He worked for a municipal Department of Public Works, and in his 

spare time he coached youth football. He said he believed that the criminal 

justice system is fair because you are judged by your peers.

After F.G. was sent back to his seat, the prosecutor requested that the 

court remove him for cause because
A-0930-17T1 9

[h]e has an awful lot of background. He says

that he wants no parts of any of this, but he has a host, 

using his own language, of friends and family that 

have been accused of crimes, same as being victims.

But when asked to give a number, he just kind 

of guessed at the number, [j]udge, he gave us a 

number that would satisfy us, the State submits. And I 

just felt that there [are] more people that he knows are 

accused and even more that could be victims. I think 

on a case like this he has had two cousins that were 

murdered, one was involved in a stabbing and a 

domestic dispute. It sort of mirrors the facts of this 

case. It is a risk to take a chance on somebody that 

might have a, you know, problem with his cousin 

getting murdered in a domestic dispute when we have 

the same set of facts in this case almost mirroring it.

You know, he has‒he uses all of the lingo about, 

you know, the criminal justice system, talked about 

people getting picked up, talked about people getting 

trigger locked, talked about CDS, talks about the 

lifestyle. I just think that given his background and 

his extensive background in the criminal justice 

system with friends and family and knowing what the 

testimony in this case is going to be is problematic.

And I think the juror should be excused for cause 

based on his answers to those questions.

In addition, a second assistant prosecutor added the following reasons:

What I think is very concerning his close friends 

hustle, engaged in criminal activity. That is how his 

friends make a living. That draws into question 

whether he respects the criminal justice system, 

whether he respects what his role is here, and whether 

he is going to uphold all of the principles that he was 

instructed by your [h]onor. 
A-0930-17T1 10

Additionally, I don't think that he was as 

forthcoming about his knowledge of the system. I 

know towards the end after probing by counsel and by 

your [h]onor, he did admit he knew a term such as 

"trigger locking" and the way things worked. But in 

the beginning he seemed to just not be forthcoming, 

no, I don't really know, I know they are locked up, I 

don't hear anything. I don't think he was being fully 

honest.

Defense counsel opposed the application, arguing that "the State's 

position is untenable in the sense that it means that no Black man in Newark 

would be able to sit on this jury." The court stated he understood defense 

counsel's point and denied the request, stating:

I don't think there has been any reason at all that this 

juror should be excused for cause.

. . . .

Everything he said and the way he said it leaves 

no doubt in my mind that he's not expressed or does 

not have any bias towards the State nor the defense for 

anything. What he said, how he said it. I think he 

would make a fair and impartial juror. I don't have 

any reason to doubt it, so that application is denied.

After the juror was seated, the assistant prosecutor conducted a criminal 

record check on F.G. The next day, the judge revealed on the record that the 

prosecutor came to see him in chambers the previous afternoon to talk about 

F.G.:

[The prosecutor] said basically that the man had been 

arrested before. He had warrants out for him. They 
A-0930-17T1 11

were going to lock him up. And then they gave me 

some papers, I guess, corroborating what they were 

saying, which was incident reports and some printouts.

. . . . 

One warrant out of Newark Municipal Court. My 

question is simple. What application of relief does 

either side have because the court only responds to 

application[s] of relief.

The prosecutor renewed her application to have F.G. removed for cause. 

Defense counsel initially did not oppose the State's application but requested 

that F.G. be arrested out of the presence of the jury pool. The court and the 

prosecutor agreed that the arrest would be executed elsewhere in the 

courthouse.

Later, the court asked the sheriff's officer to look outside to see if F.G. 

was there. The officer confirmed F.G.'s presence and the prosecutor made a 

phone call to determine the best way to isolate him from the other prospective 

jurors. At that point, defense counsel expressed concern that arresting F.G. 

would taint the entire jury and asserted: "I think coming to court for jury 

service no one expects they are going to be looked up to see if they have 

warrants." The court suggested a plan whereby all prospective jurors would be 

seated and then F.G. would be excused with directions to report to the first 

floor. "And when he walks out of this courtroom, it will not be to the first 

floor he returns. It will be into the grasp of your law enforcement officer."
A-0930-17T1 12

The prosecutor agreed to this plan and added that the State was not in the 

habit of looking at random jurors' criminal histories. She asserted the check 

was conducted because of F.G.'s acknowledgement that he associated with 

people who "hustle drugs," and the court's refusal to excuse him for cause. 

Her research revealed that F.G. had an open municipal warrant as well as two 

arrests in the past "both for domestic violence where it seems he has an alleged 

habit of beating up women." The prosecutor also rejected defense counsel's 

assertion that her motion to remove F.G. for cause was based on racial bias. In 

making these statements, the prosecutor referred to a meeting in chambers, that 

is not transcribed or otherwise contained in the record, in which defense 

counsel accused her of moving against F.G. because of racial bias.

An argument ensued between the attorneys, which the court cut short 

stating:

I'm stopping this. . . . Nobody asked this court 

for any relief. The only thing that I know is the 

prosecutor, based on new information, made an 

application, applied to excuse the juror for cause. 

Defense counsel did not disagree or consent[] to it. So 

they were excused for cause. That is the only [horse] 

the court had in the race.

The court took a short break, after which defense counsel said that she 

had the opportunity to speak with her office and she withdrew her consent to 

the dismissal of F.G. for cause. She requested as a remedy for the State's 
A-0930-17T1 13

action that defendant be awarded an additional peremptory challenge. The 

court reserved on the application and directed counsel to try to reach a 

compromise on the matter.

The court then called in the jury pool, and informed F.G. that he was 

excused and that he should report to the first floor. F.G. left, after wishing that 

the court "[h]ave a nice day." He was arrested immediately thereafter once 

officers checked to make sure the hallway was clear of potential jurors.

Counsel were unable to reach an agreement on the remedy for F.G.'s 

dismissal for cause and continued to argue as to whether the State's action was 

legally supportable. The prosecutor contended that it did not matter because 

F.G. was under arrest and unavailable for jury duty. She also claimed that 

F.G. had been dishonest in his answers to the court's questions, to which 

defense counsel replied that there was no evidence that F.G. knew that he had 

accusations against him. The court found that there was no reason to grant the 

relief defense counsel was seeking and the court formally denied defendant's 

application for an extra peremptory challenge.

Additional voir dire ensued, after which all counsels stated that they 

were satisfied with the jury as seated. At that point, the State had one 

peremptory challenge remaining, and defendant had two.
A-0930-17T1 14

On appeal, defendant argues the implicit bias in the prosecutor's 

procedure renders the procedure constitutionally suspect because it violates the 

underlying constitutional principles that protect both defendant and potential 

jurors from discriminatory jury selection processes. Defendant argues that the 

prosecutor's selective use of a background check, on a Black juror, as a means 

of making the juror unavailable, impermissibly allowed the State to circumvent 

a Batson v. Kentucky, 476 U.S. 79 (1986) determination. We agree.

I

We are confronted with the following questions: (1) whether the 

prosecutor improperly utilized a criminal record check to selectively 

investigate a single minority member of the jury; and (2) whether the Batson

framework is applicable to situations where a prosecutor has the prospective 

juror arrested, based on that selective criminal record check, after a court 

decides the juror should not be dismissed for cause and a Batson question has 

been raised. Before reaching the underlying merits of this claim, we must first 

address the State's contention that defendant waived the right to challenge the 

jury composition on appeal.

There is no question that "[t]he jurisdiction of appellate courts rightly is 

bounded by the proofs and objections critically explored on the record before 

the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 
A-0930-17T1 15

(2009). The trial court must be alerted to the "basic problem" and have the 

opportunity to consciously rule upon it before the issue may be raised for 

appellate review. Ibid. (citations and internal quotation omitted); see also

State v. Witt, 223 N.J. 409, 419 (2015) (noting our appellate courts will 

decline to consider issues not properly presented to trial court when 

opportunity for such presentation is available). The New Jersey Supreme 

Court observed:

[I]f late-blooming issues were allowed to be raised for 

the first time on appeal, this would be an incentive for 

game-playing by counsel, for acquiescing through 

silence when risky rulings are made, and, when they 

can no longer be corrected at the trial level, unveiling 

them as new weapons on appeal.

[Robinson, 200 N.J. at 19 (quoting Frank M. Coffin, 

On Appeal: Courts, Lawyering, and Judging 84-85 

(W.W. Norton & Co. 1994)).]

The law as stated in Robinson, and Witt, does not bar defendant from 

challenging F.G.'s dismissal. This issue was clearly raised by defense counsel 

at trial. Virtually the first action taken by defense counsel, when she heard the 

State's motion to dismiss F.G., was to object to the prosecutor's use of a record 

check to exclude an urban Black man from the jury. Thus, the charge of racial 

profiling in the selective performance of record checks was plainly in front of 

the trial court. Additionally, the court heard argument on issues surrounding 

F.G. and had ample opportunity to rule upon them. The court made no formal 
A-0930-17T1 16

ruling, however, because it recognized what defendant raises in his response to 

the State's argument; once F.G. was arrested by the State, the court had no 

choice but to excuse him for cause, since he was rendered unavailable by his 

arrest. Likewise, once F.G. was arrested, there was no point in defense 

counsel continuing to argue that he should be seated on the jury.

The situation here is analogous to what occurs in a Batson challenge. 

The procedure that is followed when a defendant claims bias in the 

prosecution's exercise of peremptory challenges requires that the defendant 

raise a timely objection during or at the end of jury selection. State v. 

Gilmore, 103 N.J. 508, 535 (1986). The defendant is not deprived of an appeal 

if his objection is overruled and the matter proceeds to trial before a jury to 

which he ultimately assents. Similarly, here, defense counsel made known her 

objection to the prosecutor's performance of a criminal record check on F.G., 

her lack of consent to the for-cause dismissal of F.G., and her desire for some 

sort of remedy. For these reasons, it would be fundamentally unfair to deprive 

defendant of the right to appeal the actions of the prosecutor, and the rulings of 

the court in declining to grant defendant any remedy.

II

We now turn to the question of whether the prosecutor improperly 

utilized the criminal record check in selectively investigating a single minority 
A-0930-17T1 17

member of the jury. The only case in New Jersey that has considered the 

propriety of a prosecutor conducting criminal background checks on 

prospective jurors is In re State ex rel. Essex Cty. Prosecutor's Office, 427 N.J. 

Super. 1 (Law Div. 2012). There, Assignment Judge Patricia Costello denied 

the State's request that the "court order the jury manager to turn over the dates 

of birth of certain persons in the petit jury pool to the State to facilitate 

running criminal background checks on those potential jurors." Id. at 4, 26.

In analyzing the State's request, Judge Costello reviewed the evolution 

of voir dire questioning of potential jurors in New Jersey. Id. at 6-13. She 

noted that New Jersey laws concerning questioning of potential jurors 

originated from the English common law tradition in which examination was 

only allowed after a litigant posed a challenge for cause, supported by extrinsic 

evidence. Id. at 7. Through a progression of Supreme Court decisions, 

legislation, court rule changes, and administrative directives, the modern 

practice developed in which the responsibility for voir dire questioning was 

placed in the hands of the trial judge, who could question jurors "only 

according to limited prescribed guidelines and almost never under oath." Id. at 

6-13.

The judge observed that "the action proposed here by the State would 

represent a next step in a progression from a system in which jurors are 
A-0930-17T1 18

implicitly trusted to one in which their disinterest and qualifications to sit on a 

case are verified by pre-trial investigation." Id. at 13-14. The judge cautioned

that such a next step would represent an "acute departure" from the practice 

currently established where the Judiciary bears the responsibility of inquiring 

into the qualification of potential jurors. Id. at 14.

The State contended that confirming whether jurors are qualified to 

serve falls under the enforcement power granted to a county prosecutor by 

N.J.S.A. 2A:158-5. Id. at 15. Further, it argued that the Administrative Code, 

N.J.A.C. 13:59-2.1, allows criminal justice agencies to access criminal history 

record information. Ibid. Judge Costello recognized the authority granted to 

the prosecutor by these provisions but noted that "[n]owhere . . . does it state 

that the court is obligated to provide other criminal justice agencies with 

information they require in order to facilitate criminal background checks." 

Ibid.

Judge Costello specifically noted that "[t]he issue of whether N.J.A.C. 

13:59-1 to -2.4 actually authorizes the State to conduct criminal background 

checks on potential jurors is not before the court in this application." Id. at 19 

n.15. Rather, her holding addressed only the court's obligation to turn over 

potential jurors' birthdates to the prosecution. In finding that such information 

was privileged, the judge relied on the jurors' reasonable expectation of 
A-0930-17T1 19

privacy in the information they provided in their juror qualification forms. Id.

at 18-19. She concluded:

If the Judiciary is to disseminate the personal 

information it collects from administering the county's 

jury-related functions, it must first and foremost be 

convinced that there is a genuine need that can in 

some way be addressed by that dissemination. Here, 

although the State's brief demonstrates that 

unqualified individuals' service as jurors can be a 

legitimate public problem, it does not demonstrate that 

it has been so in New Jersey, or that this problem is 

sufficiently serious as to merit the solution it 

proposes. Its proposed relief would not merely serve 

the neutral concerns of ensuring the efficiency and 

validity of court proceedings, but would instead in 

large part serve to benefit the State's own interests at 

the expense of criminal defendants.

[Id. at 20.]

Under Rule 1:8-5, the clerk of the court must provide any requesting 

party a list of the general panel of petit jurors at least ten days prior to the date 

of trial. Id. at 22-23. Also provided under Rule 1:8-5 is each juror's 

municipality, but not his or her street address. Id. at 23 n.17. Judge Costello 

ruled the assignment judge lacked both statutory and constitutional authority to 

disseminate any other identifying information contained in prospective jurors' 

questionnaires. Id. at 24.

In dicta, she commented:

[A]ll of the opponents of the State's motion note the 

very real possibility of abuse should the State be given 
A-0930-17T1 20

the information requested in its motion without 

sufficient oversight. The ACDL-NJ[5]argues that, if 

the motion were to be granted, it would be entirely in 

the State's discretion to decide which jurors to 

research and for what reasons. This raises the specter 

of concerns addressed in Batson . . . and . . . Gilmore

. . . i.e. issues of fairness in jury composition. These 

concerns are legitimate, and the State offered no 

substantive proposals to alleviate them.

[Id. at 25.]

Like in Essex County, the question of whether New Jersey laws 

authorize the State generally to conduct criminal background checks on 

potential jurors is not before us. The New Jersey Administrative Code 

addresses when prosecutors can run criminal record checks. N.J.A.C. 13:59-

2.1(a) provides:

Criminal justice agencies, for purposes of the 

administration of criminal justice, may obtain from the 

SBI[6] or otherwise access information collected by 

criminal justice agencies concerning persons and 

stored in the central repository of the New Jersey State 

Police SBI, the National Crime Information Center . . . 

or other states' computerized repositories containing 

criminal history record information.

[(Emphasis added).]

N.J.A.C. 13:59-2.4(b), provides:

5

 Association of Criminal Defense Lawyers of New Jersey.

6

 N.J.A.C. 13:59-1.1 defines "SBI" as "the State Bureau of Identification 

created by N.J.S.A. 53:1-12 as a bureau within the Division of State Police."
A-0930-17T1 21

The [SBI] shall prominently display the following on 

any record disseminated for criminal justice purposes.

Use of this record is governed by Federal 

and state statutes and regulations. Unless 

fingerprints accompanied your inquiry, the 

[SBI] cannot guarantee this record relates 

to the person who is the subject of your 

request. Use of this record shall be limited 

solely to the authorized criminal justice 

purpose for which it was given and it shall 

not be further disseminated for any other 

purpose. . . .

A person is presumed innocent of any 

charges or arrests for which there are no 

final dispositions indicated on the record. 

This record is certified as a true copy of 

the criminal history record information on 

file for the assigned SBI number.

[(Emphasis added).]

We question whether performing a criminal record check for the purpose 

of disqualifying a juror at trial supports "the administration of justice." 

Additionally, the prosecutor performed the check on F.G. based on his name, 

which the State claims was "sufficiently unique." It offered no proof of that 

claim. Without a fingerprint, social security number, birthdate, or even a street 

address, there was no way to be sure the records the State obtained pertained to 

F.G., who had reported to the courtroom for jury duty. The regulation itself 

warns that without fingerprints the SBI cannot guarantee that the record relates

to the subject of the request.
A-0930-17T1 22

The municipal warrant that the State uncovered is not part of the record 

on appeal. Nor is there any documentation to support the prosecutor's 

assertion that F.G. "beat women." We emphasize New Jersey does not bar 

people from juries because they have been arrested, nor do we bar people who 

have municipal warrants or convictions for traffic violations, juvenile offenses 

or other non-indictable offenses. New Jersey requires that jurors "shall not 

have been convicted of any indictable offense under the laws of this [s]tate, 

another state, or the United States." N.J.S.A. 2B:20-1(e).

It is unknown if there were domestic violence accusations against F.G., 

and if so whether they arose from police incident reports, proceedings in the 

family court, or criminal charges. Further, the nature of the municipal warrant 

is unknown. If it was the result of unpaid traffic violations, then F.G. may not 

have been intentionally lying when he said he had never been accused of an 

offense other than a minor motor vehicle offense.7

7

 According to the Report of the Supreme Court Working Group on the 

Municipal Courts dated July 8, 2019, the Supreme Court Committee was 

charged with conducting a reform-minded review of Municipal Court 

practices, particularly those that can have a detrimental effect on individuals 

with lesser means. Report of the Supreme Court Working Group on the 

Municipal Courts 1 (July 8, 2019). One of the initiatives realized was the 

development of a multi-pronged approach to ensure that bench warrants are 

issued only when they may be useful and necessary. Id. at 4. Consistent with 

that end, in January 2019, the Chief Justice signed an order on behalf of the 

Supreme Court dismissing over three quarters of a million minor Municipal 
A-0930-17T1 23

Although we do not reach the question of whether a criminal record 

check is authorized during jury voir dire, a more complete record should have 

been made before the court granted the prosecutor's request to dismiss F.G. for 

cause. F.G. was a seated juror under the court's control, and therefore, the 

State should not have undertaken such measures that would render a seated 

juror unavailable without leave of court. The results of the criminal 

background check should have been read into the record. All arguments on the 

matter should have been transcribed rather than conducted off the record in 

chambers. Most importantly, because it is the judge's role to preside over the 

trial and promote respect for the process, the judge should have questioned

F.G.—out of the presence of other prospective jurors—about the results of the 

record check. F.G. would thus have had the opportunity to confirm whether he 

was the actual subject of the record check and whether he was aware that a 

municipal warrant had been issued against him.

III

Court matters that were at least fifteen years old due to questions of fairness, 

the use of public resources and the ability of the State to prosecute them. New 

Jersey Courts, Supreme Court Dismisses Old Municipal Court Warrants in 

Minor Matters (Jan. 17, 2019), 

https://njcourts.gov/pressrel/2019/pr011719a.pdf. We do not know if the 

municipal warrant in this matter would have fallen into that category.
A-0930-17T1 24

Recognizing a more complete record should have been made, we now 

turn to the facts of the instant case to determine whether the prosecutor's 

selective investigation, on a single minority member of the jury, and the 

consequences which stemmed therefrom are permissible under a 

Batson/Gilmore analysis.

Defendant asserts that the portions of F.G.'s voir dire that the State calls 

suspicious represent experiences that many young, urban minorities share. 

Defendant argues the prosecutor's suspicion that a record check would turn up 

grounds for excluding F.G. from the jury was the result of the implicit bias 

inherent in many aspects of the criminal justice system. For that reason, and in 

light of the law established by Batson, 476 U.S. at 84, Gilmore, 103 N.J. at 

523, and State v. Osorio, 199 N.J. 486, 492-93 (2009), defendant urges the 

court to reverse his conviction and remand the matter for a new trial.

The State argues the prosecutor's conduct was not based on bias and was 

supported by F.G.'s answers to voir dire questions. It maintains that under a 

Batson/Gilmore analysis, "defendant could not have shown even a prima facie 

case of discrimination in the prosecutor's checking of prospective jurors' 

backgrounds".

The United States Supreme Court has long recognized that the 

Constitution forbids striking even a single juror for a discriminatory purpose. 
A-0930-17T1 25

See Foster v. Chatman, 136 S. Ct. 1737 (2016). Indeed, the Court has made 

clear that racial discrimination in the selection of a jury violates a defendant's 

right to equal protection of the law, unconstitutionally excludes an individual 

from jury service, and harms the entire community by undermining public 

confidence in the fairness of our judicial system. Batson, 476 U.S. at 86-87. 

"Discrimination within the judicial system is most pernicious because it is 'a 

stimulant to that race prejudice which is an impediment to securing to [Black

citizens] that equal justice which the law aims to secure to all others.'" Id. at 

87-88 (quoting Strauder v. West Virginia, 100 U.S. 303, 308 (1880)).

In Batson, 476 U.S. at 96-98, the Court recognized that the Equal 

Protection Clause of the United States Constitution prohibits the use of 

peremptory challenges to exclude jurors on account of their race and provided 

a three-step framework to determine when the challenges are improperly used. 

First, the opponent of the peremptory challenge must "make a prima facie 

showing that [the] challenge has been exercised on the basis of race." State v. 

Thompson, 224 N.J. 324, 339 (2016) (discussing the Batson framework). 

"Once this burden has been met, the prosecutor 'must offer a race-neutral basis 

for striking the juror in question.'" Ibid. (citation omitted). Lastly, the trial 

judge is tasked with determining whether the opponent proved intentional 

discrimination. Ibid.
A-0930-17T1 26

Utilizing the Batson framework, the Court in Hernandez v. New York, 

500 U.S. 352, 359-60 (1991), instructed that when addressing the question of 

whether a peremptory challenge violates the Equal Protection Clause, courts 

"must keep in mind the fundamental principle that 'official action will not be 

held unconstitutional solely because it results in a racially disproportionate 

impact. . . . Proof of racially discriminatory intent or purpose is required to 

show a violation. . . .'" In that case, the defendant objected to the State's use of 

its peremptory challenges to exclude Latino potential jurors. Id. at 355-56. 

The State asserted its basis for striking the jurors in question was based on its 

uncertainty that the bi-lingual jurors would be able to listen and follow the 

interpreter. Id. at 356. The Court found that disparate impact is not 

conclusive in the preliminary race-neutrality step of Batson, as an argument 

relating to the impact of a classification does not alone show its purpose. Id. at 

361-63.

Instead, the Court noted disparate impact is germane to the trial court's 

consideration of whether purposeful discrimination existed. Id. at 363. The 

Court added "'[a]n invidious discriminatory purpose may often be inferred 

from the totality of the relevant facts, including the fact, if it is true, that the 

[classification] bears more heavily on one race than another.'" Ibid. (alteration 

in original) (citation omitted). Stated differently, the Court instructed that a 
A-0930-17T1 27

trial court may consider the fact that a prosecutor's peremptory challenge 

results in the disproportionate exclusion of members of a certain race in 

determining whether the State's reason constitutes a pretext for racial 

discrimination. Id. at 363-64.

Recently, in Flowers v. Mississippi, 139 S. Ct. 2228, 2251 (2019), the 

Court emphasized the importance of assessing all the relevant facts and 

circumstances when determining whether a peremptory strike was motivated in 

substantial part by discriminatory intent. In that case, a Black male defendant

was tried six separate times for the murder of four employees of a Mississippi 

store, three of whom were White. Id. at 2234, 2236. There, the Court assessed 

the relevant history of the first four trials and concluded the history of the case 

strongly supported that the State's use of peremptory strikes, in the sixth trial, 

was motived in substantial part by discriminatory intent. Id. at 2245-46. The 

Court noted:

Stretching across [defendant]'s first four trials, the 

State employed its peremptory strikes to remove as 

many [B]lack prospective jurors as possible. The 

State appeared to proceed as if Batson had never been 

decided. The State's relentless, determined effort to 

rid the jury of [B]lack individuals strongly suggests 

that the State wanted to try [defendant] before a jury 

with as few [B]lack jurors as possible, and ideally 

before an all-[W]hite jury.

[Id. at 2246.]
A-0930-17T1 28

The Court stated that four critical facts, taken together, warranted reversal: (1) 

the State utilized its peremptory challenges, in the six trials combined, to strike 

forty-one of the forty-two Black prospective jurors; (2) in the sixth trial the 

State used its peremptory strikes on five of the six Black prospective jurors; 

(3) "at the sixth trial, in an apparent effort to find pretextual reasons to strike 

[B]lack prospective jurors, the State engaged in dramatically disparate 

questioning of [B]lack and [W]hite prospective jurors;" and (4) "the State then 

struck at least one [B]lack prospective juror . . . who was similarly situated to 

[W]hite prospective jurors. . . ." Id. at 2235.

Although the Court declined to decide whether any of those four facts 

alone would require reversal, id. at 2235, it stated that disparate questioning, 

along with other evidence, may inform the trial court's evaluation as to 

whether discrimination occurred, id. at 2248. The Court noted:

[T]his Court's cases explain that disparate questioning 

and investigation of prospective jurors on the basis of 

race can arm a prosecutor with seemingly race-neutral 

reasons to strike the prospective jurors of a particular 

race. . . . [A] prosecutor can try to find some 

pretextual reason–any reason–that the prosecutor can 

later articulate to justify what is in reality a racially 

motivated strike. And by . . . not asking [W]hite 

prospective jurors those same questions, the 

prosecutor can try to distort the record so as to thereby 

avoid being accused of treating [B]lack and [W]hite 

jurors differently. Disparity in questioning and 

investigation can produce a record that says little 

about [W]hite prospective jurors and is therefore 
A-0930-17T1 29

resistant to characteristic-by-characteristic 

comparisons of struck [B]lack prospective jurors and 

seated [W]hite jurors. . . . A court confronting that 

kind of pattern cannot ignore it. The lopsidedness of 

the prosecutor's questioning and inquiry can itself be 

evidence of the prosecutor's objective as much as it is 

of the actual qualifications of the [B]lack and [W]hite 

prospective jurors who are struck or seated. . . . 

[Id. at 2247-48.]

After Batson, our Supreme Court, in Gilmore, 103 N.J. at 524, 

"determined that the provisions of the New Jersey Constitution, Article I, 

Paragraphs five, nine, and ten, likewise prohibited a prosecutor from 

exercising peremptory challenges on the basis of religious principles, race, 

color, ancestry, national origin, or sex." Thompson, 224 N.J. at 340. There, 

the Court explained the main point of drawing a jury from a representative 

cross-section of the community is "to achieve an overall impartiality by 

allowing the interaction of the diverse beliefs and values the jurors bring from 

their group experiences. . . ." Gilmore, 103 N.J. at 525 (quoting People v. 

Wheeler, 583 P.2d 748, 761 (Cal. 1978)). The three-step Batson/Gilmore

methodology was refined slightly in Osorio, 199 N.J. at 492-93, where the 

Court explained the requirements of each stage of the process.

For the first step, the Court clarified that the burden of establishing a 

prima facie case is not intended to be onerous and will be satisfied if the 

defendant produces sufficient evidence to draw an inference that 
A-0930-17T1 30

discrimination has occurred. Id. at 501-02. Once a prima facie case is 

established, the second step shifts the burden to the prosecution to articulate a 

clear and reasonably specific explanation justifying its action. Id. at 504. The 

Osorio court cautioned that in deciding whether the prosecutor has 

successfully rebutted the inference, "the trial court must be sensitive to the 

possibility that 'hunches,' 'gut reactions,' and 'seat of the pants instincts' may be 

colloquial euphemisms for the very prejudice that constitutes impermissible 

presumed group bias or invidious discrimination." Id. at 505 (quoting 

Gilmore, 103 N.J. at 539).

The third step requires the trial court to judge the defendant's prima facie 

case against the prosecution's rebuttal to determine whether the defendant has 

carried the ultimate burden of proving, by a preponderance of the evidence, 

that the prosecution's actions were exercised on grounds of presumed group 

bias. Id. at 506. The Osorio Court cited approvingly State v. Clark, 316 N.J. 

Super. 462, 473-74 (App. Div. 1998), as setting forth the factors the trial court 

should consider when engaging in such an analysis. 199 N.J. at 506-07. These 

factors include whether the prosecution has applied the reasons proffered for 

its actions evenhandedly to all prospective jurors, the overall pattern of the 

prosecution's actions, and the composition of the jury ultimately selected to try 

the case. Ibid.
A-0930-17T1 31

Here, it is important to note the trial judge, having listened to the 

arguments of two assistant prosecutors, rejected their application, finding that 

there was no reason at all to excuse F.G. for cause. He based his decision not 

only on what F.G. said but also on the way he said it. Such a credibility 

determination lies well within the considerable discretion afforded the court in 

such matters. See State v. Locurto, 157 N.J. 463, 473 (1999).

Despite the trial court's finding, the prosecutor elected to conduct a 

criminal record check on F.G. and stated, in support of her second motion for a 

for-cause dismissal, her reasons for performing the check. The prosecutor 

asserted:

[T]he State is not in the habit of doing what counsel 

just suggested where we are looking at a random 

juror's [criminal record]. [F.G.'s] background and his 

acknowledgment that he hangs out with people that 

are in a lifestyle and hustling drugs and getting 

arrested, the dozens of criminal elements that he 

produced here at sidebar raised the concern for the 

State. Where I asked for him to be excused for cause, 

he was not.

The prosecutor also informed the court that the record check revealed 

that F.G. had an outstanding municipal warrant, and that the State was going to 

have him arrested. Defense counsel argued that because F.G. was selectively 

targeted for a background check, constitutional concerns such as a person's 

right to sit on a jury were implicated. Nevertheless, F.G. was arrested, 
A-0930-17T1 32

therefore making him unavailable, and the defense was awarded no remedy. 

The trial court should have engaged in a Batson/Gilmore analysis.

We acknowledge that many of the considerations used to determine 

whether a defendant satisfied the standard for a prima facie Batson/Gilmore

challenge are uniquely geared to the peremptory challenge process and do not 

translate well to the performance of criminal background checks. For 

example, both Osorio and Gilmore listed as an important consideration 

whether the prosecutor "struck most or all of the members of the identified 

group from the venire." Osorio, 199 N.J. at 503 (quoting Gilmore 103 N.J. at 

536). Here, the challenged action was the prosecutor's performance of only 

one background check, the subject of which was a member of the identified 

group. Most of the Osorio factors concern common traits of the stricken jurors 

and patterns of the prosecution's use of peremptory challenges. Ibid. Such 

group characteristics may not be discerned from a single, selective 

performance of a record check.

Nevertheless, we reject the State's argument that defendant could not 

have made a colorable argument for even a prima facie case of discrimination. 

As the Supreme Court of the United States instructed in Flowers, disparate 

investigation of prospective jurors based on race, along with other evidence, 

may inform the trial court's evaluation as to whether discrimination occurred. 
A-0930-17T1 33

F.G. was a member of a protected group, and no member of a non-protected 

group was subjected to a record check. It is not difficult to surmise that 

running criminal background checks only on minority jurors could result in a 

majority jury.

Additionally, as noted in Hernandez, defendant's contention that portions 

of F.G.'s voir dire which the State called suspicious represent experiences that 

are more common to minorities than non-minorities, if true, is also germane to 

the trial court's determination as to whether discriminatory intent exists, as 

discriminatory purpose may often be inferred where classifications bear more 

heavily on one race than another. Moreover, the prosecutor's proffered 

explanation for performing the record check was very much like the sort of 

speculation against which Osorio cautioned. The prosecutor presented no 

characteristic personal to F.G. that caused concern, but instead argued 

essentially that because he grew up and lived in a neighborhood where he was 

exposed to criminal behavior, he must have done something wrong himself or 

must lack respect for the criminal justice system. This is not a new argument; 

Black jurors have historically faced the attribution they will show leniency 

toward defendants and are indifferent to criminality. See Thomas Ward 

Frampton, The Jim Crow Jury, 71 Vanderbilt Law Review, 1593, 1603 (2018). 
A-0930-17T1 34

Such reasoning may have arisen from the sort of prejudice that constitutes 

impermissible presumed group bias.

In the end, we cannot determine with certainty whether the prosecutor 

applied her reasons evenhandedly to all prospective jurors, because we do not 

know: whether any other venire members responded affirmatively to questions 

about the involvement of friends or family members with the criminal justice 

system; if any other venire members grew up or lived in the same area of 

Newark as F.G.; or the racial composition of the jury that convicted defendant.

The State's argument that even if the record check was performed 

improperly, there was no relief available to rectify the matter ignores the 

remedies available to a trial court to address Batson/Gilmore violations. The 

court could have dismissed the empaneled jury members and begun jury 

selection anew; it could have ordered the prosecutor to forfeit her remaining 

peremptory challenges; or it could have granted additional peremptory 

challenges to the defense. State v. Andrews, 216 N.J. 271, 293 (2013). The 

court should have allowed F.G. to explain the alleged municipal warrant, and 

if satisfied by his responses, the judge could have refused to grant a dismissal 

for cause even in the face of the juror's potential arrest. We do not presume 

that arrest on a municipal warrant would have made F.G. unavailable for trial.
A-0930-17T1 35

In order to secure a defendant's right to a jury as guaranteed by the 

United States and New Jersey constitutions, we compel citizens by summons 

to come to the courthouse to be considered as potential jurors. For most, this 

is a disruption of their work and family lives. We ask them to disclose 

personal, often uncomfortable information. The compulsion to appear should 

not include the threat of arrest if we seek to convincingly assure the citizenry 

that jury service is an honor and a duty. Record checks run because of 

dissatisfaction with a judge's ruling, as was done here, undermine the 

framework within which the trial proceeds and alters the court's exclusive 

province in administration of the jury venire. Because the court made no 

findings of fact concerning the prosecution's selective use of a criminal record 

check and granted no relief to the defense whatsoever, defendant's conviction 

must be reversed, his sentence vacated, and the matter remanded for a new 

trial.

Reversed. We do not retain jurisdiction.