A New Jersey Supreme Court advisory panel has withdrawn a 24-year-old opinion that allowed attorneys to challenge jurors on the basis of their race during jury selection.
The Advisory Committee on Professional Ethics, an 18-member body appointed by the Supreme Court, found the 1998 opinion directly conflicts with provisions of the rules of professional conduct for attorneys. Those rules explicitly bar discrimination based on an individual’s protected class — like race, religion, sexual orientation, and others — where such action is likely to cause harm.
The rescinded opinion held that lawyers who launch race-based peremptory juror challenges could not be disciplined for them, even though such challenges had previously been declared unconstitutional.
Thursday’s decision only affects peremptory challenges, or challenges without a stated cause. Attorneys can be compelled to state their reasoning if a party believes bias is driving a peremptory challenge against a given juror.
The high court is considering replacing the 1998 opinion with another to address professional rules during jury selection and will accept written comment on the matter until Feb. 22.
The advisory committee’s action follows an August order from Associate Justice Lee Solomon requiring New Jersey’s courts to collect demographic data to head off underrepresentation on jury panels.
The Supreme Court has also convened a judicial conference to address bias in jury selection.
Law360 first reported the Advisory Committee on Professional Ethics’ withdrawal of the opinion.
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