ASSEMBLY, No. 242

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Assemblymen GARCIA and CHARLES

An Act concerning the selection of jurors and supplementing Title 2A of the New Jersey Statutes.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. No peremptory challenge shall be used by the prosecution in any criminal case to exclude a prospective juror on grounds arising out of that person's ability to understand or speak a language in addition to English.

    2. This act shall take effect immediately.

STATEMENT

    This bill would provide that no peremptory challenge could be used by the prosecution in any criminal case to exclude a prospective juror on grounds arising out of that person's ability to understand or speak a language in addition to English.

    In Hernandez v. New York, 111 S. Ct. 1859 (1991), the United States Supreme Court ruled that the prosecution did not necessarily violate the United States Constitution by eliminating people fluent in Spanish from a jury in a case involving a Hispanic defendant. The prosecution had used peremptory challenges to remove the bilingual jurors, who, according to the prosecution, had given hesitant answers to the following question: whether they would be able to abide by the official English translation of Spanish testimony at the trial, or whether they would use their own knowledge of Spanish in listening to the testimony.

    The Court held that excluding the prospective jurors on these grounds was valid, because no discriminatory intent was involved. The appellant, the Puerto Rican Legal Defense and Education Fund, had argued that "any honest bilingual juror" would be similarly hesitant in telling the court whether he could ignore his own language ability. The Fund argued that the exclusions were based simply on language ability, and that they were a pretext for racial discrimination.

    In State v. Gilmore, 103 N.J.508 (1986), a New Jersey case that also involved the racially discriminatory effect of the prosecution's use of peremptory challenges, the New Jersey Supreme Court noted that the New Jersey Constitution provides greater protection to citizens' individual rights than the United States Constitution. The Court stated: "We refer to federal constitutional law only as establishing the floor of minimum constitutional protection."

    In Gilmore, the prosecutor had used peremptory challenges to exclude every black potential juror in a case involving a black defendant. The Court ruled that these exclusions violated the New Jersey Constitution's guarantee of a defendant's right to trial by an impartial jury drawn from a representative cross-section of the community. The Court held that a prosecutor cannot use peremptory challenges to exclude prospective jurors solely by virtue of their membership in a cognizable group.

    In line with the Gilmore decision, this bill would assure that language-based exclusions cannot be used as a pretext for discrimination in juror selection.

Prohibits exclusion of prospective juror on grounds that the juror is bilingual.