a. Right to Trial by Jury
If a defendant decides to contest guilt, the defendant is entitled, by both the United States and New Jersey Constitutions,3 to a trial by a jury. The right to a jury trial generally applies to all criminal acts where the penalty for the offense exceeds six months in confinement. The right to a jury trial can be waived by the defendant if the court approves. The defendant also needs the approval of the prosecutor to waive a jury trial in the sentencing phase of a capital case. If the judge grants such a request, the judge alone hears the case. See R. 1:8-1(a). This is known as a bench trial. In addition to the right to a jury trial, the defendant has the right to be present at every stage of a trial, including jury selection. See R. 3:16.
b. Selection of a Jury
In criminal cases a jury consists of 12 persons, unless the parties agree that the jury may consist of fewer than 12. One exception is a capital case where there must be 12 jurors. See R. 1:8-2. Normally, 14 persons are selected who sit and hear the case, with two designated as alternate jurors at the end of the trial. In many cases judges will empanel alternate jurors in the event that one of the twelve jurors cannot finish the trial, e.g., due to sickness. The alternate jurors are available for deliberations if one of the 12 deliberating jurors becomes ill or otherwise cannot continue to serve. Jurors are drawn from a merged list of registered voters, licensed drivers, filers of state gross income tax returns, and filers of home state rebate application forms in the county where the case will be tried. 19
The jury is selected after the judge questions prospective jurors about their backgrounds or the answers provided on the juror questionnaire. If the court allows, counsel may be permitted to personally question jurors or offer questions for the court to ask of jurors. This process is known as jury voir dire. This process seeks to determine whether jurors have a bias or prejudice which would render them unable to objectively evaluate all testimony and render a fair and impartial verdict. During this process, both the defense and the prosecution are given what are known as peremptory challenges. These challenges allow the parties to exclude prospective jurors who are being considered for selection to the jury without giving a reason for excluding them. See R. 1:8-3(d). Of course, the court will always exclude jurors for cause, such as where a juror has personal knowledge of the case.