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State v. Biegenwald3/5/1987
f both prejudicial and inadmissible information. As noted, more than half of the prospective jurors questioned about publicity recalled specific prejudicial, inadmissible information concerning defendant. The overwhelming majority of these jurors volunteered that they could not render an impartial decision. One juror who was finally seated knew that the defendant was accused of murdering several girls but nevertheless professed to be impartial.
Defendant argued at trial that the scope of the voir dire was not sufficiently exhaustive to reveal prospective jurors who knew and might be influenced by prejudicial and inadmissible information; as a result, defendant was unable to develop facts to demonstrate further the realistic likelihood of jury taint or to provide a basis on which to renew his change-of-venue motion after the voir dire examination or even intelligently to exercise challenges for cause during voir dire.
I find merit in this claim. The questioning of prospective jurors about publicity was, for the most part, too general to have elicited any acknowledgement from jurors that they knew of defendant's prior conviction or his connection to five murders. Initially, the court's questions proceeded directly from the juror's exposure to publicity to whether the juror could render an impartial verdict, without any inquiry as to what the juror had read or heard about the case. Later, as a result of defense objections, and throughout the rest of the voir dire, the court asked each prospective juror what details he or she recalled from the publicity in connection with defendant's name and whether he or she recalled any background information about the defendant. However, if a juror did not mention defendant's prior conviction or link to other murders, the trial court simply went on to ask the juror only whether he or she would be impartial. There is a strong basis for finding this examination to be seriously deficient.
Related to the inadequacy of the voir dire to elicit traces of bias on the part of jurors is the failure of the trial court to excuse several jurors for cause. Defendant challenged six prospective jurors for cause on the grounds that their exposure to publicity relating to inadmissible information rendered their impartial deliberation highly improbable, if not impossible, regardless of their own belief in their impartiality. Four of these jurors mentioned information that indicated they knew defendant was accused of several other murders or that he had a prior murder conviction. Five other prospective jurors, whose statements indicated they knew the defendant was linked to several murders or that he had a prior murder conviction, were seated without the defendant challenging them for cause. Two were peremptorily excused by the defendant, two were excused by the state and one served on defendant's jury. The court questioned each of these nine prospective jurors and each juror professed that he or she could put aside the extraneous information and deliberate impartially.
The general test for excusing a prospective juror for cause is whether there is a strong likelihood or probability, grounded in human experience, that such an individual will be, or will
appear to be, prejudiced. The criterion is not whether the prospective juror's experience will necessarily or inevitably be prejudicial. See State v. Jackson, 43 N.J. 148, 157-58 (1964); Wright v. Bernstein, 23 N.J. 284, 295 (1957) (test is not whether irregular matter actually influenced the result, but whether it
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