Updating Gilmore

Shortly after the U.S. Supreme Court decided Batson v. Kentucky, 476 U.S. 79 (1986), the New Jersey Supreme Court held that it violates both the N.J. and U.S. constitutions for a prosecutor to exercise peremptory challenges based on race. State v. Gilmore, 103 N.J. 508 (1986), also established remedies for the impermissible exclusion of jurors based on race and the exercise of other discriminatory challenges. The Gilmore rule was applied in both civil and criminal cases and required discharging the entire jury panel and commencing jury selection anew.

Last week in State v. Andrews, the N.J. Supreme Court held that the “single bright-line” remedy of Gilmore “has proven ineffective to fully and fairly respond to,” and “does not necessarily deter the unconstitutional behavior condemned in Batson and Gilmore.” The court gave trial judges discretion to take appropriate action to address the impermissible use of peremptory challenges. The court concluded that the Gilmore remedy may “neither vindicate the rights of the wrongfully excluded jurors nor achieve a fair trial.” It also noted that the Gilmore remedy may not deter unconstitutional behavior and that starting jury selection anew may benefit the offending party.