In State v. Leo T. Little, Jr. (A-80-19/084115) (Decided May 27, 2021), the Supreme Court of New Jersey held that voir dire questioning by the trial court of prospective jurors during jury selection deprived the defendant of a fair trial.
Facts of State v. Little, Jr.
According to trial testimony, defendant Leo T. Little, Jr. was the passenger in a car that sideswiped a taxi. When asked by the taxi driver and her passenger to pay for the damage, defendant left and returned with a handgun. The passenger described the weapon as a black Beretta and said that defendant “cocked the pistol,” pointed it at him, and ordered him and the taxi driver to get back in the taxi and leave. According to the testimony of a police officer, defendant fled the scene as officers arrived, and ran up the steps of a home and dropped an object on the porch. The officer testified that an unidentified woman immediately appeared on the porch, retrieved the object, and left the area. Police officers did not locate the woman and did not recover a weapon.
Prior to trial, the State requested that the trial court inquire during jury selection about prospective jurors’ reactions to the State’s inability to produce the weapon that defendant allegedly used. Defense counsel objected to the State’s request and argued that the proposed question constituted advocacy rather than proper voir dire.
The trial court overruled the objection. The court modified the State’s proposed question so that it read as follows: “The law does not require that the State recover a gun, even though the defendant has been charged with weapons-related offenses. If the State does not produce the physical firearm allegedly used in this case will this affect your ability as a juror?” During the initial phase of jury selection, the trial court posed that question to several prospective jurors, with some minor variations in wording. To make the meaning of the question clearer, the trial court later revised the question to read: “The law does not require that the State produce a gun at trial even though the defendant has been charged with weapons offenses. If the State did not recover and does not produce the gun allegedly used in this case, but presents evidence in the form of testimony, how will this affect your ability as a juror?”
Most jurors asked either version of the question indicated that the absence of a gun would not affect their ability to serve as jurors. The State exercised peremptory challenges to excuse jurors who indicated that they would acquit defendant or would be less likely to convict him if no weapon were admitted into evidence. The jury convicted defendant of all offenses. The Appellate Division agreed with defendant that the questions asked of prospective jurors during jury selection predisposed the jury to ignore the fact that no gun was recovered and to find defendant guilty. The Appellate Division therefore reversed defendant’s conviction and remanded to the trial court for a new trial.
NJ Supreme Court Decision in State v. Little, Jr.
The New Jersey Supreme Court agreed with the Appellate Division that defendant was not afforded his right to an impartial jury and that he is entitled to a new trial.
“We reiterate that trial courts may conduct voir dire questioning about a prospective juror’s views on disputed issues to determine whether the juror will follow the court’s instructions and deliberate with an open mind,” the court wrote. “The trial court must ensure, however, that such questioning is not partisan and that it will not indoctrinate prospective jurors in favor of either side’s position. The court must present the issue to prospective jurors in balanced and impartial terms.”
In reaching its decision, the New Jersey Supreme Court agreed that the absence of a weapon “was a legitimate area of inquiry” during jury selection. The court also acknowledged that it had not previously considered the propriety of voir dire questions addressing the State’s inability to produce a particular category of evidence at trial. “In appropriate cases, the State’s inability to present a particular category of evidence can be a legitimate subject for the trial judge to address in voir dire,” it concluded.
While the New Jersey Supreme Court found that the trial court and the State acted in good faith, it ultimately determined that the questions posed improperly suggested that jurors should not consider the absence of a handgun as a factor when they evaluated the State’s proofs. “The form of the questioning strongly favored the state’s position and may have encouraged jurors to convict defendant,” the court said. It further found that the questions “improperly suggested that jurors should not consider the absence of a handgun as a factor when they evaluated the state’s proofs.”
The New Jersey Supreme Court drafted “a balanced question” that could be used during the new trial, if needed. It includes the additional information that jurors “may choose to consider the absence of any evidence in deciding whether the state has met its burden of proving defendant guilty beyond a reasonable doubt.”