For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
We affirm essentially for the reasons expressed by Judge Botter in the Law Division. 105 N.J. Super. 529 (1967).
Our State Constitution contains suitable provisions for indictment by grand jury (Art. I, par. 8) and for trial by petit jury. Art. I, par. 9. And our State statutes (N.J.S.
2 A:68-1 et seq.), along with our court rules and administrative directives, contain suitable provisions for the selection of jurors, for their qualifications and exemptions and on related matters. No one may be disqualified from service as a grand or petit juror because of "race, color, creed, national origin, or ancestry". N.J.S. 2 A:72-7; Bullock v. State, 65 N.J.L. 557, 562-564 (E. & A. 1900). The methods of selection must be so designed as to insure that juries are impartially drawn from community cross-sections. Thiel v. Southern P. Co., 328 U.S. 217, 220, 66 S. Ct. 984, 90 L. Ed. 1181, 1184 (1946). Though grand juries, as well as petit juries, must be representative of the community (Smith v. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 85 L. Ed. 84, 86 (1940); State v. Stewart, 2 N.J. Super. 15, 26 (App. Div. 1949)), their functions are different and they have heretofore been accompanied by fair measures of selectivity. See State v. Forer, 104 N.J. Super. 481, 492-495 (Law Div. 1969); Morse, "A Survey of The Grand Jury System," 10 Ore. L. Rev. 101, 308 (1931); Note, "Some Aspects of the California Grand Jury System," 8 Stan. L. Rev. 631, 638 (1956).
Unlike the petit jury which is selected to hear and determine the particular case at hand, the grand jury is selected to inquire into the commission of all crimes of varying and oftentimes complex nature and to return indictments where appropriate. In addition it has the important function of conducting general investigations bearing on official conduct and of returning presentments on matters of public interest even though no indictable offenses are found. In re Addonizio, 53 N.J. 107, 124 (1968); In re Presentment by Camden County Grand Jury, 34 N.J. 378, 388 (1961); In re Camden County Grand Jury, 10 N.J. 23, 66 (1952). Because of the nature of the grand jury's responsibilities, its members are called upon to devote much more extended periods of time than are members of petit juries. It is vital that they possess and exercise sufficient measures of independence from outside forces including the traditional enforcement and prosecutorial authorities. During the nineteen
twenties and thirties, Wayne L. Morse, then professor of law at the University of Oregon, conducted a national study which, inter alia, compared grand juries chosen wholly at random with those chosen with some selectivity; he understandably found that "the exercise of discretion in the selection of grand jurors results in higher caliber jurors who, in turn, tend to function more independently", Morse, supra, 10 Ore. L. Rev., at 308; see also Note, supra, 8 Stan. L. Rev., at 638.
Neither the State nor the federal constitution prescribes any specific method of selection nor does either constitution prescribe that grand and petit juries must be selected in identical fashion. Though arbitrary exclusions of identifiable groups, whether designedly or neglectfully, may not be tolerated, there is no constitutional barrier to a mode of selection which, though it involves the exercise of discretion, is nonetheless reasonably designed to obtain competent jurors from a cross-section of the community. Cf. Glasser v. United States, 315 U.S. 60, 85, 62 S. Ct. 457, 86 L. Ed. 680, 707 (1942). In determining competency, the particular nature of the functions to be discharged, e.g., grand jury in contrast to petit jury, would appear to be a highly relevant item.
In State v. Forer, supra, 104 N.J. Super. 481, the jury commissioners had exercised their customary discretion in selecting grand jurors. They had conscientiously tried to obtain those "best suited to serve in such capacity"; they had exercised their best judgment in selecting persons who were "intelligent, sensible, honest, impartial and courageous"; they had not chosen persons they believed to be "politically active, easily influenced or of doubtful integrity"; and they had refrained from excluding anyone due to "race, color, creed, national origin, or ancestry". 104 N.J. Super., at 493. The defendants moved to dismiss the grand jury's indictment, contending that the jury commissioners could not exercise any discretion in formulating the list of grand jurors but were obliged to select all jurors, both grand and
petit, at random from the master list after it had been screened only for statutory qualifications and exemptions. Their motion was denied in an opinion which stressed the need for intelligent and independent grand jurors and concluded with the thought that jury commissioners should have "the power to choose qualified jurors even though some loss results in the cross-section character of the jury composition". 104 N.J. Super., at 494. Such incidental loss would not present any constitutional deficiency for there is no requirement that jurors be selected from an absolute cross-section of the total population without regard to qualifications; to the contrary, statutory disqualifications and exemptions have been consistently upheld though they obviously served to reduce the cross-section character of the jury composition. See Rawlins v. Georgia, 201 U.S. 638, 26 S. Ct. 560, 50 L. Ed. 899 (1906); Hoyt v. Florida, 368 U.S. 57, 82 S. Ct. 159, 7 L. Ed. 2 d 118 (1961); United States v. Valentine, 288 F. Supp. 957 (D. Puerto Rico 1968).
We of course recognize that the exercise of discretion by jury commissioners entails some dangers and that, as State v. Forer, supra, pointed out, courts must be ever vigilant to stop discriminatory practices. 104 N.J. Super., at 494. In State v. Stewart, supra, the court, after rejecting an attack on the manner in which the Union County Grand Jury had been selected, explicitly cautioned jury commissioners that they must see to it that juries are selected so as to be representative of the community, and that they should take corrective action whenever it appeared that large segments of the qualified population were for any reason not being called for jury service. 2 N.J. Super., at 26. In the matter at hand, the charge was made that the Bergen County Grand Jury pool had not, for many years, proportionately or fairly reflected the racial composition of the community. Judge ...