On appeal from the Superior Court, Law Division, Essex County.
Matthews, Coleman and Gaulkin. The opinion of the court was delivered by Matthews, P.J.A.D.
We have before us three motions for leave to appeal rulings of trial judges which, it is claimed in each case, restricted the rights of each of the defendants who is charged with capital murder from freely questioning potential jurors on voir dire. We grant leave to appeal, and having received the briefs and appendices from counsel, proceed to dispose of the issue before us. R. 2:11-2.
While each defendant first raises an issue with respect to sequestered*fn1 voir dire of prospective jurors, we see no issue to be resolved, since it is clear that sequestered voir dire will be permitted, as it should be in each case. The State also urges that voir dire in these cases be sequestered.
The question before us goes to the method to be employed by the trial judge in conducting the voir dire. Should it be conducted by the trial judge exclusively, using questions submitted to him by counsel, as was the ruling in each of the cases before us, should it be conducted by the judge and supplemented by counsel, or should it be conducted exclusively by counsel as is urged by defendant Howard?
R. 1:8-3 provides in pertinent part:
(a) Examination of Jurors. For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court's interrogation in its discretion. At trials of crimes punishable by death, the examination shall be made of each juror individually, as his name is drawn, and under oath.
This rule is substantially the same as that referred to in State v. Manley, 54 N.J. 259, 281 (1969).*fn2
Counsel for defendants argue that Manley was not a capital case and therefore cannot control the issues here, and that R. 1:8-3(a) must be read to require counsel's participation in juror voir dire as a matter of constitutional right.
In Manley, although the indictment was for murder, the State did not demand the death penalty. As the Court noted in its opinion "[y]et the interrogation of prospective jurors was excessively prolix and eight days passed before the jury box was filled." Id. at 263. Manley was convicted of second degree murder, and the Court in affirming the conviction took the opportunity to discuss the question of the voir dire examination of jurors:
The remedial movement is toward adoption of methods designed to restore the fundamental basis for preliminary questioning, i.e., an expedient selection of a fair and impartial jury, one that will decide the case fairly under the evidence presented and the instructions of the court. Obviously a most important method is to limit more stringently the conduct and scope of the voir dire. Essentially this means eliminating the efforts to indoctrinate, to persuade, to instruct by favorable explanation of legal principles that may or may not be involved, to lecture on the law and the facts and the relation of one to the other, the lecture ending in a question for form's sake. It means also a prohibition of the hypothetical question intended and so framed as to commit or to pledge jurors to a point of view or a result before they have heard any evidence, argument of counsel or instructions of the court.
The impression is inescapable that the aim of counsel is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury as favorable to the party's point of view as indoctrination through the medium of ...