# State v. Gilmore

> Supreme Court of New Jersey · July 16, 1986 · 103 N.J. 508

URL: https://www.frixlaw.com/law-library/cases/9646536

## Case

- **Full name:** State of New Jersey, Plaintiff-Appellant, v. Curtis Gilmore, Jr., Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** July 16, 1986
- **Citations:** 103 N.J. 508; 511 A.2d 1150; 1986 N.J. LEXIS 970
- **Precedential status:** Published
- **Opinion:** Concurrence by O'Hern
- **Judges:** Garibaldi, O'Hern, Clifford
- **Cited by:** 162 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646536

## How later opinions describe it (automated extraction)

- holding that article I, paragraphs 5, 9, and 10, when read together, “guarantee that in all criminal prosecutions the defendant is entitled to trial by an impartial jury without discrimination on the basis of religious principles, race, color, ancestry, national origin, or sex…
- holding that presumption in favor of prosecution’s permissible use of peremptory strikes may be rebutted by defendant’s prima facie showing that prosecution exercised its peremptory challenges based on generalizations regarding racial groups, and requiring prosecution to provi…
- holding that the New Jersey Constitution, independent of the United States Constitution, protected the right to a trial by jury by forbidding the exclusion of black jurors by use of peremptory challenges
- stating that defendant “has the ultimate burden of proving, by a preponderance of the evidence, that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds”

## Opinion text

O’HERN, J.,
concurring.
Except for the primacy accorded to the State Constitution, I concur in the opinion and judgment of the Court. We are not required in this case, as we were in State v. Hunt, 91 N.J. 338, 345 (1982), to inquire whether “[sjound policy reasons” occasion us to look to the New Jersey Constitution as an independent state ground for decision.
Although the United States Supreme Court’s recent decision in Batson v. Kentucky, 476 US.-, 106 S.Ct. 1712 , 90 L.Ed. 2d 69 (1986), was rooted in Equal Protection Clause analysis, the Court’s overriding emphasis on the central position the jury *546 occupies in our system of justice was consistent with this Court’s analysis:
“The very idea of a jury is a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” [Id. at-, 106 S.Ct. at 1717 , 90 L.Ed.2d at 80 -81 (quoting Strauder v. West Virginia, 10 Otto 303 , 308, 100 U.S. 303, 308 , 25 L.Ed. 664, 666 (1880)).]
The language quoted by the Court in Batson encompasses the same fundamental principle that this Court finds in paragraphs 5, 9 and 10 of Article I of the New Jersey Constitution:
This right to trial by an impartial jury, in our heterogeneous society where a defendant’s “peers” include members of many diverse groups, entails the right to trial by a jury drawn from a representative cross-section of the community. [Ante at 524.]
Hence, I see no occasion to emphasize the independent state source of our decision. The unquestioned subordination of a federal constitutional guarantee of such dimension does not accord with my view of constitutional jurisprudence.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646536. Public record. Not legal advice.