On May 27, 2021, the Supreme Court of New Jersey affirmed an appellate court decision in State v. Leo T. Little, Jr..  This decision reversed a criminal conviction for unlawful possession of a weapon charges and aggravated assault, and remanded this case to the trial court.  The Supreme Court of New Jersey is the highest court in New Jersey, their decisions set precedent for the state.  A fair trial is a guaranteed by the Sixth Amendment of the United States Constitution.  The Constitution is the highest level of law in the United States.  Remand means that a case is returned to a lower-level court.

The Court decided that the criminal defendant was denied a fair trial, due to an improper voir dire question, and its related consequences.   A fair trial requires a fair and impartial jury; the jury selection process is designed to ensure this.    Part of this process is called voir dire.  This means that attorneys for both parties question prospective jurors.  The questions are designed to ensure that the jurors are fair and impartial, and can deliberate with an open mind.  The prosecutors in this case used the answer to this improper question to exercise their preemptory challenges.  A preemptory challenge means that a criminal attorney can dismiss a juror, without explanation.  The Court determined that the question resulted in a jury which was more favorable to the state.  The questions must be in “balanced and impartial terms.”  The Supreme Court explained that the “trial court, must ensure that such questioning is not partisan and that it will not indoctrinate prospective jurors in favor of either side’s position.”

The state alleged that Defendant Little had threatened two people with a gun.  They were not able to retrieve it, prior to the trial.  The original voir dire question regarding this issue was, “The law does not require that the state recover the gun, even though the defendant has been charged with weapons-related offense.  If the state does produce the physical firearm allegedly used in this case, will this affect your ability as a juror?” The question was modified to, “The law does not require that the state recover the gun, even though the Defendant has been charged with weapons-related offenses.  If the state 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?

The New Jersey Supreme Court held that both versions of the question were improper.   The questions minimized that state’s burden of proof.  The burden of proof means that one party in a case has the responsibility of proving what they are alleging.    There are different types of burden of proof, which depend on the type of case.  In criminal law, the state has the burden of proof “beyond a reasonable doubt” when it attempts to convict a criminal defendant.   In this case, the state had to prove that Defendant had used a gun to threaten two people, beyond a reasonable doubt.  The state not having the gun to produce at trial could be seen at the state not meeting its burden of proof, and lead to an acquittal.  However, the versions of the questions encouraged the prospective jurors to ignore this lack of evidence.

This decision is quite important.   It demonstrates that our Sixth amendment constitutional right to a fair trial is being enforced.  It also shows that even one voir dire question can result in an unfair trial. Most importantly, it requires the State to present evidence in pursuit of prosecution rather than look for short cuts.


If you or someone you know is charged with a crime, it is essential you hire a criminal defense lawyer with the knowledge and experience to protect your rights by holding the State to its burden of proof. At the Law Office of Eric M. Mark, we monitor decisions by the courts every day for any changes or potentially favorable decisions. Criminal-defense consultations are free .


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