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(Not) Canceling out the cross-section: Mitigating the effect of peremptory challenges on jury selection

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  • Flanagan, Francis X.

Abstract

The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the right to an impartial jury. According to current precedent, this requires individual jurors to be unbiased and the jury to have a fair possibility of being a representative cross-section of the community. I show that current selection procedures systematically exclude certain types of jurors, making it impossible to achieve a representative cross-section. I argue that this violates the requirements for an impartial jury, and I propose an alternative jury selection procedure that is incentive compatible and eliminates the distortion created by the current system. The new procedure also reduces the variance of the seated jury relative to a random selection, when measuring variance by distance to the median jury, which makes the application of justice less arbitrary. Data from Mississippi and Louisiana are analyzed to illustrate the results.

Suggested Citation

  • Flanagan, Francis X., 2025. "(Not) Canceling out the cross-section: Mitigating the effect of peremptory challenges on jury selection," International Review of Law and Economics, Elsevier, vol. 82(C).
    • Handle: RePEc:eee:irlaec:v:82:y:2025:i:c:s0144818825000158
    DOI: 10.1016/j.irle.2025.106259
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    More about this item

    Keywords

    Jury selection; Peremptory challenge; Impartial jury; Sixth Amendment;
    All these keywords.

    JEL classification:

    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
    • K14 - Law and Economics - - Basic Areas of Law - - - Criminal Law

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