IDEAS home Printed from https://ideas.repec.org/a/eee/irlaec/v82y2025ics0144818825000158.html

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

Author

Listed:
  • 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
    as

    Download full text from publisher

    File URL: http://www.sciencedirect.com/science/article/pii/S0144818825000158
    Download Restriction: Full text for ScienceDirect subscribers only
    File URL: https://libkey.io/10.1016/j.irle.2025.106259?utm_source=ideas
    LibKey link: if access is restricted and if your library uses this service, LibKey will redirect you to where you can use your library subscription to access this item
    ---><---

    As the access to this document is restricted, you may want to

    for a different version of it.

    References listed on IDEAS

    as
    1. Mark Hoekstra & Brittany Street, 2021. "The Effect of Own-Gender Jurors on Conviction Rates," Journal of Law and Economics, University of Chicago Press, vol. 64(3), pages 513-537.
    2. Moro, Andrea & Van der Linden, Martin, 2021. "Exclusion of Extreme Jurors and Minority Representation: The Effect of Jury Selection Procedures," MPRA Paper 106087, University Library of Munich, Germany.
    3. Shamena Anwar & Patrick Bayer & Randi Hjalmarsson, 2022. "Unequal Jury Representation and Its Consequences," American Economic Review: Insights, American Economic Association, vol. 4(2), pages 159-174, June.
    4. Shari Seidman Diamond & Destiny Peery & Francis J. Dolan & Emily Dolan, 2009. "Achieving Diversity on the Jury: Jury Size and the Peremptory Challenge," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 6(3), pages 425-449, September.
    5. Francis X. Flanagan, 2018. "Race, Gender, and Juries: Evidence from North Carolina," Journal of Law and Economics, University of Chicago Press, vol. 61(2), pages 189-214.
    6. Steven J. Brams & Morton D. Davis, 1978. "Optimal Jury Selection: A Game-Theoretic Model for the Exercise of Peremptory Challenges," Operations Research, INFORMS, vol. 26(6), pages 966-991, December.
    7. Francis X. Flanagan, 2015. "Peremptory Challenges and Jury Selection," Journal of Law and Economics, University of Chicago Press, vol. 58(2), pages 385-416.
    8. Martin Van der Linden, 2018. "Bounded Rationality and the Choice of Jury Selection Procedures," Journal of Law and Economics, University of Chicago Press, vol. 61(4), pages 711-738.
    9. Shamena Anwar & Patrick Bayer & Randi Hjalmarsson, 2012. "The Impact of Jury Race in Criminal Trials," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 127(2), pages 1017-1055.
    10. Rothschild, Michael & Stiglitz, Joseph E., 1970. "Increasing risk: I. A definition," Journal of Economic Theory, Elsevier, vol. 2(3), pages 225-243, September.
    Full references (including those not matched with items on IDEAS)

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Scott Kostyshak & Neel U. Sukhatme, 2025. "Down to the Last Strike: The Effect of the Jury Lottery on Criminal Convictions," Papers 2505.18431, arXiv.org.
    2. Andrea Moro & Martin Van der Linden, 2021. "Exclusion of Extreme Jurors and Minority Representation: The Effect of Jury Selection Procedures," Papers 2102.07222, arXiv.org, revised Aug 2023.
    3. Foresta, Alessandra, 2025. "Lady Justice: The impact of female judges on jury trial verdicts in North Carolina," European Journal of Political Economy, Elsevier, vol. 88(C).
    4. A Nilesh Fernando & Siddharth Eapen George, 2024. "Peer pressure and discrimination: evidence from international cricket†," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 40(3), pages 729-752.
    5. Julia Godfrey & Kegon Teng Kok Tan & Mariyana Zapryanova, 2023. "The Effect of Parole Board Racial Composition on Prisoner Outcomes," Working Papers 2023-011, Human Capital and Economic Opportunity Working Group.
    6. Van der Linden, Martin, 2017. "Impossibilities for strategy-proof committee selection mechanisms with vetoers," Journal of Mathematical Economics, Elsevier, vol. 73(C), pages 111-121.
    7. Anna Bindler & Randi Hjalmarsson & Stephen Machin & Melissa Rubio-Ramos, 2026. "Disparate Treatment of the Irish in 19th Century English Courtrooms," Discussion Papers of DIW Berlin 2152, DIW Berlin, German Institute for Economic Research.
    8. Pruckner, Gerald J. & Stiftinger, Flora & Zocher, Katrin, 2025. "When women take over: Physician gender and health care provision," Journal of Health Economics, Elsevier, vol. 102(C).
    9. Damien Bol & Jean-François Laslier & Matías Núñez, 2022. "Two Person Bargaining Mechanisms: A Laboratory Experiment," Group Decision and Negotiation, Springer, vol. 31(6), pages 1145-1177, December.
    10. Nayoung Rim & Roman Rivera & Andrea Kiss & Bocar Ba, 2020. "The Black-White Recognition Gap in Award Nominations," Working Papers 2020-065, Human Capital and Economic Opportunity Working Group.
    11. Alessandra Foresta, 2022. "Lady Justice: The impact of female judges on trials' verdicts in US," Discussion Papers 22/04, Department of Economics, University of York.
    12. Lehmann, Jee-Yeon & Smith, Jeremy, 2011. "Attorney empowerment in Voir Dire and the racial composition of juries," MPRA Paper 36338, University Library of Munich, Germany.
    13. Francis X. Flanagan, 2015. "Peremptory Challenges and Jury Selection," Journal of Law and Economics, University of Chicago Press, vol. 58(2), pages 385-416.
    14. Alfredo Di Tillio & Marco Ottaviani & Peter Norman Sørensen, 2021. "Strategic Sample Selection," Econometrica, Econometric Society, vol. 89(2), pages 911-953, March.
    15. Raphael Corbi & Rafael Ferreira & Jaqueline Oliveira & Danilo Souza, 2021. "Female judges and in-group bias in labor courts," Economics Bulletin, AccessEcon, vol. 41(3), pages 1313-1321.
    16. Nocetti, Diego C., 2013. "The LeChatelier principle for changes in risk," Journal of Mathematical Economics, Elsevier, vol. 49(6), pages 460-466.
    17. Elizabeth M. Caucutt & Lance Lochner & Youngmin Park, 2017. "Correlation, Consumption, Confusion, or Constraints: Why Do Poor Children Perform so Poorly?," Scandinavian Journal of Economics, Wiley Blackwell, vol. 119(1), pages 102-147, January.
    18. Thomas Eichner & Andreas Wagener, 2002. "Increases in Risk and the Welfare State," CESifo Working Paper Series 685, CESifo.
    19. Mujcic, Redzo & Frijters, Paul, 2013. "Still Not Allowed on the Bus: It Matters If You're Black or White!," IZA Discussion Papers 7300, IZA Network @ LISER.
    20. Kwame Addae‐Dapaah & Wilfred Tan Yong Hwee, 2009. "The unsung impact of currency risk on the performance of international real property investment," Review of Financial Economics, John Wiley & Sons, vol. 18(1), pages 56-65, January.

    More about this item

    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

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:eee:irlaec:v:82:y:2025:i:c:s0144818825000158. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If CitEc recognized a bibliographic reference but did not link an item in RePEc to it, you can help with this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Catherine Liu (email available below). General contact details of provider: http://www.elsevier.com/locate/irle .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.