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Peremptory Challenges and Jury Selection

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  • Francis X. Flanagan

Abstract

I examine how peremptory challenges, which are vetoes that attorneys may use to reject prospective jurors, affect jury composition. The purpose of peremptory challenges is to eliminate biased jurors; however, I show that under the two most common rules used in the United States, peremptory challenges actually increase the probability of juries composed entirely of members on one extreme or another of some ideological spectrum. I then show that it is not possible to design a peremptory-challenge procedure that unambiguously makes such juries less likely. I show that if unanimity is required for conviction, the distribution of juror types is symmetric about some mean type, and each attorney has the same number of challenges, then challenges benefit the prosecution.

Suggested Citation

  • Francis X. Flanagan, 2015. "Peremptory Challenges and Jury Selection," Journal of Law and Economics, University of Chicago Press, vol. 58(2), pages 385-416.
  • Handle: RePEc:ucp:jlawec:doi:10.1086/684040
    DOI: 10.1086/684040
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    References listed on IDEAS

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    1. Steve Alpern & Shmuel Gal, 2009. "Analysis and design of selection committees: a game theoretic secretary problem," International Journal of Game Theory, Springer;Game Theory Society, vol. 38(3), pages 377-394, November.
    2. Geoffroy de Clippel & Kfir Eliaz & Brian Knight, 2014. "On the Selection of Arbitrators," American Economic Review, American Economic Association, vol. 104(11), pages 3434-3458, November.
    3. Coughlan, Peter J., 2000. "In Defense of Unanimous Jury Verdicts: Mistrials, Communication, and Strategic Voting," American Political Science Review, Cambridge University Press, vol. 94(2), pages 375-393, June.
    4. Alpern, Steve & Gal, Shmuel & Solan, Eilon, 2010. "A sequential selection game with vetoes," Games and Economic Behavior, Elsevier, vol. 68(1), pages 1-14, January.
    5. Joseph Kadane & Christopher Stone & Garrick Wallstrom, 1999. "The Donation Paradox for Peremptory Challenges," Theory and Decision, Springer, vol. 47(2), pages 139-155, October.
    6. Shamena Anwar & Patrick Bayer & Randi Hjalmarsson, 2012. "The Impact of Jury Race in Criminal Trials," The Quarterly Journal of Economics, Oxford University Press, vol. 127(2), pages 1017-1055.
    7. Arthur Roth & Joseph B. Kadane & Morris H. Degroot, 1977. "Optimal Peremptory Challenges in Trials by Juries: A Bilateral Sequential Process," Operations Research, INFORMS, vol. 25(6), pages 901-919, December.
    8. Mustard, David B, 2001. "Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts," Journal of Law and Economics, University of Chicago Press, vol. 44(1), pages 285-314, April.
    9. Schwartz, Edward P & Schwartz, Warren F, 1996. "The Challenge of Peremptory Challenges," Journal of Law, Economics, and Organization, Oxford University Press, vol. 12(2), pages 325-360, October.
    10. Gerardi, Dino & Yariv, Leeat, 2007. "Deliberative voting," Journal of Economic Theory, Elsevier, vol. 134(1), pages 317-338, May.
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    Cited by:

    1. 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.
    2. 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.
    3. Alfredo Di Tillio & Marco Ottaviani & Peter Norman Sørensen, 2021. "Strategic Sample Selection," Econometrica, Econometric Society, vol. 89(2), pages 911-953, March.

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