The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court

Abstract

* This experiment was conducted in the United States District Court for the Northern District of Illinois and was supported by Grant GS-33825 from the National Science Foundation. Additional funds were provided by the Nancy G. and Raymond G. Feldman Fund for studies in criminal justice. t Dr. Jur., 1927, Dr. Pol. Sc., 1928, University of Vienna. Professor Emeritus of Law and Sociology, Research Associate, Center for Studies in Criminal Justice, University of Chicago; Senior Consultant, American Bar Foundation. + B.A., 1968, University of Michigan; Ph.D., 1972, Northwestern University. Assistant Professor of Criminal Justice and Psychology, University of Illinois at Chicago. 1 Voir dire is sometimes translated from the French as see [them] talk, but in fact means true talk, the word voir being a corruption of the Latin verus, or true. See WEBSTER'S THIRD NEW INT'L DICTIONARY 2562 (1961). The earliest known procedure for challenging jurors was found in Roman law. The Lex Sevilia (104 B.C.) provided that the accuser and the accused in capital cases could each propose a list of 100 judices and that each could reject 50 from the other's list, leaving 100 to try the case. W. FORSYTH, HISTORY OF TRIAL BY JURY 175 (Cambridge 1852). In the year 7 B.C., the Roman emperor Augustus Caesar issued an edict governing the selection of jurors in capital cases in the city of Cyrene on the Lybian coast (the modern Shahhat). II ROMAN CIVILIZATION 37 (N. Lewis & M. Reinhold eds. 1963). The edict provided for the drawing of 50 prospective jurors, one-half of whom had to be Greek, the other half Roman. The edict added: Of these the prosecutor may, if he wishes, dismiss one from each group, and the accused three out of the total, provided he does not dismiss either all Romans or all Greeks. Id. The modern system of challenges for cause and peremptory challenges originated in the common law of England, which allowed peremptory challenges only in criminal trials for capital offenses; the defendant in such an action could exclude 35 jurors. W. FORSYTH, supra at 231. King Henry VIII later reduced this number to 20, where it remained until the mid19th century. Id. The challenge for cause, allowed by the common law in all cases, was more complex than the present-day system. In Lord Coke's time, the challenge for cause included both the challenge to the array, which led to the exclusion of the entire jury, and the challenge to the polls, which led to the exclusion of individual jurors. Id. at 177. Two classes of cause were recognized: The principal challenge was allowed as a matter of course upon a showing that