Peremptory Challenges Research Articles

The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts

The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts

Batson v. Kentucky and the Prosecutorial Peremptory Challenge: Arbitrary and Capricious Equal Protection?

Batson v. Kentucky and the Prosecutorial Peremptory Challenge: Arbitrary and Capricious Equal Protection?

Discrimination by the Defense: Peremptory Challenges after Batson v. Kentucky

Discrimination by the Defense: Peremptory Challenges after Batson v. Kentucky

The Emerging Agenda in State Constitutional Rights Law

Since the late 1960s, more and more state high courts have placed greater reliance on their own state constitutions in extending rights protections to individuals. Because many state bills of rights are more expansive than the federal Bill of Rights, state courts have often extended rights protections beyond those granted by the U.S. Supreme Court under its interpretation of the U.S. Constitution. As a result, one can speak of an emerging agenda of rights protection in state constitutional law. Among the important items on this agenda are privacy rights, education as a fundamental right, aid to religious schools, Miranda warnings, searches and seizures, self-incrimination, discriminatory peremptory challenges, obscenity, and freedom of speech, including free speech in shopping centers. Such state court activity suggests a revitalization of federalism, at least within the judicial sphere.

Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance

Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance

Sixth and Fourteenth Amendments: The Lost Role of the Peremptory Challenge in Securing an Accused's Right to an Impartial Jury

Sixth and Fourteenth Amendments: The Lost Role of the Peremptory Challenge in Securing an Accused's Right to an Impartial Jury

Bayes' Theorem, Binominal Probabilities, and Fair Numbers of Peremptory Challenges in Jury Trials

Bayes' Theorem, Binominal Probabilities, and Fair Numbers of Peremptory Challenges in Jury Trials

Bayes' Theorem, Binominal Probabilities, and Fair Numbers of Peremptory Challenges in Jury Trials

Bayes' Theorem, Binominal Probabilities, and Fair Numbers of Peremptory Challenges in Jury Trials

Affirmative Peremptory Juror Selection

Tracey Altman, like so many of us, is distressed over the tendency of prosecutors systematically to remove distinguishable minorities from our juries. Until its recent overturn, the Supreme Court decision in Swain v. Alabama 1 fostered and secured this tendency. In her thoughtful note,2 Altman suggests a way to arrest this trend: namely, that we replace our system of negative peremptory challenges with one in which the litigants affirmatively select the jurors they want. Since the recent overruling of Swain3 will remove only the worst excesses of racial discrimination in the exercise of peremptory challenges, the idea of affirmative jury selection may retain its attractiveness. The following comment, therefore, pursues some of the implications of affirmative selection.

Affirmative Selection: A New Response to Peremptory Challenge Abuse

Affirmative Selection: A New Response to Peremptory Challenge Abuse

Race and peremptory challenges during voir dire: Do prosecution and defense agree?

Recent litigation in state and federal courts in the United States suggests that black prospective jurors may be systematically excluded from sitting on trial juries through the issue of peremptory challenges during the voir dire process. Numerous trial and appellate cases have reaffirmed the importance of excluding prospective jurors without cause through peremptory challenges. An insufficient number of studies have examined peremptory challenge data to determine if a systematic bias against black prospective jurors actually exists. This study analyzes peremptory challenges issued by both prosecution and defense to determine if both adversary parties agree on the proclivity of black jurors to influence a jury verdict in a given direction. The study concludes that both prosecution and defense agree, as evidenced in the issue of peremptory challenges, that black jurors are prone to move a jury toward a verdict of acquittal.

Sixth and Fourteenth Amendments. The "Swain" Song of the Racially Discriminatory Use of Peremptory Challenges

Sixth and Fourteenth Amendments. The "Swain" Song of the Racially Discriminatory Use of Peremptory Challenges

Black Innocence and the White Jury

Racial prejudice has come under increasingly close scrutiny during the past thirty years, yet its influence on the decisionmaking of criminal juries remains largely hidden from judicial and critical examination. In this Article, Professor Johnson takes a close look at this neglected area. She first sets forth a large body of social science research that reveals a widespread tendency among whites to convict black defendants in instances in which white defendants would be acquitted. Next, she argues that none of the existing techniques for eliminating the influence of racial bias on criminal trials adequately protects minority-race defendants. She contends that this will remain so even if the prosecution-oriented rules of Swain v. Alabama (peremptory challenges) and Ristaino v. Ross (voir dire) are modified or overruled in cases currently before the Supreme Court. Finally, Professor Johnson details an equal protection argument that turns on accepting the social science data as proof of purposeful discrimination, and she proposes a prophylactic remedy.

Peremptory Challenges in Transition

Peremptory Challenges in Transition

Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis

Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis

Juries and the Death Penalty

Logically, it would seem that capital juries must be at least as fair, im partial, and representative as juries that sit in ordinary criminal prose cutions. But there is much evidence to suggest that this is not the case. In Witherspoon v. Illinois, the Supreme Court examined the process of "death qualification" used to impanel capital juries. The Court approved the exclusion of prospective jurors whose opposition to the death penalty would make it impossible for them to decide upon guilt fairly and im partially, but left open the question of whether the exclusion of others who would not consider imposing the death penalty under any circum stances violated the defendant's constitutional rights.Since Witherspoon, death qualification has been extensively studied. It has been found to affect both the composition of the jury panel that re sults and, through the process itself, jurors who are exposed to the pro cedure. The exclusion of characteristics or attitudes linked with opposi tion to the death penalty h...

Optimal Challenges for Selection

This paper generalizes the problems of optimal selection considered by Roth, Kadane and DeGroot by allowing a set of J items to be chosen by two decision makers, the first of whom has A challenges and the second has B challenges. The two decision makers each have an opportunity to challenge each item before it is accepted, in some arbitrary fixed order. We assume that the decision makers know the utility function of the other side as well as their own over sets of J items, and that they know the subjective distribution, assigned by the other side, of characteristics of potential items that will be observed, as well as their own. Under these conditions the other side's response to each potential item can be predicted with certainty, and backward induction defines an optimal strategy. We study an important special case we call regular, and show that it is never disadvantageous to go first in the regular case. The use of peremptory challenges in jury trials motivates our model. The basic model in which jurors are challenged one at a time is extended to a more general class of problems that includes the group system and the struck jury system.

Peremptory Challenges and the Meaning of Jury Representation

Peremptory Challenges and the Meaning of Jury Representation

The Peremptory Challenge in a Criminal Case after "United States v. Barnes"

The Peremptory Challenge in a Criminal Case after "United States v. Barnes"

Fair Numbers of Peremptory Challenges in Jury Trials

Abstract We propose a model for determining the appropriate number of peremptory challenges for each party to a jury trial to ensure fairness. We suppose that all jurors not removed for cause may be thought of as in one of three categories: biased against the prosecution/plaintiff, biased against the defense, and fair. We propose that a fair number of peremptory challenges for a side is that number sufficient to challenge all jurors biased against it, with a certain probability. Given estimates for the various parameters in the model, an exact algorithm, and an approximation are proposed and illustrated.