The Challenge of Peremptory Challenges

Edward P Schwartz and Warren F Schwartz

The Journal of Law, Economics, and Organization, 1996, vol. 12, issue 2, 325-60

Abstract: The criminal jury system is characterized by two often conflicting features: (1) A very diverse population, like that in the United States, is likely to result in even rational, open-minded jurors disagreeing about issues fundamental to the resolution of any case, and (2) almost all jurisdictions require unanimity in order to either acquit or convict a defendant on any charge. Using a simple spatial model, we demonstrate how the existing allowance for numerous peremptory challenges facilitates the production of verdicts by eliminating potential jurors with "extreme" preferences; however, it does so by sacrificing any semblance of a democratically representative jury. We show that changing the decision rule governing the jury to simple majority rule also facilitates the production of verdicts without discriminating against potential jurors because of their anticipated preferences or beliefs. In addition, such a change would eliminate the inefficiencies associated with protracted jury selection and mistrials resulting from hung juries. Copyright 1996 by Oxford University Press.

Date: 1996
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