The Challenge of Peremptory Challenges

Journal of Law, Economics, & Organization, Vol. 12, No. 2, Fall 1996.

Posted: 27 Apr 1998

See all articles by Edward P. Schwartz

Edward P. Schwartz

Harvard University - Harvard Kennedy School (HKS)

Warren F. Schwartz

Georgetown University Law Center

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.

JEL Classification: K14

Suggested Citation

Schwartz, Edward P. and Schwartz, Warren F., The Challenge of Peremptory Challenges. Journal of Law, Economics, & Organization, Vol. 12, No. 2, Fall 1996., Available at SSRN: https://ssrn.com/abstract=10116

Edward P. Schwartz (Contact Author)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States
617-496-4506 (Phone)
617-495-0438 (Fax)

Warren F. Schwartz

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9101 (Phone)
202-662-9411 (Fax)

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