Peremptory Challenges at the Turn of the Nineteenth Century: Development of Modern Jury Selection Strategies As Seen in Practitioners’ Trial Manuals
Stanford Journal of Civil Rights and Civil Liberties 2020 (Forthcoming)
62 Pages Posted: 17 Mar 2019 Last revised: 8 May 2019
Date Written: February 23, 2019
Peremptory strikes on the basis of race, national origin, religion, and class are well-known problems in modern jury selection, and have led to calls to abolish peremptory strikes altogether. Defenders of peremptory strikes argue that they are a fixture of the common law system that should not be discarded because of a few abuses.
This Article explores how and why strategic jury selection developed in the United States by looking at previously unstudied primary source materials: nineteenth-century trial-attorneys’ practice guides. Peremptory challenges and voir dire are difficult to study because court records often leave them out. Even when strikes are recorded, an attorney’s strategy may not be evident to the outsider. But practice guide materials reveal these strategies, demonstrating that nineteenth-century attorneys used peremptory strikes to eliminate jurors based on stereotypes regarding race, national origin, religion, and class. They also show how a number of features of the modern American jury selection system—most notably, extended pretrial questioning of jurors—were expanded from their more limited common law forms to make it easier for lawyers to either respond to particular social prejudices in American society or to make discriminatory peremptory challenges.
These findings have important implications for the modern-day debate over peremptory challenges. While proponents of peremptory challenges point to their ancient origins as justification for keeping them, a historical perspective shows that modern jury selection looks nothing like its English common law progenitor. Analysis of turn-of-the-century practices, the beginnings of the procedures we use now, exposes modern abuses as part of a trend that began in the 1800s. Simply put, the problems reformers now point to are not recent abuses that have crept in to an ancient system. They have existed for as long as the jury selection procedures we know have been practiced. Modern jury selection and abusive tactics grew up simultaneously in the 1800s as a reaction to the country’s social divisions, suggesting that discrimination as a trial strategy is inevitable in a heterogeneous society where courts allow extended voir dire and unfettered peremptory challenges.
Keywords: Jury, Juror, Jury Trial, Race, Religion, Temperance, Legal History, Nineteenth Century, American Exceptionalism, Voir Dire, Jury Selection, Civil Rights, Peremptory Challenges, Criminal Procedure, Civil Procedure
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