Peremptory Challenge - Divining Rod for a Sympathetic Jury?
Peremptor y Challenge - Divining Rod for a Sympathetic Jur y?
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* This article is a student work prepared by Gilda Mariani, a member of the ST. JOHN'S LAW
REVIEw and the St. Thomas More Institute for Legal Research.
Trial by jury was initially trial by witness.
Jurors originally "were men chosen as being likely to be already informed" concerning
the matter to be tried, and were drawn from the neighborhood wherein these matters
occurred or the land in question was situated.
F. JAMES, CzVIL PROCEDURE 238 (1965) (footnotes omitted), quoting J. THAYER, A PRELIMINARY
TREATISE ON EVIDENCE AT THE COMMON LAW 90 (1898).
2 F. JAMES, CiviL PROCEDURE 239 (1965).
The sixth amendment provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury. ... U.S. CONST. amend.
VI. The fourteenth amendment applies the right to an impartial jury to the states as a matter
of due process. See Duncan v. Louisiana, 391 U.S. 145, 156 (1968).
1 Swain v. Alabama, 380 U.S. 202, 220 (1965).
form a jury that is likely to acquit or at least split its decision.' Moreover,
it is claimed that investigative techniques available to an attorney for
obtaining information about prospective jurors has enabled defense
counsel to exercise his peremptory-challenges with greater foresight. This has
been regarded as an unfair advantage for defendants who can afford
specialists or who can easily attract volunteers to aid in their investigations."
Disfavor of the peremptory challenge by prosecuting attorneys has
erupted with great fervor with the discovery of the sophisticated
techniques employed by defendants in recent political trials. For example,
media expert Marty Herbst was employed by the defense counsel in the
trial of former Cabinet officials John Mitchell and Maurice Stans
(Mitchell-Stanstrial)7 to ascertain the trial district's demographic
composition.' The jury's acquittal on conspiracy, obstruction of justice, and
perjury charges was linked to Mr. Herbst's pretrial studies. Defense attorneys
for Angela Davis, a radical political activist tried for murder, kidnapping,
and conspiracy, enlisted the aid of five black psychologists to study and
evaluate prospective jurors during the voir dire examination., A verdict of
acquittal was returned. A team of professionals, led by a sociologist and
psychologist, also assisted defense attorneys in selecting juries that
ultimately entered verdicts of acquittal in the political trials of the Camden
28 and Gainesville Eight. 0 Critics have compared the chosen jurors to
See United States v. Randall, 27 F. Cas. 696 (No. 16, 118) (D. Ore. 1869) (Deady, J.),
wherein the defendant was convicted for unlawfully opening a registered package and stealing
gold dust contained therein. On appeal, the defendant excepted to the lower court's refusal
to allow him to exercise his peremptory challenge against a prospective juror. The court, in
holding that the defendant had already exhausted his maximum number of peremptory
In modem times, in most of the United States, the practice of law has gone to the other
extreme, so that the number of peremptory challenges allowed a defendant enables
him, in many cases, to form a jury that is morally certain to acquit or at least disagree.
Id. at 705.
Wall Street Journal, Aug. 12, 1974, at 19, col. 6. Professor Etzioni, the Director of the Center
of Policy Research at Columbia University and a professor of sociology, claimed that defense
lawyers have learned that by "using social science techniques, they can manipulate the
composition of juries to significantly increase the likelihood that their clients will be
acquitted." Shapley, Jury Selection: Social Scientists Gamble in an Already Loaded Game, 185
SCIENCE 1033 (1974) [hereinafter cited as Jury Selection].
' Mitchell and Stans allegedly tried to curb an investigation by the Securities and Exchange
Commission into the financial affairs of Robert Vesco in exchange for a contribution to the
re-election campaign of President Nixon. 171 N.Y.L.J. 83, Apr. 30, 1974, at 1, col. 3.
Wall Street Journal, Aug. 12, 1974, at 1, col. 1.
* Robinson, How Psychology Helped Free Angela, EBowY, Feb. 1973, at 44, 46 [hereinafter
cited as Robinson]. Legally registered guns belonging to Miss Davis were used in a courthouse
shootout, in an abortive attempt to free a group of prisoners. Miss Davis denied having
knowledge that the guns had been taken from her possession. Id. at 44.
"' See note 63 infra. This same team worked with the attorneys in the HarrisburgSeven and
Wounded Knee trials, neither of which resulted in conviction. TimE, Jan. 28, 1974, at 60. The
team is currently engaged in the Attica Prison trial in New York. Id. Based on their findings,
the defense successfully moved to have a portion of Erie County's jury pool struck because it
"sociologically loaded dice"" in a scheme of "social science jury
The following discussion will outline the problems caused by the use
of professionals in the exercice of peremptory challenges and will attempt
to dispel the notion that a defendant's collaboration with social scientists
and psychologists will inevitably result in a handpicked group of
sympathetic jurors. It will be demonstrated that a number of substantial
obstacles confront a criminal defendant, thereby preventing him from realizing
an overwhelming advantage over the prosecution through the use of
scientific techniques. First, he is permitted only a limited number of challenges,
and secondly, there is a lack of certainty and precision in social science and
psychology. In light of these shortcomings, the collaboration of
professionals and counsel may be viewed as merely another line of defense, not as a
weapon of offense. Perhaps the most promising aspect of this new joint
venture is its utility in reducing the prosecution's often more favorable
PEREMPTORY CHALLENGES AND SOCIAL PROFILES
The peremptory challenge is an "arbitrary and capricious species"' 3
of challenge directed at a legally qualified juror by an attorney. The
attorney is able to remove a prospective juror from the panel without giving a
stated reason," on grounds that may be irrelevant to the proceeding, 5 or
for a real or imagined partiality." The challenge, derived from English
was not representative of the county's potential juror population. People v. Attica Bros., 79
Misc. 2d 492, 498-99, 359 N.Y.S.2d 699, 706 (Sup. Ct. Erie County 1974) (mem.). See note
1 Jury Selections, supra note 6, at 1033.
"3Lewis v. United States, 146 U.S. 370, 376 (1892), citing 4 BLAcK's COMMENTARIES 353 (15th
" "The essential nature of the peremptory challenge is that it is one exercised without a
reason stated, without inquiry and without being subject to the court's control." Swain v.
Alabama, 380 U.S. 202, 220 (1965).
'1 The peremptory challenge is usually exercised on grounds of religion, race, nationality,
occupation, or the social and political activities of the prospective juror. These characteristics
are normally regarded as irrelevant and collateral to the issues involved in the merits, id. at
220 & n.26. Yet they may play a role in the juror's perceptions, and ultimately affect his
judgment regarding guilt or innocence. See Aldridge v. United States, 283 U.S. 308, 313-14
Hayes v. Missouri, 120 U.S. 68, 70 (1887).
To be contrasted with a peremptory challenge is the challenge for cause. In order to
eliminate a juror for cause, the challenging attorney must demonstrate to the court the
individual's bias. The ultimate determination of partiality is made by the court, not the
attorney. See Note, Selection of Jurors by VoirDire Examinationand Challenge, 58 YALE L.J.
638-39 (1949) [hereinafter cited as Challenge]. Grounds for rejecting a juror for cause are:
1) consanguinity or relationship with the defendant or complainant; 2) state of mind likely
to preclude his rendering an impartial verdict; 3) participation in the grand jury proceedings
which resulted in the indictment against defendant; and 4) participation in the preliminary
common law,'7 has a twofold purpose. It seeks to eliminate extremes of
partiality which may be rooted in the prospective jurors' sociological or
psychological characteristics. Additionally, to preserve impartiality, it
seeks to select jurors who will decide the case solely on the basis of the
evidence adduced at trial, and who will not harbor preordained conclusions
or prejudices.' 8
The right to peremptorily challenge does not arise from the
Constituexamination. See 28 U.S.C. § 1870 (1970); MoNT. REv. CODES ANN. § 95-1909(d)(2) (1947);
N.Y. CRIM. PRo. LAW § 270.20(1) (McKinney 1971). It has also been held that where there is
a possibility that the crime charged may be punished by death, a prospective juror's
established opinion for or against capital punishment is sufficient grounds for challenge.
Witherspoon v. Illinois, 391 U.S. 510, 522 n.21 (1968).
Courts have been reluctant to sustain challenges for cause on the grounds of race,
religion, and nationality. Comment, The Right of Peremptory Challenge,24 U. CHI. L. REv. 751,
762 (1957) [hereinafter cited as PeremptoryRight]. However, there are cases in which beliefs
generated by race or religion have constituted grounds for cause. See, e.g., State v. Sanders,
103 S.C. 216, 88 S.E. 10 (1916) (exclusion of a juror in a murder trial who admitted a natural
resentment against Negro lawyers); Potter v. State, 86 Tex. Cr. 380, 216 S.W. 886 (1919) (the
court indicated that jurors who were members of the Jewish faith could be disqualified for
cause in a case involving libel of Jewish persons).
Although challenges for cause are unlimited, attorneys are hesitant to employ them for
fear of prejudicing jurors on unsuccessful challenges or raising the distrust of the remaining
panelists. See Challenge, supra, at 642.
'" Under English common law, peremptory challenges were initially allowed only in capital
felony cases. However, a statutory change extended the right to all common law felony trials.
Thirty-five challenges were given the defendant, Swain v. Alabama, 380 U.S. 202, 212 (1965),
but none were designated for the prosecution. 33 Edw. 1, Stat. 4 (1305). Subsequent
construction of the statute permitted the prosecution to "stand aside" any juror. The prosecution
instructed a juror to remove himself until the entire panel had been examined and the
defendant had exercised his challenges. If there was a deficiency of jurors to constitute a panel
the prosecutor would have to show cause as to those jurors he had "stood aside." If he was
unable to do so, they would be recalled to fill the panel vacancies in the order in which they
were removed. 380 U.S. at 213.
In the United States, Congress, in 1790, codified the criminal defendant's right of
peremptory challenge. In a federal trial, the number of challenges allotted to a defendant was
35 in treason cases, 20 in capital felonies, Act of April 30, 1790, ch. 9, § 30, 1 Stat. 112, and
35 for all other offenses made capital after 1790, Orfield, Trial Jurors in Federal Criminal
Cases, 29 F.R.D. 43, 93 (1962) [hereinafter cited as Orfield]. Although the prosecution
inherited the English right to "stand a jury aside," its right of peremptory challenge was not
recognized until 1865. See Act of March 3, 1865, ch. 86, § 2, 13 Stat. 500. The right of
challenge was later extended to all felonies, misdemeanors, and civil cases, for both the
defendant and the Government. Act of June 8, 1872, ch. 333, § 2, 17 Stat. 282. For a more
detailed historical account, see Orfield, supra, at 93-97.
The development of the peremptory challenge in the states paralleled its federal
development. The number of challenges afforded the defendant was often the same as in the English
system. State prosecutors retained the right to "stand aside" jurors. By 1870, however, most
of the states conferred the right of peremptory challenge upon the prosecution, allowing a
number equal to or at least one-half the number granted the defendant. See Swain v.
Alabama, 380 U.S. at 216.
" See 380 U.S. at 219.
tion.'5 Yet, it is recognized as "one of the most important of the rights
secured to the accused," 0 as well as an important right of the prosecution. 2'
Regarded primarily as a right of rejection and not as a technique for
selection," the peremptory challenge has been characterized as "a necessary
part of trial by jury."" As might be expected, therefore, such challenges
are available in criminal trials in federal courts2, ' and in all state courts2 5
not adopting the peremptory strike procedure as a substitute. 2
Attorneys, particularly defense attorneys, have long recognized the
importance of the right. Louis Nizer has viewed the peremptory tool as a
"precious opportunity and it should be used with all the resourcefulness
at [an attorney's] command. 21 7 Relying upon his knowledge of human
nature, his experience in examining jurors, and his ability to perceive
1gSee Stilson v. United States, 250 U.S. 583, 586 (1919). In Stilson, the defendants were
convicted of conspiracy under federal law. On appeal, they contended that the failure of the
trial court to allot each of them 10 peremptories was prejudicial error. The Court held that
the trial court did not err by treating all of the defendants as a single party and allotting them
10 challenges in total.
" Pointer v. United States, 151 U.S. 396, 408 (1894). In Pointer,the trial court had instructed
the parties to exercise their peremptory challenges simultaneously in writing. The Supreme
Court rejected the defendant's contention that such procedure infringed upon his rights. The
Court held that the defendant was not entitled to have the Government exercise its challenges
first, or to be informed which names were struck. In absence of a court rule or statute, the
manner of exercise is in the court's discretion. Id. at 410.
2'The Supreme Court has stated:
Experience has shown that one of the most effective means to free the jury-box from
men unfit to be there is the exercise of the peremptory challenge. The public prosecutor
may have the strongest reasons to distrust the character of a juror offered, from his
habits and associations, and yet find it difficult to formulate and sustain a legal
objection to him. In such cases, the peremptory challenge is a protection against his
Hayes v. Missouri, 120 U.S. 68, 70 (1887).
2 See United States v. Marchant, 25 U.S. (12 Wheat.) 480, 482 (1827). However, the use of
peremptory challenge to systematically exclude a particular class of persons from jury service
is an unconstitutional exercise of the right. For a discussion of possible unconstitutional
results if the right to challenge is abused, see notes 115-18 and accompanying text infra.
= Swain v. Alabama, 380 U.S. at 219.
The peremptory challenge has been criticized as impractical in the twentieth century.
Continental jurists have attacked peremptory challenges as being "only an historical remnant
without any modem justification." Orfield, supra note 17, at 129. Actual use of peremptory
challenges in England has been rare for a century. This, however, may be attributed to the
English courts' greater control over pretrial publicity and prejudgment of pending cases. This
factor gives both court and counsel more confidence in the impartiality of the jurors. See 380
U.S. at 218 & n.24. Peremptory challenges have also been identified as the reason for the delay
in completing a trial and for the increase in expenses by the elimination of qualified jurors.
Id. at 216 & n.19.
24 FED. R. CalM. P. 24(b), discussed in text accompanying notes 88-89, 93-99 infra.
' See Swain v. Alabama, 380 U.S. 202, 217 & n.20 (1965).
' See, e.g., ALA. CODE tit. 30, § 60 (1958). The system of striking as a method of exercising
peremptory challenges is discussed in notes 146-49 and accompanying text infra.
21 Nizer, The Art of the Jury Trial, 32 CORN lL L.Q. 59, 62 (1946).
hostility in a juror, the defense attorney is able to recognize certain
characteristics of the juror which would affect his reaction to the defendant,
himself, or the case. Recognition of undesirable characteristics would lead
to the prospective juror's exclusion from the panel.2" Nearly a century ago,
trial lawyer J.W. Donovan advised his colleagues to scrutinize a juror with
the aid of personal background information."8 Donovan advocated that
persons who appear to have been mistreated by life should be avoided
because they are prone to seek comfort in the defendant's hardship.3 0
Lawyers have similarly applied the laws of physiognomy or phrenology
in their voir dire examination. Relying solely on physical characteristics,
they have sought to separate the sensitive, emotional, and generous juror
from the pessimistic, narrow-minded individualist. For example, a short
upper lip has been viewed as indicative of sensitivity, but a long upper lip
reveals a strong individualist.3 ' F. Lee Bailey has advocated an
examination of the prospective juror's ethnic background" and physical
characteristics.n Factors such as age, 34 occupation and skills, 35 marital status, 3 and
See generally id.
Donovan advised attorneys to note the candor, humor, intelligence, social status,
occupation, and age of the veniremen, as well as the character reflected by their faces. R. SIMON,
THE JURY AND THE DEFENSE OF INSANITY 103 (1967) [hereinafter cited as SIMON], quoting J.
DONOVAN, MODERN JURY TRIALS AND ADVOCATES 227 (1887).
3 Donovan warned:
There is a little man deformed, narrow, selfish, opinionated; yonder is a captious,
caustic, witty man, of stale jokes and street corner argument; and further on is a hard
man, grim faced and cold, grey look, white blood and glassy eyes. Rule them all off, if
possible. The world has used them ill. They will spread their misery for company's
J. DONOVAN, MODERN JURY TRIALS AND ADVOCATES 227 (1887).
3, S. McCART, TRIAL BY JURY 35 (1964). Several other physical features have been linked with
personality characteristics, e.g., eyebrows meet and eyes close together-narrow-mindedness;
round, wide eyes-credulous; small eyes-lacking in emotion; lobeless and pointed
Another method that has been considered by some attorneys has been the study of
anthropometry, which divides the human race into three classifications based on the physical
aspects of the body: 1) endomorphs-believed to be more responsive to a criminal defendant;
2) mesomorphs-believed to give particular attention to facts, therefore advantageous to the
side with a strong factual case; 3) ectomorphs-believed to be less responsive to a criminal
defendant. Id. See also J. APPLEMAN, PREPARATION AND TRIAL 162-63 (1967) [hereinafter cited
11 Jurors of Italian, Irish, Jewish, Latin American, and Southern European extractions are
considered to be more desirable to a defendant's position. However, strong cross-examination
of a Jewish or Italian witness may generate resentment from jurors of the same descent. F.
BAILEY & H. ROTHBLATT, SUCCESSFUL TECHNIQUES FOR CRIMINAL TRIALS § 106 (1971)
[hereinafter cited as BAILEY & RoTHBLA'r].
A jovial and corpulent juror, with a round-shaped face, has been recognized as being more
sympathetic toward the defendant. Id. § 103.
31 Bailey and Rothblatt found that jurors between 28 and 55 years of age are alert and
responsive to complex defenses. Id. § 105.
11People with broad experiences and worldly exposure, such as salesmen, actors, artists, and
writers, may be preferred because they are not likely to be shocked by crime. Id. § 107.
N Married persons have been found to be more favorable to the defense than unmarried
persons. Id. § 105.
the sex37 of the individual must be evaluated to discover latent biases of a
prospective juror that could be prejudicial to a criminal defendant. 8 Mr.
Bailey also suggests focusing upon the prospective juror's body language
when responding to questions directed at him during the voir dire. 9
Defense attorney Clarence Darrow had his own formula for choosing
jurors. He sought those who would have a kind ear for the "underdog"
defendant. Thus, Irishmen and Jews were selected whenever possible, for
he believed them to be lenient. Englishmen and Scandinavians, on the
other hand, were avoided because of their strong regard for law
enforcement. Catholics, Episcopalians, and Presbyterians were preferred over
Baptists and Methodists, because the former were more tolerant of human
Through their studies on jury composition and deliberation, social
scientists and psychologists have confirmed the beliefs of these attorneys
that there is a correlation between juror characteristics and juror behavior.
These studies have indicated that a juror's race, nationality, or religion
have affected his verdict" and his reaction to an insanity plea.2 The juror's
response to forms of testimony has been found to be influenced by the
extent of his education.43 The sex of a juror has affected his weighing of
31 Bailey and Rothblatt have cautioned the defense counsel to avoid women where the
defendant is also a woman. Id. § 104.
1 Similar traits are also important in civil cases. See, e.g., APPLEMAN, supra note 31, at
16165 (on the issue of damages); J. FRANK, CouRrs ON TRIAL 121 (1949), quoting I. GOLDSTEIN,
TRIAL TECHNIQUES (1935).
11 Body language is a form of nonverbal communication, which can manifest itself
symbolically, by the individual's physical posture, external gestures, or facial expressions. 1 R.
GOLDENSON, THE ENCYCLOPEDIA OF HUMAN BEHAVIOR: PSYCHOLOGY, PSYCHIATRY AND MENTAL
HEALTH 170 (1970). See generally J. FAST, BODY LANGUAGE (1970).
Eliciting the prospective juror's attitudes about crime and personal opinions of the case
have also been suggested as guidelines in selecting jurors. BAILEY & ROTHBLATr, supra note
32, §§ 109, 111.
40 See SIMON, supra note 29, at 104, quoting F. BUSCH, LAW AND TACTICS IN JURY TRIALS 198
" Negroes and persons of Slavic and Italian origin were found more likely to vote not guilty
than persons of German and British backgrounds. Broeder, The University of ChicagoJury
Project, 38 NEa. L. REV. 744, 748 (1959). A juror's identification or familiarity with the
occupation of the defendant has also resulted in a verdict of acquittal. Broeder, Occupational
Expertise and Bias As Affecting JurorBehavior: A PreliminaryLook, 40 N.Y.U.L. REv. 1079,
1099 (1965). Furthermore, the likelihood of conviction has been shown to increase when there
is a greater discrepancy between the socio-economic level of the juror and the defendant.
Adler, Socio-economic FactorsInfluencing Jury Verdicts, 3 N.Y.U. REV. OF LAW AND Soc.
CHANGE 1, 6-10 (1973) [hereinafter cited as Adler].
42 Rita James Simon researched the reaction of jurors from various sociological backgrounds
to verdicts of not guilty by reason of insanity. She concluded that Negroes are more likely
than others to acquit on grounds of insanity. Negroes were more inclined than other minority
groups to see themselves as political victims of police or law enforcement institutions and
thereby more inclined to identify with the defendant. SIMON, supra note 29, at 111.
11Grade school educated jurors placed more emphasis on testimony, personal life
experiences, and opinions presented at the trial than higher educated jurors, who emphasized
evidence." It has been discovered that previous jury experience tends to
color the juror's attitudes and often results in the formulation of
preordained conclusions in all future trials.45 Additionally, psychologists have
focused on personality traits of the juror, placing particular emphasis on
examining authoritarian and anti-authoritarian personalities. The former
have been found to be more inclined to convict."
To peremptorily challenge prospective jurors who have latent biases
detrimental to the defense, the attorney must obtain sufficient personal
background information.47 There is a wide range of investigative
techniques available to private counsel. The only apparent limitations are the
attorney's time, money, and ingenuity.48 Some attorneys have employed
private investigators as part of their permanent legal staff. Others have
resorted to commercial jury investigating services for their information."
Private detective agencies have also been utilized. In some instances,
attorneys have pooled their information, 5' consulted with politicians, or
contacted state agencies.5 Investigators have interviewed the juror's neighbors
or associates.2 The type of information canvassed is equally as broad.
procedure and instruction. Adler, supra note 41, at 3, citing James, Status and Competence
of Jurors, 64 AM. J. Soc. 565 (1959).
" There is a tendency among male jurors to reach the verdict on the basis of whether or not
they want to see the accused punished rather than upon the assessment of the facts. Adler,
supra note 41, at 3.
" See Broeder, Previous Jury Trial Service Affecting Juror Behavior, 1965 INS. L.J. 138.
Previous jury experience has also resulted in emotionally exhausting a juror's ambition to
fight for what he believes to be just. Id. at 140.
11Authoritarian personalities were found to be more inclined to distort evidence in favor of
conviction. Their decision to convict was usually made before all the evidence was presented.
Boehm, Mr. Prejudice, Miss Sympathy, and the AuthoritarianPersonality:An Application
of PsychologicalMeasuring Techniques to the Problem of Jury Bias, 1968 Wis. L. REv. 734,
11APPLEMAN, supra note 31, at 160. Sources of information frequently used are the city
directory, local salesmen, the family physician, and professional jury services. Id.
" Okun, The Investigation of Jurors by Counsel: Its Impact on the Decisional Process, 56
GEO. L.J. 839, 851 (1968) [hereinafter cited as Okun], citing White, Selecting the Jury, in
SUCCESSFUL JURY TRIALS 121 (J. Appleman ed. 1952). There is no pretrial investigation in the
English system. Okun, supra, at 865-66.
11Okun, supranote 48, at 851. Professional jury services provide the attorney with a complete
background of the juror, including the manner in which he or she voted in previous cases.
APPLEMAN, supra note 31, at 160. Some attorneys, however, prefer their own personnel
handling the investigation since this affords the attorney greater control of methods used. Okun,
supra note 48, at 851 n.46.
Leading attorneys in Philadelphia have in the past pooled their efforts to amass juror
information, each bearing his share of the expenses. Okun, supra note 48, at 851 n.47, citing
C. CALLENDER, Ti SELECTION OF JURoRs 30 (1924).
11APPLEMAN, supra note 31, at 160. Credit bureaus, police departments, banks, and township
supervisors are also likely sources of information. Heyl, Selection of the Jury, 40 ILL. B.J. 328,
333-34 (1952) [hereinafter cited as Heyl].
52 Such practices were used in pretrial investigation by the defense in the Wounded Knee
trial. Wall Street Journal, Aug. 12, 1974, at 1, col. 1. See note 63 infra.
Facts such as age, employment, marital status, previous court litigation,
religion, and political affiliations have been gathered. Attorneys have also
requested the investigators to obtain information regarding a prospective
juror's reputation, social affiliations, and standard of living."3
-As part of their pretrial investigations, defense attorneys have formed
alliances with professionals to assist them in the actual exercise of their
peremptory challenges. Hypnotists have been employed in detecting the
subconscious motivations of prospective jurors.54 In the trial of Angela
Davis, five black psychologists visited the courtroom daily and observed
the veniremen throughout the voir dire questioning.55 Consultations were
held with the defense attorneys during recess and in the evenings to discuss
their findings and to suggest areas of questioning that might prove
helpful." The psychologists observed the veniremen's attitudes toward the
image of Angela Davis as a black militant Communist. They studied the
jurors' personality characteristics and assessed the jurors' ability to
support their convictions. Body language was also carefully observed and
recorded. 7 After the jury was selected, the defense believed that there were
only four pro-prosecution jurors. The psychologists were confident,
however, that they would not hang the jury, but would yield to the sentiment
of the others. 58 The jury's verdict of acquittal proved the psychologists to
In the criminal conspiracy trial of John Mitchell and Maurice Stans,
Herbst, a media expert, constructed a demographic profile of 500 New
Yorkers utilizing principles of marketing research." The profile indicated
11Okun, supra note 48, at 851. See Heyl, supra note 51, at 333, which contains a reprint of
an extensive questionnaire used to screen jurors. The author describes the utility of this
method in the exercise of peremptory challenges. Id. at 334-36.
11Dr. William Bryan contends that a male juror who loosens his collar while the death
penalty is discussed during the voir dire is subconsciously against the death penalty,
regardless of his conscious admissions. Dr. Bryan claims that he is capable of predicting a juror's
behavior in a jury room over 90% of the time. Wall Street Journal, Aug. 12, 1974, at 19, col.
In addition, a telephone survey was conducted by Jeffrey M. Paige, a sociologist at the
University of California at Berkeley, to gather sufficient evidence that the local population
had formed an opinion as to the guilt of Miss Davis so as to support a change of venue motion.
The effort was successful. Schulman, Shaver, Colman, Emrich & Christie, Recipe for a Jury,
PYSCHOLOGY TODAY, May 1973, at 37, 39 [hereinafter cited as Recipe for a Jury].
" Robinson, supra note 9, at 46.
'7 Id. at 48, 50. Psychologists identified three traits likely to influence the jury: Miss Davis'
beauty, determination, and friendliness. They sought to find jurors who would react to Miss
Davis on a rational human level rather than on one of prejudicial emotion. See Sage,
Psychology and the Angela Davis Jury, 2 HuMAN BEHAVIOR 56 (1973).
" Robinson, supra note 9, at 50.
0 Angela Davis, charged with murder, kidnapping, and conspiracy, was acquitted in 1972
after a three-month trial. Id. at 44, 50.
0 Wall Street Journal, Aug. 12, 1974, at 19, col. 4. Mitchell and Stans were acquitted of
obstruction of justice, perjury, and conspiracy charges in April 1974. Id. at 1, col. 1.
that middle-income, high-school educated jurors of the Catholic faith
would be most sympathetic to the defense.' In recent political trials,
defense attorneys have been assisted by sociologists attempting to identify
those sociological characteristics of the trial district which would be most
favorable to the defendant.2 Their techniques were first applied in the trial
of the Harrisburg Seven." Personal interviews were conducted with a
sample of 252 potential jurors in the Harrisburg area." To determine their
1 Id. Mr. Herbst stated, "We wanted people who are home established, to the right, more
concerned with inflation than Watergate ...." N.Y. Times, May 5, 1974, at 41, col. 1.
12The analysis is usually divided into three states: 1) a sociological profile of the community;
2) an in-court observation of jurors; and 3) an investigation of jurors' backgrounds. There is
also consideration of juror group dynamics and anticipation of the individual prospective
juror's reaction to evidence and issues that are to be presented at trial. See Recipe for a Jury,
supra note 55, at 39-42.
" The Harrisburg Seven, which included Father Philip Berrigan, were indicted for conspiring
to raid draft boards and destroy records, to kidnap presidential adviser Henry Kissinger, and
to explode Washington, D.C. heating tunnels. See Recipe for a Jury, supra note 55, at 37.
Sociologists were again enlisted by anti-war dissidents defending in the Camden 28 and
Gainesville Eight trials. Jury Selection, supra note 6, at 1033. In the Gainesville Eight trial,
the jury, which included some men of draft age, acquitted militant members of the Vietnam
Veterans Against the War who were accused of having organized teams to attack police
station vehicles and stores in Miami Beach. Similarly, the seventeen defendants in the
Camden 28 trial, charged with breaking into a federal building in 1971 and destroying draft
files, were acquitted. In the Camden 28 trial, 1,561 registered voters in southern New Jersey
were canvassed for purposes of gathering demographic data. The interviewers sought
information on the subject's view of the war in Indochina, amnesty for draft evaders and deserters,
and the Presidency. Memorandum from Friedel Ungeheuer to Time Magazine, May 22, 1973.
Sociologists also participated extensively in the trial preparation for defendants involved
in the incidents at Wounded Knee. Russell Means, a Sioux, and Dennis Banks, a Chippewa,
were charged with burglary, assault, larceny, and conspiracy in connection with the seizure
of the Indian hamlet of Wounded Knee in the Pine Ridge Reservation, South Dakota. The
two defendants led 300 Indians and sympathizers into the town and took control at gunpoint,
holding it for 73 days. N.Y. Times, Jan. 9, 1974, at 18, col. 1. Sixty volunteers conducted
telephone interviews with 575 potential jurors who were selected at random in the federal trial
district of St. Paul, Minnesota. The interviewees' attitudes toward government, police, and
Indians were collected to uncover prejudices. Their responses were correlated with
demographic material to ascertain the type of person best suited for the defense. Wall Street
Journal, Aug. 12, 1974, at 1, col. 1. The results filled 1,000 pages of computer print. TIME,
Jan. 28, 1974, at 60. During the voir dire, a team of 10, including an Indian psychologist, a
tribal medicine man, and a body language specialist observed the jurors. Meanwhile, fifty
defendant sympathizers investigated the background of each panel member by speaking to
neighbors, acquaintances, and co-workers. Consideration was also given to juror interaction.
Id. The collected data was analyzed by the social scientists, lawyers, and defendants the night
before the twenty peremptory challenges were to be exercised. Wall Street Journal, Aug. 12,
1974, at 1, col. 1.
After jury deliberations had commenced, one of the jurors suffered a stroke. Federal
Judge Nichol, refusing to declare a mistrial, dismissed the charges against the two leaders of
the American Indian Movement. However, Judge Nichol admitted that he expected a verdict
of acquittal. Later, several jurors disclosed that they would have acquitted the defendants.
NEwswEK, Sept. 30, 1974, at 54-55.
" Recipe for a Jury, supra note 55, at 40. Prior to this, the researchers surveyed the
Harrisimpartiality, inquiry was made into the prospective jurors' political
attitudes, their exposure to the media, and the ages and activities of their
children. 5 Religion was discovered to be a key factor and significantly
related to all other attitudes under investigation." The ideal juror emerged
as a woman employed in a white collar or skilled blue collar job, with
Democratic political affiliation and having no religious preference.67
PROSECUTORIAL REACTION TO SCIENTIFIC JURY SELECTION
Traditionally, intensive pretrial investigations have not evoked an
unfavorable response from the judiciary. So long as out-of-court
investigations do not interfere with the jury system, they are not subject to
challenge as violating the constitutional protection of an impartial jury.69 For
example, in Dow v. Carnegie-Illinois Steel Corp.," the Third Circuit found
that a defense attorney's hiring of a third party to obtain background
information about the prospective jurors was necessary to effectively
exercise his peremptory challenges.7 Even though direct contact was made
with neighbors of the prospective jurors,7" the Dow court viewed the
investigative activities as a necessary tool whereby the attorneys could seek
information without purporting to intimidate jurors.73
burg area, making 840 telephone calls, to determine whether the jury pool represented a cross
section of the population. They found those on the list disproportionately older than members
of the present community and successfully moved to have a new jury pool drawn. Id.
Id. Questions concerning the individual's religious attitudes, spare time activities, trust in
government, favorite American personalities, and his attitude toward issues related to the
trial, i.e., right of property and police authority, were also asked. Id.
" Id. Catholics, Brethren, and Lutherans were discovered to have attitudes that were
favorable to the defendant. On the other hand, Episcopalians, Presbyterians, Methodists, and
Fundamentalists were considered hostile and were to be avoided. Id.
67 Recipe for a Jury, supra note 55, at 40. The ideal juror varies with the area and the nature
of the case. In the Gainesville Eight trial, Episcopalian and Presbyterian professionals were
favorable for the defense. Women were found to be unsympathetic. In both the Harrisburg
Seven and Camden 28 trials, however, women were sympathetic to the defense. In the
Wounded Knee trial, women were found to be no more favorable than were men to the
defendants. TrhE, Jan. 28, 1974, at 60.
" The importance of extensive pretrial investigation has intensified where the voir dire has
become more restricted. Okun, supra note 48, at 849. For further discussion of the voir dire
and its relation to peremptory challenges, see notes 138-45 and accompanying text infra.
1 Judge Frank stated that lawyers should not be censured for employing pretrial stratagems
for their clients' protection. See Skidmore v. Baltimore & O.R.R., 167 F.2d 54, 61-62 (2d Cir.),
cert. denied, 335 U.S. 816 (1948).
70 224 F.2d 414 (3d Cir. 1955), cert. denied, 350 U.S. 971 (1956).
224 F.2d at 431.
The investigators telephoned friends and neighbors and inquired about the prospective
juror's age, occupation, marital status, children, religion, and politics. They were also asked
whether they knew if the juror owned property, was ever engaged in litigation, or injured in
an accident. Id. at 430.
11Id. at 431. Dow is distinguishable from Sinclair v. United States, 279 U.S. 749 (1929),
wherein the Supreme Court condemned the investigation practices of a criminal defendant.
Courts have given great latitude to the scope of the investigation and
the type of materials that can be used in preparation for the voir dire
examination. F.B.I. reports," special reports prepared by the I.R.S.,7" as
well as jury books which detail how particular jurors voted in prior trials
have been used by the prosecution. Most recently, courts have acquiesced
in the collaboration between defense counsel and social scientists or
Not surprisingly, prosecuting attorneys have been less than exuberant
over the newfound application of social sciences and computer technology.
Government attorneys assert that the defendant's substantial allotment of
peremptory challenges enables him to "dominate and control" jury
selection.7 8 With the assistance of social sciences and demographic profiles to
direct the exercise of peremptory challenges, they hypothesize the loss of
the impartial jury system.79 The fear expressed by prosecutors rests on two
assumptions: first, that the defendant has too substantial a number of
peremptory challenges at his disposal, and second, that the social sciences
are accurate in their analyses. The accuracy of these assumptions is
In Sinclair, the defendant hired private detectives to keep all jurors under surveillance
throughout the trial. Such activities "destroy[ed] the equilibrium of the average juror and
render[ed] impossible the exercise of calm judgment upon patient consideration." Id. at 765.
In McCready, ChallengingJurors, 58 DICK. L. Rav. 384, 385 (1954), the author, a
Pennsylvania judge, indicated that proper investigations may be made by counsel provided he does
not directly contact veniremen.
" See Best v. United States, 184 F.2d 131, 141 (1st Cir. 1950), cert. denied, 340 U.S. 939
"' See United States v. Costello, 255 F.2d 876 (2d Cir.), cert. denied, 357 U.S. 937 (1958).
7' See Hamer v. United States, 259 F.2d 274 (9th Cir.), cert. denied, 359 U.S. 916 (1958).
" Judge Fred Nichol, who conducted the Wounded Knee trial, was impressed by the
techniques of the team of sociologists and psychologists. He declared that he could perceive the
system being adopted by the Government in the future. TIME, Jan. 28, 1974, at 60.
Judge Leonard Braman, of the District of Columbia Superior Court, utilized social
science techniques to assist him in selecting the panel for the trial of five Black Muslims charged
with the slaying of seven Hanafi Muslims. A three-page questionnaire was distributed to an
oversized panel of 650 prospective jurors. The completed questionnaires were fed into a
computer, and the resulting print-out indicated 389 potential jurors had no fixed opinion of
the case and were willing to be sequestered. This number was reduced to 270 by random
selection, from which the jury was chosen. N.Y. Times, Feb. 24, 1974, at 29, col. 1.
In Florida, a Dade County investigation firm assists attorneys by investigating the entire
panel. The service, in operation for over twenty years, has received the sanction of the Dade
County courts. See notes 133-34 and accompanying text infra. It is believed that attorneys
should be equipped with such background information to sensibly exercise their
peremptories. In addition, jury selection is hastened. 172 N.Y.L.J. 89, Nov. 6, 1974, at 1, cols. 1-2, &
at 6, cols. 7-8.
7, The Watergate prosecution, for example, maintained that the 20 peremptory challenges
awarded the defendants enabled them to dominate the selection of jurors. N.Y. Times, May
5, 1974, at 41, col. 1.
11Wall Street Journal, Aug. 12, 1974, at 19, col. 5.
The Number of Peremptory Challenges
In response to the prosecutors' protests, it is contended that defense
attorneys are not equipped with sufficient peremptories to eliminate
prospective jurors who fit their profiles." Although the number of peremptory
challenges allotted to a defendant varies with each state, in the usual
instance, a criminal defendant is not generously provided with the device.
The defendant may have as few as four and rarely more than ten
peremptories in cases involving felonies punishable by a sentence less than life
imprisonment."' With respect to capital offenses or crimes punishable by
life imprisonment, as many as twenty peremptories have been assigned to
a single defendant because of the severity of the punishment. s Under the
federal system, the defendant is entitled to twenty peremptory challenges
for a capital offense, ten for a felony, and three for a misdemeanor.Y3
Proponents of the present system further point out that the number
of peremptories allowed the defendant is balanced by the number allotted
the state. The prosecution, in most states, is accorded an amount equal to
that available for the defendant. 4 In jurisdictions where an unequal
number of challenges is prescribed, the prosecution has at least one-half the
amount awarded the defendant. 5 Although seemingly inequitable, this
unequal distribution of challenges has been upheld as constitutional.8
" See CAL. PENAL CODE § 1070 (West 1970) (10 peremptory challenges); ILL. ANN. STAT. ch.
38, § 115-4(e) (Smith-Hurd 1970) (10 peremptory challenges); MASS. GEN. LAWS ANN. ch.
234, § 29 (Supp. 1974) (4 peremptory challenges); MONT. REv. CODES ANN. § 95-1904(f) (Supp.
1974) (6 peremptory challenges). But see GA. CODE ANN. § 59-805 (1965) (12 peremptory
challenges if the crime is punishable by less than four years in the penitentiary, 20 peremptory
challenges if the crime is punishable by more than four years in the penitentiary or by death).
New York law permits the defendant 15 peremptory challenges when charged with a class B
or C felony and 20 peremptory challenges when charged with a class A felony. N.Y. CiuM.
PRO. LAW § 270.25(2)(a), (b) (McKinney 1971). These comparatively large numbers may be
attributed to the fact that New York does not provide for additional challenges in
multidefendant trials. Id. § 270.25(3).
"2 CAL. PENAL CODE § 1070 (West 1970); ILL. ANN. STAT. ch. 38, § 115-4(e) (Smith-Hurd 1970);
N.Y. CRIM. PRO. LAW § 270.25(2)(a) (McKinney 1971). See AMERICAN BAR AssOcTION
PROJECT ON MINIMAL STANDARDS FOR CRIMINAL JUSTICE, TRIAL BY JURY, commentary at 72
(approved draft 1968) [hereinafter cited as TRIAL BY JURY] for a discussion of statutory schemes
throughout the country.
FED. R. CRIM. P. 24(b).
CAL. PENAL CODE § 1070 (West 1970); ILL. ANN. S-TAT. ch. 38, § 115-4(e) (Smith-Hurd 1970);
N.Y. CRIM. PRO. LAW § 270.25(2) (McKinney 1971).
" See, e.g., GA. CODE ANN. § 59-805 (1965).
" Jones v. Georgia, 1 Ga. 610, 617 (1846). It is interesting to note that the prosecution has
rarely raised the question of unconstitutionality. This may be attributed to the fact that the
right to an impartial jury is a right of the defendant, not the prosecution. Additionally, from
a historical perspective, the peremptory challenge was primarily a weapon of the defendant
to shield him from jurors anxious to convict. Comment, Swain v. Alabama: A Constitutional
Blueprint for the Perpetuation of the All White Jury, 52 VA. L. REV. 1157, 1172 (1966)
[hereinafter cited as Comment, Swain v. Alabama]. Thus, the claims of the prosecution and
the defendant to the right to peremptorily challenge do not have the same weight. Id. at 1173.
Justification for this procedure is based on the theory that the prosecution
has adequate resources for investigating prospective jurors, and therefore,
does not require the same number of challenges. 7 In the federal courts, the
prosecution is entitled to an equal number of challenges in trials involving
capital offenses or misdemeanors. The Government is limited, however, to
six peremptories in a felony trial."8 Where there is an unequal number, the
challenges are exercised alternatively so that the prosecution is -not at a
In multi-defendant trials, the majority of states allot additional
peremptories either by statute or through judicial discretion." By so doing,
these jurisdictions attempt to protect a particular defendant from
prospective jurors who may be biased specifically against him.91 Where an
additional allotment is provided, the majority of states increase the
prosecuTRIAL BY JURY, supra note 82, commentary at 75.
FED. R. CRIM. P. 24(b). The rationale for the difference in this allocation is unclear.
88 For example, where the prosecution has six and the defense has twelve peremptories, the
court could instruct the defendant to exercise two challenges to every one challenge exercised
by the prosecution. See generally Challenge,supranote 16, at 641-43, for methods of
exercising peremptory challenges where there is an unequal distribution.
" Some states, such as New York, prohibit additional challenges to defendants joined in a
single trial. N.Y. CRIM. PRO. LAW § 270.25(3) (McKinney 1971).
Statutes or rules granting additional peremptory challenges in multi-defendant trials
may be classified into two general categories. The first are those which require the
codefendants to jointly exercise those peremptory challenges which would have been available
in a single defendant trial. In addition, such statutes or rules may 1) allow the trial judge
the discretion to permit each defendant additional challenges to be exercised separately or
jointly, see, e.g., FED. R. CRIM. P. 24(b); 2) allow the trial judge the discretion to grant
additional challenges which must be separately exercised, see, e.g., MD. ANN. CODE, rule 746
§ a(2) (1971); 3) mandate the trial judge to give a few additional challenges which must be
separately exercised, see, e.g., CAL. PENAL CODE § 1070.5 (West 1970).
The second category includes those statutes which specify that no joint challenges may
be exercised in a multi-defendant trial. Instead, a specific scheme of distribution may provide
that 1) each defendant be given a specific amount that does not exceed the amount he would
be given if tried alone, see, e.g., ILL. ANN. STAT. ch. 38, § 115-4(e) (Smith-Hurd 1970); 2) the
statutory number be equally divided among the defendants, allowing the trial judge the
discretionary authority to grant more, see, e.g., Wis. STAT. ANN. § 972.03 (1971); or 3) each
defendant be given an amount equal to the amount he would have received if he had been
tried alone, see, e.g., MASS. GEN. LAws ANN. ch. 234, § 29 (Supp. 1974). See TRIAL By JuRY,
supra note 82, at 72-74.
g1 This method seeks to protect the rights of a defendant who is joined with others whose
interests are adverse to his. WiS. STAT. ANN. § 972.03 (1971). Some jurisdictions require a
showing of prejudice or adverse interest before additional challenges are awarded. See
Peremptory Right, supra note 16, at 755. Other jurisdictions provide for a standard scheme
applicable in all multi-defendant trials, CAL. PENAL CODE § 1070 (West 1970). Accordingly,
the decision to grant more challenges is not dependent upon a reasonable explanation by the
defendant seeking the increased allotment. To require otherwise would be contradictory to
the very essence of the peremptory challenge-a challenge to be exercised without disclosing
a reason. Moreover, the judge should not be forced to speculate for reasons. Thus, a scheme
of general applicability appears to be more desirable. Id.
tion's number of peremptories to equal the total afforded the defendants.2
In the federal system, additional challenges may be granted to the
defendants in the court's discretion. 3 There would appear to be two grounds for
the increment: (1) evidence must exist indicating a conflict of interest
among the defendants,94 or (2) the additional challenges may be necessary
to counter adverse publicity. 5 Although the discretion of the court is not
liberally exercised," where defendants are allotted an increased number of
peremptories, additional challenges need not be conferred upon the
prosecution.97 Thus, to the extent there will be a discrepancy in the number of
peremptories allotted each side, reform measures, designed to rectify this
situation, should be forthcoming. It should be noted, however, that
certain federal judges, sensitive to the potential danger of an unbalanced
situation, have refused to grant defendants additional challenges without
concurrently increasing the Government's amount. In the Watergate trial,
for example, Judge Sirica refused the defense's request for 25 challenges
and a restriction of the Government to its allotted six. To grant the
request, Judge Sirica believed, would effectively enable the defense to select
The Accuracy of Social Profiles
It is readily apparent, therefore, that the defendant's ability to
dis,' CAL. PENAL CODE § 1070.5 (West 1970); ILL. Rev. STAT. ch. 38, § 115-4(e) (Smith-Hurd
1970); MASS. GEN. LAWS ANN. ch. 234, § 29 (Supp. 1974).
,1FED. R. CRIM. P. 24(b). The court may permit the defendants to exercise these challenges
jointly or separately. See Advisory Comm. Note to Rule 24(b) in 3 C. WRIGHT, FEDERAL RULES
OF CRIMINAL PROCEDURE 478 (App. 1969).
1,Gradsky v. United States, 342 F.2d 147, 152 (5th Cir. 1965).(refusal to permit more than
10 peremptory challenges was not an abuse of court's discretion where there was no evidence
of a conflict of interest among the 10 defendants).
,1In the Mitchell-Stans trial, Judge Gagliardi allotted an additional 10 peremptory
challenges to the defendants, who had been subjected to massive adverse publicity. In this
manner, the judge sought to "insure the defendants' right to a fair trial." N.Y. Times, May
5, 1974, at 41, col. 1. Cf. United States v. Bonanno, 177 F. Supp. 106, 122-23 (S.D.N.Y. 1959)
(additional challenges allotted to defendants where there existed widespread pretrial
" See, e.g., Amsler v. United States, 381 F.2d 37, 44 (9th Cir. 1967) (each defendant allowed
only one extra challenge to exercise separately); United States v. Hoffa, 367 F.2d 698, 710
(7th Cir. 1966), rev'd on other grounds, 387 U.S. 231 (1967) (six defendants in conspiracy
prosecution were not improperly limited to a total of 18 peremptory challenges). See note 94
FED. R. CRIM. P. 24(b). In the following political trials, the prosecution was given only six
peremptory challenges while the defense received: 20 in Wounded Knee (an additional 10 for
2 defendants), Wall Street Journal, Aug. 12, 1974, at 1, col. 1; 28 in HarrisburgSeven (an
additional 18 for 7 defendants), Recipe for a Jury, supra note 55, at 41; and 17 in Chicago
Seven (an additional 7 for 7 defendants), United States v. Dellinger, 472 F.2d 340, 467 n.38
(7th Cir. 1972), cert. denied, 410 U.S. 970 (1973).
98 See note 137 and accompanying text infra.
" N.Y. Post, Oct. 4, 1974, at 23, col. 1.
cover his ideal juror is substantially impaired by the limited number of
peremptories accorded him. Rarely will he possess sufficient peremptory
challenges in excess of those available to the prosecution to tailor the jury
to his needs. Undismayed, however, prosecutors argue that the defense
maintains an unfair advantage due to the accuracy of social scientists and
psychologists in determining which prospective jurors should be
peremptorily challenged. As with the first contention, this fear of accuracy appears
to be unjustified.
Defense attorney F. Lee Bailey refers to jury selection by attorneys as
random guessing, analogous to the whirl of a roulette wheel.' ® One
commentator has claimed that jury selection is futile without an accompanying
ability to read minds,'"' and another views it as shrewd-guessing, finding
the results as reliable as stock market analysis. 0° The attorney's unaided
natural instinct and judgment may be neither more nor less effective when
augmented by the findings of social scientists. Hans Zeisel, professor of law
and sociology at the University of Chicago, conducted studies of
experienced trial lawyers, unassisted by social scientists, to prove that attorneys
were singularly capable of accurately predicting the jury verdict in mock
trials. 0 3 Along these same lines, attorney Peter Flemming, chief defense
counsel in the Mitchell-Stans trial, claimed that the demographic material
utilized by the defense merely confirmed the attorney's own judgment and
10"Wall Street Journal, Aug. 12, 1974, at 1, col. 1. He regards it as the "most unscientific
part of any trial." Id.
27 U. CINN. L. REv. 87, 90 (1958).
102 Brody, Selecting A Jury-Art or Blind-Man's Buff?, 4 Catm. L. Rv. 67, 78 (1957)
[hereinafter cited as Brody]. The author, in discussing the approaches of great trial lawyers,
analytically reduces their efforts to speculation and hunches.
Dependence upon intuition and past experience in rejecting panelists has had its
consequences. One United States Attorney placed strong confidence in a kind and matronly
woman, whom he described as attentive and approving throughout the trial. The case
resulted in a hung jury of 11 to 1 for conviction, the sole opponent being the supposed partisan.
The attorney admitted that such results tend to ruin the belief that one can accurately judge
jurors. N.Y. Times, May 7, 1950, § 6 (Magazine), at 22. A more vivid display of the
uncertainty of juror prediction was demonstrated in the murder trial of four Harlem teenagers in
the'early sixties. The prosecution had considered one Blanche Schutz to be a good juror for
its case because she was white, middle-class, and the wife of a corporation lawyer. There were
no clues as to Mrs. Schutz's sympathies for the defendants and many on the defense had
abandoned attempts to enlist her support. In the end, Mrs. Schutz voted for acquittal.
Blumenfeld, Harlem Four: The Minds of a Jury, 214 NATION 262, 263 (Feb. 28, 1972). The
prosecution had further reassured itself with the unusual maturity of the jury. The average
age of the jurors was 57 years old. One elderly gentleman, Charles Bitter, age 71, had been
categorized by the defense as the "villain of the jury," and as one who would surely vote to
convict. He voted for acquittal on the first ballot. Two other elderly jurors also surprised the
prosecution by voting for acquittal. For the prosecution, at least, the limitations of human
perception and intuition became manifest. Id. at 263-64.
"I Wall Street Journal, Aug. 12, 1974, at 19, col. 5.
An examination of some of the celebrated cases wherein attorneys
have collaborated with sociologists and psychologists demonstrates the
limited effect that nonlegal professionals have had in determining the
trial's outcome. In the Mitchell-Stans trial, Andrew Choa was the only
juror who did not fit the defendants' jury profile. Choa was neither
middleclass nor merely a high school graduate. He was vice-president of First
National City Bank and a graduate of Harvard University. He had strong
political beliefs and was fully aware of the importance of John Mitchell
and Maurice Stans in President Nixon's re-election campaign. '
5Nevertheless, it was Mr. Choa who proved instrumental in leading the jury to a
verdict of. acquittal.11 In the HarrisburgSeven trial, involving, in part, a
prosecution for conspiracy to raid draft centers, the defense calculated the
potential juror behavior of two jurors and assumed both to be favorable to
their side. Mrs. Kathryn Schwartz, 68, mother of six, including four sons
who were conscientious objectors on religious grounds, was considered one
of their "benign seven."'' 7 Furthermore, although his occupational status
as a business owner was thought to be unfavorable, Lawrence Evans was
deemed acceptable, based upon his answers during the voire dire
examination.'08 Ultimately, it was these two jurors who, by voting for conviction,
were responsible for a hung jury.10
The success of these trials, from the defendant's standpoint, would not
" N.Y. Times, May 5, 1974, at 41, col. 2. Mr. Choa further failed to meet the defendant's
ideal profile in that he was not "home established", see note 61 supra, but an international
banker and world traveler. He was born and reared in Hong Kong where he served in the
British Embassy. Id.
10I4d. at 41, cols. 4-5. Mr. Choa initiated much of the communication between the judge and
the jurors in an effort to have a clarification of the law. For example, he drafted the jury's
request for a re-reading of part of the testimony. It was Mr. Choa's opinion regarding certain
documentary evidence which caused the jury to discard it as evidence of guilt.
17The defense, having learned of the conscientious objector status of her sons, decided to
halt further questioning of Mrs. Schwartz. Recipe for a Jury, supra note 55, at 43. The
"benign seven" refers to those jurors whom the defense classified as their second choice. Id.
0 Evans responded favorably to three important questions posed to him during the voir dire.
With regard to the hippy culture, he stated that he "couldn't be against hippies because I
have some sons who look like that." Id. at 43. On the war, he expressed that "[m]ore could
be done and should be done to end the war .... I don't know whether we should be there
or not." Id. His comment on the clergy's participation in opposing the war was that "church
people should do more of that." Id.
'" A sociologist on the team, Professor Shulman, admitted that "while we argued and
debated for hours about third-choice jurors, it was two of our second choices who hung the jury."
Id. at 79.
Evans' guilty determination was manifested at the outset of the jury deliberations and
remained constant for the duration. Evans proclaimed that the defendants must be guilty,
otherwise the Government would not have brought them to trial. Becoming more adamant
with the passage of time, he announced that he was commissioned by God to see that the
defendants were convicted. Id. at 80. Evans apparently appealed to Mrs. Schwartz's religious
fervor and conservative tendencies, influencing her to vote for conviction. Id. at 81.
appear to be dependent upon the results of scientific jury analysis.
Moreover, there may be another far more essential cause independently
accounting for the juries' verdicts. Professor Zeisel points out that many of the
acquittals in cases wherein social scientists have been employed can be
attributed to the weakness of the Government's cases. For example,
conspiracy charges, which have been in issue in a number of political trials,
are by their nature difficult to prove. Professor Zeisel believes that such
cases are won or lost on the evidence, without regard to the composition
of the jury."0
Other PotentialA buses
As the impact of social sciences appears to be slight, prosecutors'
objections are unjustifiably strenuous. This does not mean, however, that
their criticisms should be completely overlooked. The collaboration of
social scientists and other nonlegal professions in the exercise of peremptory
challenges can lead to abuses which in turn may result in the destruction
of the impartial jury.
As a matter of national policy, jurors are drawn at random from a
cross-section of the trial forum's community.' This policy seeks to assure
the defendant of a trial by his peers, and to secure for all citizens the
opportunity of participating in the judicial process."' Critics of
interprofessional collaboration during the voir dire contend that joint
defendants in a federal felony trial can vitiate these goals by misusing their
peremptory challenges. Equipped with a large number of challenges and
detailed social profiles, defense attorneys, it is argued, might invidiously
discriminate against a class by preventing their selection as jurors. These
excluded class members would be foreclosed from participating in the
administration of justice."'
Jury Selection, supra note 6, at 1034.
28 U.S.C. § 1861 (1970). See Glasser v. United States, 315 U.S. 60, 85-86 (1942) (defendant,
charged with conspiracy to defraud, successfully moved to quash the indictment because
women were excluded from the grand jury); Smith v. Texas, 311 U.S. 128, 129 (1940)
(defendant successfully contended he was denied equal protection because Negroes were
systematically excluded from the grand jury solely on account of their race).
Chief Judge Kaufman has indicated that:
[w]hen the question of guilt is a close one, the composition of the jury and the attitude
of jurors toward the prosecutor and defendant may affect the outcome. . . .The ideal
is to select a jury that represents a cross-section of the community from which it is
drawn. Although no group should have a veto power over convictions, each should have
the right to participate in the process of determining guilt or innocence.
Kaufman, Harbingersof Jury Reform, 58-A.B.A.J. 695, 696 (1972).
"1This common law policy is reflected in The Jury Selection and Service Act of 1968, which
mandates that no citizen be excluded from serving as a grand or petit juror in a federal district
court because of race, color, religion, sex, national origin, or economic status. 28 U.S.C. § 1862
(1970). See Comment, Challenging the Juror Selection System in New York, 36 ALBANY L.
Rxv. 305, 318 (1972).
"I Systematic and calculated use of peremptory challenges to discriminate on the basis of
The validity of this criticism, however, is questionable. First, the
requirement is that the pool of potential jurors be from a cross-section of the
community. This does not mean that the actual trial jury must be
reflective of a cross-section of the trial forum's populus."' Second, it is
systematic and purposeful discrimination that is prohibited." 5 To sustain a claim
of discriminatory exclusion, purposeful exclusion of one class from the
panel in a particular case is insufficient. A course of conduct directed at a
particular class over a period of time must be demonstrated."' The
defendant exercises his challenges in one particular case, and thus, exclusion by
him does not preclude a juror's participation in subsequent cases." 7 The
possibility that class members may be considered undesirable by criminal
defendants in a majority of criminal cases of a similar or dissimilar nature
does not establish the calculated intent to deprive the class of an
opportunity to participate in the judicial process. Finally, the defense's use
of social profiles is aimed at the exclusion of individual characteristics
believed unfavorable in the case at hand and not at the continuing
rejection of homogeneous class." 8
Another potential abuse that could arise from a generous award of
peremptory challenges is the ability of the defendant to change the nature
of the peremptory challenge. By repeated rejection of jurors possessing
traits identified by the social profile as undesirable, the defendant could
race, religion, or national origin "[re-]introduces into the jury selection system an
opportunity for the very kind of prejudice and bias which the  Act proscribes." Imlay, Federal
Jury Reformation: Saving a DemocraticInstitution,6 LoYoLA (L.A.) L. REV. 247, 269 (1973).
"IThe Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 (1970), specifies that "grand
or petit juries [shall be] selected at random from a fair cross-section of the community"
where the trial convenes. A precise proportional representation of the trial district's
community is not required. See United States v. Jenkins, 496 F.2d 57, 65 (2d Cir. 1974).
Consequently, it does not require a cross-section of the community on the final panel selected as
the jury for trial.
.5See Thiel v. Southern Pac. Co., 328 U.S. 217, 220 (1946).
"' Swain v. Alabama, 380 U.S. 202, 221-24 (1965).
Cases in this area have been concerned with the exclusion of jurors based on race. See
United States v. Carlton, 456 F.2d 207 (5th Cir. 1972) (per curiam) (prosecutor used its six
challenges to obtain an all white jury in trial of a Negro for assault of a white man); Hall v.
United States, 168 F.2d 161 (D.C. Cir.), cert. denied, 334 U.S. 853 (1948) (prosecutor used
19 of his 20 challenges to remove all Negroes from a jury panel in a case involving 3 Negroes
accused of robbery and murder of a white man); People v. Roxborough, 307 Mich. 575, 12
N.W.2d 466 (1943) (prosecution admitted that its purpose was to obtain an all white jury
because the illegal numbers game was so widespread among Negroes in Detroit that few, if
any, were likely to convict). In all these cases, the court failed to find a systematic exclusion
of a class of jurors by the prosecution. See Comment, Swain v. Alabama, supra note 86, at
"' Systematic exclusion has been raised as an issue only by criminal defendants asserting the
prosecution has continually challenged a class of jurors, thereby allegedly depriving the
defendant of an impartial jury. See cases cited in note 116 supra.
11 For example, in the HarrisburgSeven trial, the defense believed that the following juror
characteristics were favorable to them: being under 30 years of age, having a strong opposition
to the Vietnam War, having a child of or approaching draft age, and possessing traits of a
convert the peremptory right into one of selection, rather than rejection." 9
This, however, may be viewed as only an argument in semantics. The right
of peremptory challenge, as a practical matter, contains elements of both
rejection and selection. When demographic profiles are employed, the
rejection-selection component becomes even more evident. It is submitted
that this selection aspect is not an abuse.' The defendant is not equipped
with sufficient peremptory challenges nor assured of accuracy by the use
of social technology to achieve selection.'
ENSURING JUSTICE THROUGH THE USE OF SOCIAL PROFILES
While the employment of social sciences does not create a
demonstrable advantage for the defendant, it may serve to lessen his disadvantaged
position in a government prosecution. By thoughtful utilization of these
challenges, the defendant can counter some of the inequities that have
crept into the judicial system. For example, in a federal prosecution, the
Government initially controls the trial's location. For the trial of the
Harrisburg Seven, the Government selected the Middle District of
Pennsylvania, a politically conservative area consisting of several military
installations and war related industries.' The use of demographic materials
allowed the defense to isolate favorable factors to neutralize the adverse
atmosphere of the forum.21
The defendant may be further disadvantaged where the jury pool or
jury panel does not represent the population of the trial district. In this
regard, social profiles may also be of substantial assistance. Social
scientists, in canvassing the community, seek to insure jury impartiality by
uncovering jury pools which do not reflect a cross-section of the trial
district. This technique was successfully used by the Harrisburgdefense
committee. The jury panel was struck after it was discovered that -the
populacounter-culture of life style. Recipe for a Jury, supra note 55, at 42. Thus, persons not
possessing these attributes were excluded on the basis of a configuration of traits not because
they belonged to a specific class of persons. The persons possessing "unfavorable"
characteristics would vary from case to case. See note 67 supra.
",See cases cited in note 22 supra.
10 It must be admitted, however, that social technology might be misapplied by a defendant
who is seeking to select the "hanging juror." In such a case, the defendant will not exercise
his peremptory challenge because his goal will be retention of one specific juror. Counsel will
thereafter attempt to win his favor during the course of the trial. Trial attorney William
Fallon was the master of the "hung jury." He aimed at the lone dissenter, claiming that one
juror is easier to convince than twelve. Brody, supranote 102, at 71. The handing or
dissenting juror can be identified as argumentative and prone to automatically adopting the negative
side of each issue. APPLEMAN, supra note 31, at 163.
1 See notes 80-110 and accompanying text supra.
122Recipe for a Jury, supra note 55, at 37. The area also had an unusually low proportion of
Catholics and a very high proportion of members of the Fundamentalist sects, all factors
considered highly unfavorable to the defendants' position. See notes 66-67 and accompanying
'2 See text accompanying notes 64-67 supra.
tion of the community was younger than the persons represented in the
available panel. A new panel, more representative of the venire, was then
Profiles can also serve as effective tools in countering the effects of
adverse publicity. They have been used with the greatest frequency and
success in such political trials as Mitchell-Stans, Angela Davis, Camden
28, Gainesville Eight, Harrisburg Seven, and Wounded Knee.',5
Oftentimes, the defendant in a political trial has the burden of resisting
adverse publicity created by the communications media. Consequently,
the goal in applying social sciences is to secure jurors who have not become
predisposed to the defendant's guilt by the media.' 6
Furthermore, the use of social profiles aids in alleviating the inequities
caused by the courts' refusal to permit defendants to inspect pretrial juror
investigation information obtained by the prosecution. United States v.
Costello," which involved a prosecution for income tax evasion, illustrates
the Government's advantage in this area. The United States Attorney
sought information from the Internal Revenue Service concerning the
personal income tax of each panelist. The prosecution's objective was to
discover whether a prospective juror had tax problems of his own. Despite the
defendant's inability to similarly engage the Internal Revenue Service, the
court upheld the prosecution's activities.'2 Likewise, Hamer v. United
M4Recipe for a Jury, supra note 55, at 40. In the New York case of People v. Attica Bros., 79
Misc. 2d 492, 498-99, 359 N.Y.S.2d 699, 706-07 (Sup. Ct. Erie County 1974) (mem.), the
defendants' motion to strike a portion of the jury pool as not representative of a cross-section
of the community was granted. Although women comprised 53% of the Erie County
population, the jury pool contained only 17% women. Under N.Y. JuosciAR£ LAW § 665(7) (McKinney
1968), women were entitled to an unqualified right to claim an exemption. This exemption
was found to be a violation of § 13 of the New York Civil Rights Law, N.Y. Civ. RIGHTs LAw
§ 13 (McKinney 1948), and rule 1025.2 of the Appellate Division Fourth Department's Rules,
22A N.Y.C.R.R. 1025.2 (1968), both of which prohibit disqualification or discrimination from
jury service by reason of sex. 79 Misc. 2d at 498, 359 N.Y.S.2d at 706.
Automatic exemption for women from jury duty was struck down in People v. Moss, 173
N.Y.L.J. 2, Feb. 4, 1975, at 1, col. 3 (Sup. Ct. Kings County Feb. 3, 1975). Justice Irwin
Braunstein found the exemption to be violative of due process and equal protection. The only
compelling state interest justifying continuation of this exemption was the premise that a
majority of women are so occupied with domestic responsibilities that societal interest in the
care of children would suffer by the presence of women on juries. This was regarded as an
anachronism in modern society. Id. at 5, col. 5.
In reaching its decision the court relied on the recent United States Supreme Court
decision of Taylor v. Louisiana, 95 S. Ct. 692 (1975). Taylor involved a Louisiana statute
granting women automatic exemptions from jury service, unlike their male counterparts. The
Supreme Court held that the special exemption accorded women violated the rights of the
defendant under the sixth and fourteenth amendments. Id. at 701-02.
" See notes 7, 9, & 63 supra.
Ill Wall Street Journal, Aug. 12, 1974, at 19, col. 6. In the Mitchell-Stans trial, the
Government was penalized two peremptory challenges for the widespread pretrial publicity the case
received. N.Y. Times, May 5, 1974, at 41, col. 1.
' 255 F.2d 876 (2d Cir.), cert. denied, 357 U.S. 937 (1958), discussed in Okun, supra note
48, at 867-77.
"n255 F.2d at 882-83.
States2 ' held the inability of the defendant to gain access to information
about a juror's background did not constitute a deprivation of the right to
a jury trial, even though the prosecution possessed this information.
It is evident that, in many instances, the Government's wider access
to information, as well as its financially superior position, serves to place
the defendant in an inferior position with respect to juror selection. The
Government has the monetary means available to employ third parties or
private agencies to conduct investigations. Seldom will the defendant be
in so fortunate a position as to engage a staff of technicians. The services
rendered by the psychologists in the Angela Davis and HarrisburgSeven
trials were donated. The surveys and interviews necessary to gather
information were conducted by volunteers and defense sympathizers. Professor
Schulman, who was one of the leaders of the Harrisburg team of
investigators, estimates that such services would have a market value of
$150,000.110 Where such services are available to a defendant on either a
voluntary or compensated basis, he would appear more than justified in
using the acquired information.
It must be remembered that the Government can neutralize the efforts
of the defendant through the exercise of its own peremptory challenges. 131
In the HarrisburgSeven trial, for example, the Government used its six
challenges to rid the panel of six of the eight first choices of the
defendants.112 In light of the advantages accruing to the prosecution, 33 social
technology would appear at most to be a meager concession to offset a
defendant's otherwise limited capabilities in investigating prospective
AREAS FOR REFORM IN JURY SELECTION
Although the utilization of social profiles in juror selection has
argua"'$ 259 F.2d 274, 281 (9th Cir.), cert. denied, 359 U.S. 916 (1958).
I Wall Street Journal, Aug. 12, 1974, at 19, col. 6. Professor Schulman stated that the profile
poll alone would cost $20.000. TIME, Jan. 28, 1974, at 60. Corporations have made offers to
Professor Schulman of as much as $35,000 for assistance in commercial litigation. Id.
"I Attorneys using social scientists contend that the judicial system is based on an adversary
principle where fairness is achieved when each side does whatever it can to strengthen its
",According to one Legal Aid attorney, it is foolish to believe that the defense attorneys aim
to pick an impartial jury. Wall Street Journal, Aug. 12, 1974, at 19, col. 6. Similar sentiments
have also been advanced by the prosecution. In a syllabus distributed by the Dallas County
District Attorney's office, Jon Sparling, an Assistant District Attorney, advised prosecutors
to secure "a strong, biased and sometimes hypocritical individual who believes that
defendants are different in kind, rather than degree." TIME, June 4, 1973, at 67.
" Recipe for a Jury, supra note 55, at 42.
' The Government has access to vast sources of information and material, particularly in
political trials. The prosecution can avail itself of F.B.I. records, selective service files,
industry security files, and military files in gathering data on the background of prospective jurors.
Jury Selection, supra note 6, at 1034, 1071. Further investigatory advantages of Government
counsel are discussed in Okun, supra note 48, at 851-54.
bly served to ensure a more equitable criminal trial, certain impediments
still attach to the defendant's use of these techniques. There is a danger
that the defendant who has the greatest need for the benefits of social
science to compensate for his disadvantaged position may be unable to
afford its purchase. The bench and bar should encourage the development
of private investigation services providing defense counsel with pertinent
pretrial information at a modest fee. Such a service, privately operated and
self-supporting, would provide the defendant with juror background
information which he might otherwise be unable to acquire.'34 In this regard,
the Florida experience can serve as a prototype. A private investigation
firm in Dade County, Florida, is regularly engaged by attorneys to research
and provide information on members of jury panels. For a charge of $375,
the firm probes into the background of the prospective jurors and prepares
a card on each for the attorney.'35 In assessing the efficacy of the program,
its patrons have credited it with producing a more effective voir dire
examination and reducing jury selection time.'36
Judicial and legislative reform would appear appropriate in
eliminating some of the demonstrated shortcomings of current jury selection
procedures. Rule 24(b) of the Federal Rules of Criminal Procedure permits
federal courts to grant additional peremptory challenges to multiple
defendants joined in a single trial. At present, no corresponding increase is
guaranteed the prosecution.'37 To assure a balance between prosecution
and defense, rule 24(b) should be amended to provide that where
defendants are accorded additional challenges, the prosecution should be
similarly provided with either an equal amount or an amount determined by
fixed ratio. Through this revision, the prosecution would be able to remove
a number of undesirable jurors comparable to that eliminated by the
defendant. Consequently, any threat of the defendant controlling the jury
selection process would be effectively removed.
Further reform in the Federal Rules may be forthcoming with respect
to the participation of the attorneys in the voir dire examination. 8
Presently, unlike the procedures adopted in the majority of states,'3' the
attor'3 Professor Schulman has commented:
In less celebrated cases, most defendants would lack the organization and money
required to apply social research to jury selection. The Justice Department might also
adopt our methods, thus turning our efforts into a weapon against defendants.
Recipe for a Jury, supra note 55, at 84.
"I A sample information card is reproduced in 172 N.Y.L.J. 89, Nov. 6, 1974, at 6, col. 7.
The charge covers the investigation of approximately 150 of the persons on the panel. The
firm obtains information from employers, associates, neighbors, and public records. Id.
3I According to one judge operating in this system, the jury selection process rarely exceeds
two and one half hours. Id.
's7 See notes 93-99 and accompanying text supra.
'u Professor Schulman, sensitive to the difficulties in selecting jurors, suggests that attorneys
should be accorded the right to extensively interrogate the panel. This would enhance the
prospects of a fair jury. Recipe for a Jury, supra note 55, at 84.
"I Thirty-five states, either by court decision, statute, or rule, recognize the attorney's right
ney's participation in the federal voir dire is determined by the particular
judge involved. 4 In most federal districts, the judge conducts the entire
examination."' By so acting, the federal courts deny counsel an
opportunity to form an understanding of the attitudes and attributes of the
prospective jurors.' Accordingly, the attorney's intelligent exercise of his
peremptory challenges is substantially restricted."'
An attorney profits from conducting his own examination of
prospective jurors. In the active exchange between attorney and venireman,
counsel can glean, from the venireman's verbal responses and demeanor,
information which is relevant to the exercise of a peremptory challenge.,"
Where a court restricts the attorney's ability to acquaint himself with the
panel, parties feel pressured to incur the added expense and task of
conducting out-of-court investigations of the prospective jurors.,,' It is not
in criminal cases, to partitipate in the voir dire to some degree. McGuirk & Tober, Attorney
Conducted Voir Dire: Securing an ImpartialJury, 15 N.H.B.J. 1, 5 (1973) [hereinafter cited
as Voir Dire]. New Hampshire was one of the first jurisdictions to allow an
attorneyconducted voir dire by judicial discretion. Id. at 2. New York, which provides by statute for
an attorney-conducted voir dire, N.Y. CiuM. PRO. LAW § 270.15 (McKinney 1971), may soon
see an amendment to the statute which would empower the judge to interrupt the attorney's
examination and continue the examination himself if he finds the attorney's questions
irrelevant or repetitious. 172 N.Y.L.J. 65, Oct. 1, 1974, at 1, cols. 1-2. The text of the proposed
amendment is reprinted in 172 N.Y.L.J. 51, Sept. 11, 1974, at 4, col. 7.
140 FED. R. CRIM. P. 24(a).
,4' This procedure has been recommended by the Judicial Conference of the United States.
See 2 C. WRIGHT, FEDERAL RULES OF CRIMINAL PROCEDURE § 383, at 30 (1969). The voir dire is
conducted by the judge in 51 districts, by the attorney in 12 districts, and by both in 22
districts. Id. at 30 n.11.
"I The voir dire is regarded as a necessary element of the constitutional guarantee of an
impartial jury trial. See United States v. Dellinger, 472 F.2d 340, 366 (7th Cir. 1972), cert.
denied, 410 U.S. 970 (1973). It is at this stage of the litigation that prospective jurors are
examined to establish their qualifications as impartial jurors.
The purpose of the voir dire examination is twofold: 1) to discover any facts about the
juror which would permit the attorney to challenge him for cause, and 2) to allow counsel
to acquaint himself with the juror's background in order to intelligently exercise his
peremptory challenges. Note, The Limitations on Voir Dire Examination of Jurors in Criminal
Prosecutions, 1950 WASH. U.L.Q. 381. It has been criticized, however, on the grounds that
extended examinations can result in an unnecessary waste of court time, and it presents an
opportunity for unethical lawyers to prematurely acquaint the jury with their case. Voir Dire,
supra note 139, at 2.
"4 See Swain v. Alabama, 380 U.S. 202, 218 (1965).
"4 At the voir dire stage, an attorney is more familiar with the issues and evidence of the
case than is the judge. He can, therefore, be more effective in exploring the veniremen's
thought processes. Additionally, questions submitted by the attorney on paper to the court
are not effective in extracting the attorney's desired response. Often, information is
forthcoming only after a line of vigorous questioning, and can be lost in one isolated inquiry conveyed
by a judge. Voir Dire, supra note 139, at 6.
"I Orfield, supra note 17, at 115. It has been held that the availability of jury investigative
services cannot preclude the attorney from conducting a full voir dire examination. The
impartiality of the prospective jurors should be determined under the auspices of the court.
See Kiernan v. Van Schaik, 347 F.2d 775, 780 (3d Cir. 1965). Furthermore, it is important
that the findings of the investigators be tested in court at the voir dire, since misleading or
difficult to perceive that a defendant, restricted at the voir dire because
of the lack of investigative power, is at a grave disadvantage in the exercise
of his challenge. A more intensive voir dire examination would place the
defendant on a more equal footing with the Government. Consequently,
the Federal Rules should be revised to permit the attorney to conduct or
freely participate in the voir dire.
One final area for change would seem appropriate in both federal and
state courts. The necessity for pretrial investigation would be significantly
diminished were courts to adopt the procedure of striking as the method
of exercising the peremptory challenges. 4 ' Under the strike system, the
panel consists of "the sum of the number of jurors to hear the case plus
the number of peremptory challenges to be allowed all parties." 147The
panelists are examined, challenged for cause by both sides, and replaced
until the entire panel is filled with qualified jurors. The parties then strike
the surplus of jurors, usually in an alternating fashion, until their
challenges are exhausted. The remaining persons constitute the jury. 4 ' In this
manner, the right of peremptory rejection becomes a process of
comparison. Although a juror may not be ideal, he may be preferred to one who
appears more threatening. A defendant without pretrial investigation is
thus afforded a means of comparison and is not put at an undue
Based on the foregoing discussion, it should be evident that a
defendant is generally incapable of securing a sympathetic jury through the use
of peremptory challenges. First, he is not equipped with sufficient
challenges to acquire control of the jury selection process. Second, he cannot
inaccurate information can be costly to an attorney and his client. 172 N.Y.L.J. 89, Nov. 6,
1974, at 6, col. 7.
"IOnly a minority of states have enacted statutes governing the method of exercising
peremptory challenges. In the absence of statute, the matter is left to the court's discretion.
Challenge, supra note 16, at 641 & n.13.
At the federal level, the method of exercise is left to the discretion of the court. However,
several districts have adopted a system of striking. TRIAL BYJURY, supranote 82, commentary
"' TRIAL BY JURY, supra note 82, commentary at 77.
The Supreme Court has praised the strike system for its fairness to both parties and its
efficiency in the selection of an impartial jury. Swain v. Alabama, 380 U.S. 202, 217-18 (1965).
' The trial court may require that each venireman be accepted or challenged immediately
after his examination. This procedure deprives counsel the opportunity to intelligently
compare several panelists before he exercises his peremptory challenges. PeremptoryRight, supra
note 16, at 757-58.
A procedure that requires both parties to simultaneously submit their peremptory
challenges in writing has been favored by some courts. This would prevent prospective jurors from
ascertaining which party challenged particular jurymen and consequently eliminate potential
prejudice resulting from separate oral challenges made by each party. Challenge, supra note
16, at 644. This system was employed in the Wounded Knee trial. TIME, Jan. 28, 1974, at 60.
predict, even with the assistance of social science techniques, a juror's
unexpected reaction to events as they develop during the trial. The
defendant's use of social technology, however, can be a useful tool in
neutralizing the advantaged position of his adversary. This is particularly
significant in highly publicized criminal trials of political figures wherein several
external factors operate to further diminish the value of the peremptory
challenge. Potential jurors' attitudes are severely affected by their views
on political and sociological issues which are inherently interwoven in such
cases, thereby frustrating the defendant's search for an unbiased juror.,"0
The right to peremptorily challenge should be viewed not as a means
to enable defendants to select desirable jurors, but rather, as a method for
rejecting undesirables. To this end, a defendant requires sufficient
information to make effective his use of peremptory challenges. Thus, his recent
collaboration with social scientists and psychologists in gathering
information of prospective jurors' backgrounds should not be regarded as a threat
to the impartiality of the jury system. On the contrary, the union of social
scientists and attorneys serves to ensure the impartiality and fundamental
fairness expected of our judicial machinery.
I" See generally Comment, Voir Dire: Strategy and Tactics in the Defense of Social and
PoliticalActivists, 5 AKRON L. REV. 265 (1972).