William & Mary Bill of Rights Journal


James Oldham


In this Article, Professor Oldham provides a unique historical study of the special, or struck, jury in the United States. First, Professor Oldham discusses the influence of the 1730 English statute on eighteenth- century American law and reviews the procedures of several states in which the struck jury remains valid, in addition to the once authorized procedures that states have since declared invalid. He also analyzes the relationship between the struck jury and peremptory challenges. Second, Professor Oldham analyzes the special qualifications of the jurors comprising special juries in the context of the "blue ribbon," or "high-class, " jury, the jury of experts, and the juries for property condemnation and diking district assessment disputes. Third, he analyzes the relationship between the special jury and the reasonable cross-section requirement in light of constitutional limitations on peremptory challenges. Professor Oldham argues that perhaps there still may be a place for special juries and that history justifies continued experimentation with jury composition, including the special jury. He concludes that formulas for selecting juries, especially those that are aimed at obtaining fair and intelligent verdicts, have achieved historical legitimacy and should be allowed a reasonable coexistence with the reasonable cross-section requirement.