Peremptory challenges based on race, national origin, religion, and class are well-known problems in modern jury selection, and have led to calls to abolish them altogether. Defenders of peremptory challenges 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 challenges to eliminate jurors based on stereotypes. 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 either to 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 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 exposes modern abuses as part of a trend that began in the 1800s, suggesting that discrimination as a trial strategy is inevitable where courts allow extended voir dire and unfettered challenges.