Definition
A special jury is a jury selected by a method different from ordinary jury selection, typically convened at the court's direction or upon a party's motion in cases of unusual complexity, importance, or sensitivity. Two overlapping meanings appear in historical sources:
1. A jury ordered by the court (on motion of either party) for cases of unusual importance or intricacy, also called a struck jury because of the selection process by which each party strikes names from a larger panel until the required number remains.
2. A jury composed of persons of higher social or occupational standing than ordinary freeholders — esquires, merchants, bankers — presumed to bring greater sophistication to complex disputes.
These two meanings frequently coincide: the process of striking a panel from a curated list of qualified persons of rank was the standard mechanism for constituting a special jury. In modern American practice, the special jury in the sense of a socially stratified body has been effectively abolished, and the term survives primarily in historical and comparative legal research.
Common Confusion
SPECIAL JURY vs. STRUCK JURY: These terms are often used interchangeably in historical sources, but they are not identical. "Struck jury" describes the selection method — alternating strikes from a panel to arrive at the final number. "Special jury" describes the purpose and composition — a body convened for important cases, which happened to be constituted by the striking process. A struck jury is the mechanism; a special jury is the result and the institution. Some historical sources use "struck jury" as a synonym, others treat it as the procedural subtype.
SPECIAL JURY vs. GRAND JURY: These are entirely distinct institutions. A grand jury is an accusatory body that investigates and returns indictments; a special jury is a trial (petit) jury, convened for civil or criminal cases requiring particular expertise or gravity. The word "special" in each context carries a different legal meaning.
Why It Matters in Research
Researchers encounter this term most heavily in English common law sources, early American practice materials, and state procedural codes from the eighteenth and nineteenth centuries. Several traps exist:
The class-based composition element is real but recedes over time. Sources from the seventeenth and eighteenth centuries emphasize the social rank of jurors as the defining feature. By the mid-nineteenth century, American sources begin to downplay or omit the rank element, treating the selection mechanism as the operative distinction. Researchers reading across time periods will find the same term doing different work depending on the era of the source.
Statutory displacement is uneven. Some states codified special jury procedures well into the twentieth century, while others abolished them early through constitutional equality provisions or procedural reform. A reference to a special jury in a state case report does not confirm that the institution survived in that jurisdiction; check the procedural history of the state before relying on the term as having a live legal meaning.
The struck jury procedure has procedural law significance beyond the special jury context. Modern jury selection involves strikes for cause and peremptory challenges, which are conceptually descended from the struck jury method but are now governed by an entirely different body of constitutional and procedural law, including equal protection doctrine constraining peremptory strikes. Researchers tracing the history of jury selection should flag the struck jury as an ancestor institution, not a direct parallel.
Connection to complexity litigation: In contemporary federal and complex state court litigation, courts sometimes refer informally to special procedures for selecting jurors with technical backgrounds (in patent, securities, or antitrust cases). This is not a formal special jury in the historical sense and carries no independent legal doctrine, but the terminology occasionally resurfaces and can cause confusion in research on jury composition.
Historical Dictionary Support
The historical sources are broadly consistent in identifying two features — special selection and elevated qualification — but differ in which they emphasize.
Black's Law Dictionary gives the fullest treatment, identifying the court's motion-based order and the struck jury mechanism as the operative elements, and citing Blackstone's Commentaries (3 Bl. Comm. 357) for authority. Black's also notes, citing Brown, the composition element: persons above the rank of ordinary freeholders.
Burrill's Law Dictionary essentially tracks Black's, stopping at the procedural trigger — unusual importance — without elaborating on composition.
Rapalje & Lawrence emphasizes social qualification most explicitly: esquires, bankers, merchants, persons of a certain station in society. This framing reflects the English origins more directly and is useful for researchers working with colonial American or early republic materials where rank-based distinctions still had practical legal significance.
Bouvier's is characteristically spare: one selected in a particular way by the parties. This is technically accurate but incomplete, omitting the composition element and the court's role in ordering one. Researchers should not rely on Bouvier alone for this term.
None of the historical dictionaries address the modern question of whether special jury procedures survive or what constitutional limitations apply to them. This is a significant gap for anyone researching post-Reconstruction or twentieth-century materials.
Jurisdictional Note
Special jury procedures were formally recognized in English practice and carried into American colonial and early state law, but their survival into the twentieth century varied sharply by jurisdiction. Some states retained statutory special jury provisions while others abolished them through procedural reform or read them out through equal protection jurisprudence. English practice retained the special jury longer than most American jurisdictions. For any jurisdiction-specific research, consult the state's procedural history and annotated code rather than assuming the common law form survived.
Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia:
- Grand Jury — Function, Procedure, and Powers (criminal_168): for comparison of grand jury and trial jury institutions
- Mistrial and Hung Jury (criminal_212): for context on jury composition and procedural consequences