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Death Qualification
Death Qualification
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Jury selection in death
penalty cases poses
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serious problems not
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found in typical criminal
collection of
cases. During the "voir
dire," jurors in capital
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cases are questioned
about their views
regarding capital
punishment in order to discover whether they will be able to
follow the law in deciding what sentence to impose. In order
to be "death-qualified" to serve on a capital jury, a person
must be willing to consider all of the sentencing options usually death and life imprisonment without parole. If their
opinions would prevent them from considering any of the
sentencing options, then they are not "death-qualified" and
are stricken from serving on the jury. This culling of potential
jurors based on their moral views may produce a jury that
looks quite different from the community at large and also,
as some studies show, may bias the jury towards a verdict
of guilt for the defendant.
The Jury Selection Process in Capital Cases
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Courts can eliminate
potential jurors who
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are not willing to vote
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for the death penalty in
collection of
a capital case. If the
judge believes that a
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juror's feelings about
the death penalty
would impair his or her
ability to judge the case and choose the punishment fairly,
that juror will be "dismissed "for cause." There is an
unlimited number of "for cause" challenges and typically all
jurors who say that they oppose the death penalty are
excluded. Jurors who are not eliminated by the judge "for
cause" because of their death penalty views can be
eliminated by lawyers through "peremptory challenges." The
lawyers from both sides are allowed to exclude a limited
number of jurors without having to give any reason or show
any bias, although they are not allowed to base peremptory
challenges solely on the juror's race, gender or religion.
Prosecutors can strike jurors who have doubts about the
death penalty, and this process may reduce the number of
people of a particular race or gender who can serve on the
jury. Defense attorneys can challenge jurors who are so prodeath penalty that they could not judge guilt fairly in a
capital case (Hovey v. California). However, research has
shown that there are very few people who favor the death
penalty so strongly that they can be excluded from the jury.
The remaining jurors are then “death qualified.”
The Effects of Death Qualification
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Over the past 30
years, there has been
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a wealth of research
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on death qualification
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and its effects on the
representativeness of
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the juries that result
from the process. In
the early 1980’s,
researchers Robert Fitzgerald and Phoebe Ellsworth found
that death qualified jurors are not representative of the
general population. Capital juries tend to be less
representative with respect to gender and race because
women and African Americans are more opposed to the
death penalty than white men. The exact magnitude of this
effect depends upon the general level of public support for
the death penalty. Fitzgerald and Ellsworth found that about
15% of whites were excluded compared to 25% of blacks.
Fitzgerald and Ellsworth also found that the jury in capital
trials is more biased towards the prosecution and a guilty
verdict as compared to the juries in robbery trials or noncapital murder trials. There is evidence that death
qualification biases the jury in two different ways. First, it
tends to select jury members who are “conviction prone.”
Second, the very process of death qualification may further
bias the jurors. Researcher Craig Haney argues that
questioning the jurors intensively about punishment, before
the trial even starts, suggests that there will be a
sentencing phase of the capital trial – implying that the
defendant is probably guilty. Likewise, Cowan, Thompson, &
Ellsworth found that death qualified juries deliberate less
thoroughly and possibly less accurate than in juries that
better represent the whole population. These findings led to
the Supreme Court case Lockhart v. McCree (1986) (see
below).
In the 1990s, the Capital Jury Project reached similar
conclusions on the basis of their studies of capital juries. The
Capital Jury Project (CJP), a nationwide research endeavor
funded by the National Science Foundation, interviewed
people who had served on death penalty juries from 15
states around the country. The CJP found that members of
minority groups, women, Catholics, and other subgroups are
more likely to oppose the death penalty than the population
at large. Hence, fewer people belonging to these groups
typically serve on a capital jury.
The CJP also collected a variety of information on jury
decision-making, again concluding that jury selection itself
yields a jury that is more likely to convict a defendant and to
impose a death sentence than a jury that was not deathqualified. Likewise, according to the CJP, at sentencing, the
jury selected tends to place more emphasis on aggravating
factors and to overlook or minimize mitigating factors. The
CJP argues that under both Supreme Court standards for
capital jury selection, Witherspoon v. Illinois (1968) and
Wainwright v. Witt (1985), pro-death penalty tendencies
were built into capital juries.
United States Supreme Court Cases on Death
Qualification
Witherspoon v .
Illinois (1968)
The Supreme Court
held that prospective
jurors could not be
disqualified from jury
service simply because
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they voiced general objections to the death penalty or
expressed conscientious or religious scruples against it.
However, a state may exclude those jurors who would
automatically vote against the death penalty or those jurors
whose attitudes about the death penalty would affect their
decision regarding the defendant’s guilt or innocence.
Wainwright v . Witt (1985)
The Supreme Court replaced the death qualification
standards of Witherspoon with the standards of Wainwright
v. Witt. The Witt standard gave more discretion to the judge
in death qualification. The judge decides whether the jurors’
attitudes toward the death penalty would “prevent or
substantially impair” their ability to decide on sentence fairly.
This decision broadened the range of people who could be
excluded by death qualification.
Lockhart v . McCree (1986)
In Lockhart v. McCree, the results of the empirical research
on the effects of death-qualification came before the
Supreme Court. The court held that the process of deathqualification does not unconstitutionally bias juries towards
a verdict of guilt. Justice Rehnquist criticized the research,
but ultimately the Court held that general empirical research
could not decide the issue; instead, a defendant would have
to demonstrate that his or her own jury was biased.
Uttecht v . Brown (2007)
The Supreme Court held that when a capital juror is
disqualified and that decision is challenged on appeal, the
court should generally defer to the decision of the trial judge
who was in a position to observe the juror’s demeanor. In a
5-4 decision, the Supreme Court upheld a trial judge’s
exclusion of a juror who had expressed some hesitation
about imposing the death penalty, but was not totally
opposed to it. The juror from the state of Washington stated
on six occasions during voir dire that he could follow the law
on applying the death penalty. However, some of his other
statements were equivocal and the judge excused him from
jury service.