Juries & Evidence
- dov bobker •Witherspoon v. Illinois – US Supreme Court (1968)
•Hovey v. Superior Court – Ca. Supreme Court (1980)
•Mabry v. Gribsby – 8th Circuit (1983)
•Lockhart v. McCree – US Supreme Court (1986)
Introduction
“Of the over three thousand people on death
row in America (the overwhelming majority
of whom are guilty), not a single one has
received a trial before a jury representative
of the community in which they were tried.
In each and every case, the juries who
tried these prisoners were biased against
them.” (Clay S. Conrad)
Introduction
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1st I will go through the progression of the cases through the courts
Then I will return to some of the particular studies that the decisions were
based upon
Background information
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Many states where the death penalty is a statutory option juries render
verdicts in a bifurcated/split trial.
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Most states require that the same jury do both
When choosing the jury, jurors can be eliminated “for cause.” This means the
judge feels that they won’t be able to render a fair verdict.
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First verdict is whether the D is guilty.
Second verdict is whether D should get the death penalty.
Eg relative or friend of the D or the victim
One for cause elimination is the potential juror’s attitude about the death
penalty. If the juror says that there is no way he will ever give the death
penalty (ALS – automatic life sentence) or if he says life in prison is a waste of
time and money and he will automatically give the DP (ADP), he will be
stricken for cause.
Witherspoon v. Illinois
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Supreme Court case - 1968
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Illinois statute took this one step further – not only will ALS’s be stricken but whoever has
“conscientious scruples” against the death penalty should be stricken for cause.
Appellant argues that any jury that is made up of solely people who have no scruples about
giving the death penalty, might also be too quick to convict, and therefore it is not an impartial
jury.
Appellant brings three social science studies to prove this point.
Court says the studies are too tentative and fragmented to establish that jurors anti death
penalty are more likely to find guilty.
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We will come back to some of these studies.
But Court says Witherspoon still wins. When it comes to choosing guilt, we have no
evidence that the persons attitude towards the death penalty matters, but when it comes to
the 2nd half of the bifurcated trial, when they decide whether to impose the death penalty, you
can’t have a jury made up of people who have no scruples against it.
You are “stacking the jury with a bunch of people uncommonly willing to condemn a man to
die.”
Therefore you must include people who have scruples against the Death penalty but are
willing to consider it in certain situations. But you can’t include people who say that in no
circumstance would they be willing to impose the death penalty.
The Witherspoon Challenge
• The decision ended with a challenge to the social
science community:
– The court was convinced that attitudes about the DP at the
penalty phase can affect the jurors findings, and therefore to only
have jurors willing to give the DP is unconstitutional.
– But do attitudes about the DP also play a role in the guilt phase
of the trial? Meaning, is a person who is more in favor of the DP
at the penalty stage, more likely to find the defendant guilty at
the guilt stage?
– The Court found the studies that were presented to be too
tentative and fragmented so it basically asked the Social science
community to go back to the drawing board.
Post Witherspoon Vocabulary
• Witherspoon Excludable – people who are
unwilling to impose the death penalty under any
circumstances, cannot sit on the jury.
– Even though we bifurcate the trial, the general
practice is to use the same jury for both stages.
Therefore a Witherspoon excludable will also be
excluded from the guilt stage
• Death Qualified Jury – a jury that is qualified to
hear death cases as all the Witherspoon
excludables have been excluded
Social Science Responds to the
Challenge
• Two cases were brought to meet the
Supreme Courts challenge
– Hovey v. Superior Court of Ca.
– Mabry v. Gribsby
Hovey v. Superior Court
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Hovey presented 11 different surveys all of which (except one which both sides admitted was
done incompetently) concluded that a DQ juror is more likely to find a defendant guilty than a WE
juror. I’ll go through some of them later.
Judges opinion
– The judges opinion is a textbook social science case as he goes through each and every one
of the studies their methods and their merits and he comes out that the studies present
overwhelming evidence to proving the theory; but, all of them suffer from one fatal flaw.
– The studies concludes that DQ jurors are more likely to find D guilty. But in California not all
DQ jurors are allowed on a case. Any potential juror that is automatic death penalty (ADP) is
excluded for cause. So it could be that the studies only found DQ’s more likely to convict,
because the studies included these ADP’s.
– My own personal feelings is that the judges opinion is slightly paradoxal. If the studies are
skewed because ADP’s are included, that is admitting that ADP’s are more likely to vote
guilty. Which is admitting that a person’s opinion regarding the death penalty can affect his
propensity to find Defendants guilty. The judge would probably say that this only proves that
people with strong emotional feelings about the giving the DP … but it doesn’t tell us
anything about people who are more middle of the road and just favor the DP.
– Another interesting question brought up by the case: If the studies are mistaken because
Ca. also excludes ADP’s, why can’t ADP’s and ALS’s (automatic life sentence) cancel each
other out?
– The judge explains that the case here is not whether or not the Hovey jury was biased per se
and you can say that the two extremes cancel each other out. Rather, a Defendant has a
right to a jury of his pears made up of a cross section of the community representing the
different viewpoints.
Mabry v. Gribsby
• This is an 8th Circuit case that relied heavily on the lower courts
decision, so I’lll focus on Gribsby v. Mabry which was decided in the
US district court, eastern district of Arkansas (can be found in
casebook p. 286)
• Gribsby was found guilty of murder and brought a habeas petition
based on the fact that because the jury was DQ it was biased
towards finding him guilty.
• Council presented to the court 15 different studies, all of which say
that DQ = a jury more likely to convict
• Many of the studies were the same as the ones in Hovey
• court finds that that the studies prove the “fireside induction” already
held by trial lawyers and judges alike that of course DQ = a jury
more likely to convict
• The studies prove what we have known all along
• This case was appealed and approved by the 8th circuit and
appealed again to the US Supreme Court – Lockhart v. McGee
Lockhart v. McCree
• Court says no; it will not find a DQ jury to be a violation
of the constitution
– Even if the social science evidence was convincing, it wouldn’t pose
a constitutional issue
• An impartial jury made up of a cross section of the community requires
all segments of the community to be represented, it does not mean that
we will try to cancel out and match up all the different types of
viewpoints within the community. So to only allow white males on a jury
would be unconstitutional as it excludes major sections of the
community, but to only allow DQers on the jury, might stifle a certain
viewpoint but doesn’t exclude a segment of the community
– The social science evidence is not convincing
• Supreme Court used the divide and conquer method in dealing with the
15 studies presented to it.
15 STUDIES PRESENTED BY THE DEFENDANT
8 DEALT WITH
1 DEALT WITH AFFECT OF
GENERALIZED
ATTITUDES AND BELIEFS
ABOUT THE DEATH
PENALTY
QUESTIONING POTENTIAL JURORS
ABOUT THE DEATH PENELATY. AN
ISSUE D CONCEDED THAT IT ALONE
SHOULD NOT AFFECT
CONSTITUTIONALITY
6 DEALT WITH WHETHER DEATH
QUALIFIED JURIES = CONVICTION
PRONE JURIES
3 WERE OLD STUDIES THAT
THE WITHERSPOON COURT
CONSIDERED AND HELD
UNCONVINCING AS THEY
WERE TOO TENTATIVE AND
FRAGMENTED
ONLY 3 STUDIES WE
HAVE TO DEAL WITH
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The Zeisel Study by Professor Hans Zeisel
• Spoke to actual jurors and asked them whether they had conscientious scruples against the death
penalty? (the study took place before Witherspoon decided that this was not the measure for death
qualification
• Asked them how they voted on the first pre-deliberation ballot?
• The problem with these two questions is that it doesn’t control for the fact that some cases have
stronger evidence than others, so Zeisal asked a third question:
• What was the jury split after the first ballot? The assumption being that if a jury was 11/1 guilty, the
prosecution probably had pretty clear evidence of guilty. With this Zeisel was able to control the
weight of the evidence. And didn’t even bother with unanimous first ballots as we can assume that
personal conviction would be overwhelmed by the evidence.
• Data of 463 first ballot votes
• Ziesels found that in 10 out of 11 constellations of evidence strengths jurors with scruples against
capital punishment voted to acquit more often than jurors without. And in 9 out of 11 constellations of
evidence strength jurors without such scruples voted to convict.
• Zeisel stated that his conclusions were statistically significant at the .04 level
• This was one of the studies that Witherspoon threw out as being fragmented but the SC only had a
preliminary unpublished summary of the results of his survey. Dr. Zeisel himself testified that
Witherspoon was right in throwing it out as at the time it was only fragmented and the conclusion
seems liked a leap from the data presented.
• Lockhart threw this out because Witherspoon threw it out, even though Lockhart had the complete
record
• Strength of this study – it was done in a realistic setting
• Weakness of this study – it asked the pre witherspoon question
• My thoughts – this study with a little refining has the potential of being the strongest one. You can
redo it with post witherspoon standards, you can exclude the ADP’s and the nullifiers and it won’t have
any of the problems identified by the supreme court
The Goldberg study and the Wilson
study
• These two studies use similar methodologies
– Took a bunch of college students, asked them about whether they had
scruples against the death penalty and then presented them with short
summaries of various cases.
• Both found that that DQ’s were about 6-7% more likely to find
defendant guilty
– Goldberg – P value = .08 (marginally significant)
– Wilson – P value = .02
• Both researchers admitted that it wasn’t the most methodologically
sophisticated.
• Bunch of problems
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The case descriptions are sparse
There was no jury instructions
There isn’t an actual Defendant
They only used college students
There’s no deliberation
Ellsworth Study
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Probably the most respected of the studies was done by Professor Ellsworth
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288 jury eligible adults from California
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Researchers questioned the subjects as to where they stand on the death penalty. Nullifiers
were thrown out (they ended up with 288 after the nullifiers were thrown out)
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258 – Witherspoon qualified
30 – guilt phase excludable
Subjects were shown a 2 ½ hour video reenactment of a trial
Video was created by Harvard Professor Reid Hastie to use in his class
Spent a lot of work making it as real as possible
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Most responded from add in newspaper - 218
Some from jury lists – 37
Some referred by friends – 33
Actors didn’t just read off a script
Attorneys were played by attorneys
Judge was played by a retired judge
Police witness was played by a retired police officer
The only non real thing is that by the jury instructions since it gave Mass. Law, the portion of the video
was recreated with a law school dean acting as a judge and giving the instructions
After the tape, each juror was asked how they would vote
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First Degree Murder
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Second Degree Murder
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Manslaughter
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Acquittal
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Ellensworth concluded that if you just look at guilty v. non guilty
– WE - 3.3% (1)
– DQ - 7.8% (20)
– WE - 23.3% (7)
– DQ - 21.3% (55)
– WE - 26.7% (8)
– DQ - 48.9% (126)
– WE - 46.7% (14)
– DQ - 22.1%
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DQ = 77.9% guilty
WI = 53.3% guilty
24% difference with a P value < .01
• Afterwards they were split up into juries and allowed to deliberate for
one hour and were again asked how they would vote
• The differences were still pronounced
• she then went back to the data and used multiple regression
analysis to determine whether the differences can be attributed to
factors other than attitude towards the death penalty. Eg
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prior jury service
age
gender
source from which subject was chosen; ie newspaper or prior jury
service
• non of which correlated with voting behavior.
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Prof Zeisel testified that this study comes as close to the ideal experiment
as one can ever come by. There is no better way of doing it.
Cons presented by the Attorney General in Hovey
– Only one case
– A simulated case can never be the same as a real case
• Ellsworth defended herself that the subjects got “very, very into deliberations”. And the
subjects that had prior jury experience reported that it corresponded well
• Furthermore the judge in Hovey pointed out that if you look at the studies, the more real
the simulated case became, the wider the difference between the DQ’s and the WE’s
– Questioners – 6%
– Audio tape – 13%
– Videotape – 25%
– All the people are from Ca.
– Only deliberated for an hour
• Does deliberation really matter? Ziesel and Kalven in “The American Jury” found that
90% of the time the jury will reach an unaminous decision in line with its original
majority decision. This indicates that the critical factor in jury decision making is not the
process of the juror interaction but the jurors’ original views of the case.
– Ignores the fact that a jury can be swayed depending on a bunch of other factors
like ego of a particular juror, that wasn’t accounted for.
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Supreme Courts Problems with the three studies
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were not actual jurors who were sworn under oath to apply the law to
the facts of an actual case involving an actual defendant.
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Two of the studies did not even attempt to stimulate the process of
jury deliberation
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Dissent – until we allow two juries to sit in on a real trial this will always be
impossible
This is an interesting observation that you can’t predict what a group will
do based on knowing what each individual would do.
Studies did not take into account what would happen if a
Witherspoon excludable – meaning someone who is anti the death
penalty – would do when faced by a guilt phased jury. Would this
person really be able to alter the outcome of the guilt determination.
Most importantly, only 1 of the 6 relevant studies attempted to
account for and identify so called “nullifiers” – individuals who,
because of their deep seated opposition to the death penalty would
be unable to decide a capital defendant’s guilt or innocence fairly and
impartially.
• J. Marshall’s Dissent
– The courts haphazard jabs at the individual studies cannot
obscure the essential unanimity of the results obtained by the
researchers using diverse subjects and varied methodologies.
– The majority says that a jury does not have to represent all the
view points of the community, just all the different sections of the
community. The research shows that the death qualification
process throw out a disproportionate amount of blacks and
women, whom studies have shown tend to be more anti the
death penalty than white males.
– Why rely on Witherspoon to say that the original three studies
are tentative and fragmented if even after they had been subject
to the adversarial process in the lower courts, they have been
found to be convincing.
– The APA (American Psychological Association) submitted an
amicus curiae brief saying that “the research clearly satisfies the
criteria for evaluating the methodological soundness reliability
and utility of empirical research,” but the court finds fault.
Post Lockhart
• Because the court found no constitution problem even if
the studies were correct the case is closed.
• But what is driving the Supreme Court to throw out
evidence that is intuitively correct and has been proven
in every manner and from every angle?
• I spoke to my criminal law professor, James Liebman,
and he actually argued and won the case in the 8th
circuit. He said, as was said in the beginning of the
semester, the supreme court is just not willing to accept
social science evidence.
• As I mentioned earlier there was one study that found that there was
no correlation between DQ and conviction proneness.
• This was not done by social scientist but by two Stanford law
students, probably taking a class in law and social sciences.
• They looked at conviction rates from a LA court over 6 months and
found that juries convicted for 1st degree murder less often than in
burglary and robbery cases.
• It was a nice idea but both sides admitted that it “has no probative
value whatsoever.”
• Dr. Zeisel called it incompetent
• Cons
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Didn’t control for weight of evidence
Didn’t control for experience of the lawyers
Didn’t even found out whether the juries were being DQ
Bunch of other problems
Automatic
Death
Penalty
Favor Death Neutral
Penalty
Favor Life
Imprisonment
Automatic Life Nullifiers.
Imprisonment So afraid of
DP, won’t
vote guilty
Pre Witherspoon
Death Qualified – Post Witherspoon
California
Excludable
California Death Qualified
Witherspoon
Excludable
Witherspoon
Excludable
Witherspoon
Excludable
Witherspoon
Excludable