Juries and the Death Penalty
Authors: Haney Craig 
Published: March 2007

Logically, it would seem that capital juries must be at least as fair, im partial, and representative as juries that sit in ordinary criminal prose cutions. But there is much evidence to suggest that this is not the case. In Witherspoon v. Illinois, the Supreme Court examined the process of "death qualification" used to impanel capital juries. The Court approved the exclusion of prospective jurors whose opposition to the death penalty would make it impossible for them to decide upon guilt fairly and im partially, but left open the question of whether the exclusion of others who would not consider imposing the death penalty under any circum stances violated the defendant's constitutional rights.

Since Witherspoon, death qualification has been extensively studied. It has been found to affect both the composition of the jury panel that re sults and, through the process itself, jurors who are exposed to the pro cedure. The exclusion of characteristics or attitudes linked with opposi tion to the death penalty has meant that capital juries are unrepresentative of the community at large, predisposed to support the prosecution, and predisposed to convict persons brought before the court. The process of death qualification creates a second source of bias: Prolonged exposure to discussion of the penalty at the outset of jury qualification suggests that the defendant's guilt is presumed by the attorneys and judge, increases the acceptability of pro-death penalty attitudes, and has been shown to in crease both the likelihood that jurors will convict and their willingness to vote for the death penalty in hypothetical cases.

A number of recommendations are. discussed as means of creating fairness in capital juries.

1. Williams v. Florida, 399 U.S. 78 (1970); and Apodaca v. Oregon, 406 U.S. 404 (1972). 2. Duncan v. Louisiana, 391 U.S. 145, 149 (1968), the case that extended Sixth Amendment rights to a jury trial in state courts.

3. Smith v. Texas, 311 U.S. 128, 130 (1940).

4. Taylor v. Louisiana, 419 U.S. 522, 530 (1975).

5. Chief Judge David Bazelon, dissenting in United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).

6. Reynolds v. United States, 98 U.S. 145, 156 (1878).

7. Duncan v. Louisiana, at 156.

8. Thiel v. Southern Pacific Co., 328 U.S. 217, 277 (1946) (Frankfurter, J., dissenting). 9. Williams v. Florida, at 100.

10. Gardner v. Florida, 97 S. Ct. 1197, 1207 (1977).

11. Witherspoon v. Illinois, 391 U.S. 510 (1968).

12. Ibid., at 522, note 21.

13. Three distinct groups of people can be identified whose death penalty opposition might have very different implications for their role as jurors: (1) persons whose opposition would allow them to consider imposing the death penalty under certain circumstances, (2) persons who could not consider imposing it under any circumstances, and (3) persons whose opposition to the death penalty would make it impossible for them to decide upon guilt fairly and impartially. Witherspoon definitely excluded the third group, included the first, and reached no definite and final conclusion about how to handle the second group.

14. Witherspoon v. Illinois, at 520, note 18.

15. Two of those studies were subsequently published: Faye Goldberg, "Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and the Use of Psychological Data to Raise Presump tions in the Law," Harvard Civil Rights-Civil Liberties Review, vol. 5 (1970), pp. 53-69; Hans Zeisel, Some Data on Juror Attitudes toward Capital Punishment (Chicago: Center for Studies of Criminal Justice, University of Chicago Law School, 1968). Cody Wilson's "Belief in Capital Punishment and Jury Performance," written in 1964, has not been published.

16. Witherspoon v. Illinois, at 518, note 11. See also Michael Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (New York: William Morrow, 1973), pp. 118-25. 17. Witherspoon v. Illinois, at 517.

18. The existing research on this topic was presented and discussed in elaborate detail in an evidentiary hearing to limit death qualification in People v. David Moore and Kenneth Moore (Alameda County Superior Court No. 67113) in August and September, 1979. The evidentiary record in that case was incorporated into the record of Hovey v. Superior Court (Alameda County Superior Court No. H-1440), and argued before the California Supreme Court on May 8, 1980). [The case was decided by the California Supreme Court on August 28, 1980. Because we were going to press, Professor Haney was unable to consider the California decision in the present article.-Ed.]

19. A series of extremely sophisticated and as yet unpublished studies on this topic have been conducted by Professor Phoebe Ellsworth and her colleagues: Claudia Cowan, Robert Fitzgerald, and William Thompson. The definitive presentation of these studies is, of course, best left to Professor Ellsworth herself. I will refer to them only in passing in the pages that follow, but note here that the results of her studies are consistent in all important respects with the earlier pub lished research.

20. Procedures for selecting a jury-called voir dire (from the French: "to speak truthfully")— vary widely. Typically, after some preliminary remarks by the judge, questions are asked of the jury panel members, either by the attorneys for both sides or by the judge. The answers given by prospective jurors, or "venirepersons," form the basis for challenges by either side to exclude different persons; through this process of elimination a jury is selected. "Peremptory challenges," for which attorneys need give no justification, are limited in number. "Cause challenges," un limited in quantity, must be based upon specified legal grounds, and tend to be raised successfully only rarely. (Death qualification creates an additional category for cause challenges in capital cases, one whose size will vary as a function of death penalty opposition in a given jurisdiction.) For an excellent discussion of voir dire practices and techniques, see Beth Bonora and Elissa Krause, eds., Jurywork: Systematic Techniques (Berkeley, Calif.: National Jury Project, 1979).

21. Peters v. Kiff, 407 U.S. 493, 503-04 (1972).

22. For a partial summary of these data, see Tom Smith, "A Trend Analysis of Attitudes toward Capital Punishment," in Studies of Social Change since 1948, James David, ed. (Chicago: National Opinion Research Center Report 127B, 1976).

23. Concern for the presence of blacks and women in jury panels, as part of the cross-section of the community, predates even more contemporary concern for the representation of these groups in other contexts. See, for example, Smith v. Texas, 311 U.S. 128 (1940) (racial groups), and Ballard v. United States, 329 U.S. 187 (1946) (women).

24. See, for example, Hayward Alker, Carl Hosticka, and Michael Mitchell, "Jury Selection as a Biased Social Process," Law and Society Review, Fall 1976, pp. 9-41.

25. Lord Edward Coke, Commentary upon Littlejohn. Revised by F. Hargrave and C. Butler (Philadelphia: Robert Small, 1853), vol. I, L.Z.C. 12, sec. 234, 155b.

26. Murphy v. Florida, 421 U.S. 794, 800, n. 4 (1975).

27. Edward Bronson, "On the Conviction Proneness and Representativeness of the Death- Qualified Jury: A Study of Colorado Veniremen," University of Colorado Law Review, vol. 42 (1970), pp. 1-32.

28. The Harris surveys were conducted in the two years following Witherspoon (Louis Harris & Associates Study No. 2016), and are discussed in part in Welsh White, "The Constitutional Invalidity of Convictions Imposed by Death-Qualified Juries," Cornell Law Review, July 1973, pp. 1176-220.

29. Bronson's follow-ups were done with a total of 1,462 respondents sampled from jury panels in several different California counties.

30. For example, Robert Fitzgerald and Phoebe Ellsworth, "Due Process v. Crime Control: The Impact of Death Qualification on Jury Attitudes" (unpub., 1979). See also Robert Buckhout and E. Baker, "Juror Attitudes and the Death Penalty," Social Action and the Law, vol. 3 (1977), pp. 80-81.

31. Duncan v. Louisiana, at 156.

32. For a demonstration of the relationship between juror attitudes and verdict, see Virginia Boehm, "Mr. Prejudice, Miss Sympathy, and the Authoritarian Personality: An Application of Psychological Measuring Techniques to the Problem of Jury Bias," Wisconsin Law Review, 1968, pp. 734-00.

33. See, for example, Jerome Bruner, "On Perceptual Readiness," Psychological Review, vol. 64 (1957), pp. 123-52; and Hans Toch and Richard Schulte, "Readiness to Perceive Violence as a Result of Police Training," British Journal of Psychology, vol. 52 (1961), pp. 389-93.

34. In addition to the Goldberg, Zeisel, and Wilson studies referred to above (see note 15), the following reach the same conclusion with respect to the conviction proneness of juries that have been death qualified: George Jurow, "New Data on the Effects of a 'Death-Qualified' Jury on the Guilt Determination Process," Harvard Law Review, January 1971, pp.'567-611; Louis Harris Study No. 2016; and Claudia Cowan, William Thompson, and Phoebe Ellsworth, "Juror At titudes and Conviction Proneness: The Relationship between Attitudes toward the Death Penalty and Predisposition to Convict" (unpub., 1979).

35. For example, Jurow found that persons most in favor of the death penalty convicted at a rate of upwards of 80 percent on both cases, while persons excludable under Witherspoon (i.e., who could never vote for the death penalty regardless of the facts and circumstances of the case) convicted at rates of 33 percent and 43 percent (in the first and second cases, respectively). The overall relationship between death penalty attitude and conviction proneness found by Jurow was statistically significant in the first case but not in the second (although it was in the predicted direction). This pattern should not be surprising. We would not expect verdict always to be a clear function of death penalty attitudes; for example, where the evidence is especially one-sided-in one direction or the other-the contribution of predisposition to verdict should be reduced.

36. It is likely that some of the people excluded by the court during death qualification would have been eliminated by prosecutorial peremptory challenges anyway. However, death quali fication means that none of those particular peremptory challenges need be exercised by the prosecutor because the court already will have excluded those persons. Thus, in many cases death qualification functionally extends the reach of prosecutorial challenges in voir dire.

37. Death qualification "homogenizes" the jury by acting to reduce the diversity of opinion represented there. The unanimity of perspective with which the death-qualified jury approaches the presentation of evidence and concludes the deliberations-the kind of unanimity of per spective that the Supreme Court condemned in another context (Ballew v. Georgia, 435 U.S. 223 [1978]) because of the absence of meaningful and vigorous deliberations-may help explain the singlemindedness with which it determines guilt. Consider Richard Lempert, "Undiscovering 'Nondiscernable' Differences: Empirical Research and the Jury-Size Cases," Michigan Law Re view, March 1975, pp. 644-708, to the effect that "heterogeneous groups are more likely to arrive at correct solutions to problems than homogeneous groups" (687), and the studies cited by him in note 127.

38. The exact percentage of venirepersons excluded under Witherspoon varies over time and across jurisdictions. In the latest available survey data, Ellsworth and Fitzgerald found that 17.2 percent of their Alameda County, California, sample was Witherspoon excludable (in addition to those persons whose death penalty opposition would prevent them from being fair and impartial in determining guilt). Ellsworth and Fitzgerald, "Due Process v. Crime Control."

39. Craig Haney, "On the Selection of Capital Juries: The Biasing Effects of the Death Quali fication Process" (Paper presented at the Interdisciplinary Conference on Capital Punishment, Atlanta, Ga., Apr. 18-19, 1980).

40. To isolate the effects of exposure to the process itself, as distinct from the effect of the process on jury composition, the subjects were screened beforehand on their attitudes toward the death penalty. Persons who said that they could not consider imposing the death penalty in a criminal case regardless of the facts and circumstances, or who said that their attitude about death penalty would prevent them from being fair and impartial triers of guilt in a capital case, were excluded from participating in the study.

41. See, for example, John Carroll, "The Effects of Imagining an Event on Expectations of the Event: An Interpretation in Terms of the Availability Heuristic," Journal of Experimental Social Psychology, vol. 14 (1979), pp. 88-96.

42. 434 F.2d at 32.

43. See, for example, Joseph Wolpe and Arnold Lazarus, Behavior Therapy Techniques (Lon don, England: Pergamon Press, 1967), ch. 5.

44. For an early demonstration, see Kurt Lewin, "Group Decision and Social Change," in Readings in Social Psychology, 3d ed., E. Maccoby, T. Newcomb, and E. Hartley, eds. (New York: Holt, Rinehart and Winston, 1947), pp. 197-211.

45. Frank v. Mangum, 237 U.S. 309, 349 (1915) (dissenting).

46. United States v. Dellinger, 472 U.S. F.2d 340 (7th Cir. 1972). On the importance of creat ing voir dire conditions that reduce rather than increase the role of bias and prejudice in the guilt determination process, see Barbara Babcock, "Voir Dire: Preserving 'Its Wonderful Power,' " Stanford Law Review, February 1975, pp. 545-65; Neal Bush, "The Case for Expansive Voir Dire," Law and Psychology Review, vol. 2 (1976), pp. 9-126; and Benora and Krause, Jurywork.

47. Whatever methodological imperfections exist in these studies are largely attributable to timing (some, by predating Witherspoon, could not employ the specific legal standard it articulated) and to the practical and ethical limitations that prevent researchers in all areas of law and social science from performing the "perfect" and definitive studies they would like. The strategy adopted in this area has been one of "triangulation"-studying the same conceptual prob lem from different methodological angles. Indeed, research on the effects of death qualification is striking in its consistency-all the studies show basically the same thing-and notable for the fact that the methodologically more sophisticated studies, if anything, show larger, more detrimental effects.

48. See, for example, Howard Erlanger, "Jury Research in America: Its Past and Future," Law and Society Review, vol. 4 (1970), pp. 345-70; and Kathleen Gerbasi, Milton Zuckerman, and Harry Reis, "Justice Needs a New Blindfold: A Review of Mock Jury Research," Psychological Bulletin, vol. 84 (1977), pp. 323-45; and Steven Penrod and Reid Hastie, "Models of Jury De cision Making: A Critical Review," Psychological Bulletin, vol. 86 (1979), pp. 462-92.