Death Qualification

Jury selection in death penalty cases poses serious problems not found in typical criminal cases. During the "voir dire," jurors in capital 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

Courts can eliminate potential jurors who are not willing to vote for the death penalty in a capital case. If the judge believes that a 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 pro-death 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

Over the past 30 years, there has been a wealth of research on death qualification and its effects on the representativeness of 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 non-capital 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 death-qualified. 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 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 death-qualification 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.