Regardless of how a juror is excused, the fact still remains, at least in theory, no individual will ever sit on a capital jury while being honest about his or her conviction against capital punishment. But, if there are people in the community who do not agree with capital punishment, does it not violate the fair cross-section requirement to exclude them from the jury?
“A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. Guided by neither rule nor standard, ‘free to select or reject as it [sees] fit,’ a jury that must choose between life imprisonment and capital punishment can do little more — and must do nothing less — than express the conscience of the community on the ultimate question of life or death.”104
As the Court properly noted, this process removes a portion of the community. “Culled of all who harbor doubts about the wisdom of capital punishment — of all who would be reluctant to pronounce the extreme penalty — such a jury can speak only for a distinct and dwindling minority.”105 Though the statistics may have changed some 106, the Court’s point is still well made; a death qualified jury does not speak for the entire community, rather, it only speaks for a portion of the community, specially chosen in a way to exclude those that would speak otherwise.
How conviction prone are death qualified juries? Shockingly, 55.1 percent of death qualified jurors agree, “people accused of crimes should be required to prove their innocence.”107 Whatever happened to “innocent until proven guilty?” Or, the fact that the burden is on the prosecution to prove the defendant’s guilt beyond a reasonable doubt, not the defendant’s job to prove his innocence?
The same study looked at the old adage, “It is better to let 100 guilty men go free than to convict one innocent man.” To this, the death qualified jurors agreed with 51.4 percent compared to the non-death qualified jurors who agreed 79.4 percent.108 When asked if “[d]efense attorneys have to be watched carefully, since they will use any means to get their clients off,” the death qualified jurors agreed 73.3 percent compared with the non-death qualified jurors who agreed 54.3 percent.109
These results show it is, in fact, the death qualified jurors who are more conviction prone than non-death qualified jurors. “[I]n light of this country’s self-proclaimed societal understanding of the government’s burden in proving guilt and the constitutional protections ostensibly provided to defendants, the death qualified jurors are far more prone to convict than they ‘should’ be.”110
The death qualification process and the questions posed during voir dire have a way of persuading prospective jurors into believing that the defendant is guilty and, even further, that death is the most appropriate sentence.111 In order to properly excuse those prospective jurors that are not death qualified, questions must be asked if a prospective juror would be able to impose a sentence of death, if the defendant were convicted. “The prospective juror presumes guilt in order to answer the question, and the entire panel learns that opponents of the death penalty are not welcome on juries.”112 This process “which focuses attention on the death penalty before the trial has even begun – has been found to predispose the jurors that survive it to believe that the defendant is guilty.”113
The entire process of death qualification “lend[s] support to the hypothesis that ‘people who are asked to imagine the occurrence of the penalty phase of the trial should be more likely to expect that that penalty phase will take place. . . . [So] one would . . . predict that people who have been asked to imagine the occurrence of this penalty phase would predict that it was more likely that the defendant will be convicted and more likely that special circumstances will be found in this particular case.'”114
This constant focus on the death penalty does two things: (1) the jury becomes predisposed to the defendant’s guilt because there is so much discussion on the penalty phase of the trial before, not only the guilt phase has begun and a determination of guilt or innocence, but also even prior to a jury being seated; and (2) the jury becomes predisposed to the belief that the proper punishment is death.
Already, prior to even seating a jury, the cards are stacked greatly against any defendant in a capital murder case. Furthermore, in Haney’s study, those death qualified jurors that experienced the death qualification process recommended a sentence of death by a vote of fifty-seven percent compared to the group that did not experience the death qualification process who only voted for death at 21.9 percent.115
In addition, “[d]eath-qualified jurors are, for example, more likely to believe that a defendant’s failure to testify is indicative of his guilt, more hostile to the insanity defense, more mistrustful of defense attorneys, and less concerned about the danger of erroneous convictions.”116 The questions used in death qualifying a jury increase the “subjects’ belief in the guilt of the defendant and their estimate that he would be convicted.”117 The fact that people are so easily swayed is a terrifying thought. “Even if this prejudice to the accused does not constitute an independent due process violation, it surely should be taken into account in any inquiry into the effects of death qualification.”118 This “process effect may function additively to worsen the perspective of an already conviction-prone jury whose composition has been distorted by the outcome of this selection process.”119
104 Id. at 519 (citations omitted).
105 Id. at 520 (citation omitted).
106 As of 2010, only 39 percent of the United States population would consider their views against capital punishment so strong that they would not be able to serve on a capital jury. See Death Penalty Information Center Public Opinion Reports, at http://www.deathpenaltyinfo.org/public-opinion-about-death-penalty, (last accessed, September 29, 2012). However, death sentences nationwide have dropped considerably from 326 in 1995 to just 115 in 2007. See Id., at http://www.deathpenaltyinfo.org/death-sentences-year-1977-2008.
107 Rick Seltzer et al., The Effect of Death Qualification on the Propensity of Jurors to Convict: The Maryland Example, 29 How. L.J. 571, 605 (1986).
110 Rozelle, 54 Baylor L. Rev. at 693.
111 Welsh S. White, The Death Penalty in the Eighties: An Examination of the Modern System of Capital Punishment, 167-168 (1987).
112 Rozelle, 54 Baylor L. Rev. at 694.
113 476 U.S. at 188 (Marshall, J., dissenting) (citation omitted).
114 Hovey v. Superior Court of Alameda County, 616. P.2d 1301, 1352 (Cal. 1980) (citing Craig Haney, On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process, 8 Law & Hum. Behav. 121 (1984)).
116 476 U.S. at 188 (Marshall, J., dissenting) (citation omitted).
117 Haney, 8 Law & Hum. Behav. at 128.
118 476 U.S. at 202 (Marshall, J., dissenting).
119 Haney, 8 Law & Hum. Behav. at 151.