Chapter 3 The Law and Practice of Voir Dire of Capital Jurors: Ensuring Jurors Are Merciful

• Library: Tell the Client's Story: Mitigation in Criminal and Death Penalty Cases (ABA) (2017 Ed.)

CHAPTER 3 The Law and Practice of Voir Dire of Capital Jurors: Ensuring Jurors Are Merciful

Edward C. Monahan and Lorinda Meier Youngcourt

Jurors are the soul of our Bill of Rights. "The dominant strategy to keep agents of the central government under control was to use the populist and local institution of the jury. Guaranteed in no less than three amendments, juries were at the heart of the Bill of Rights."¹

Jurors who decide whether someone should live or die are required to make an individual and personal moral decision. In the guilt—innocence phase, jurors are charged with listening to each other and trying to reach agreement. In the penalty phase, capital litigators must leave each juror with the firm belief that he or she must decide independently what punishment should be imposed and must firmly commit to that responsibility.

Each capital juror does so amidst a legal process that is foreign, full of presumptions and misperceptions, and usually disorienting for laypersons. The great danger is that jurors use the law, the legal process, and rules as the vehicles to distance themselves from their individual, personal moral decision.²

During voir dire, litigators connect prospective jurors to their personal moral obligation. They know well that the selection of jurors is "one of the most important parts of the capital trial. The jury in a capital case has become the most important body to persuade in the courtroom. Ring v. Arizona, 536 U.S. 584 (2002). There is no more crucial time in the trial of a capital case than jury selection. It is during this prelude to the beginning of the capital trial that much of the outcome will be determined."³

Impartial deciders are essential for the decision making in a capital case to be reliable and valid. At its core, this means that jurors must be able to follow the law. In essence, a juror must be able to do the following when considering the legal sentences, statutory aggravators, and mitigation:

Sentences

• Consider all the sentences, from the death penalty to the minimum term of years in prison that can be imposed for murder.

Aggravators

• Consider the statutory aggravating factors.
• Find an aggravator only if the prosecution has proven it beyond a reasonable doubt.

Mitigation

• Fully consider all mitigation, statutory and nonstatutory; merciless jurors cannot sit.
• Understand that mitigation does not need to be found beyond a reasonable doubt.
• Make an individual decision on whether a circumstance or event is mitigating.

A juror unable to consider the penalty of death or aggravation cannot sit. Likewise, a juror unable to consider the minimum penalty or statutory and nonstatutory mitigation is also unable to sit. Those prospective jurors who are automatically for death and those unable to consider the penalty of death under any circumstance cannot sit.⁴

United States Supreme Court Case Law

What is required and what is prohibited in capital voir dire by the Sixth, Eighth, and Fourteenth Amendments is discussed in a series of cases by the United States Supreme Court starting in 1968.

A defendant is constitutionally guaranteed by the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to an impartial jury. The Sixth Amendment to our United States Constitution states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The "right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process."⁵

A part of ensuring this fundamental guarantee of impartiality "is an adequate voir dire to identify unqualified jurors."⁶

In a sequence of "cases beginning with Witherspoon, the Supreme Court has consistently held that the Sixth Amendment right to impartial jurors is infringed when, through the procedures used to obtain a jury for a particular trial, the trial judge allows the selection of a jury 'uncommonly willing to condemn a man to die.'"⁷

Witherspoon v. Illinois⁸ held that "persons who have qualms about the death penalty in general, and who might be inclined to oppose it as a matter of public policy, but who can put aside those reservations in a particular case, and in compliance with their oaths as jurors consider imposing the death penalty according to the relevant state law, may not be precluded from serving as capital-case jurors. Witherspoon, in short, is a specific 'limitation on the State's power to exclude persons with qualms about the death penalty from capital juries."⁹Witherspoon constrains the state from excluding jurors who have hesitations about being able to vote for death.¹⁰

Adams v. Texas¹¹ held that "a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."

Wainwright v. Witt¹² clarified Witherspoon by "dispensing with [its] reference to 'automatic' decision making" and reaffirmed the Adams standard of "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."¹³

Witt also removed the Witherspoon requirement that a juror's impairment be proved with "unmistakable clarity." Trial judges were vested with the authority to determine credibility and, when "left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law," remove that juror for cause.¹⁴ A Witt violation is reversible error that is not harmless.¹⁵

Morgan v. Illinois¹⁶ held that a person who would, no matter the evidence, automatically vote for the death penalty is unqualified to sit and should be removed for cause. In order to fulfill the Sixth and Fourteenth Amendments guarantee of an impartial jury, the defense must be allowed to inquire of a prospective juror whether he or she would automatically vote to impose the death penalty no matter what the facts. "A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views."¹⁷

A "capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias."¹⁸ Therefore, "to be qualified to serve in a capital case, a prospective juror must be willing and able to: (1) require the State to prove all of the elements of murder and an aggravating factor beyond a reasonable doubt; (2) make an individualized decision in cases where both murder and an aggravating circumstance [have] been proven beyond a reasonable doubt as to whether death is the right punishment in that case, neither rejecting nor imposing it in every case; (3) give meaningful consideration to a wide range of mitigating factors; and (4) listen to and consider the thoughts of fellow jurors but stand her ground if convinced of a conclusion contrary to that of other jurors."¹⁹

"Voir dire is, historically, the most reliable method for uncovering possible juror prejudice."²⁰ Justice O'Connor stated the obvious in her concurrence in Smith v. Phillips,²¹ "Determining whether a juror is biased or has prejudged a case is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it." Regardless of the qualification standard being determined, ample questioning is required. The responsibility is on defense counsel to demonstrate that a person is not qualified to sit. Defense counsel is therefore entitled to ask questions to meet this burden. "Voir dire examination should be sufficient to disclose grounds for challenges for cause and to facilitate intelligent exercise of peremptory challenges."²²

It is also essential that the questioning be sufficient to identify and correct the inevitable misunderstandings lay prospective jurors have about this capital process, their role, and their responsibilities. "While certainly jury instructions bear much of the responsibility for the education of jurors on what the law is, it is equally true that one of the primary times when jurors are educated on procedure and law is during voir dire. More importantly, confusion can be addressed during jury selection by questioning. The advantage of addressing juror confusion during voir dire is that jurors can say simply what it is they do not understand, and judges, prosecutors, and defense counsel can ensure through questioning that no juror sits who does not both understand the law and agree to follow the law."²³

Juror questionnaires are a commonsense way to obtain necessary information, identify confusion, and provide counsel with information to intelligently ask questions and make motions for excusal for cause or to use a peremptory challenge.²⁴

It too often happens that a judge asks a prospective juror whether he or she can be fair and can follow the court's instructions despite personal disagreement with the law; satisfied when the individual answers affirmatively, the judge prohibits questioning of that prospective juror. Mere agreement to be fair and follow the court's instructions does not qualify a juror. Much more inquiry is required. This situation occurred in Morgan v. Illinois:²⁵ the trial judge refused to allow the question of all jurors, "If you found Derrick Morgan...