Section 21.11 Death Qualification of Jurors

• Library: Criminal Practice 2012 Supp

1. (§21.11) Death Qualification of Jurors

Overwhelming empirical evidence shows that a “death qualified” jury, i.e., a jury from which persons who have strong scruples against capital punishment are excluded, is so strongly biased in favor of the prosecution that it is incapable of presuming a defendant innocent. See Grigsby v. Mabry, 758 F.2d 226 (8^th Cir. 1985), rev’d, Lockhart v. McCree, 476 U.S. 162 (1986), and the scientific studies discussed in those cases. In spite of this fact, the Supreme Court has ruled that it is permissible for the government to eliminate jurors whose views on the death penalty are such that their ability to follow the law and the instructions of the court is “substantially impair[ed].” Lockhart, 476 U.S. 162; Wainwright v. Witt, 469 U.S. 412 (1985).

There are limits on the state’s death qualification process. It is a violation of the due process clause to “entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.” Witherspoon v. Ill., 391 U.S. 510, 521 (1968). A jury is improperly impaneled when it is selected “by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id. at 522–23. In explaining what it means for a juror to be so “substantially impaired” that it is constitutionally permissible to exclude the juror from the jury, the United States Supreme Court stated:

But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an...