At Witt's End: The Continuing Quandary of Jury Selection in Capital Cases (From Criminal Law Review, P 317-350, 1988, James G Carr, ed. -- See NCJ-114710)

• NCJ Number: 114717
• Author(s): J M Carr
• Date Published: 1988
• Length: 34 pages
• Sale Source: Clark Boardman Company, Ltd
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: Reprinted from 39 Stanford Law Review 427 (1987).

Annotation

Because capital punishment evokes strong emotions that can significantly affect the outcome of capital trials and because most statutes mandate that only a unanimous jury can return a death penalty, jurors with conscientious objections to the death penalty can be excluded from serving on capital trials.

Abstract

In 1968, the U.S. Supreme Court held in Witherspoon vs. Illinois that a trial judge could not categorically exclude all death penalty opponents from a capital jury. While the decision did not abolish death qualification of capital jurors, it limited exclusion to those jurors whose scruples would prevent them from impartially deciding the defendant's guilt or who would automatically vote against the death penalty under any circumstances. In Wainwright vs. Witt, the Court adopted a new approach that articulated a more relaxed standard of death qualification and vested judges with greater discretion to exclude scrupled jurors in capital cases. Rather than clarifying Witherspoon, the Witt decision has added to confusion and fails to provide clear judicial guidelines for the capital jury selection process, assuming that judges can make accurate exclusion decisions in an ad hoc manner. Because capital sentencing is an innately irrational, intensely moral determination, judges should exclude from capital juries only those who declare they would never vote for the death penalty. The exclusion of scrupled jurors who are less certain of their convictions threatens to dilute the moral certainty required to impose this most severe of penalties. 192 footnotes.