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Taking Witherspoon Seriously - The Search for Death-Qualified Jurors

NCJ Number
94985
Journal
Texas Law Review Volume: 62 Issue: 6 Dated: (March 1984) Pages: 977-1084
Author(s)
E Schnapper
Date Published
1984
Length
107 pages
Annotation
This paper analyzes the practical and legal problems that arise in the application of the U.S. Supreme Court's 1968 decision in Witherspoon v. Illinois, which ruled that a death sentence could not be carried out if the jury that imposed it was chosen by excluding jurors because they were opposed to capital punishment.
Abstract
Many difficulties encountered by trial and appellate courts in complying with Witherspoon appear rooted in a misunderstanding about the decision's basic holding and how it altered then-existing standards. Witherspoon's requirements cannot be gleaned from the decision's general statement but from the Court's condemnation of several specific aspects of the Illinois jury selection process. Witherspoon makes clear that the decision to exclude a juror must be based only on the juror's statements about how he or she will vote rather than on testimony about beliefs, and it forbids excluding veniremen who would vote against the death penalty in some cases and not in others. Witherspoon also holds that a venireman cannot be excused for cause if he or she is willing to consider all the penalties provided by the State and that veniremen, regardless of their opposition to capital punishment, cannot be excused if they are willing to obey the law. An assumption that shapes disposition of Witherspoon claims is that every juror has a clear and irrevocable set of standards about capital punishment. In reality, a study of published voir dires shows that an individual venireman's attitude toward the death penalty is often as uncertain and wavering as that of society itself. To reduce trial and appellate wrangling over Witherspoon, a fundamentally different approach is essential. The questioning must begin, not by placing under suspicion a large number of merely scrupled jurors similar to those who were improperly excluded in Witherspoon itself, but by focusing on those jurors who, despite receiving a clear explanation of the jury's role, nonetheless refuse to obey and apply the law. The article specifies types of questions that should be asked and instructions necessary to ensure that the juror understands the questions. It also discusses the roles of the trial and appellate courts in resolving Witherspoon problems. An analysis of juror responses to voir dire in approximately 75 cases and 373 footnotes are supplied.

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