This class examines the role of the jury in capital sentencing, the selection of juries through the questioning of prospective jurors with the exclusion of those who cannot be fair and impartial, the use of peremptory strikes by the parties, the instructions to the jury and its deliberations. During jury selection, prospective jurors may be questioned about such things as their knowledge of the case from pretrial publicity, their racial attitudes, and whether their attitudes toward capital punishment would interfere with their ability to fairly consider the death penalty. “Peremptory strikes” allow both prosecutors and defense counsel to freely strike a certain number of jurors. Historically, they have been used to exclude racial minorities from jury service. Prof. Bright addresses that history and analyzes whether the Supreme Court’s decisions prohibiting such discrimination are sufficient to prevent it. Sia Sanneh of the Equal Justice Initiative of Alabama discusses findings by the Initiative of discrimination in the use of peremptory strikes in Alabama. Professor Marla Sandys, a jury expert and professor of criminal justice at Indiana University, discusses the findings of her studies on how jurors make life-and-death decisions.
A. Jury Selection
The segment examines the law and practice of jury selection, including how jury selection is conducted, questioning of prospective jurors about sensitive issues such as racial bias, the exclusion of jurors because of their attitudes on the death penalty, and rulings by judges about whether prospective jurors can be fair and impartial.
Readings:
Jury Selection (PDF), including:
- The Role of the Jury in Capital Sentencing
- Ring v. Arizona, 536 U.S. 584 (2002), and other cases involving role of judge and jury in determining sentence
- The Jury Pool – discrimination in selection; representativeness
- Discussion of Norris v. Alabama, 294 U.S. 587, 590-91 (1935), the second time the Supreme Court reviewed the Scottsboro case, and other cases involving discrimination in selecting jury pools for grand and trial juries
- The Right to a Fair and Impartial Jury
- Pretrial Publicity
- Examination of Prospective Jurors and Strikes for Cause
- Knowledge of the Case
- Mu’Min v. Virginia, 500 U.S. 415 (1991)
- Racial bias
- Ham v. South Carolina, 409 U.S. 524 (1973)
- Ristaino v. Ross, 424 U.S. 589 (1976)
- Turner v. Murray, 476 U.S. 28 (1986)
- Attitudes regarding capital punishment
- Witherspoon v. Illinois, 391 U.S. 510 (1968)
- Note on Adams v. Texas, 448 U.S. 38 (1980)
- Wainwright v. Witt, 469 U.S. 810 (1985)
- Note on Lockhart v. McCree, 476 U.S. 162 (1986) and Morgan v. Illinois, 504 U.S. 719 (1992)
- Questioning of Juror Z in State v. Brown, Superior Court of King County, Washington (Nov. 3, 1993)
- Uttecht v. Brown, 551 U.S. 1 (2007)
- Knowledge of the Case
- Excerpts from the jury selection in Snyder v. Louisiana, showing questioning of prospective jurors, motions to strike jurors who cannot be fair and impartial, and the exercise of peremptory strikes, covered in the next section. The Supreme Court reviewed the jury selection to decide whether the prosecutor had discriminated against African Americans in the use of his peremptory strikes. It is included as an example of one of many ways in which juries are selected.
- Additional information on Snyder, including the Supreme Court’s opinion and audio of oral argument, can be found here.
Recommended Reading:
- John Barry, “Gossip scuttles Dontae Morris trial; Hillsborough judge dismisses jury pool,” Tampa Bay Times, Aug. 2, 2012
Lecture:
B. Peremptory Strikes
“Peremptory strikes” allow both prosecutors and defense counsel to freely strike a certain number of jurors. Historically, peremptory strikes have been used to exclude racial minorities from jury service. This segment addresses that history and analyzes whether the Supreme Court’s decisions prohibiting such discrimination are sufficient to prevent it.
Readings:
Peremptory Strikes (PDF), including:
- Swain v. Alabama, 380 U.S. 202 (1965)
- Note on McCray v. New York, 461 U.S. 961 (1983) (Marshall, J., dissenting from the denial of certiorari) (Statement of Stevens, J., regarding denial of certiorari)
- Batson v. Kentucky, 476 U.S. 79 (1986)
- Other Decisions on Discrimination in the Use of Peremptory Strikes
- The Philadelphia District Attorney’s Training on Jury Selection after Batson
- The Prima Facie Case
- State v. Dorsey, 74 So.3d 603 (La. 2011)
- A note on State v. Holland, 2011 Westlaw 6153193 (La. Nov. 18, 2011)
- “Race neutral” reasons
- Note on Hernandez v. New York, 500 U.S. 352 (1991)
- Purkett v. Elem, 514 U.S. 765 (1995)
- Toomer v. State, 734 S.E.2d 333 (Ga. 2012)
- People v. Randall, 671 N.E.2d 60 (Ill. App. 1996)
- NC Prosecutors Distribute List of Race-Neutral Reasons
- The Decision on Discrimination
- Notes on Miller-el v. Cockrell, 537 U.S. 322 (2003), Miller-el v. Dretke, 545 U.S. 231 (2005), and Rice v. Collins, 546 U.S. 333 (2006)
- Snyder v. Louisiana, 552 U.S. 472 (2008)
- Review of Batson claims after Miller-El II and Snyder
Lecture:
Interview of Sia Sanneh:
Sia Sanneh of the Equal Justice Initiative of Alabama discusses findings by the Initiative of discrimination in the use of peremptory strikes in Alabama.
C. Jury Instructions and Deliberation
Readings:
Instructions-Deliberations (PDF), including:
- Jury Instructions
- Supreme Court Decisions Regarding Instructions on Penalty Phase Issues
- Jury Deliberations
- A note on Turner v. Louisiana, 379 U.S. 466 (1965)
- Sears v. State, 514 S.E.2d 426 (Ga. 1999)
- Powell v. Allstate Insurance Co., 652 So.2d 354 (Fla. 1995)
- Note – Other Decisions on Race Influencing Deliberations
Recommended Reading:
- Scott E. Sundby, A Life and Death Decision: A Jury Weighs the Death Penalty (Palgrave Macmillan 2005) (describing not only how a jury decided a capital case, but providing findings of the National Capital Jury Project with regard to various aspect of jury decisions)
- Alex Kotlowitz, “In the Face of Death,” N.Y. Times, July 6, 2003 (describing a jury’s decision-making process in a capital case)
Interview of Marla Sandys:
This segment examines how jurors are instructed with regard to deciding between life and death, what they may be told regarding their decisions, the pressures of jury deliberations, and what happens when jurors cannot agree. Marla Sandys, a jury expert and professor of criminal justice at Indiana University, discusses the findings of her studies on how jurors make life-and-death decisions.