A Tribunal Organized to Convict and Execute?:
On the Nature of Jury Selection in Capital Cases
"W"hen it is further considered that the issue of guilt or innocence
in less important cases—the non-capital cases—is determined by a
jury not similarly shorn of its most humanely disposed
constituents, the result become even more ironic: the graver the
charge, the less protection accorded the accused.
—Walter Oberer, "Does Disqualification of Jurors for Scruples
Against Capital Punishment Constitute Denial of Fair Trial on Issue
of Guilt?" (1961)
The last several chapters have been devoted to the notion that citizens' beliefs about crime and punishment and their support for the death penalty are influenced in some significant ways by forces in the society at large. Among other things, highly politicized messages about crime and punishment; sensationalized media coverage of crime-related issues; and narrow, one-sided reporting about actual capital cases appear to have a real effect on the general public. These messages and images have an impact on the audiences exposed to them in ways that seem likely to influence the decisions that its members make as citizens, voters, and jurors. Exposure to partial and sometimes misleading information also may help to explain why the public's confusion about capital punishment is persistent and widespread. This confusion, as I showed in the last chapter, appears to be at the root of much death penalty support.
But, from this point forward, the legal system itself does a great deal to facilitate the process of death sentencing. Either by not effectively remedying some of the worst biases and misconceptions that have been created outside the courtroom or by actively intervening in ways that are likely to exacerbate them, a number of legal doctrines, practices, and procedures are directly implicated. This chapter examines the way the legal system handles several important issues that arise at the very outset of a capital case, when it comes time to select those persons who will serve as jurors during the trial. Jury selection or voir dire in death penalty cases presents special challenges, in part because of the serious and sometimes sensational nature of the crimes that give rise to them, and in part because of the persistent ambivalence about