Preparing for the Death Penalty
in Advance of Trial:
Process Effects in Death-Qualifying
Tendencies, no matter how slight, toward the selection of jurors
by any method other than a process which will insure a trial by a
representative group are undermining processes weakening the
institution of jury trial, and should be sturdily resisted.
—Justice Frank Murphy, Glasserv. United States (1942)
Attorneys and legal scholars often comment that trials—especially criminal trials—are won and lost at the jury selection stage of the case. Public sentiments run strong on many of the issues that frame the context in which decisions about crime and punishment are made in court and, depending on the views and sentiments that are represented on the jury, one or another outcome may be much more likely (if not actually foreordained). In most kinds of cases this dictum about winning and losing in jury selection is a cautionary tale about the importance of taking the process of picking a jury seriously. Attorneys who are careless or indulge their unverified theories about "ideal" jurors are likely to be disappointed when the jury's verdict finally is returned. However, in capital cases, the winning and losing of the trial at this early stage may come about in another way. Here there are structural issues that are brought to bear on the jury selection process that appear to change the odds in these cases in ways that distinguish them from other criminal trials.
As the studies reviewed in the last chapter illustrated, death qualification significantly influences the composition of the jury that ultimately is selected in capital cases. The group that remains once the process is complete tends to be unrepresentative of juries in general and often does not reflect the demographic makeup of the venue from which it is selected. Death-qualified jurors also tend to favor the prosecution, are inclined toward conviction, and tilt in favor of rendering death rather than life sentences. Of course, these are the only kind of juries—ones composed exclusively of death-qualified jurors—that the law permits to sit in capital cases. In addition, however,