In Their Own Words: Capital Jurors' Reactions to Mitigation Strategies

By Trahan, Adam | International Journal of Punishment and Sentencing, January 2011 | Go to article overview

In Their Own Words: Capital Jurors' Reactions to Mitigation Strategies


Trahan, Adam, International Journal of Punishment and Sentencing


Abstract: Despite decades of grappling by the Supreme Court over how to ensure capital defendants are afforded their Sixth Amendment right to an impartial jury, research has shown that capital jurors are predisposed to reject mitigation and sentence defendants to death. The study presented here was designed to ascertain ways in which defense attorneys can increase jurors' receptivity to mitigating evidence and arguments. Transcripts of interviews conducted by the Capital Jury Project were analyzed using thematic analysis methods to identify and describe effective mitigation strategies. A total of 76 jurors discussed their reactions to five general mitigation themes. The results show that mitigation cases wherein multiple strategies are combined into one coherent narrative were the most successful. Mitigation that focused on the defendants' background was also relatively effective. The specific attributes of these mitigation strategies that resonate with jurors are presented Techniques defense attorneys can employ in each strategy to increase jurors' receptivity are also discussed

Interview

The Supreme Court has grappled for decades over how to ensure that defendants charged with capital crimes are afforded their Sixth Amendment right to an impartial jury. One of the most notorious policies that has emerged from this struggle is commonly referred to as "death qualification." Death qualification is a controversial procedure whereby prospective jurors are vetted during voir dire as to their ability to give meaningful consideration to all legal penalties in making their sentencing decision. Jurors who indicate that they would automatically vote for or against a death sentence upon conviction are theoretically excluded from jury service. Those whose responses suggest they would wait to hear the evidence of mitigating and aggravating circumstances, and base their sentencing decision on these factors alone, are eligible to serve on capital juries (Wainwright v. Witt, 1985; Morgan v. Illinois, 1992).

An extensive body of research literature has developed on whether death qualification in fact yields capital jurors who are able and willing to give meaningful consideration to mitigating factors and weigh the merits of a life sentence. The findings of this research suggest it does not. Studies have shown that capital jurors are generally unreceptive to mitigation and predisposed to vote in favor of death (Luginbuhl & Middendorf, 1988; Garvey, 1998; Blume, Johnson, & Threlkheld, 2001; Sandys & McClelland, 2003; Haney, 2005; Butler & Wasserman, 2006; Butler & Moran, 2007a, 2007b). The extant literature offers two prevailing explanations for why death qualification fails to ensure impartiality. The first explanation relates to the assumption that interrogating prospective jurors during voir dire yields information that can be used to accurately predict the way jurors will react to issues raised at trial. Death penalty attitudes are habitually complex and cannot necessarily be neatly categorized as the law requires (O'Neil, Patry, & Penrod, 2004). Evidence suggests that prospective jurors are often confused by questions posed during voir dire and unaware of their own biases (Sandys & McClelland, 2003). Furthermore, these questions ask jurors to predict how they will behave in hypothetical situations, which is imprecise at best.

The second explanation for death qualification's failure to ensure impartiality suggests that the procedure itself may be counterproductive. Haney (1984a, 1984b) found that the process of death qualification has a biasing effect on prospective jurors. Subjects who witnessed a simulated capital voir dire reported significantly higher levels of bias than a control group. The process of vetting prospective jurors as to their attitudes toward the death penalty and their perceived ability to impose it skips the presumption of innocence and implies that the law requires jurors to impose the death penalty under certain conditions, which it does not (Roberts v. …

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