Life underWainwright v. Witt: Juror dispositions and death qualification

The current standard for determining juror qualification in cases in which the prosecution is seeking the death penalty was formulated by the U.S. Supreme Court in 1985 inWainwright v. Witt. This standard differs importantly from its predecessor, and requires that prospective jurors be dismissed if their views would prevent or substantially impair their ability to perform their functions as jurors. We assessed respondents according to the criteria imposed byWitt. We also measured independently prospective juror's abilities to perform the various specific tasks of a capital juror and their disposition to impose the death penalty automatically upon defendants convicted of murder punishable by death. Data from 148 respondents, selected randomly from juries on previously tried felony cases, indicated that 28.2% of those includable by theWitt standard would automatically impose the death penalty. Considering all respondents who would be erroneously included or excluded, a total of 36% of the sample showed inconsistencies with theWitt criterion. These findings are discussed in terms of jurors' difficulties in anticipating their roles as capital jurors.     

Due process vs. crime control

Juries that exclude people who are unwilling to impose the death penalty (death-qualified juries) may be biased against capital defendants. To evaluate this possibility we compared the demographic characteristics and attitudes toward the criminal justice system of people who would or would not be excluded by theWitherspoon standard. A random sample of 811 eligible jurors in Alameda County, California were interviewed by telephone. Of the 717 respondents who stated that they could be fair and impartial in deciding on the guilt or innocence of a capital defendant, 17.2% said that they could never vote to impose the death penalty, and thus are excludable underWitherspoon. Significantly greater proportions of blacks than whites and of females than males are eliminated by the process of death qualification. On the attitudinal measures, the death-qualified respondents were consistently more prone to favor the point of view of the prosecution, to mistrust criminal defendants and their counsel, to take a punitive approach toward offenders, and to be more concerned with crime control than with due process. Eleven of the 13 items showed statistically significant differences.     

What does “unwilling” to impose the death penalty mean anyway? another look at excludable jurors

The debate regarding the death qualification of juries usually concerns (a) whether death-qualified jurors have different attitudes and values to excludable jurors, or (b) whether death-qualified juries are more prone to convict. A pivotal question is whether excludable subjects in fact willever impose the death penalty. Subjects were presented with five grisly murder vignettes. Only 40% of excludable subjects refused to consider the death penalty in all of the cases, with the remaining 60% indicating they would consider the death penalty in one or more of the cases. It is argued that the majority of individuals currently being excluded from capital trial juries based on their reservations about the death penalty actually would impose the death penalty for serious enough offenses and that they should therefore be allowed to serve on such juries.     

Conduct and its Consequences: Attempts at Debiasing Jury Judgments

Jurors in negligence cases are supposed to judge a defendant by the reasonableness of his or her conduct and not by the consequences of that conduct. But several studies have shown that a cognitive heuristic known as hindsight bias can skew post hoc judgments of some prior behavior. Thus, jurors who must evaluate the actions of a defendant may be influenced inappropriately by the consequences of those actions. A complementary problem arises when jurors must evaluate the injuries incurred by the plaintiff. Here, jurors' knowledge about the defendant's allegedly negligent conduct can proactively influence their assessment of the plaintiff's injuries and determination of damages. The purpose of the present study was to examine the effectiveness of two procedural techniques intended to reduce or eliminate the impact of hindsight bias in negligence cases—multiple admonitions from a judge about the proper use of evidence—and bifurcation (actually withholding irrelevant evidence from jurors). We presented a re-enacted automobile negligence trial to 355 jury-eligible adults drawn from the community, varied the evidence and instructions that they heard, and measured liability judgments and damage awards from individual jurors both before and after deliberating, and from juries. Results showed that admonitions were generally ineffective in guiding jurors to the proper use of evidence but that bifurcation was relatively more effective. Deliberations had no curative effect on jurors' misapplication of evidence.     

Death penalty beliefs and jurors' responses to aggravating and mitigating circumstances in capital trials

Two studies explored the relationship between attitudes toward the death penalty and support for or rejection of aggravating and mitigating circumstances in a capital trial. Jurors serving on jury duty voluntarily completed questionnaires in the jury lounge. In Study 1, jurors strongly opposed to the death penalty were significantly more receptive to mitigating circumstances than were the remaining jurors. In Study 2, jurors who would have been excluded for their opposition to the death penalty under theWitherspoon standard were significantly less receptive to aggravating circumstances than were the other jurors. It is suggested that the present system of death qualification in capital cases results in biases against the interest of the defendant at all stages of the trial process—jury selection, determination of guilt, and sentencing.     

A HEAVY THUMB ON THE SCALE: THE EFFECT OF VICTIM IMPACT EVIDENCE ON CAPITAL DECISION MAKING*

The past several decades have seen the emergence of a movement in the criminal justice system that has called for a greater consideration for the rights of victims. One manifestation of this movement has been the “right” of victims or victims' families to speak to the sentencing body through what are called victim impact statements about the value of the victim and the full harm that the offender has created. Although victim impact statements have been a relatively noncontroversial part of regular criminal trials, their presence in capital cases has had a more contentious history. The U.S. Supreme Court overturned previous decisions and explicitly permitted victim impact testimony in capital cases in Payne v. Tennessee (1991) . The dissenters in that case argued that such evidence only would arouse the emotions of jurors and bias them in favor of imposing death. A body of research in behavioral economics on the “identifiable victim effect” and the “identifiable wrongdoer effect” would have supported such a view. Using a randomized controlled experiment with a death‐eligible sample of potential jurors and the videotape of an actual penalty trial in which victim impact evidence (VIE) was used, we found that these concerns about VIE are perhaps well placed. Subjects who viewed VIE testimony in the penalty phase were more likely to feel negative emotions like anger, hostility, and vengeance; were more likely to feel sympathy and empathy toward the victim; and were more likely to have favorable perceptions of the victim and victim's family as well as unfavorable perceptions of the offender. We found that these positive feelings toward the victim and family were in turn related to a heightened risk of them imposing the death penalty. We found evidence that part of the effect of VIE on the decision to impose death was mediated by emotions of sympathy and empathy. We think our findings open the door for future work to put together better the causal story that links VIE to an increased inclination to impose death as well as explore possible remedies.     

Clarifying Life and Death Matters: An Analysis of Instructional Comprehension and Penalty Phase Closing Arguments

We report the results of two studies designed as follow-ups to our earlier research on the comprehension of capital penalty instructions. In the first study we examine whether a California penalty instruction that was revised by the courts to improve its comprehension by jurors accomplishes this goal. In the second study we content-analyze a sample of attorney closing arguments that were given at the conclusion of actual capital penalty phases to explore whether they are likely to clarify those concepts and procedures that are so poorly comprehended in the judge's instructions. Results indicate that the revised instruction suffers from the same comprehension problems that plagued its predecessor and that attorney arguments appear unlikely to significantly reduce confusion among capital jurors.     

Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials

In 25 Canadian criminal trials involving charges of sexual abuse, 849 prospective jurors were asked under oath whether they could hear the evidence, follow the judge's instructions on the Jaw, and decide the case with a fair and impartial mind. Knowing only the nature of the charges against the accused, on average 36% of the jurors stated that they could not be impartial Some jurors explained that they themselves had been victims of abuse, others expressed fears for children, while others stated simply that they could not set aside a presumption of guilt. These findings from real trials are consistent with a body of social science literature about attitudes toward sexual abuse and sexual assault charges. The article distinguishes between prejudices arising from specific pretrial publicity and generic prejudices that cause prejudgments of the case of any defendant perceived as belonging to a general class of defendants who likely are guilty of the crime(s) charged.     

Religious Characteristics and the Death Penalty

Using one mock trial scenario, this study investigated whether religious and demographic factors were related to death penalty attitudes and sentencing verdicts. Those who favored the death penalty differed from those who had doubts about the penalty in gender, affiliation, fundamentalism, evangelism, literal Biblical interpretism, beliefs about God’s attitudes toward murders, and perceptions of how their religious groups felt about the death penalty. These relationships generally held after mock jurors were death qualified. Gender, fundamentalism, literal interpretism, beliefs about God’s death penalty position, and perceptions of how one’s religious group felt about the death penalty predicted death penalty sentencing verdicts. Future research could determine whether using peremptory challenges to exclude potential jurors based on religion can help lawyers choose a more favorable jury. The present research was supported by the National Science Foundation award number 0351811, the Society for the Psychological Study of Social Issues, the American Psychology-Law Society, and the University of Nebraska Law-Psychology Program. This research was presented at the 2006 conference of the American Psychology-Law Society. The authors are grateful for the research assistance of Nick Fanning and Beth Herschlag and for the helpful comments from Brian Bornstein, Rich Wiener, Bob Schopp, Dick Dienstbier, and several anonymous reviewers.     

Studying Perceptions of Juror Influence In Vivo: A Social Relations Analysis

Because of legal constraints and statistical limitations there has been little research on social influence in actual juries. We used Kenny's (1994) social relations model to examine jurors' perceptions of social influence in the jury. After rendering a verdict in criminal or civil court cases, jurors rated how influential each member of the jury had been and provided self-reports of their personality traits. Perceptions of influence in the jury were mostly in the eye of the beholder, with jurors high in Conscientiousness and low in Openness being most likely to report that they were personally influenced by other jurors. There were small but statistically significant levels of consensus in the ratings of how influential the jurors were. To the extent that they did agree, jurors rated extraverted, tall men as most influential.     

Effects of jurors’ gender and attitudes toward intellectual disability on judgments in cases involving disabled juvenile defendants

Because many juvenile offenders are intellectually disabled and have their cases tried by jurors in adult criminal court, it is important to understand factors that influence jurors’ judgments in such cases. Using a mock trial methodology, we explored the relations among jurors’ gender, attitudes toward intellectual disability, and judgments in a criminal case involving an intellectually disabled 15-year-old girl accused of murder. Men mock jurors’ judgments were not influenced by their preexisting biases, but women's were: the more women favored special treatment for disabled offenders, the less likely they were to suspect the disabled juvenile was guilty and the less likely they were to convict her. Implications for actual cases involving disabled juvenile defendants are discussed.     

The effects of death qualification on jurors' predisposition to convict and on the quality of deliberation

This study provides a straightforward test of the proposition that people who are permitted to serve on juries in capital cases (death-qualified jurors) are more likely to convict a defendant than are people who are excluded from serving on capital juries due to their unwillingness to impose the death penalty (excludable jurors). A sample of 288 subjects classified as death-qualified or excludable under theWitherspoon standard watched a 2 1/2-hour videotape of a simulated homicide trial including the judge's instructions, and gave an initial verdict. Death-qualified subjects were significantly more likely than excludable subjects to vote guilty, both on the initial ballot and after an hour's deliberation in 12-person juries. Nine juries were composed entirely of death-qualified subjects (death-qualified juries), while 10 contained from 2 to 4 excludable subjects (mixed juries). On postdeliberation measures, with initial death-penalty attitudes controlled, subjects who had served on the mixed juries were generally more critical of the witnesses, less satisfied with their juries, and better able to remember the evidence than subjects from the death-qualified juries, suggesting that diversity may improve the vigor, thoroughness, and accuracy of the jury's deliberations.     

The Role of Death Qualification in Venirepersons' Evaluations of Aggravating and Mitigating Circumstances in Capital Trials

Previous research has found that death qualification impacts jurors' receptiveness to aggravating and mitigating circumstances (e.g., J. Luginbuhl & K. Middendorf, 1988). However, the purpose of this study was to investigate whether death qualification affects jurors' endorsements of aggravating and mitigating circumstances when Witt, rather than Witherspoon, is the legal standard for death qualification. Four hundred and fifty venirepersons from the 11th Judicial Circuit in Miami, Florida completed a booklet of stimulus materials that contained the following: two death qualification questions; a case scenario that included a summary of the guilt and penalty phases of a capital case; a 26-item measure that required participants to endorse aggravators, nonstatutory mitigators, and statutory mitigators on a 6-point Likert scale; and standard demographic questions. Results indicated that death-qualified venirepersons, when compared to excludables, were more likely to endorse aggravating circumstances. Excludable participants, when compared to death-qualified venirepersons, were more likely to endorse nonstatutory mitigators. There was no significant difference between death-qualified and excludable venirepersons with respect to their endorsement of 6 out of 7 statutory mitigators. It would appear that the Gregg v. Georgia (1976) decision to declare the death penalty unconstitutional is frustrated by the Lockhart v. McCree (1986) affirmation of death qualification.     

Instructing jurors

This field experiment examines the advantages and disadvantages of two jury instruction procedures: instructing the jury prior to the evidence portion of the trial and providing the jury with a written copy of the judge's instructions to take with them to their deliberations. The presence or absence of both procedures was randomly assigned to 34 civil and 33 criminal trials in Wisconsin circuit courts. Following the trials, questionnaires were administered to judges, lawyers, and jurors. Overall, the findings do not provide any support for the hypotheses that written instructions would help the jurors to recall the judge's instructions, that they would increase the jurors' satisfaction with the trial, or that they would shorten the trial. The written copy did appear to reduce disputes among jurors about the judge's instructions. No evidence was found to support the notion that written instructions would reduce the amount of time that juries devoted to the evidence, that they would lengthen deliberations, or that they would place excessive demands on the resources of the court. The findings also did not support the hypotheses that preliminary instructions would assist the jurors with recall of the judge's instructions or the evidence, or that they would reduce juror confusion about the trial procedure, but did support the hypotheses that preliminary instructions would assist the jurors with following legal guidelines in their decision making and would increase the jurors' satisfaction with the trial process. No evidence was found to support the hypotheses that preliminary instructions would be an impractical procedure or that they would place excessive demands on the judge.Northwestern University     

The role of neurological and psychological explanations in legal judgments of psychopathic wrongdoers

Although brain imaging has recently taken center stage in criminal legal proceedings, little is known about how neuroscience information differentially affects people’s judgments about criminal behavior. In two studies of community participants (N = 1161), we examined how mock jurors sentence a fictional psychopathic defendant when presented with neurological or psychological research of equal or ambiguous scientific validity. Across two studies, we (a) found that including images of the brain did not alter mock jurors’ sentencing judgments, (b) reported two striking non-replications of previous findings that mock jurors recommend less severe punishments to defendants when a neuroscientific explanations are proffered, and (c) found that participants rated a psychopathic individual as more likely to benefit from treatment and less dangerous when a neurological explanation for his deficits was provided. Overall, these results suggest that neuroscience information provided by psychiatrists in hypothetical criminal situations may not broadly transform mock jurors’ intuitions about a psychopathic defendant’s sentence, but they provide novel evidence that brain-based information may influence people’s judgments about treatability and dangerousness.     

Death penalty attitudes and conviction proneness

Attitudes toward the death penalty are consistently predictive of jurors' verdicts in criminal trials. Two studies were conducted to find out why. In Study 1, eligible jurors viewed a videotape showing conflicting testimony by a prosecution and defense witness in an assault case. Death-qualified subjects (those permitted to serve on capital juries) interpreted testimony in a manner more favorable to the prosecution than excludable subjects (those excluded from serving on juries in capital cases due to their opposition to the death penalty), suggesting that differing interpretations of evidence may mediate the relationship between attitudes toward the death penalty and verdicts. In Study 2, the same jurors indicated their reactions to a number of hypothetical situations in which a jury had convicted an innocent defendant or acquitted a guilty one. Death qualified subjects expressed less regret concerning erroneous convictions and more regret concerning erroneous acquittals than excludable subjects. Theoretical interpretations of this pattern of results suggest that death qualified subjects may have a lower threshold of conviction than excludable subjects; thus the relationship between attitudes toward the death penalty and verdicts may also be mediated by differing thresholds of conviction.During the course of this research, William C. Thompson was supported, in part, by a National Science Foundation graduate fellowship.     

Juror background characteristics and attitudes toward rape

Although numerous writers have discussed the importance of and link between juror characteristics and juror decisions in rape trials, anempirical investigation of the relationships between these characteristics and juror verdicts has not been made. Using data obtained from a sample of 896 citizens serving as mock jurors, the principal focus of the present research was on the correlations of jurors' background characteristics and their attitudes toward rape with their decisions in a simulated rape case. Results of the study showed that the jurors' background and attitudinal variables were associated with their decisions. In addition, the pattern of the correlations was quite stable as the characteristics of the case evaluated (in terms of defendant and victim race, victim physical attractiveness, victim sexual experience, strength of evidence presented, and type of rape committed) were found to have only negligible effects on these relationships. Other tests showed that only the attitudinal variables accounted for differences in the jurors' decisionsafter characteristics of the case had been considered. Further, as compared to background data, the jurors' views of rape were the most important predictor of their decisions. Implications of the role of jurors' views of rape in jurors' decisions in rape trials and the use of rape attitudes for selecting jury members in rape cases discussed.     

Experience Versus Expectation: Economic Insecurity,the Great Recession,and Support for the Death Penalty

Scholars have theorized that people who report past economic hardship and those who forecast future economic instability will be more likely to support punitive criminal justice policies than those who do not. Only recently have researchers begun to empirically examine this association, and the findings from this small literature have been highly inconsistent. The current study contributes to this line of inquiry by investigating a uniquely rich set of economic insecurity measures included in a very large national survey (N = 9,060) fielded during a time period of special theoretical salience: the Great Recession of 2007–2009. Specifically, using survey data from the Cooperative Campaign Analysis Project, we explore the effects of experienced and expected personal, vicarious, and societal economic insecurity on support for the death penalty. Contrary to the hypotheses, expectations of future economic insecurity are negatively associated with death penalty support, but this relationship is conditional on respondents’ demographics.     

The Effect of Jury Deliberations on Jurors' Reasoning Skills

The effect of jury deliberation on jurors' reasoning skill in a murder trial was examined. Specifically, the effect of deliberating on reasoning competence (as defined by Kuhn, Weinstock and Flaton, 1994) was explored. One hundred and four participants viewed a videotaped murder trial and either deliberated in 12-person juries or ruminated on the case individually. Among those assigned to juries, half had their reasoning skill assessed prior to deliberations, while the others were tested after deliberating. Jurors in the individual rumination condition were assessed after they had the opportunity to reflect on the case alone. As hypothesized, post-group-deliberation jurors were more likely to discount both the selected verdict and alternative theories and incorporate judgmental supporting statements than were the other mock jurors. However, the mock jurors did not differ with regard to making statements that supported alternative verdicts or including judgmental statements that discounted their chosen verdict. In terms of Kuhn's reasoning continuum from satisficing (low level) to theory–evidence coordination (high level), there is some evidence that post-group-deliberation jurors may be closer to the high end than predeliberation jurors or post-individual-rumination jurors in some aspects of the task, but not in others.