Comprehending life and death matters

Modern capital jurisprudence places special significance on judicial instructions to guide the discretion of the capital jury in reaching a penalty phase decision. Yet, previous social science research has raised doubts about the extent to which judicial instructions are generally understood by jurors and questioned their utility in producing intended effects. The present study measured the comprehension of the capital sentencing instruction employed in California. Data suggest widespread inability to define accurately the central concepts of aggravation and mitigation in use in virtually every state that currently has a death penalty statute, as well as the inability to distinguish properly the sentencing significance of the enumerated factors jurors are directed to use in reaching their life and death verdicts. In addition, an inordinate focus on the circumstances of the crime—to the exclusion of other potentially important factors—was identified, as well as special problems in comprehending the crucial concept of mitigation in constitutionally required ways.We would like to thank Suzanne Ban, Cori Nardello, and Maryanne Tagavilla for assistance in transcribing and content-analyzing the data.     

Life or death decisions

The penalty phase deliberation experiences of capital jurors guided by the “special issues” sentencing instructions were investigated. These instructions ask jurors to consider three specific issues to determine whether a defendant should receive a sentence of life imprisonment or the death penalty: whether the crime was committed deliberately; whether there is a probability that the defendant would pose a continuing threat to society; and whether the conduct of the defendant was unreasonable in light of any provocation on the part of the victim. In-depth interviews with 27 jurors explored the organization of the penalty deliberation, the topics discussed, influential factors in the decision-making process, the impact of sentencing instructions, the importance of the possibility of parole, and the stress associated with capital jury service. Jurors relied heavily on sentencing instructions to guide their deliberations and to determine their responsibilities. Future dangerousness and the possibility of parole were critical considerations in deciding between life and death. Although jurors found the capital trial to be stressful, most believed that the life or death decision should be made by jurors. Findings are discussed in light of constitutional concerns about the administration of the death penalty.     

Capital Jury Deliberation: Effects on Death Sentencing,Comprehension, and Discrimination

This study focused on whether and how deliberations affected the comprehension of capital penalty phase jury instructions and patterns of racially discriminatory death sentencing. Jury-eligible subjects were randomly assigned to view one of four versions of a simulated capital penalty trial in which the race of defendant (Black or White) and the race of victim (Black or White) were varied orthogonally. The participants provided their initial “straw” sentencing verdicts individually and then deliberated in simulated 4–7 person “juries.” Results indicated that deliberation created a punitive rather than lenient shift in the jurors’ death sentencing behavior, failed to improve characteristically poor instructional comprehension, did not reduce the tendency for jurors to misuse penalty phase evidence (especially, mitigation), and exacerbated the tendency among White mock jurors to sentence Black defendants to death more often than White defendants.     

Getting to the Point: Attempting to Improve Juror Comprehension of Capital Penalty Phase Instructions

This research examined the effects of several versions of capital penalty phase instructions on juror comprehension. Study One documented the impact of California’s recently implemented “plain language” instruction. It showed that although the new instruction has clear advantages over the previous version, significant comprehension problems remain. Study Two evaluated several modified instructions designed to enhance comprehension. Participants heard either a standard patterned instruction or one of two alternatives—a psycholinguistically improved instruction, or a “pinpoint” instruction using case-related facts to illustrate key terms—in a simulated death penalty sentencing phase. Persons who heard modified instructions demonstrated higher levels of comprehension on virtually every measure as compared to those in the standard instruction condition.     

Tinkering with the Machinery of Death: An Analysis of Juror Decision-Making in Texas Death Penalty Trials During Two Statutory Eras

The Texas death penalty statute originally approved by the United States Supreme Court in Jurek v. Texas (1976) was legislatively amended as a result of the Court’s decision in Penry v. Lynaugh (1989). The changes were intended to focus on increasing jurors’ ability to give mitigating effect to evidence in sentencing. Using data from the Capital Jury Project, we compared juror comprehension of sentencing guidelines, punishment responsibility, and deliberations in sentencing among a sample of 123 Texas jurors who deliberated under the Jurek and Penry statutes. In each area, we found that the amended statute failed to guide capital juror decision-making as intended.     

The Role of Mitigating Factors in Capital Sentencing Before and After McKoy v. North Carolina

In 1990, the United States Supreme Court ruled that capital jurors do not have to be unanimous in deciding whether or not to accept any particular mitigating circumstance presented to them by the defense during the penalty phase of a capital murder trial. This study examines whether this shift in procedure may have altered the role of mitigation in predicting capital sentencing outcomes by comparing death sentencing predictors before and after the McKoy decision with data from an extensive sample of capital cases in North Carolina tried between 1977 and 2002. The results indicate that (1) both the number of aggravating and mitigating circumstances accepted by capital jurors had statistically significant and substantial effects on capital sentencing outcomes both before and after the McKoy decision; (2) the number of mitigating circumstances presented to and accepted by capital juries in North Carolina doubled during the post‐McKoy period; and (3) the influence of mitigating circumstance on capital sentencing outcomes was attenuated in the post‐McKoy period. Implications of these findings are discussed.     

Discrimination and Instructional Comprehension: Guided Discretion,Racial Bias,and the Death Penalty

This study links two previously unrelated lines of research: the lack of comprehension of capital penalty-phase jury instructions and discriminatory death sentencing. Jury-eligible subjects were randomly assigned to view one of four versions of a simulated capital penalty trial in which the race of defendant (Black or White) and the race of victim (Black or White) were varied orthogonally. Dependent measures included a sentencing verdict (life without the possibility of parole or the death penalty), ratings of penalty phase evidence, and a test of instructional comprehension. Results indicated that instructional comprehension was poor overall and that, although Black defendants were treated only slightly more punitively than White defendants in general, discriminatory effects were concentrated among participants whose comprehension was poorest. In addition, the use of penalty phase evidence differed as a function of race of defendant and whether the participant sentenced the defendant to life or death. The study suggest that racially biased and capricious death sentencing may be in part caused or exacerbated by the inability to comprehend penalty phase instructions.     

The entrapment defense

Most American jurisdictions follow either asubjective or anobjective approach to the entrapment defense. In order to test some of the differences between the two approaches, student jurors viewed a videotaped cocaine trial and were presented with either subjective test or objective test instructions. The admission of prior conviction evidence was also varied. The jurors deliberated, returned a verdict, and then completed a questionnaire that measured their understanding of the instructions and trial facts. Results show that, first, juror comprehension of the principal features of the objective test is very poor. It is suggested that an effort be made to simplify instructions describing the objective test. Should simplification not improve comprehension, it is argued that the judge, not the jury, should decide the entrapment defense when the objective test is used. Second, admission of a prior conviction has a significant impact on verdicts in the subjective test condition, but not in the objective test condition. This finding suggests that the subjective test instructions are effective in encouraging jurors to use prior convictions as evidence of guilt. The content of the objective test instruction may also account for part of the difference in impact. Jurors in the objective test condition were instructed not to take the defendant's predisposition into account, and a substantial minority of the jurors under-stood this aspect of the instruction.     

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.     

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.     

Informing Jurors of Their Nullification Power: A Route to a Just Verdict or Judicial Chaos?

The current studies sought to test whether explicitly informing jurors of their power to nullify the law does invite chaos, defined by jurists as undisciplined and biased juror judgment. A series of four studies examined juror biases predicated on defendant status, remorse, gender, national origin, penalty severity, and extenuating circumstances. None, however, were amplified by nullification instructions, providing little evidence that such instructions invite chaos with respect to the biases examined in these studies. To the contrary, several results suggested that nullification instructions simply encourage jurors to nullify when the strict application of the law would result in an unjust verdict. Limitations of the studies and public policy issues are discussed.     

The Attorney–Client Relationship in Capital Cases and Its Impact on Juror Receptivity to Mitigation Evidence

The United States Supreme Court has placed a great deal of trust in the ability and willingness of capital jurors to consider mitigation evidence during sentencing deliberations as a constitutional aspect of capital sentencing. This paper examines the jurors’ perception of the affective warmth and friendliness shared by attorney and client, and the degree to which the defense attorney appears to regard the defendant as a close working member of the defense team. Using data obtained from interviews with 725 jurors in capital trials, regression analysis revealed that respondents were more receptive to mitigation evidence when they viewed the relationship between the attorney and client as warm and friendly, but less receptive when they reported the attorney–client as having a close working relationship. Analysis of interaction terms revealed that the negative effects of the close working relationship can be suppressed by modeling a warm affective attorney–client relationship.     

Error Rates,Likelihood Ratios,and Jury Evaluation of Forensic Evidence

Forensic examiners regularly testify in criminal cases, informing the jurors whether crime scene evidence likely came from a source. In this study, we examine the impact of providing jurors with testimony further qualified by error rates and likelihood ratios, for expert testimony concerning two forensic disciplines: commonly used fingerprint comparison evidence and a novel technique involving voice comparison. Our method involved surveying mock jurors in Amazon Mechanical Turk (N = 897 laypeople) using written testimony and judicial instructions. Participants were more skeptical of voice analysis and generated fewer “guilty” decisions than for fingerprint analysis (B = 2.00, OR = 7.06, p = <0.000). We found that error rate information most strongly decreased “guilty” votes relative to no qualifying information for participants who heard fingerprint evidence (but not those that heard voice analysis evidence; B = −1.16, OR = 0.32, p = 0.007). We also found that error rates and conclusion types led to a greater decrease on “guilty” votes for fingerprint evidence than voice evidence (B = 1.44, OR = 4.23, p = 0.021). We conclude that these results suggest jurors adjust the weight placed on forensic evidence depending on their prior views about its reliability. Future research should develop testimony and judicial instructions that can better inform jurors of the strengths and limitations of forensic 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.     

Construing Motive in Videotaped Killings: The Role of Jurors' Attitudes Toward the Death Penalty

Death-qualified jurors are generally able to impose the death penalty, whereas excludable jurors are generally either unable or unwilling to do so. A long line of research studies has shown that the former are more likely than the latter to convict criminal defendants. Ellsworth (1993) argues that jurors' attitudes toward the death penalty predict verdicts because they are embedded in a cluster of beliefs and theories about the criminal justice system. Her studies show that jurors interpret ambiguous conduct based on these belief structures. The present study examines the possibility that death penalty attitudes also influence jurors' conceptions of criminal intent. We showed mock jurors the filmed murder of a convenience store clerk and examined the inferences they drew from this evidence. Jurors who favored the death penalty tended to read criminal intent into the defendant's actions and jurors who opposed the death penalty were less likely to do so. These data provide further explanation of the conviction-proneness of death-qualified jurors.     

Jury decision making in the capital penalty phase

There are large bodies of research on the deterrent value of the death penalty and public attitudes towards capital punishment. However, little is known about how jurors decide whether a particular defendant should live or die. This article briefly summarizes the case law that attempts to guide the discretion of jurors in the penalty phase of capital murder trials, reviews empirical research on penalty decision making, suggests a methodological strategy for investigating the penalty phase, and identifies several promising directions for future research. Four broad categories of research are identified: the effects of guiding juror discretion, comparisons of juries that vote for life with those that vote for death, the relationship between guilt and penalty phases, and models of decision making in the penalty phase. Several testable hypotheses are proposed.     

Jurors' Use of Hearsay Evidence: The Effects of Type and Timing of Instructions

To examine the effects of curative judicial instructions on jurors' perceptions of hearsay testimony, mock jurors (N = 180) were exposed to one of six versions of a trial that included proprosecution hearsay evidence accompanied by either disregard or limiting instructions, presented either immediately after the hearsay, at the end of the trial, or at both of these times. Also included were control conditions in which (1) the information was presented as nonhearsay (first-hand), (2) no hearsay was presented, or (3) the hearsay was presented without instructions. Results indicated that neither the hearsay nor the instructions, regardless of their form or timing, affected verdicts. In fact, findings revealed that participants may have disregarded the hearsay regardless of instructions heard. There was some evidence to suggest, however, that evaluations of other admissible evidence presented by the hearsay witness were negatively affected.     

Juridic decisions

Pattern jury instructions have been criticized for being less than understandable to the average juror and thus for causing arbitrary juridic decisions. Two studies were conducted to establish whether these criticisms are justified and to find solutions to these problems. Both studies established the validity of the criticisms by demonstrating that the presentation of presently used Michigan negligence instructions is about as effective in helping jurors understand the laws as the presentation of no instructions at all. It was found that by rewriting these instructions in accordance with empirical knowledge of what elements affect perception, memory, and comprehension of language, their effectiveness was significantly improved. Furthermore, it was found that the presentation of instructions both at the beginning and at the end of a case would allow jurors a greater opportunity to focus their attention on relevant evidence and to remember it. The studies demonstrate the urgent need for jurisdictions around the country to improve the way jury instructions are written and delivered, if they expect jurors to reach verdicts in light of the law rather than in ignorance of it.