Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Inquiries into jury bias have arisen in the context of the imposition of the death penalty. In Witherspoon v. Illinois,1 the Court held that the exclusion in capital cases of jurors conscientiously opposed to capital punishment, without inquiring whether they could consider the imposition of the death penalty in the appropriate case, violated a defendant’s constitutional right to an impartial jury. The Supreme Court stated: “A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.” 2 A jury, the Court further wrote, must “express the conscience of the community on the ultimate question of life or death,” and the automatic exclusion of all with generalized objections to the death penalty “stacked the deck” and made of the jury a tribunal “organized to return a verdict of death.” 3 The Court has also held that a court may not refuse a defendant’s request to examine potential jurors to determine whether they would vote automatically to impose the death penalty; general questions about fairness and willingness to follow the law are inadequate.4

In Wainwright v. Witt, the Court held that the proper standard for exclusion is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” 5 Thus, to be excluded, a juror need not indicate that he would “automatic[ally]” vote against the death penalty, nor need his “bias be proved with ‘unmistakable clarity.’” 6 Instead, a juror may be excused for cause “where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” 7 Persons properly excludable under Witherspoon may also be excluded from the guilt/innocence phase of a bifurcated capital trial.8 It had been argued that to exclude such persons from the guilt/innocence phase would result in a jury somewhat more predisposed to convict, and that this would deny the defendant a jury chosen from a fair cross-section. The Court rejected this argument, concluding that “it is simply not possible to define jury impartiality . . . by reference to some hypothetical mix of individual viewpoints.” 9 Moreover, the Court noted, the state has an “entirely proper interest in obtaining a single jury that could impartially decide all of the issues in [a] case,” and need not select separate panels and duplicate evidence for the two distinct but interrelated functions.10 For the same reasons, the Court has held that there is no violation of the right to an impartial jury if a defendant for whom capital charges have been dropped is tried, along with a codefendant still facing capital charges, before a “death qualified” jury.11

In Uttecht v. Brown,12 the Court summed up four principles that it derived from Witherspoon and Witt:

Exclusion of one juror qualified under Witherspoon constitutes reversible error, and the exclusion is not subject to harmless error analysis.14 However, a court’s error in refusing to dismiss for cause a prospective juror prejudiced in favor of the death penalty does not deprive a defendant of his right to trial by an impartial jury if he is able to exclude the juror through exercise of a peremptory challenge.15 The relevant inquiry “must focus . . . on the jurors who ultimately sat,” the Court declared, declining to extend the rule from cases concerning the erroneous exclusion of jurors opposed to the death penalty that the focus instead should be on “'whether the composition of the jury panel as a whole could have been affected by the trial court’s error.’” 16

Footnotes

1

391 U.S. 510 (1968).

2

Id. at 519.

3

Id. at 519, 521, 523. The Court thought the problem went only to the issue of the sentence imposed and saw no evidence that a jury from which death-scrupled persons had been excluded was more prone to convict than were juries on which such person sat. Id. at 517–18; cf. Bumper v. North Carolina, 391 U.S. 543, 545 (1968). Witherspoon was given added significance when, in Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), the Court held mandatory death sentences unconstitutional and ruled that the jury as a representative of community mores must make the determination as guided by legislative standards. See also Adams v. Texas, 448 U.S. 38 (1980) (holding Witherspoon applicable to bifurcated capital sentencing procedures and voiding a statute permitting exclusion of any juror unable to swear that the existence of the death penalty would not affect his deliberations on any issue of fact).

4

Morgan v. Illinois, 504 U.S. 719, 734–36 (1992).

5

469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

6

469 U.S. at 424; see also Darden v. Wainwright, 477 U.S. 168 (1986) (appropriateness of exclusion should be determined by context, such as excluded juror’s understanding based on previous questioning of other jurors).

7

Witt, 469 U.S. at 425–26.

8

Lockhart v. McCree, 476 U.S. 162, 165 (1986).

9

Id. at 183.

10

Id. at 180.

11

Buchanan v. Kentucky, 483 U.S. 402, 420 (1987).

12

551 U.S. 1 (2007).

13

Id. at 9 (citations omitted). In Uttecht, the Court reasoned that deference was owed to trial courts because the lower court is in a “superior position to determine the demeanor and qualifications of a potential juror.” See id. at 22. In White v. Wheeler, the Court recognized that a trial judge’s decision to excuse a prospective juror in a death penalty case was entitled to deference even when the judge does not make the decision to excuse the juror contemporaneously with jury selection (voir dire). See 577 U.S. 73, 78–80 (2015) (per curiam). The Court explained that the deference due under Uttecht to a trial judge’s decision was not limited to the judge’s evaluation of a juror’s demeanor, but extended to a trial judge’s consideration of “the substance of a juror’s response.” See id. at 80. When a trial judge “chooses to reflect and deliberate” over the record regarding whether to excuse a juror for a day following the questioning of the prospective juror, that judge’s decision should be “commended” and is entitled to substantial deference. See id.

14

Gray v. Mississippi, 481 U.S. 648, 668 (1987) ( “Because the Witherspoon-Witt standard is rooted in the constitutional right to an impartial jury, and because the impartiality of the adjudicator goes to the very integrity of the legal system, the Chapman harmless-error analysis cannot apply.” ) (citation omitted).

15

Ross v. Oklahoma, 487 U.S. 81, 88 (1987) ( “[W]e reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. . . . So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” ); see also United States v. Martinez-Salazar, 528 U.S. 304, 308 (2000) (applying the same principle in a federal criminal case).

16

487 U.S. at 86, 87 (quoting and distinguishing Gray, 481 U.S. at 665 (emphasis in original)).