An overview of significant findings from the capital jury project and other empirical studies of the death penalty relevant to jury selection, presentation of evidence and jury instructions in capital cases

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Prejudicial prosecutorial arguments do effect juror’s decisions.

      1. Judy Platania and Gary Moran, Due Process and the Death Penalty: The Role of Prosecutorial Misconduct in Closing Argument in Capital Trials, 23 Law & Hum. Behav. 471, 483 (1999).

        • This mock jury study revealed that individuals exposed to improper statements made by the prosecutor in closing argument recommended the death penalty significantly more often than those not exposed to the statements.

    1. A juror’s race will effect how they interpret the evidence presented.

      1. Stephen P. Garvey, The Emotional Economy of Capital Sentencing, 75 N.Y.U. L. Rev. 26 (2000).

        • “First, white jurors were more likely than black jurors to have felt anger toward the defendant. Second, white jurors were less likely than black juror to have imagined being in the defendant’s situation. Third, white jurors were less likely than black jurors to have found the defendant likeable as a person.” Id. at 46. Black jurors on the other hand appeared more willing to separate the sin from the sinner. Id. at 47.

      1. Joseph Rand, The Demeanor Gap: Race, Lie Detection, and the Jury, 33 Conn. L. Rev. 1,63 (2000).

        • White jurors are more likely - erroneously - to believe that black defendants and black witnesses are lying based on demeanor.

      1. Mona Lynch and Craig Haney, Discrimination and Instructional Comprehension: Guided Discretion, Racial Bias, and the Death Penalty, 24 Law & Hum. Behav. 337 (2000).

        • In this mock juror study, white jurors were significantly more likely to undervalue, disregard, and even improperly use mitigating evidence in a black defendant case as opposed to those who sentenced a white defendant. Id. at 353.

      1. Samuel R. Sommers and Phoebe C. Ellsworth. How much do we Really Know about Race and Juries? A review of Social Science Theory and Research, 78 Chi-Kent L. Rev. 997 (2003).

        • Jurors have stereotypes about the types of crimes that people of different races tend to commit. For example, they found that white jurors viewed white-collar crimes - such as counterfeiting and embezzlement - as consistent with a stereotype of white criminals. On the other hand, more violent crimes such as assault and robbery were associated with black criminal stereotype… This data suggest that the stereo typicality of a crime influences whether or not jurors demonstrate racial bias. Id. at 1007.

        • Racial composition of the jury influences the content and scope of the discussions in deliberation. Compared to all-white juries, racially mixed juries tended to deliberate longer, discuss more case facts, and bring up more questions about what was missing from the trial. Racially mixed juries were also more likely to discuss racial issues such as racial profiling during deliberations, and more often than not, Whites on these heterogeneous juries were the jurors who raised these issues. Id. at 1028.

    1. Almost half of the jurors who sat in capital cases believed that they knew what the punishment should be before the sentencing phase of the trial began.

      1. William J. Bowers, Marla Sandys & Benjamin Steiner, Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Attitudes and Premature Decision-Making, 83 Cornell L.Rev. 1476 (1998).

        • Interviews with some 1,000 capital jurors in 11 states reveal, however, that half of them believed that they knew what the punishment should be before the sentencing phase of the trial, before hearing any evidence or arguments concerning the appropriate punishment or the judge’s instructions for making the sentencing decision. Moreover, most of the jurors, who felt they knew what the punishment should be at the guilt phase of the trial, said they were absolutely convinced of their early stand on punishment and most of them adhered to their initial stands throughout the course of the trial. For the pro-death jurors, the presentation of the guilt phase evidence was for the most part where they made up their mind (55%). For the pro-life jurors, they tend to finalize their stands on punishment during the discussion about whether (or on what charge) the defendant is guilty. Most of the pro-death jurors who changed their minds only did so to avoid being on a hung jury, rather than because they were convinced that life was the appropriate punishment.

      1. William S. Bowers, The Capital Jury Project: Rationale, Design and Preview of Early Findings, 70 Ind. L.J. 1043, 1093 (1995).

        • A “good many” of the jurors were “absolutely convinced” of the appropriate punishment - usually death - before the sentencing phase even begins.

      1. Marla Sandys, Cross-OverBCapital Jurors Who Change Their Minds About the Punishment: A Litmus Test for Sentencing Guidelines, 70 Ind. L. J. 1183, 1222-21 (1995).

        • The majority of jurors reach their decisions about guilt and punishment at the same time - prior to the penalty phase of the trial. This prevents jurors from making their decision about punishment on an evaluation of the aggravating and mitigating factors. “[O]ne-half of the jurors had actually made up their minds (were “absolutely convinced” or “pretty sure”) about the appropriate penalty once they had convicted the defendant at the guilt phase. Id. at 1228.

    1. Capital jurors have many mistaken views about the death penalty.

      1. Craig Haney, Violence and the Capital Jury: Mechanisms of Moral Disengagement and the Impulse to Condemn to Death, 49 Stanford L. Rev. 1447, 1479 (1997).

        • Capital jurors are beset with misinformation about the death penalty. They mistakenly believe that it deters murder, that it is always administered in a way that is racially fair, and that it is less expensive than life imprisonment. . . . Yet the law not only does nothing to proactively disabuse them of their mistaken beliefs before a death sentence can be contemplated, but it also precludes defense attorneys from doing so. Thus many capital jurors leave their life-and-death deliberations completely uninformed about the realities of either of the punishments between which they have chosen and quite confused about the consequences.

      1. Krauss & Sales, The Effects of Clinical and Scientific Expert Testimony on Juror Decision Making in Capital Sentencing, 7 Psychol. Pub. Pol’y & L. 267 (2001).

        • Jurors overly weigh an expert’s ability to predict future dangerousness.

    1. Jurors weave a story from the evidence

      1. Krauss and Sales, The Effects of Clinical and Scientific Expert Testimony on Juror Decision Making in Capital Sentencing, 7 Psychol.Pub. Pol’y & L. 267, 279 (2001).

        • Jurors construct stories about cases based on the fit between the expert testimony, the juror’s pre-existing views, and the juror’s final story.

      1. Ursula Bentele and William J. Bowers, How Jurors Decide Death: Guilt is Overwhelming, Aggravation Requires Death; and Mitigation is No Excuse, 66 Brook. L. Rev. 1011 (2001).

        • Jurors resort to a story model. In a criminal trial, the prosecution’s story is the central story; it goes first and is presented with much fanfare. For any hope of a life sentence, the defense must present a strong counter story to dislodge this kind of imagery, a picture crying out for the ultimate punishment. Yet the defendant’s life story of mitigation has the initial disadvantage of being the side story, hardly a competing story. It follows rather than precedes the prosecution’s story.

      1. Wayne Logan, When Balance and Fairness Collide: An Argument for Execution Impact Evidence in Capital Trials, 33 U. Mich. J. L. Reform 1 (2000).

        • The critical role of narrative emerges from the Capital Jury Project Data. As one juror explained: “I began developing a story as soon as they started presenting the case. I used the evidence as it was being presented as well as later discussions during jury deliberations to create a story.”

      1. Scott E. Sundby, The capital jury and empathy: The problem of worthy and unworthy victims. 88 Cornell L.Rev. 343, 381 (2003).

        • How readily a juror can identify with the victim and her activities at the time of the killing thus appears to be a powerful influence on how jurors make their sentencing decision.

    1. Geography is a significant factor.

      1. Katherine Barnes, David Sloss & Stephen Thaman, Place Matters (Most): An Empirical Study of Prosecutorial Decision-Making in Death-Eligible Cases 51 ARIZ. L. REV. 305 (2009).

        • This article investigates prosecutorial discretion in death penalty prosecution in Missouri in an empirical analysis of all intentional-homicide cases from 1997-2001. The analysis demonstrates that the large racial disparities found are a product of geographic disparities. Unlike race-based differences, however, geography does not result in differential treatment that consistently disfavors the same group: depending on the particular region studied, sometimes defendants in urban communities are treated more harshly, while in other regions, defendants in rural communities are treated more harshly.

        • Prosecutors in St. Louis City and Jackson County (metropolitan counties) filed capital charges much less frequently than prosecutors in the rest of the state. In St. Louis City, prosecutors charged capital in 6.5% of the intentional-homicide cases; in Jackson, the comparable figure was 1.3%. But in the rest of the state, prosecutors charged capital in roughly 20% of the intentional-homicide cases. On a related point, prosecutors in St. Louis City and Jackson County also obtained capital convictions far less frequently than their counterparts in the rest of the state. St. Louis prosecutors obtained capital convictions in less than one-half of 1% of intentional-homicide cases. Jackson prosecutors produced no capital convictions in more than 200 cases. In contrast, prosecutors in the rest of Missouri obtained capital convictions in about 4.5% of all intentional-homicide cases.

        • The odds that a defendant in Jackson County faces a capital charge are sixteen times less than the odds for a baseline case. No death sentences were imposed in Jackson County during the period of the study. Prosecutors in St. Louis City are slightly less likely to file capital charges and pursue capital trials than prosecutors in the baseline case.

        • However, juries reject capital charges in St. Louis City at very high rates. A defendant has a much smaller risk of a death sentence in St. Louis City--the odds of receiving a death sentence are twenty-five times smaller than the odds of receiving a death sentence in a baseline county.

        • Cases from metropolitan counties with small minority jury pools (0-10%) also demonstrate this pattern: juries reject capital charges at a rate 28.4 times greater than the baseline rate. This suggests that metropolitan counties with small minority jury pools, or very large minority jury pools (Jackson and St. Louis City) impose death sentences less frequently than other counties in Missouri.

      1. Richard Willing, Gary Fields. Geography of the Death Penalty. USA Today, December 20, 1999.

        • The willingness of the local prosecutor to seek the death penalty turned out to be the most significant factor in determining who will eventually be sentenced to death and county-by Bcounty disparities in death penalty. Even though urban counties with large minority populations have higher murder rates, they have fewer people on death row. Suburban counties near large cities produce large numbers of death sentences.

      1. John H. Blume, Twenty-Five Years of Death: A Report of the Cornell Death Penalty Project on the “Modern” Era of Capital Punishment in South Carolina, 54 S.C. L. Rev. 285, 299 (2002).

        • ATen of South Carolina’s forty-six (22%) counties have never produced a death sentence. Other counties, even though they are relatively large and have, at least comparatively speaking, significantly more murders, produce very few death sentences. By contrast, more than one-third of the death sentences imposed in the last ten years arose from two of the state’s sixteen Judicial Circuits. Twenty-four of the sixty-two (39%) persons sentenced to death from January 1993 to the present came from either the First Judicial Circuit (Calhoun, Dorchester, and Orangeburg counties) or the Eleventh Judicial Circuit (Edgefield, Lexington, and Saluda counties). However, these counties do not have higher homicide rates than other counties. In fact, while Lexington County is the fifth most heavily populated county in the state, it ranks twelfth in the number of homicides. From1977 to 1998, there were 255 murders, which resulted in twenty-eight death sentences. Thus, Lexington County’s death sentencing rate of 11% is approximately five times greater than the national average and seven times the South Carolina average of 1.6%. Based on currently available data, Lexington County has the highest death sentencing rate of any large county in the United States. Lexington County also has a high reversal rate; error was found in 18 of the 30 cases arising from Lexington County (60%), with more reversals likely on the horizon.”

    1. The defendant’s age plays a significant role in sentencing.

      1. James W. Marquart & Jonathan R. Sorensen, Prosecutorial and Jury Decision Making in Post-Furman Texas Capital Cases, 18 N.Y.U. Rev. L. & Soc. Change 743 (1990-91).

        • The weapon used, the presence of co-defendants, the killing of multiple victims, and the relationship between victim and offender did not have significant effect on the sentence.

        • However, the offender’s age played a significant role in sentencing. “Individuals twenty-five years of age or older received a death sentence more often than individuals seventeen to twenty-four.” Id. at 772. This result may be partially attributed to another related finding, that offenders with “lengthy criminal histories, especially offenders with histories that include violence, are far more likely to be sentenced to death than offenders with limited criminal histories,” in that older offenders have a greater chance of having a lengthy criminal history. Id. at 771.

    1. Jurors are unable to understand DNA evidence.

      1. Scott B. Morris & Dale A. Nance, Juror Understanding of DNA Evidence: An Empirical Assessment of Presentation Formats for Trace Evidence with a Relatively Small Random-Match Probability, 34 J. Legal Stud. 2, (2005).

        • Jurors tend to undervalue match evidence with a quantifiable RMP, a measured by plausible Bayesian norms, and the extent of the undervaluation can be reduced significantly by testimony explaining RMP and the probative value of the match in light thereof. Incorporating lab error estimates in the testimony can actually increase the probative value that jurors attribute to the match testimony. This occurs when “both the lab error estimate and the random-match probability are communicated to the jury, the testimony then combines the lab error rate with the random-match probability to obtain a measure of the combined risk, and the probative value, under Bayes’ rule associated with the combined measure is illustrated for the jury with an appropriate chart.”

Again, the question is what to make of these findings for trial practice. First, counsel must begin the education process of the Alanguage of life” and the importance of mitigation in voir dire, and thoroughly question jurors about their ability to consider many types of mitigating evidence. Believe it because it is true; many jurors are mitigation impaired. Second, we need to find more ways to empower those jurors who are not mitigation impaired, so that they will not be overwhelmed by the majority. Third, more thought needs to be given to establishing that a defendant is not a future danger. Obviously, accurate instructions about parole ineligibility both in life without parole and jurisdictions where defendants are not eligible for parole for thirty or forty years are very important. The data clearly indicates that jurors believe most inmates are eligible for parole, often after a relatively short term of imprisonment. Evidence indicating the defendant does not pose a future danger is also potentially very important. The truth is that most inmates are not a danger in prison, and evidence of this sort allows counsel to drive home to jurors that LWOP is really LWOP. The data also emphasizes the need for accurate, reliable, competent mental health evaluations. For a more detailed discussion of this topic see John H. Blume, The Elements of a Competent and Reliable Mental Health Evaluation, The Advocate (August 1995). Persuasive evidence of mental retardation, mental illness, child abuse will convince many jurors that life imprisonment is the appropriate punishment; this means that expert testimony needs to be bolstered by that of lay witnesses. Counsel must make every effort to have mental health evidence be competent, credible, comprehensive and comprehensible. See John H. Blume and Pamela Blume Leonard, Principles of Developing and Presenting Mental Health Evidence in Criminal Cases, The Champion (Nov. 2000). Furthermore, counsel must be aware that the jurors are closely scrutinizing the defendant, how he reacts to the evidence, and his demeanor in assessing remorse and dangerousness; two very important concepts. Someone should be working with the client before trial on demeanor and behavior. Finally, counsel must be aware of the fact, and take into account in formulating case strategy, that many jurors will be considering whether to vote for the death penalty or life imprisonment early in the proceedings, before any mitigation is ever presented.

The main variables influencing the life/death decision are juror perceptions of: a) the viciousness/heinousness of the offense; b) the defendant’s future dangerousness; and, c) the defendant’s remorse. The three often, obviously, work together. But, whatever can be done at trial to reduce the seriousness of the offense, alter juror perceptions of dangerousness (at least outside of prison) and to convince jurors the defendant is genuinely remorseful, should be tasks of the first order for capital trial counsel.


It is clear that jurors are hopelessly confused by the sentencing phase instructions. The critical concepts of aggravation and mitigation are lost on them. They do not understand who has the burden of proof, what the burdens are or whether they must agree on certain key sentencing concepts. Why is juror comprehension so poor? The length and generally boring nature of the instruction. Luginbugh & Howe, Discretion in Capital Sentencing Instructions: Guided or MisGuided?, 70 Ind. L. J. 1161, 1169 (1995). Capital instructions typically use complex language, unfamiliar words, one-sentence definition of terms, and any sentences with double negatives. This makes it hard for jurors to understand them and explains why jurors are confused. 1169. Without explanation jurors fall back on their own knowledge, but have little with respect to many of the concepts in a capital sentencing trial, especially mitigation.

    1. Jurors do not understand the sentencing phase instructions.

      1. Ursula Bentele and William J. Bowers, How Jurors Decide Death: Guilt is Overwhelming, Aggravation Requires Death; and Mitigation is No Excuse, 66 Brook. L. Rev.1011 (2001).

        • Jurors do not understand the term mitigation and thus it often dismissed. Unless the jurors believe that the evidence in mitigation either proves that the killing was not deliberate or furnishes an excuse for the killing, such as insanity or duress, it does not provide adequate reason to impose a life sentence. In the absence of an understanding of how to take mitigation into account, jurors naturally turn to the analogy provided for by the guilt trial, namely defenses that serve as a justification or excuse.

      1. James Frank and Brandon K. Applegate, Assessing Juror Understanding of Capital Sentencing Instructions, 44 Crime and Delinquency No. 3 (1998).

        • A mock jury study revealed that juror comprehension of sentencing instructions is limited, especially with regard to instructions dealing with mitigation. The defendant is typically disadvantaged by the misunderstandings. However, juror comprehension can be improved by rewriting the instructions and by giving jurors copies of the instructions.

      1. Richard Weiner, The Role of Declarative Knowledge in Capital Murder Sentencing, 28 Journal of Applied Psychology, No. 2 (1998).

        • A mock jury study indicated that juror comprehension was low both in relation to procedural knowledge and declarative knowledge. The less the jurors understand the mitigation instructions, the more likely they are to impose the death penalty.

      1. Marla Sandys, Cross-OversBCapital Jurors Who Change Their Minds About the Punishment: A Litmus Test for Sentencing Guidelines, 70 Ind. L. J.1183, 12201221 (1995).

        • The decision making process is “governed by confusion, understanding and even chaos. Jurors decide life-and-death questions laboring under numerous misconceptions about the utility and operation of capital punishment - sometimes unclear about the import of certain kinds of evidence (including something as basic as whether the evidence is aggravating or mitigating), almost always confused over the meaning of the all important capital instructions, in some instances wrong about the decision rules by which they are to reach a sentencing verdict, and unclear about (or highly skeptical of) the ultimate consequences of the very alternative between which they must choose.” Id. at 1225. Furthermore, jurors who are misled by the capital instruction into believing that the judicial formulas dictate a certain outcome in their deliberations usually have the outcome of death in their mind.” Id. at 1226.

      1. Constanzo & Constanzo, Jury Decision Making in the Capital Penalty Phase, 16 Law & Hum. Behav. 185 (1992).

        • Mock jurors do not fully understand the meaning of the most critical legal terminology used in the sentencing phase instructions, especially the terms aggravation and mitigation. Id. at 188.

      1. Scott E. Sundby. The capital jury and empathy: The problem of worthy and unworthy victims. 88 Cornell L. Rev. 343-81 (2003).

        • When asked in the abstract, the vast majority of jurors state that their decision would not be swayed even slightly by whether the victim was a sterling member of the community or someone with a criminal past. The only victim type that seems to make a significant difference to jurors is that of a child, in part because a child victim would reflect on the defendant’s culpability in choosing a vulnerable victim.

      1. Ursula Bentele & William J. Bowers, How Jurors Decide on Death: Guilt is Overwhelming; Aggravation Requires Death; and Mitigation is No Excuse, 66 Brook. L.Rev. 1013 (2002)

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