Hidden Killers and Imagined Saints: Why Courts Fail to Identify Unconstitutional Jurors in Death Penalty Cases

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What if half of the people in the jury pool for a capital case are unqualified to sit—and the lawyers are not accurately identifying and removing them? And what if the lawyers are actually identifying the wrong people as unqualified and removing them instead? This appears to be the case. The Constitution prohibits jurors who will always (or never) vote to impose the death penalty. As developed in this Article, the existing social science suggests that 5– 30% of potential jurors may be automatic death penalty (ADP) voters and between 2–34% may be automatic life sentence (ALS) voters. Further, lawyers are not accurately identifying them. Researchers have surveyed jurors who sat in capital cases and found that a stunning 14–57% were ADP voters, while 2–7% were ALS voters. Meanwhile, qualified venirepersons are being tossed out. Researchers have found that 60–65% of those classified as ALS could vote for death in some circumstances, and at trial, this would result in the exclusion of life-leaning venirepersons. The high rate of improperly included ADP voters along with the high rate of improperly excluded lifeleaning voters stacks the jury pool against the defendant. This unfair and unreliable process calls into question whether the death penalty is constitutional as applied. What can we do about it? This Article draws on the social sciences to show that there are two likely sources for this inaccuracy. First, potential jurors make it through the selection process because lawyers ask questions that invoke social desirability bias. This means that the potential jurors answer in ways that will portray themselves in the best possible light, even if that answer does not reflect what they really feel. Next, the lawyers fail to define “capital murder” when questioning potential jurors. The lawyers do not specify that “capital murder,” in most jurisdictions, is willful, deliberate, premeditated murder. Potential jurors who are ADP may be thinking, “Well, I would vote for life if the defendant didn’t mean to kill the victim; or the killing was an accident; or was in self-defense; or the defendant was adequately provoked; or the defendant was insane.” They think they can vote for life in some circumstances—but under those circumstances, the defendant would not be death-eligible. This Article then provides suggestions for addressing these two sources of error.