Jury Selection in Capital Cases
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| In a case in which a defendant may face the death penalty, jury selection takes on additional and different concerns than those faced in jury selection generally. The nature of the case, penalty phase procedures and length of the case are all additional factors that must be taken into consideration.
Voir Dire
Although voir dire is conducted, as it normally would be by the prosecution and defense or by the court, additional and different questions are asked of the jurors. Such questions may include:
- Whether a potential juror would be able to convict a defendant if the death penalty would be imposed.
- Whether a potential juror's views on the death penalty would prevent or substantially impair the performance of the juror's duties in accordance with his oath.
- Asking additional probing questions if the potential juror indicates that they may have a potential bias either for the death penalty or against the death penalty.
Selecting Jurors
It is important for both the prosecution and defense to be diligent in trying to conduct an adequate inquiry into the potential jurors' feelings about the death penalty and whether they will be able to follow the court's instructions. By inquiring into the potential juror's feelings, either side may be able to demonstrate to the court that there is a basis for a challenge for cause or for further inquiry by the court. Simply because a juror is against the death penalty alone does not constitute grounds for the juror's dismissal for cause.
The court must be cautious not to unfairly restrict voir dire in capital cases. If the court does unfairly restrict voir dire, reversal of the defendant's conviction may result. There have been several United States Supreme Court decisions that state that the prosecution is entitled to ascertain if there are "death qualified" jurors. There have also been other cases upheld by the United States Supreme Court that also stand for the proposition that the defendant has the right to ascertain if there are "life qualified" jurors.
Once the jurors are impaneled, the same procedure applies as with the non-death penalty jury trial.
Additional Information
- Jurors in a death penalty case must reach a unanimous verdict.
- The defense should note any objections to the jury questionnaire or to any other part of the voir dire process in order to preserve the record for challenges on appeal.
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