RICHARD ADAMS HOVEY, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
S.F. No. 24093
Supreme Court of California
Aug. 28, 1980
28 Cal. 3d 1
James C. Hooley, Public Defender, Paul R. Trudell, Assistant Public Defender, Quin Denvir, State Public Defender, Michael G. Millman and Joseph Levine, Deputy State Public Defenders, and Samuel R. Gross for Petitioner.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O‘Brien, Assistant Attorney General, Robert R. Granucci and Herbert F. Wilkinson, Deputy Attorneys General, for Real Party in Interest.
Edwin L. Miller, Jr., District Attorney (San Diego), Richard D. Huffman, Chief Deputy District Attorney, and Paul M. Morley, Deputy District Attorney, as Amici Curiae on behalf of Real Party in Interest.
Barry Tarlow as Amicus Curiae.
BIRD, C. J.—This petition asks this court to decide whether a prospective juror who can be fair and impartial in determining the guilt or innocence of an individual accused of a capital offense may be removed for cause from serving at the guilt phase because the juror is unequivocally opposed to the imposition of the death penalty at the penalty phase?
I
By an information filed in the Alameda County Superior Court, petitioner, Richard Adams Hovey, stands accused of murder and kidnaping. (
Petitioner brought a pretrial motion to limit the exclusion for cause of prospective jurors to be called to try his case. The thrust of his motion was that the guarantee in the state and federal Constitutions to due process of law and an impartial jury3 prohibit the trial court from excluding at the guilt phase of the trial prospective jurors who would be fair and impartial, but who are unequivocally opposed to imposing the death penalty at the penalty phase (should this second phase prove necessary).4
The evidentiary basis for petitioner‘s motion was developed at an extensive evidentiary hearing held in August and September 1979, in a separate proceeding in the same county. (People v. Kenneth Lynn Moore and David Lee Moore, Alameda Co. Super. Ct. No. 67113.5) The Moore brothers’ motion covered 17 court days and produced a reporter‘s transcript of more than 1,200 pages. Seven expert witnesses testified, five for the defense and two for the prosecution. In excess of 1,000 pages of exhibits—primarily sociological studies and graphs and charts—were admitted into evidence, as were several videotapes. By stipulation in the present case, these transcripts and exhibits were introduced at petitioner‘s motion. No new evidence was presented.
Petitioner‘s motion to limit exclusions for cause under section 1074, subdivision 8, was denied by the judge who ruled on the Moores’ motion. Petitioner sought to invoke the original jurisdiction of this court by filing a petition for writ of mandamus. This court issued an alternative writ based on the importance of the issue presented.6
II
LEGAL BACKGROUND
California statutory law requires that following a challenge for cause, a prospective juror “must neither be permitted nor compelled to serve as a juror” in a capital case if he entertains “such conscientious opinions as would preclude his finding the defendant guilty....” (
Section 1074, subdivision 8, appears to have been given an expansive interpretation in another respect. The statute authorizes the exclusion of jurors whose views “preclude” them from returning verdicts of guilt or death. Prior to 1968 this court held that jurors were properly excused for cause under the statute if they had any conscientious scruples against the infliction of the death penalty10 or if they stated that they “did not believe in capital punishment.”11
However, this court was not always consistent with respect to this aspect of the statute. For example, in People v. Bandhauer (1967) 66 Cal.2d 524, 531 [58 Cal.Rptr. 332, 426 P.2d 900], the court indicated that mere “doubts with respect to the death penalty...are not sufficient
This apparent conflict was conclusively resolved in June 1968 when the United States Supreme Court issued its landmark decision in Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]. In Witherspoon, a criminal defendant had been convicted of murder and sentenced to die. The prosecutor had removed for cause from the jury which had tried the case all individuals who “[had] conscientious scruples against capital punishment, or...[were] opposed to the same.”12 On appeal, the defendant argued that the jury was unconstitutionally biased in favor of conviction and death.
The Supreme Court reversed Witherspoon‘s death sentence but upheld his underlying murder conviction. With respect to the penalty imposed, the court held it to be “self-evident”13 that if a state excuses prospective jurors for cause on the basis of “general objections to the death penalty or...conscientious or religious scruples against its infliction,”14 then the resulting jury “cannot speak for the community”15 and is “uncommonly willing to condemn a man to die.”16 This, the court suggested, violates one of the “basic requirements of procedural fairness...[i.e.,] that the decision whether a man deserves to live or die must be made on scales that are not deliberately tipped toward death.”17 (Id., at pp. 521-522, fn. 20 [20 L.Ed.2d at pp. 784-785].) The only prospective jurors who could constitutionally be excused for cause
Nevertheless, the court indicated that the question was still an open one.20 Indeed, in footnote 18 of its opinion, page 520 [20 L.Ed.2d, page 784], the court noted that a defendant “in some future case might still attempt to establish that [a] jury [which had been ‘death-qualified’ in compliance with the newly announced Witherspoon standards] was less than neutral with respect to guilt.”21
In the 12 years since the Witherspoon decision, the Supreme Court has not addressed the constitutionality of using a ”Witherspoon-qualified” jury to determine the issue of guilt or innocence in a capital case.22 However, the court has expounded upon the
The second important case dealing with the Sixth Amendment was Ballew v. Georgia (1978) 435 U.S. 223 [55 L.Ed.2d 234, 98 S.Ct. 1029]. There the court held that a criminal conviction rendered by a
The high court has stated that trial by jury in a criminal case “safeguard[s] against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge”30 and “assure[s] a fair and equitable resolution of factual issues.”31 These purposes are achieved “by the participation of the community in the determinations of guilt and by the application of the common sense of laymen who, as jurors, consider the case.” (Ballew v. Georgia, supra, 435 U.S. at p. 229 [55 L.Ed.2d at p. 240].)
In addition, smaller juries were “less likely...to overcome the biases of its members to obtain an accurate result. ... [T]he counterbalancing of various biases is critical to the accurate application of the common sense of the community to the facts of any given case.” (Id., at pp. 233-234 [55 L.Ed.2d at pp. 242-243].) Further, the court enunciated an independent constitutional interest in protecting the representation on juries of minority viewpoints in the community32 and of minority groups. (Id., at pp. 236-237 [55 L.Ed.2d at p. 244].) It concluded that decreasing jury size from six to five “foretells problems” for each of these interests. (Ibid.)
Empirical research was also used by the court in its determination that smaller juries decreased the jury‘s ability to “remember all the important facts and arguments” (435 U.S. at p. 241 [55 L.Ed.2d at p. 247]) and reduced the likelihood that juries would “compromise over the various views of their members, an important phenomenon for the fulfillment of the commonsense function.” (Id., at p. 235, fn. omitted [55 L.Ed.2d at pp. 243-244].) Smaller juries were also found to result in inconsistent verdicts and to decrease the incidence of hung juries. (Id., at pp. 234, 236 [55 L.Ed.2d at pp. 242-243, 244].)
Thus, the court concluded, “the assembled data raise substantial doubt about the reliability and appropriate representation of panels smaller than six. Because of the fundamental importance of the jury trial to the American system of criminal justice, any further reduction that promotes inaccurate and possibly biased decisionmaking, that causes untoward differences in verdicts, and that prevents juries from
III
THE ISSUES PRESENTED
The instant writ petition presents fundamentally two challenges to the current system of jury selection in capital cases. First, must the class of prospective jurors, who may now be excluded for cause under Witherspoon standards from both phases of the trial, be narrowed to permit a specific subcategory to serve at the guilt phase? Witherspoon authorized the exclusion for cause of prospective jurors who make “unmistakably clear” either (1) that they would automatically vote against the death penalty if there were a penalty phase, regardless of the evidence adduced at trial,34 or (2) that their doubts about or opposition to capital punishment would preclude them from fairly and impartially determining guilt at the guilt phase.35 (391 U.S. at
Two separate constitutional theories are advanced to reach this conclusion. One is bottomed on Witherspoon. Under it, petitioner contends there is evidence which can “establish”37 that a jury from which all “guilt phase includables” have been removed for cause is “less than neutral with respect to guilt.”38 (391 U.S. at p. 520, fn. 18
implied that “neutrality” and “guilt proneness” are not relevant considerations under a pure cross section approach. (Taylor v. Louisiana, supra, 419 U.S. 522; Duren v. Missouri, supra, 439 U.S. 357.) The defendant did not show in Taylor or Duren that an all-male jury was “less than neutral with respect to guilt.” Rather, the court reversed in each case “simply [on the basis of] the requirement that the jury be selected from a panel representative of the community.” (See Grigsby v. Mabry, supra, 483 F.Supp. at p. 1380.) The impact of Taylor and Duren on the holding in Witherspoon is open to some dispute. It would appear that the Witherspoon decision was based, not upon the cross section requirement, but upon Fourteenth Amendment due process principles and Sixth Amendment concerns. (See 391 U.S. at pp. 518, 523 [20 L.Ed.2d at pp. 782-783, 785-786]; cf. ante, fn. 17.) While the Witherspoon analysis does involve significant cross section concerns (as does the Ballew approach), it would appear that the purely cross sectional cases such as Taylor and Duren represent a third line of constitutional analysis that is analytically separate from those of Witherspoon and Ballew. (Cf. post, fn. 45.) Petitioner has specifically declined to invoke the Taylor approach in the present case. Consequently, today‘s decision does not reach the validity of any argument based on a pure cross section analysis.
The second basic challenge to the current system of selecting a jury for a capital case focuses on the voir dire procedure by which the jury is selected, rather than on the composition or functioning of the jury itself. The argument is advanced that whoever is chosen to serve on a jury in a capital case, he or she will be affected by the methods now employed to identify those persons whose views on capital punishment render them ineligible.40 The result, it is contended, is a jury likely to be “less than neutral” with respect to guilt and penalty. Petitioner suggests that certain procedural refinements would minimize this possibility.
THE CONCEPT OF A NEUTRAL JURY
Central to the resolution of the Witherspoon issue is the concept of a constitutionally “neutral” jury. Since this concept has a particular meaning, one which is occasionally misperceived,41 it is necessary to consider the concept in some detail.
When the Supreme Court in Witherspoon held that “as arbiter of the punishment to be imposed, this jury fell woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments,”42 it was not ruling that any of the jurors who actually sat on Witherspoon‘s penalty trial were themselves biased in a constitutional sense. If this had been the court‘s concern, it would have ordered that such jurors be excluded from future capital cases.
Instead, the high court was relying on a different facet of the constitutional requirement of impartiality, an aspect that has been referred to as a guarantee of “diffused impartiality.”43 It is denoted in this opinion (and in Witherspoon44) as “neutrality.” A neutral jury is one drawn from a pool which reasonably mirrors the diversity of experi-
The concept of neutrality through diversity is demonstrated by the holding in Witherspoon. Assume that a jury must be empanelled to determine the question of punishment in a capital case. In the group of persons from the community who are statutorily competent to act as trial jurors,46 it can be expected that an entire spectrum of beliefs concerning the infliction of capital punishment—from persons who would invariably and automatically refuse to impose capital punishment47 to jurors who would automatically vote to impose the death penalty following a conviction for a capital offense48—would be found. This spectrum of community viewpoints may be depicted as follows:
| “AUTOMATIC DEATH PENALTY” GROUP | “FAVOR DEATH PENALTY” GROUP | “INDIFFERENT” GROUP | “OPPOSE DEATH PENALTY” GROUP | “AUTOMATIC LIFE IMPRISONMENT” GROUP |
|---|---|---|---|---|
| will automatically vote for the death penalty | favors the death penalty but will not vote to impose it in every case. | neither favors nor opposes the death penalty | opposes or has doubts about the death penalty but will not automatically vote against it in every case. | will automatically vote for life imprisonment |
In holding that a jury so constituted “crossed the line of neutrality,”50 the court found that the jury was not impartial within the meaning of the Sixth and Fourteenth Amendments because it was too narrowly drawn. Members of the community who could “obey the oath” to fairly decide the case before them were excluded.51 As a result, a segment of the population that would tend to be favorable toward the accused was eliminated. The resulting jury was less than neutral with respect to penalty so a reversal of the penalty determination was required.
Clearly, the constitutional principle of achieving jury neutrality through diversity is relevant to a determination of guilt as well as penalty. Every juror brings to the guilt phase a number of personal characteristics which will “play an inevitable role” in assessing the accused‘s
Manifestly, fair and impartial jurors will bring to the determination of guilt a diversity of experience, knowledge, judgment, and viewpoints, as well as differences in their “thresholds of reasonable doubt.” If some of these jurors are systematically removed from the guilt determination, this may result in a disproportionate elimination of persons with characteristics favorable to the accused. If so, the ensuing jury will be “less than neutral with respect to guilt,” just as the jury at the penalty phase in Witherspoon was not neutral with respect to penalty.54
Diversity serves to complement as well as neutralize viewpoints and attitudes. Diversity enhances the accuracy of a jury‘s decision making by improving its ability to recognize and appropriately evaluate evidence. Testimony from the hearing below, as well as studies in social psychology, help to explain why this is so. Human perception is selective, influenced by the very beliefs and attitudes which venirepersons bring into the courtroom. New data which tend to contradict one‘s beliefs may be quickly “forgotten” or may not even be perceived in the first place. The members of a homogeneously composed jury are more likely to perceive evidence in a similar fashion. Also, they are more likely to filter out any evidence inconsistent with their shared attitudes and values. Insofar as a jury is composed of members whose attitudes, preconceptions, and experiences are diverse, the jury is more likely to perceive and remember all the important evidence and arguments presented at trial.
In similar fashion, the human mind often tends to make any new information with which it is confronted logically consistent with its prior conscious beliefs. Thus, if a juror‘s beliefs do not correspond to the evidence presented at trial, the juror‘s “rational nature” may tend to impel him or her to distort or exclude the perception so as to protect the ap-
Jury diversity helps to insure the full and accurate consideration of the evidence presented at trial in another way. A jury resolves conflicting propositions of fact and does so by drawing inferences from physical evidence and the testimony of witnesses. Yet “[f]acts are always elusive and often two-faced. What may appear to one to imply guilt may carry no such overtones to another.” (Johnson v. Louisiana, supra, 406 U.S. at p. 392 [32 L.Ed.2d at p. 177] (dis. opn. of Douglas, J.).) As this court noted more than a century ago, “the human mind is so constituted, that facts and circumstances do not always produce the same results; the judgment of two men upon the same set of facts may be diametrically opposite, particularly in the determination of a criminal case, when every doubt is carefully weighed and scrupulously balanced.” (People v. Stewart (1857) 7 Cal. 140, 144.)
If a jury is accurately to assess evidence, it should have some expertise both in generating the inferences which may reasonably be drawn from the evidence and in evaluating the relative plausibility of the competing inferences. The greater the diversity of individual viewpoints and experiences on the jury panel, the broader the range of appropriate inferences the jury can draw from the evidence at trial and the more knowledgeable their interpretation and weighing of these inferences one against the other. For example, jurors in criminal cases are often called upon to infer mental states from behavior. In a culturally pluralistic society, particular behavior can have dramatically different meanings to members of different subcultures. A jury with diverse membership will recognize a fuller range of possible meanings or explanations for particular behavior, and it will be able to evaluate those possible meanings in light of the diverse experiences of the panel members regarding values, norms, behavior, motivation, and psychology.
Finally, even if the evidence and inferences were agreed upon by all jurors, the legal effect may be subject to dispute. For example, jurors must determine whether the evidence amounts to proof beyond a reasonable doubt of the guilt of the accused. However, jurors’ thresholds of reasonable doubt will necessarily differ. Diversity of viewpoint and experience on the jury tends to insure that the common sense of the community is accurately expressed in applying this standard to the facts.
The corollary to this finding is that in two-thirds of criminal trials, the jurors disagree in their initial ballot.56 Since the 12 jurors were exposed to the identical external events or “stimuli“—i.e., the same witnesses, evidence, instructions, courtroom personalities, preliminary deliberations (if any)—the inescapable conclusion is, as Dr. Zeisel testified, that “there must be something inside these people which makes them differ.” It is petitioner‘s contention under the Witherspoon analysis that the process of “death-qualifying” a jury produces a jury whose composition is unbalanced. It tends disproportionately to remove from the jury pool those persons who have “something inside” which results in their voting in favor of the accused more often than do persons who remain. As a result, jurors drawn from the remaining pool will tend to vote in favor of the prosecution more often than would jurors drawn from a pool which includes a more complete spectrum of attitudes on capital punishment.57
V
THE EVIDENCE RELATING TO THE WITHERSPOON AND BALLEW CONTENTIONS
Roughly two dozen studies, experiments, and surveys were introduced at or were the subject of expert testimony during the evidentiary hearing below. This material can logically be grouped for analytical purposes into four categories: (1) the research relating directly to conviction proneness or juror voting behavior; (2) the research relating to juror attitudes; (3) the research relating to demographic characteristics; and (4) the research relating to differences in juror evaluation of evidence.58
CONVICTION PRONENESS
An ideal experiment can be conceived to test directly the hypothesis that a “death-qualified” jury is more conviction-prone than is a non-death-qualified jury. A large number of jurors would sit through a real jury trial. At its conclusion, they would break up into components of 12. Some panels would be comprised wholly of “death-qualified” jurors and some would not. They would deliberate as a jury and return a verdict. By comparing the percentage of cases in which each type of jury returned not guilty verdicts, verdicts of guilty on the various degrees of the offenses, and verdicts on lesser included offenses, the proposition could be directly tested.
However, such an experiment is legally impossible. Thus, the hypothesis must be tested indirectly. One method of indirect analysis is to locate persons who have actually sat on juries and ask them what they did. The strength of this method—which was used in the Zeisel study that follows—is that its data are derived from a very realistic setting: an actual trial. The weakness of this method is the difficulty of controlling for a very important variable: the strength of the evidence. Since it is difficult to assure that the subjects of this type of research experienced the same kind of evidence, it is correspondingly difficult to determine whether any differences discovered reflect true differences in the subjects or merely differences in the stimuli to which they have been exposed.
A second type of approach in researching this issue is a controlled study, i.e., a study done in a controlled setting, in which realistic stimuli are so presented that every subject/juror is exposed to the exact same stimuli. If this is done well, then any differences observed must be real differences between the people and not differences in the kinds of experiences to which they are responding. The remaining five studies in this portion of this opinion are of this “controlled study” variety.
The Zeisel Study59
In the fall and winter of 1954-1955, Professor Hans Zeisel and two associates interviewed a number of jurors who had actually deliberated
Asking only these two questions would have resulted in a wholly uncontrolled study, for in this posture, the factor of the strength of the evidence had not been taken into account. Zeisel devised a rather ingenious question to get at this factor. He concluded that the strength of the evidence in a given case could be roughly estimated and compared with other cases by determining how the jury as a whole voted on the first ballot after deliberations began. Thus, a first ballot vote of 11-to-1 in favor of acquittal suggested a weak case against the accused; a 10-to-2 vote for acquittal indicated a weak case but not quite so weak; a 9-to-3 vote for acquittal, an even less weak case; and so on, through all 11 possible jury splits, to 11-to-1 for conviction.61 By grouping each juror‘s vote into one of the eleven categories or “constellations” based on the strength of the evidence—from the weakest prosecution evidence to the strongest—Zeisel could roughly control for the weight of the evidence.
Zeisel conducted his interviews in the jury assembly room on the last day of the jurors’ terms of service. He and his associates interviewed as many jurors who actually sat on a case as possible. Some had deliberated on two cases. Most of the jurors contacted agreed to be interviewed. Zeisel ended up with data on 464 first ballot votes. These were classified according to the strength of the evidence, using the first ballot split as an index of this strength. He compiled the results into table form as follows:
Zeisel found that in 10 of the 11 constellations of evidence strength, jurors with conscientious scruples against capital punishment voted to acquit more often than jurors without such scruples. In 9 of the 11 constellations, jurors without such conscientious scruples voted to convict more often than jurors with scruples.62
Zeisel determined that these differences between the first ballot guilty votes of the jurors without conscientious scruples against capital punishment and the first ballot guilty votes of jurors with such scruples were statistically significant at the .04 level. (Zeisel, supra, at p. 32.)
The Goldberg Study64
Dr. Faye Goldberg (now Girsh) undertook a controlled study of the relationship between conviction proneness and attitudes toward capital punishment in 1966-1967. The subjects in this study were 200 undergraduate students enrolled in colleges in Atlanta, Georgia. One hundred of the students were white, one hundred were black. Eighty-four were female, one hundred sixteen were male.
The subject/jurors were given a written questionnaire, containing short (four or five sentence) descriptions of each of sixteen simulated criminal cases. The 16 cases depicted primarily murder charges, and all were “cases in which the death penalty could be given in most jurisdictions which [had] the death penalty.” (Goldberg, supra, 5 Harv.Civ. Rights-Civ.Lib.L.Rev. at p. 59.)
The described cases varied in severity, heinousness, justification, and amount of evidence available. The subject/jurors were instructed to de-
Dr. Girsh found that subject/jurors without conscientious scruples against the death penalty voted “guilty” on some crimes (i.e., first degree murder or a lesser offense) in 75 percent of their votes, whereas subject/jurors with such scruples voted guilty in 69 percent. The 6 percent difference between the groups was found to be marginally significant. (P = .08.)
Dr. Girsh also found that subject/jurors with conscientious scruples voted “not guilty by reason of insanity” in 14 percent of the votes, compared with 9 percent for the subject/jurors without such scruples. This finding was statistically significant. (P = .03.)
Dr. Girsh concluded that her results “do tend to corroborate the trends found” in the studies by Dr. Zeisel and Dr. Wilson (see post). (Goldberg, supra, 5 Harv. Civ. Rights-Civ. Lib.L.Rev. at p. 69.) As Dr. Girsh testified, her study did not employ “sophisticated methodology,”65 but the purpose of her study was to “try[] to find out if there was any reason to believe that this relationship existed at all. . . . [W]e were trying to first tap the most superficial level of the relationship to see if there was anything.” Based on the data from her study, Dr. Girsh concluded “there may be a basis . . . to think that when people with conscientious scruples against the death penalty are removed from the jury . . . the resulting juries [may be] more likely to convict.”
The subjects of Wilson‘s study were 187 junior and senior college students at the University of Texas. They were given one-half page written descriptions of “the facts presented to the jury in five criminal court cases.” (Wilson, supra, at p. 2; the written descriptions are set forth at pp. 10-12 of the study.) Four of these cases involved homicide charges, and one of the four (a robbery murder) involved two defendants. The fifth described case was a rape charge. Four of the case descriptions included brief jury instructions. The subject/jurors were asked to “assume that you are a member of the jury before whom each of these cases is being tried . . . On the basis of these facts and your interpretation and evaluation of them, decide whether you feel the defendant is guilty or innocent and indicate your feelings on the answer sheet provided.” (Id., at p. 9.)
Wilson used the total number of guilty verdicts rendered by each subject/juror as “an index of [that juror‘s] tendency to say guilty.” (Id., at p. 2.) Thus, because one case involved two defendants, the maximum number of guilty or not guilty verdicts was six. Wilson then compared the percentage of guilty votes cast by the subject/jurors who indicated they had “conscientious scruples against the death penalty, or capital punishment, for crime” with the percentage of guilty votes cast by subject/jurors without such scruples. The results he reported are illustrated by the following graph.
As the testimony below indicated, the Wilson study, like Goldberg, was “certainly not a very sophisticated study.” It had generally the same shortcomings as Goldberg. It was useful primarily to suggest there may be some “relationship between attitudes toward the death penalty and propensity to vote guilty in criminal cases.”
The Jurow Study67
Professor Jurow undertook the first controlled experiment in the post-Witherspoon era. His subjects were 211 employees at a Sperry-Rand Corporation plant on Long Island, New York. Virtually all of these individuals were eligible for jury duty. One-third of the subjects had had prior jury service. The group was overwhelmingly white (98.6 percent), fairly well educated, and had a relatively high median family income.68 Women constituted 26 percent of the subjects; Catholics nearly 50 percent; engineers 39 percent; and clerical workers and laborers 29 percent.
Jurow prepared two audiotapes of simulated criminal trials. A script was prepared for each case, which “attempt[ed] to weight the evidence as evenly as possible between acquittal and conviction.” (Jurow, supra, 84 Harv.L.Rev. at p. 581.) The script included opening statements by the attorneys, witnesses’ testimony, direct and cross-examination, arguments of counsel, and the judge‘s instructions to the jury. The audiotapes were pretested to insure that the evidence was appropriately balanced and that the recordings were realistic and did enhance listener involvement. (Ibid.)
The attitudes of the subject/jurors toward capital punishment were determined on a five-part spectrum, closely corresponding to the spectrum portrayed on page 20, ante.70 The percentage of guilty votes cast within each group can be depicted as follows:
Petitioner has reorganized the Jurow data, to compare directly the percentage of guilty votes cast by the “automatic life imprisonment” category with the percentage of guilty votes cast by the remaining categories lumped together.71 This reorganization has been graphed as follows:
Jurow is not a definitive controlled study, however. Its presentation of evidence involved only oral, not visual, stimuli. The subjects were drawn from a limited population. There were no group deliberations and there may have been little felt responsibility on the part of the subjects as compared to actual jurors sitting in a real trial.73
The Harris 1971 Study74
In 1971 the Harris Poll organization conducted a nationwide survey regarding capital punishment. The subjects of the study were 2,068 adults, who comprised a stratified sample of the adult population of the United States.75 These subjects were given direct person-to-person interviews lasting about an hour. One portion of the interview involved a conviction-proneness study.
The subject/jurors were then presented detailed written descriptions of four criminal cases. These were referred to throughout the hearing below as the “typewriter robbery,” the “manslaughter” case, the “assaulting an officer” case, and the “automobile larceny” case. The subject/jurors were provided with written legal definitions of the crimes for which each accused was on trial. They were told to use that definition in order to assess the accused‘s guilt or innocence.
The subject/jurors were also asked whether in a murder trial “there would be any situations in which you might vote for the death penalty, or do you think you could never vote for the death penalty, regardless of the circumstances?” This question differentiated the “automatic life imprisonment” group from the rest of the populace (i.e., the “Witherspoon qualified” group, which in the chart below petitioner calls the “death qualified” jurors). (Cf., ante, fn. 71.) It was found that in all four of the cases presented, the “automatic life imprisonment” jurors (petitioner calls these the “excludables“) voted to convict less often than did the remaining jurors. In three of the four cases, the differences were highly significant (“p” value less than .01) and in the fourth case, the difference was marginally significant (“p” value less than .10). Combining each groups’ votes across all four cases revealed an overall difference of 7 percent in the frequency with which these groups voted to convict. These results are portrayed below.
The most recent controlled study of conviction-proneness was undertaken in 1979 by Drs. Phoebe Ellsworth, William Thompson, and Claudia Cowan. They recruited as subjects 288 adults eligible for jury service in California. Of the group of 288, most (218) had responded to a local newspaper advertisement asking for volunteers for a study of “how juries make decisions;” 37 were recruited from the jury lists for Santa Clara County Superior Court after being discharged from further jury duty; and 33 were friends of other persons who participated as subjects in the experiment. Forty-five percent of the subjects had had prior jury service.
The subject/jurors participated in the study in groups of 12 to 36. They were shown a two-and-one-half-hour videotaped reenactment of an actual criminal trial. The videotape had been developed by Harvard Professor Reid Hastie for use in his studies of nonunanimous jury verdicts. Hastie based the tape on an actual trial in Massachusetts, although it was not a scripted reenactment of that trial but a spontaneous one. The actors in the tape had been provided with a transcript of the actual trial and other relevant materials. The “prosecutor” and “defense counsel” were told to conduct the case as they saw fit, and the “witnesses” themselves were to testify as closely as possible to the “real” testimony in the transcript. The role of the district attorney was played by a local prosecutor. The defense counsel was a defense attorney in private practice. The judge presiding over the trial was a Massachusetts judge and the role of the police officer witness was played by a recently retired policeman. Ellsworth altered the Hastie tape somewhat. Since the judge in the Hastie tape gave jury instructions based on Massachusetts law, that portion of the videotape was recreated with a law school dean acting as judge and giving CALJIC instructions.
After this videotape had been played, each subject/juror was asked to indicate how he or she would vote, based upon his or her “own personal individual decision.” There were four possible verdicts: guilty of first degree murder, guilty of second degree murder, guilty of voluntary manslaughter, and not guilty by reason of self-defense or excusable homicide.
The results of the Ellsworth Conviction-Proneness Study are tabulated below:
| Ellsworth Conviction-Proneness Study: Juror Voting Behavior, Comparison of “Witherspoon-Qualified” and “Guilt Phase Includable” Jurors | ||
|---|---|---|
| Verdict | “Guilt Phase Includable” Jurors | “Witherspoon-Qualified” Jurors |
| First Degree Murder | 3.3% (1) | 7.8% (20) |
| Second Degree Murder | 23.3% (7) | 21.3% (55) |
| Manslaughter | 26.7% (8) | 48.9% (126) |
| Acquittal | 46.7% (14) | 22.1% (57) |
| 100% (30) | 100% (258) | |
These results, Ellsworth concluded, “provide strong support for the hypothesis that death qualified jurors are more likely to convict than are jurors excludable under the Witherspoon criteria. The most direct test of this hypothesis is a comparison of the relative proportion of guilty and not guilty verdicts among the two groups of jurors. Among the [Witherspoon] qualified jurors, 22.1% voted not guilty while 77.9% found the defendant guilty of some level of homicide. Among the [guilt phase excludable] jurors, 46.7% voted not guilty, and 53.3% voted guilty of some offense. This difference is highly significant [‘p’ value of less than .01] and indicates that the departure from representativeness created by the process of restricting juries in capital cases to [Witherspoon] qualified jurors only may have important negative consequences for defendants in death penalty trials.” (Ellsworth Conviction-Proneness Study, supra, at p. 7.)78
Using a statistical process known as multiple regression analysis, Ellsworth also analyzed the data to determine whether the differences in the jurors’ voting behavior could be attributable to factors other than differences in the jurors’ attitudes toward capital punishment. She found that none of the other factors examined—prior jury service, age, sex, and source from which the subjects were recruited (i.e., newspaper advertisement or venire list)—correlated with voting behavior.
Of the Ellsworth conviction-proneness study, Professor Zeisel testified, “this study, with respect to its stimulus, comes as close to the ideal experiment as one can ever come. . . . There‘s no way of doing it better.”
OVERVIEW OF CONVICTION-PRONENESS STUDIES
The expert witnesses called on behalf of the defense testified that the studies convincingly established a strong correlation between the tendencies of jurors to vote for conviction and juror attitudes toward capital punishment. Dr. Zeisel noted “the almost monotony of the results [which are] obviously the same whether you take the experiment at Sperry-Rand in New York or students in Atlanta or jurors in Chicago or Brooklyn or eligible jurors here in [California]; it comes always out the same way. . . . And since all of the studies show the same result, no matter with whom, no matter with what stimulus, no matter with what closeness of simulation, there is really only one conclusion that we can come to. The relationship is so robust—and this is a term of art among scientists—that no matter how strongly or how weakly you try to discover it in terms of your experimental design, it will come through.”
The prosecution has not sought either at the hearing below or in its briefs to adduce evidence that there is no correlation between conviction-proneness and attitudes toward capital punishment.80 Rather, the main thrust of its position has been to attack the methodology of the studies relied upon by petitioner and to question the propriety of generalizing from the results of those studies to the constitutional conclusions which petitioner must prove. As the most significant critiques apply to virtually all of the studies, they will be discussed in the next section of this opinion.
For present purposes, it should be noted that the prosecution did call two expert witnesses at the hearing below to raise methodological criticisms of some of the studies. The primary expert for the prosecution, Dr. Thomas Haines, discussed the Goldberg, Jurow, Harris 1971, and Ellsworth Conviction-Proneness studies. He concluded his direct examination by testifying that “there is a tendency or direction indicated here [i.e., in the studies]” but that “if this is in fact the sum total of the data to present the argument, I would have to say that it is definitely very tentative and fragmentary....” He later explained that “basically my criticism is that [the studies in their written form] do not give me enough information” as to the procedures used. He had not been present for nor given a transcript of the testimony of the defense experts at the evidentiary hearing, and he conceded that this testimony could have answered the methodological concerns he raised.
Haines did note that the various studies “all point in the same direction.... There is some relationship, apparently.” He agreed that “as the stud[ies] get methodologically better the effect that they are finding doesn‘t go away. [T]he better study [e.g., the Ellsworth Conviction-Proneness Study] is not producing a weaker finding....”
The second expert witness called by the prosecution was Dr. Gerald Shure, who discussed only one of the conviction-proneness studies, Ellsworth‘s. As to this study, he stated that “the evidence presented suggests that in fact a death-qualified juror is likely to be more biased in certain respects [particularly] [a]t the level of attitudes....”81 He felt that the study could not “predict... the actual behavior of jurors in specific cases....” (Italics added.) That, of course, is not the issue. (Cf., ante, fn. 57.)
The several attitude surveys introduced below are relevant on both the Witherspoon and Ballew issues insofar as those surveys may show that persons who differ in their attitudes toward capital punishment also differ in other attitudes related to the criminal justice system. Such a showing would reinforce our confidence in the conviction-proneness studies’ findings of a relationship between attitudes toward the death penalty and conviction proneness, since it would reasonably be anticipated that persons who differ on both capital punishment attitudes and voting behavior would also differ with respect to a number of other, related attitudes. In addition, a showing that the attitudes of persons excluded from a capital jury differ from those of persons who serve would be relevant to the Ballew issue by showing that the exclusion tends to reduce “the presence of minority viewpoint[s]” on the jury. (435 U.S. at p. 236 [55 L.Ed.2d at p. 244].)
The Wilson Survey
In addition to directly studying conviction proneness (ante, at pp. 32-33), Wilson also presented his subject/jurors with seven statements regarding the insanity defense82 and asked them to indicate whether they agreed or disagreed. The number of “agree” responses was used to measure “the tendency to be biased against insanity as a defense plea.” (Wilson, supra, at p. 3.) Wilson reported that 65 percent of the subjects with scruples against capital punishment agreed with 0, 1, or 2 of the statements, compared with 53 percent of the subjects without such scruples. These results were marginally significant.
The Bronson-Colorado Survey83
About 1967, Professor Edward Bronson surveyed 718 persons drawn from jury lists in 8 Colorado counties. Half of these persons were inter
Bronson also asked each respondent to indicate whether he or she strongly favored, favored, opposed, or strongly opposed capital punishment. He found that the number of “agree“-responses differed for each of the four capital punishment groups and that the amount of agreement tended to increase as support for the death penalty increased. This pattern of responses was statistically significant at the .01 level or less. In an attempt to determine what effect this had on the representation of attitudes on capital juries, Bronson compared the responses of the “strongly opposed” group—which he postulated was a Witherspoon-excludable group—with the combined responses of the remaining three groups. On all of the five questions, the “strongly opposed” group gave fewer “prosecution prone” responses than did the others. The differences between the groups ranged from 6 percent on question 2 to 30 percent on question 3. The results are graphed below.
In addition to measuring conviction proneness by obtaining votes in four specified cases, the Harris 1971 study also asked its subject/jurors to respond to a large number of questions or statements about crime and the criminal justice system. The responses of the “automatic life imprisonment” subjects were then compared to the remaining (i.e., “Witherspoon-qualified“) subjects.
A majority of both groups of subjects agreed that “in most cases the jury should ignore a defense of insanity because it is a loophole that allows too many guilty people to go free.” However, as in Goldberg, Wilson, and Bronson-Colorado, more of the “Witherspoon-qualified” subjects agreed than did the “automatic life imprisonment” subjects (67 percent to 57 percent). This difference was highly significant, with a “p” value of less than .01.
Similarly, while a majority of both groups believed there was less “law and order in this country” compared with five years earlier, the “Witherspoon-qualified” subjects were more likely to hold that belief (74 percent to 61 percent). They were also more likely to view blacks (39 percent to 30 percent) and the courts (34 percent to 19 percent) as “major cause[s]” of the “breakdown in law and order in this country.”85 Again, these results were all significant at the .01 level.
The two groups differed little in their evaluations of judges in criminal cases,86 but there were consistent and statistically significant differences in their respective attitudes towards the lawyers. Prosecutors tended to fare better in the eyes of both groups than did defense coun
Finally, the subjects were asked about the attitudes concerning nine trial occurrences. These inquiries were prefaced with the following instructions: “Suppose you were a juror in a criminal case, and the judge told you that the prosecution must prove the defendant guilty beyond a reasonable doubt, otherwise the jury should find the defendant innocent. If the case involved each of the situations I am going to read to you how difficult would it be for you to vote ‘not guilty‘?” Examples of the “situations” to which responses were elicited are: “If the defendant does not take the witness stand in his own defense“; “If an aide to the judge claimed he knew the defendant had committed the crime although the judge said the jury should ignore such statements;” and “If a policeman testified that he saw the defendant commit the crime.”88 The subjects were then asked to indicate whether they would “certainly find [defendant] innocent,” “probably find [defendant] innocent,” “not find [defendant] innocent” or were “not sure.”
In each of the nine situations presented to the subjects, the “Witherspoon-qualified” group was more likely to give a “not innocent“-response than was the “automatic life imprisonment” group. Conversely,
The Bronson-California Surveys91
Professor Bronson, who had earlier conducted a survey of jurors in Colorado (cf., ante, pp. 43-44), was interested in seeing whether the results of that survey could be replicated in California. He, therefore, conducted two similar surveys in this state, the first in Butte County in 1969-1970 and the second in Los Angeles, Sacramento, and Stockton in 1974-1975. These surveys were administered by students over the telephone except in Los Angeles. There, the jury commissioner handed out Bronson‘s questionnaire.
The Butte County survey involved 755 persons on the jury list of a small, relatively homogeneous, rural county. (Bronson-California, supra, at p. 12.) The jurors were given substantially the same five questions as in the Bronson-Colorado survey.92 In addition, Bronson added two new questions to the survey.93 As in Bronson-Colorado, an “agree” answer was used as a measure of the tendency to favor the prosecution.
Bronson found that on each question the percentage of “agree” responses increased as the jurors’ approval of the death penalty increased.
The responses to four of the seven questions showed a statistically significant relationship between support for capital punishment and the number of pro-prosecution responses. (“P” values of less than .001.) The differences among the groups on the remaining three questions (numbers 2, 6, and 7) were not statistically significant.96 The chart below reflects Bronson‘s comparison of the pro-prosecution responses of the “strongly opposed” group with the combined pro-prosecution responses of the remaining groups:
The final attitude survey was conducted in April 1979 in Alameda County. The subjects were 811 persons randomly selected from the adult population of the county. All participants were registered to vote in the county or had a California driver‘s license; all lived in a household with an operational telephone.
The survey questionnaire was prepared by Drs. Ellsworth and Fitzgerald. The questions were pretested to insure that “the questions were comprehensible and the responses were sufficiently variable so that meaningful between-group comparisons would be possible.” (Id., at p. 3.) The survey was administered by the Field Research Corporation (FRC). The subjects were selected by FRC using a process known as random digit dialing, and the interviews were conducted by experienced professional interviewers at FRC. The methodology of this survey was universally praised by the experts below. The prosecution experts called it “very well done,” “an excellent job,” and “far better in quality” than earlier surveys such as Bronson‘s. The results of this study were considered representative of the above-delineated adult population of Alameda County.
The survey asked questions concerning the subjects’ attitudes toward capital punishment. (Ellsworth Attitude Survey, supra, appen. I, p. 2.) Of the 811 subjects participating, 73 indicated that their opposition to the death penalty would preclude them from being fair and impartial at the guilt phase (i.e., these 73 were “guilt phase nullifiers“); 21 more subjects gave no answer on the nullification question. These two sets of subjects apparently did complete the interview procedure. However, since petitioner does not quarrel with the exclusion of these persons from the guilt phase of a capital trial, their responses are excluded in the results reported in this survey. Thus, the total sample size was 717 subjects, and Ellsworth was able to compare directly the “guilt phase includable” jurors with the “Witherspoon-qualified” jurors.98
The subjects were asked 13 attitudinal questions. There were statistically significant differences between the “guilt phase includable” subjects and the “Witherspoon-qualified” subjects on 11 of them.
As in many of the previous surveys, there was a majority of both groups who viewed the insanity defense as “a loophole allowing too many guilty people to go free,” but the majority was much larger for the “Witherspoon-qualified” jurors (78 percent) than for the “guilt phase includable” group (59.2 percent). (P < .001.)
The subjects were asked to agree or disagree with the statement “It is better for society to let some guilty people go free than to risk convicting an innocent person.” A majority of the “guilt phase includable” group (62.5 percent) agreed, whereas a majority of the “Witherspoon-qualified” group disagreed (56.1 percent). The table below sets forth these results, which are significant at a level less than .001:
The two groups also indicated sharp divergences in their attitudes toward the statement that “Even the worst criminal should be considered for mercy.” The “Witherspoon-qualified” subjects indicated overall disagreement with the statement (56.0 percent), whereas a large majority of “guilt phase includables” agreed (77.8 percent). (P < .001.) On a somewhat related proposition—i.e., “Harsher treatment of criminals is not the solution to the crime problem“—20 percent of the “guilt phase includable” subjects disagreed, compared with 41.0 percent of the “Witherspoon-qualified” group. The pattern of attitudinal differences was significant at better than a .001 level.99
The subjects were also asked to “suppose you‘re a juror in a criminal trial.... From the newspaper and television stories you have seen you know that the defendant made a confession to the crime. But the confession isn‘t presented during the trial. The judge instructs you that you must make your decision about guilt or innocence only on the evidence you heard during the trial. Without the confession the prosecution‘s case is weak; it would not convince you beyond a reasonable doubt of the defendant‘s guilt. In reaching your verdict what would you do?” A majority of the “guilt phase includable” subjects (60.2 percent) indicat
Finally, the survey dealt with the attitudes toward counsel at a criminal trial. The results were similar to those in Harris 1971. In separate questions, the subjects were asked to agree or disagree with the statement that “defense attorneys [or district attorneys] have to be watched carefully, since they will use any means they can to get their clients off [or get convictions].” The results are tabulated below. A majority of “guilt phase includable” subjects agreed that both the district attorney (53.1 percent) and the defense counsel (64.7 percent) must “be watched carefully.” However, whereas only 48.9 percent of the “Witherspoon-qualified” subjects agreed as to the district attorney, nearly three-quarters (73.5 percent) believed that defense counsel must be watched carefully.
DEMOGRAPHIC CHARACTERISTICS
There has long been survey research done which related attitudes towards capital punishment to such demographic characteristics as race and sex. This research is relevant to the Ballew issue in the present case insofar as it may show that excluding persons based upon their opposition to capital punishment “foretells problems...for the representation [on juries] of minority groups in the community.” (Ballew v. Georgia, supra, 435 U.S. at p. 236 [55 L.Ed.2d at p. 244].)
Sex
Surveys conducted over the past 30 years by Gallup, Harris, and the National Opinion Research Center (N.O.R.C.) have uniformly shown that women are opposed to capital punishment more frequently than are men. From 1953 through 1978, Gallup and N.O.R.C. conducted nationwide polls asking the survey respondents, “Are you in favor of the death penalty for persons convicted of murder?” As the graph below indicates, there have been consistent differences between the responses of men and those of women, with women expressing opposition to the death penalty more often (by an average of 11 percent).
Harris polls conducted in 1973 and 1977 found similar disparities in persons’ responses to the question “Do you believe in capital punishment (death penalty) or are you opposed to it?” The 1973 poll found that women expressed opposition 7 percent more often than men (35 percent to 28 percent); in 1977, the gap was 9 percent (29 percent to 20 percent).
These differences between the sexes do not disappear when the question posed is tailored to the Witherspoon criteria. The Harris 1971 survey asked, “Suppose you were a juror in a murder trial and it was completely up to the jury to choose whether the penalty would be death or imprisonment, do you think there would be any situations in which you might vote for the death penalty or do you think you could never vote for the death penalty, regardless of the circumstances?” In response to this question, 37 percent of the women indicated they could never vote for the death penalty, compared to 24 percent of the men.
Similarly, the Ellsworth Attitude Survey asked, “Is your attitude toward the death penalty such that as a juror you would never be willing
Race
The disparities between whites and blacks is even greater than between males and females. As the chart below shows, Gallup and N.O.R.C. polls during 1953 through 1978 have shown that blacks are much more opposed to capital punishment than are whites. The average difference in opposition to capital punishment over the entire 25-year period is 23 percent, but the gap has been increasing (it averaged 28 percent in the 1970s).
Harris polls in 1973 and 1977 are consistent with the Gallup and N.O.R.C. data, finding disparities of 21 percent (50 percent to 29 percent) and 26 percent (48 percent to 22 percent) respectively.
As the evidence adduced below established, these correlations between opposition to capital punishment and racial and sexual characteristics “have tended to appear with boring regularity ever since these topics have been researched....” “No one who has ever done [such] a survey...has failed to find” these differences.
JUROR EVALUATION OF EVIDENCE
While the conviction-proneness studies (ante, pp. 27-42) may indicate that “guilt phase includable” jurors will tend to differ in their decisions on guilt or innocence from “Witherspoon-qualified” jurors, they do not themselves directly explain how these differing conclusions come about. Some inferences as to how this occurs may be drawn from the attitude101 and demographic102 surveys. In the evidentiary hearing below, three studies by Ellsworth were used to suggest some “possible mechanism[s] by which these attitude[ ] [differences] might translate into the relevant behavior.”
One study, referred to below as the Ellsworth Post-Deliberation Follow-up Study, sought to measure the differences in jurors’ thresh
Two types of erroneous verdicts were possible: (1) the conviction of an innocent person, or the conviction of a guilty person for a degree of homicide more severe than the “true” crime warranted (Ellsworth called this “harsh error“), and (2) the acquittal of a guilty person, or the conviction of a guilty person for a degree of homicide less severe than the “true” crime warranted (denoted “lenient error“).103
Ellsworth found that the “Witherspoon-qualified” subjects expressed equal regret for “harsh” and “lenient” errors, whereas the “guilt phase
A second study was conducted to determine whether the two groups also differed in their “perception of the credibility of defense and prosecution witnesses:”104 The subjects in this study were 36 persons who had previously participated in the Ellsworth Conviction-Proneness Study. Sixteen were “guilt phase includable” and twenty were “Witherspoon-qualified.”105
Ellsworth had prepared a 20-minute videotaped simulation of the conflicting testimony of a white police officer and a black defendant on trial for assaulting the officer. The simulated case involved a physical confrontation between the officer and the defendant during what the officer described as a routine crowd-control incident and the defendant described as police harassment. The experimenters’ intention was to create two equally likely versions of the event. The script had been reviewed for realism by a group of lawyers and psychologists, and the videotape had been pretested for plausibility.
The videotape was shown to 36 subject/jurors, who were then asked 16 questions concerning (1) the accuracy and truthfulness of the 2 witnesses; (2) the extent to which specific facts mentioned by each witness seemed to be true; and (3) the appropriateness of each witness’ behavior. On each of the 16 questions the “Witherspoon-qualified” subject/jurors gave (as a group) answers that were more favorable to the police officer than did the “guilt phase includable” group. The differences were statistically significant, with a “p” value of .05 or less, on 10 of the 16 questions. Summing up the responses to all questions revealed an overall difference of about 20 percent in the groups’ assessments of credibility. This disparity was statistically significant at less than a .0002 level.
The results of the Ellsworth Witness-Credibility Study were replicated to some extent in the Ellsworth Conviction-Proneness Study. As previously indicated, after the subject/jurors of the latter study had indicated their personal beliefs as to the accused‘s guilt or innocence, most of them were divided into 12-person juries and allowed to deliberate. (Cf., ante, fn. 78.) Some of the juries were composed entirely of “Witherspoon-qualified” jurors and some had a mixture of “Witherspoon-qualified” and “guilt phase includable” jurors.106
After one hour, the deliberations were terminated and the subjects given a written questionnaire to fill out. Among the items on the questionnaire were six questions asking “How believable was the testimony?” of each of the six witnesses who testified. As shown by the chart below, the “Witherspoon-qualified” jurors (the “D.Q.” jurors in the chart) believed each of the prosecution witnesses more than the “guilt phase includable” jurors (“Excl.“) did. As for the two defense witnesses, their credibility was rated higher by the “guilt phase includable” jurors than by the “Witherspoon-qualified” jurors. As Ellsworth testified, these results “can be considered simply a replication across a whole series of witnesses in a different [situation] of what we got in the witness credibility study.”
CRITICISMS OF THE STUDIES RELATING TO THE WITHERSPOON AND BALLEW CONTENTIONS
The Attorney General raises several major methodological arguments to attack the conclusions which petitioner would draw from these studies. Most of the criticisms do not have merit. [REDACTED] However, there is merit in one of his arguments—what he calls the “crux” of his position. Consequently, petitioner‘s Witherspoon and Ballew contentions must be rejected as not established by the record presently before this court.
[REDACTED] Several of the criticisms do not require extended discussion. For example, it is contended that none of the studies can be considered reliable indices of how real jurors would act, since the subjects of the studies did not have the same sense of “felt responsibility” as would a juror in an actual criminal trial.
There are several responses to the criticism. First, the criticism is inapplicable to the Zeisel study, since he drew his data from jurors who had actually sat and deliberated on real criminal cases. The fact that Zeisel‘s study is fully consistent with the results of the other, controlled experiments strongly indicates that the absence (if any) of felt responsibility did not produce spurious results. Second, it appears that the subjects in the Ellsworth Conviction-Proneness Study did “g[e]t very, very into deliberations.” Those subjects in this study who had had prior jury experience reported that the experimental situation corresponded well with their jury service. The defense experts also testified that it was not at all unusual for subjects in controlled jury studies to become involved in their cases to the degree that Ellsworth‘s subjects did.
Significantly, a comparison among the controlled conviction-proneness studies shows that the differences found in voting behavior tend to get wider as the studies become more realistic and involving. Thus, the studies using written stimuli found differences of 6 and 7 percent (Goldberg, Harris 1971). However, this rose to 13 percent when an audiotape was used (Jurow) and to 25 percent when a videotape was employed (Ellsworth Conviction-Proneness). This trend also indicates that any absence of felt responsibility would not alter the conclusions to be drawn from the studies. [REDACTED]
Similar considerations lead this court to reject the Attorney General‘s next criticism of the studies, i.e., that they did not involve juror interaction and deliberation. Again, this critique is inapplicable to the Zeisel study. Further, the subject/jurors in the Ellsworth Conviction-Proneness Study deliberated for an hour, and the significant differences between the “guilt phase includable” jurors and the “Witherspoon-qualified” jurors remained even after that time. Moreover, much of the force of this criticism is further overcome by the findings of Kalven and Zeisel, supra, and others that in the overwhelming number of cases, the jury will eventually reach a unanimous verdict consistent with the position of the first ballot majority. (Cf., ante, fn. 56.) This indicates that the critical factor in jury decision making is not the process of juror interaction but the jurors’ original views of the case, which are formed at or near the time the case is submitted to them for decision.108
Next, it is asserted that the studies (except the various polls and the Harris 1971 and Ellsworth Attitude surveys) must be disregarded because the subjects involved were not representative of the general population. This contention reveals a fundamental misunderstanding of the conclusions sought to be drawn from these studies, a misunderstanding which was repeatedly addressed by the experts at the hearing below. The studies are being used to show differences in behavior and attitudes between groups; they are not being used to show the relative size of one group to another. Under these circumstances, a researcher need not insure that the groups are included in the study in the same proportions as they appear in the general population. Rather, it must merely be insured that there is a sufficiently large number of persons in
In any event, the criticism concerning representativeness all but disappears when the studies are viewed as a whole, not in isolation. As Dr. Zeisel noted, the results of these studies are consistent irrespective of whether the subjects are southern college students, northern industrial workers, Illinois or New York jurors, persons eligible for jury service in California, or persons selected randomly from throughout the nation. It defies reason to attribute the studies’ results to “unrepresentative” or nonrandom samples.
[REDACTED] However, there is a more telling criticism of the conclusions which petitioner seeks to draw from the evidence relating to the Witherspoon and Ballew issues. The pool of jurors eligible to serve in a capital trial in California consists of those persons eligible to serve in a noncapital case whose attitudes toward capital punishment would place them in either the “favor death penalty,” “indifferent,” or “oppose death penalty” group. (Cf., ante, fns. 34, 48.) Thus, in order to establish that a capital case jury in this state is drawn from a pool that is less than neutral with respect to guilt or is inadequate to effectuate the purposes and functions of a jury, petitioner must establish deficiencies in a pool consisting of those three groups, i.e., the “California death-qualified” groups.
None of petitioner‘s studies expressly focused on a pool comprised in this manner. They do focus on the deficiencies in a pool of “Witherspoon-qualified” jurors. However; at least in theory, a pool of “Witherspoon-qualified” jurors differs from a pool of “California death-qualified” jurors. The former contains a fourth group in addition to the three “California death-qualified” groups, i.e., a “Witherspoon-qualified” jury pool also contains the “automatic death penalty” group.110 Thus, in order to draw conclusions about a pool of “California
Petitioner seeks to overcome the critique in several ways. First, he contends that the “automatic death penalty” group is a tiny group compared to the “Witherspoon-qualified” group as a whole. If this were true, it is urged, then the results of petitioner‘s studies would not be appreciably altered by subtracting the few “automatic death penalty” jurors from the large class of “Witherspoon-qualified” jurors.
However, there is no reliable evidence in the record to support petitioner‘s assumption as to the minute size of the “automatic death penalty” group. The defense experts below repeatedly admitted that “nobody knows” the size of this group. There are tentative indications in the record that this group may be as small as 1 percent (or less) of the adult population or as large as 28 percent.111
Petitioner notes that there is no reliable data indicating that this group does appear “in substantial numbers” in California jury pools, but this observation does not advance his cause. Witherspoon placed the burden on the accused to establish the nonneutrality of a death-qualified jury. (Cf., ante, fns. 37 and 38 and accompanying text.) Until petitioner makes out at least a prima facie case of unconstitutionality,
Following oral argument in the present proceeding, the United States Supreme Court decided Adams v. Texas (1980) 448 U.S. 38 [65 L.Ed.2d 581, 100 S.Ct. 2521]. There, the court struck down a Texas statute which disqualified a prospective juror from serving in a capital case “unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.” (
In the course of seeking to uphold Adams’ death sentence, the State of Texas argued the statute was “neutral” in that it permitted the disqualification of persons favoring the death penalty on the same basis as persons opposed. (Id., at p. 49 [65 L.Ed.2d at p. 592].) The high court
These comments by the United States Supreme Court do not persuade this court to alter its conclusions with respect to petitioner‘s failure to account for the “automatic death penalty” group in his challenge to the neutrality of a “California death-qualified” jury. Even if this court were to accept the Supreme Court‘s suggestion as to the relative sizes of the two groups in question, petitioner‘s problem would not be solved. In order to extrapolate from petitioner‘s showing about a “Witherspoon-qualified” jury to his intended conclusion as to a “California death-qualified” jury, it is necessary to know more than just the relative size of the “automatic death penalty” group. The impact of this group on petitioner‘s statistical calculations would depend on both its size and its voting behavior in the jury room. (Cf., post, fn. 115 and accompanying text.) A small group would have an impact beyond its sheer numbers if it tended to be more unified in its voting behavior (or other relevant characteristic) than a larger but less cohesive group. Petitioner‘s evidence contains no indication of the relevant characteristics of the “automatic death penalty” group as compared to the other groups.113
Next, petitioner contends that the Ellsworth Conviction-Proneness Study enables him to draw conclusions about the appropriate “California death-qualified” groups. At the time this study was conducted, none of the subject/jurors was asked a question which would have identified
While the Ellsworth Conviction-Proneness Study was in other respects an outstanding piece of research, the propriety of relying on such a delayed call-back procedure as a reliable means of retroactively identifying the attitudes of one‘s subjects is doubtful. Ellsworth herself indicated it was “conceivable” (albeit “doubt[ful]“) that different answers would have been obtained had the “automatic death penalty” question been asked several months earlier along with the other questions about capital punishment attitudes.
Petitioner‘s assertion that the Ellsworth Conviction-Proneness Study demonstrates the nonneutrality of a “California death-qualified” jury presents another problem as well. Even if this study reliably showed that “California death-qualified” jurors tend to be more conviction-prone than “guilt phase includable” jurors, it does not necessarily follow that the former would also tend to be more conviction-prone than are jurors in a noncapital case.115 It is this latter showing which is the crux of the Witherspoon issue. However, the study‘s omission of the “automatic death penalty” group—which comprises an unknown proportion of the pool of jurors in noncapital cases—renders unsound petitioner‘s leap from the results of this study (that “California death-qualified” jurors are more conviction-prone than “guilt phase includable” jurors) to the conclusion that “California death-qualified” jurors are also more conviction-prone than a “neutral” jury.116
In view of these gaps in the Ellsworth Conviction-Proneness Study, this court cannot ground a constitutional decision on its results alone.
Finally, petitioner urges, in response to the Attorney General‘s contention, that he (petitioner) “is entitled to the representation [in] his jury [pool] of all viewpoints and outlooks that are represented in the population; he is entitled to any fair-minded juror who may properly be randomly selected to serve.” The first half of the statement is correct, but his evidence has not established that any “viewpoints or outlooks” have been excluded from the jury pool. All he has shown is that if a state used all four “Witherspoon-qualified” groups in a capital trial, the jury would not be neutral. California is not such a state.
The second half of petitioner‘s statement may be a correct statement of law under a cross-sectional analysis, but petitioner has repeatedly declined to invoke such an analysis. However, petitioner‘s assertion is incomplete under the Witherspoon analysis. The exclusion of “fair-minded” jurors is improper under Witherspoon only if it can be established that such exclusions tend to result in a nonneutral jury, i.e., in the elimination or underrepresentation of those fair and impartial jurors who would tend to draw conclusions favorable to the accused about issues in the trial, and in the overrepresentation of such jurors favorable to the prosecution. Petitioner has failed to make such a showing as to “death-qualified” juries in California.
Therefore, until further research is done which makes it possible to draw reliable conclusions about the nonneutrality of “California death-qualified” juries in California, this court does not have a sufficient evidentiary basis on which to bottom a constitutional holding under Witherspoon and Ballew. It is, indeed, unfortunate that so much research, time, and energy has been expended in this area with the result
The trial court properly rejected petitioner‘s motion under Witherspoon and Ballew to limit the exclusion for cause of jurors unalterably opposed to capital punishment.
VII
THE USE OF SEQUESTRATION IN DEATH-QUALIFYING A JURY
[REDACTED] Petitioner asks this court to consider whether the procedures currently used in this state to identify death-qualified jurors alter the jury to the detriment of an accused. The specific question is whether the voir dire process in death-qualifying a jury inclines jurors to become more favorable to the prosecution than if a more refined technique were used. At the hearing below, petitioner presented testimony which indicated that current procedures create in the minds of the jurors certain expectations unfavorable to the accused and predispose the jurors to receive and interpret evidence in ways favorable to the prosecution.117 Various refinements in the current procedure are suggested in order to minimize, if not eliminate, the most prejudicial of these effects.
Presently, the defense counsel118 and the prosecutor119 have the right to question potential jurors about their attitudes toward the death penalty in order to lay a foundation for possible challenges for cause. The voir dire is usually conducted in open court with the entire jury panel present. Although each juror is questioned personally, he or she has the opportunity to observe the examination of many other venirepersons.120
There are several reasons why these methods for death-qualifying a jury might be expected to have an impact on the expectations, perceptions, attitudes, and behavior at trial of the jurors exposed to them. These affect both the guilt and penalty determinations.
The process presently used focuses attention on penalty before the accused has been found guilty. As a result, some jurors may be more likely to believe the accused is guilty as charged. Modern psychological theory suggests several reasons to anticipate such a result.
Few human impulses are more fundamental than the need to make sense of one‘s surroundings. People who find themselves in novel, complicated, or confusing situations instinctively seek guidance in interpreting those situations. Accordingly, they become sensitive to the way other people around them seem to be behaving. When authority figures who appear to be familiar with the situation are present, they take on added importance and influence. In such a fashion, venirepersons who are in the unfamiliar and imposing surroundings of a courtroom, undergoing the oftentimes elaborate and sometimes baffling ritual of voir dire, will typically seek cues about appropriate ways of thinking, feeling, and believing. Such venirepersons are likely to look to the behavior of the most knowledgeable and respected figures in the courtroom, i.e., the judge and counsel.
In a typical death-qualifying voir dire, the judge and the attorneys repeatedly instruct the jurors about the steps leading to the penalty trial and question each prospective juror, oftentimes at considerable length, concerning his or her attitudes about capital punishment. These repeated displays of concern about the death penalty before any evidence of
A penalty trial is contingent on a guilty verdict and a finding of special circumstances. Jurors undergoing death-qualification would have reason to infer that the judge and the attorneys personally believe the accused to be guilty or expect the jury to come to that conclusion. Only such an inference could serve to explain to the jurors why so much time and energy are devoted to an extensive discussion of penalty before trial. Provided with these cues from people who are not only experts in the courtroom but are also presumably acquainted with all the evidence in the case, the relevant law, and the “correct” application of the one to the other, death-qualified jurors may themselves become more inclined to believe that the accused is guilty as charged.
The effects of such a predisposition on the jury‘s eventual verdict would be expected to be magnified by the particular ways in which a jury functions. Diversity of experience and viewpoint enables a jury to compensate for the perceptual and evaluative limitations inherent in any one particular point of view. (Cf., ante, at pp. 23-25.) However, current methods used in voir dire may impede these corrective mechanisms by the operation of what is known as “perceptual set.” The concept of perceptual set, explained one expert witness at the evidentiary hearing below, “suggests that when people begin to form a framework for understanding, particularly with respect to complicated events with which they are somewhat unfamiliar, they begin early on in the process to form a perspective, to form a way of interpreting that information. . . . Perceptual set affects not only what they do with information, but indeed it also affects what they view as information. There is a notion of selective attention, the idea that people only attend to certain kinds of things. When they are presented with complicated information they tend to select out of that information for the most part information which conforms with their belief structure, which conforms with their attitudes, which conforms with their expectations. That is what they look for, that is what they see, and they interpret it differently based on attitudes, beliefs, and expectations.”
If a juror is predisposed by the very process of the death-qualifying voir dire to believe the accused is guilty,121 the juror will tend, in conse-
These tendencies would not be nullified by the evidence actually presented in the courtroom because what the jurors perceive to be evidence will itself be a function of the attitudes, beliefs, and expectations with which they view the proceedings. Of course, the jurors’ “perceptual sets” are unlikely to determine the outcome in those cases in which the evidence points overwhelmingly in one direction or another. But the influence of the jurors’ “perceptual set” increases—along with the dangers of miscarried justice—as the evidence becomes more closely balanced between guilt and innocence. It becomes especially important to scrupulously safeguard the accused‘s constitutional rights to a fair trial in such cases, because what might in a more clear-cut case have only an insignificant effect on the way the jurors view the evidence could “provide[] the slight impetus which [swings] the scales toward guilt.” (Glasser v. United States (1942) 315 U.S. 60, 67 [86 L.Ed. 680, 698, 62 S.Ct. 457].) “[I]t is with respect to those cases that the jury trial right has its greatest value. When the case is close, and the guilt or innocence of the defendant is not readily apparent, a properly functioning jury system will insure evaluation by the sense of the community and will also tend to insure accurate factfinding.” (Ballew v. Georgia, supra, 435 U.S. at pp. 237-238 [55 L.Ed.2d at p. 245].)
A capital jury, which has been predisposed by virtue of the very process by which it has been selected to think the accused guilty in advance of trial, is unlikely to function properly or maintain its neutrality. As a
In addition to making a capital jury prone to convict, the current method of death-qualification may alter the states of mind of the jurors exposed to it in ways which make them more likely to impose a death sentence. It is important to recognize that in the penalty phase, no less than in the guilt phase, the jury serves as a representative of community values. “[O]ne of the most important functions any jury can perform in making ... a selection [between life and death] is to maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.‘” (Witherspoon v. Illinois, supra, 391 U.S. at p. 519, fn. 15 [20 L.Ed.2d at p. 783], citation omitted.) A jury in a penalty trial is thus called upon to “express the conscience of the community on the ultimate question of life or death.”122 (Id., at p. 519 [20 L.Ed.2d at p. 783], fn. omitted.)
[REDACTED] A penalty jury can speak for the community only insofar as the pool of jurors from which it is drawn represents the full range of relevant community attitudes. In Witherspoon, the Supreme Court held that those who hold scruples against capital punishment must be included within this pool so long as they are willing to consider the choice of penalty provided by law and are not irrevocably committed to vote
Thus, a process which systematically reduces whatever “doubts about the wisdom of capital punishment” or “reluctan[ce] to pronounce the extreme penalty” is as constitutionally infirm as a jury from which individuals who hold such views are systematically “culled.” Neither jury can “speak for the community.” (Ibid.) Both juries are “less than neutral” with respect to the choice of penalty. (Id., at p. 520, fn. 18 [20 L.Ed.2d at p. 784].)
Several theories discussed at the evidentiary hearing below explain why the current modes of death-qualification might increase jurors’ willingness to impose a sentence of death. During a death-qualifying voir dire, venirepersons are questioned in open court about their attitudes toward the death penalty. The fact that the court dismisses those venirepersons who express unequivocable opposition to the death penalty is likely to be interpreted by the remaining jurors as an indication that the judge in particular and the law in general disapprove of such attitudes. Jurors whose scruples against capital punishment are not so irrevocable as to disqualify them under Witherspoon may feel that in the eyes of the law, their attitudes are improper, or at least suspect. Those jurors may in consequence feel less willing to express or rely on such attitudes in their consideration of penalty.123
Another relevant concern is drawn from research into the process of desensitization. For many people, even those who are in favor of the death penalty, the prospect of having to make a personal decision about whether another human is to live or die poses an understandably intimidating duty. While the state has a legitimate interest in a death penalty jury which is willing to consider the imposition of capital punishment in
When people are continually exposed to a stimulus which is intimidating or frightening to them, they become desensitized to what they earlier found to be threatening.124 In a capital voir dire, prospective jurors are repeatedly prompted to think about the penalty decision they may later be called upon to make. What was initially regarded as an onerous choice, inspiring caution and hesitation, may be more readily undertaken simply because of the repeated exposure to the idea of taking a life. Some jurors initially face the penalty decision with reluctance and aversion. This may represent a significant viewpoint in the community. A process which systematically erodes these attitudes would make the jury less representative of the community and more inclined to impose death.
In 1979, Dr. Craig Haney, an assistant professor of psychology at the University of California at Santa Cruz, devised a controlled study to determine whether the process of death-qualification actually alters jurors’ states of mind so that it affects their evaluation of guilt or their choice of penalty.125 The subjects of the experiment were selected from adults eligible for jury duty in Santa Cruz County who had responded to a local newspaper advertisement. The researchers screened the respondents by telephone, and eliminated from the study those whose attitudes about capital punishment disqualified them under the Witherspoon criteria.
Haney had prepared a two-hour videotape of a simulated voir dire in a capital trial. The voir dire was not scripted; the attorneys depicted on the tape based their questioning on the facts of an actual capital case. The roles of judge, prosecutor, and defense counsel were played by experienced private defense attorneys. The roles of most of the venirepersons were played by adult residents of Alameda County whose responses to an earlier survey had indicated that they would be qualified
The 67 subjects of Haney‘s study were randomly divided into two groups for purposes of viewing the videotaped voir dire. Both groups were asked to imagine themselves to be “prospective jurors in this very case.” One group—the “experimental” group—was shown the full two-hour videotape which included half an hour of death-qualification.127 The “control” group saw the same videotape with the death-qualifying segment deleted. Each version of the videotape contained various introductory remarks and questions from the judge, including a nullification question patterned on Penal Code section 1074, subdivision 8.128
After viewing the videotapes, both groups completed a questionnaire. Their responses were consistent with the predictions that the present procedures for death-qualifying a jury alter the jurors’ perspectives.
Haney found that the “death-qualified” subject/jurors in his experimental group were more likely than those in the control group to believe the accused was guilty of first degree murder, a finding that was statistically significant.129 Moreover, the experimental group was more likely to think that the prosecutor and the defense attorney personally believed the accused guilty as charged. The subject/jurors in the experimental group were also more inclined to think that the judge believed the accused to be guilty as charged.
Haney testified that these findings were consistent with the prediction that “the fairly extensive concern with the penalty phase on the
The subject/jurors were also asked to assess the likelihood that the accused would later be found guilty of first degree murder and sentenced to death. The experimental group was more likely to predict that the accused would be convicted and sentenced to death. In their responses to another question, those in the experimental group also revealed that they were more likely to expect that the accused would be convicted of some lesser included offense if not of first degree murder.
These results lend support to the hypothesis that “people who are asked to imagine the occurrence of the penalty phase of the trial should be more likely to expect that that penalty phase will take place. . . . [S]o one would . . . predict that people who have been asked to imagine the occurrence of this penalty phase would predict that it was more likely that the defendant will be convicted and more likely that special circumstances will be found in this particular case.”130
The two groups were asked to select what they thought would be an appropriate penalty, assuming that the accused had been convicted and a special circumstance allegation of a prior conviction of first degree murder had been found true. Fifty-seven percent of the experimental group indicated that they would vote to impose the death penalty, compared to only 21.9 percent of the control group.131
The subject/jurors were also asked whether they thought “the law generally disapproves of people who are opposed to the death penalty.” The subject/jurors in the experimental group were substantially more likely than those in the control group to believe that attitudes in opposi-
The responses to another question lend support to the surmise that the present procedures for death-qualification are likely to increase the juror‘s beliefs that the judge personally favors the death penalty. The subject/jurors were asked how they thought the judge “personally feels about the death penalty.” Those in the experimental group rated the judge‘s support for the death penalty considerably higher than did those in the control group.132
Haney testified that the altered perceptions of the judge‘s attitude by the subject/jurors in the experimental group may have resulted from “the judgments which the judge was asked to make when forced to decide whether or not someone should be [excused] for cause.” These modified perceptions of the attitudes of the most highly respected figure in the courtroom would, he suggested, “lead [jurors who undergo the current procedures for death-qualification] to reconsider [their] attitude[s] and it may well lead [them] to favor the death penalty somewhat more than [they] had . . .”133
Asked to describe the overall conclusion he drew from his study, Haney testified that “people who have been through the process of death-qualification are in a different state of mind when compared to people who have not been through that process. They are in a different
“My conclusion is that they are in a very different state of mind, and that in each and every case they are in a state of mind which is prejudicial to the defendant in the case.”
Haney‘s findings indicate that the current process for selecting capital jurors creates certain side effects which shape the jury‘s attitudes toward a death sentence. The courts are appropriately concerned if procedures encourage “[t]endencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group.” (Glasser v. United States, supra, 315 U.S. at p. 86 [86 L.Ed. at p. 707].) It has always been the judiciary‘s duty to counteract processes which generate in jurors “a bias in favor of the prosecution.” (Ibid.) The high court has been vigilant in its review of procedures which “undermin[e]” and “weaken[ ] the institution of jury trial.” (Ibid.) These “undermining processes . . . should be sturdily resisted . . . Steps innocently taken may, one by one, lead to the irretrievable impairment of substantial liberties.” (Ibid.)
Haney‘s study has served to alert this court to some of the pernicious consequences of our current voir dire procedures in capital cases. This court must be concerned about the threat these procedures present to an accused‘s constitutionally protected interests in a fair trial.
Haney testified that the prejudicial alteration in attitudes which resulted from a juror‘s observations of the death-qualification of his or her fellow venirepersons is “a function of exactly how extensive the questioning becomes. The more extensive the questioning, the more you would expect to find important differences between the state of mind of jurors who have been through the one process as compared with those who have been through the other.” This proposition implies a corollary:
The most practical and effective procedure available to minimize the untoward effects of death-qualification is individualized sequestered voir dire. Because jurors would then witness only a single death-qualifying voir dire—their own—each individual juror would be exposed to considerably less discussion and questioning about the various aspects of the penalty phase before hearing any evidence of guilt. Such a reduction in the pretrial emphasis on penalty should minimize the tendency of a death-qualified jury to presume guilt and expect conviction.134
While disputing petitioner‘s Witherspoon and Ballew contentions, the Attorney General indicated in oral argument that he had “no objection” to this court adopting a rule of sequestered voir dire in capital cases as a judicially declared rule of criminal procedure. He agreed with expert testimony that “We could get rid of a lot of [the concerns raised by the Haney study] by sequestered voir dire.” He also reminded this court that “there‘s precedent for it in this state during the trial of Ruchell Magee and during the trial of Edmund Kemper in Santa Cruz County where the issue was venue . . . So I can‘t see how I could have any objection to it.”
[REDACTED] In order to minimize the potentially prejudicial effects identified by the Haney study, this court declares, pursuant to its supervisory authority over California criminal procedure,135 that in future capital cases that portion of the voir dire of each prospective juror which deals with issues which involve death-qualifying the jury should be done individually and in sequestration.136 This rule will not in any way affect the
open nature of a trial. Although trial counsel or the court may pose general questions to the panel, the venirepersons should not respond to any questions beyond those routinely asked in any criminal trial until they are outside the presence of their fellow venirepersons.137
Of course, this court cannot insure that a rule of sequestered voir dire in capital cases will alleviate all the untoward effects of the current procedures. Unless a juror is able to understand and respond with certainty to the Witherspoon questions, the juror may be subjected at the sequestered proceeding to considerable voir dire on his or her attitude toward capital punishment. It is unknown at this point whether such personal voir dire would entail the same dangers of inducing bias as do the current procedures for voir dire.
Nonetheless, sequestered voir dire will minimize each juror‘s exposure to the death-qualifying voir dire of others. It will thereby minimize the deleterious effects of such exposure. Given the frailty of human institutions and the enormity of the jury‘s decision to take or spare a life, trial courts must be especially vigilant to safeguard the neutrality, diversity and integrity of the jury to which society has entrusted the ultimate responsibility for life or death.
Since petitioner has failed to establish his Witherspoon and Ballew contentions, the only relief to which he is entitled is to have that portion of the voir dire of each prospective juror, which deals with issues other than those traditionally inquired into at any criminal trial, conducted outside the presence of the other prospective jurors.
Let a peremptory writ of mandate issue, directing the trial court to conduct the voir dire in accordance with the views set forth in part VII hereof. In all other respects, the requested relief is denied.
Tobriner, J., Mosk, J., and Newman, J., concurred.
RICHARDSON, J., Concurring and Dissenting.—I concur in that portion of the judgment which denies petitioner‘s motion to limit the exclusion of prospective jurors at the guilt phase. None of the various surveys and studies relied upon by petitioner has satisfactorily demonstrated that the exclusion from the guilt phase of jurors unable to impose the death penalty has resulted in a jury adjudicating guilt which is unrepresentative of the community or unduly biased in favor of conviction. (See People v. Rhinehart (1973) 9 Cal.3d 139, 155 [107 Cal.Rptr. 34, 507 P.2d 642]; People v. Murphy (1972) 8 Cal.3d 349, 368 [105 Cal.Rptr. 138, 503 P.2d 594]; People v. Sirhan (1972) 7 Cal.3d 710, 747-749 [102 Cal.Rptr. 385, 497 P.2d 1121]; People v. Brawley (1969) 1 Cal.3d 277, 297 [82 Cal.Rptr. 161, 461 P.2d 361]; People v. Ketchel (1969) 71 Cal.2d 635, 644 [79 Cal.Rptr. 92, 456 P.2d 660]; In re Arguello (1969) 71 Cal.2d 13, 16 [76 Cal.Rptr. 633, 452 P.2d 921]; see also People v. Thornton (1974) 11 Cal.3d 738, 753 [114 Cal.Rptr. 467, 523 P.2d 267]; People v. Henderson (1978) 80 Cal.App.3d 584, 591-598 [145 Cal.Rptr. 751].)
In essence, petitioner argues that persons incapable of imposing the death penalty are generally more sympathetic to the criminal defendant, and more hostile to the prosecutor, than other persons qualified to serve as jurors in capital cases. Against petitioner‘s arguments, we must balance these two factors: (1) the right of the state at the penalty phase to a jury capable of imposing capital punishment (see Witherspoon v. Illinois (1968) 391 U.S. 510, 520, fn. 18 [20 L.Ed.2d 776, 784, 88 S.Ct. 1770]), and (2) the clear preference of the Legislature that the same jury try the issues of guilt and penalty (see
I respectfully dissent, however, from that portion of the judgment which directs the trial court to conduct the death penalty aspects of the voir dire of each prospective juror in a capital case outside the presence of the other prospective jurors. This cumbersome procedure, which the majority now mandates pursuant to our “supervisory authority over California criminal procedure” (ante, p. 80), will add a very substantial burden to our already heavily engaged courts.
Less than eight years ago, we approved a system of voir dire examination whereby inquiries to prospective jurors were channeled from counsel to the trial court, rather than directly to each individual juror. (People v. Crowe (1973) 8 Cal.3d 815 [106 Cal.Rptr. 369, 506 P.2d 193].) In Crowe, we unequivocally stated that “We approve this method of curtailing the inordinate time consumed in the process of the selection of jurors. Thus appellate cases have referred to ‘the waste of valuable court time involved’ [citation] and to the ‘tedious, irksome and time-wasting prolongation of individual questioning of individual jurors by one side and then the other’ [citation]. In People v. Adams (1971) 21 Cal.App.3d 972, 979 [99 Cal.Rptr. 122], the court observed that ‘It is commonplace knowledge that there have been extensive abuses by counsel on voir dire examination by engaging in tedious and time-wasting questions, which are seemingly interminable and repetitious and designed in many instances to accomplish purposes other than the legitimate objects of a reasonable voir dire examination.‘” (8 Cal.3d at p. 825, fn. omitted.)
If the former system of individual questioning of individual jurors seated together was “tedious,” “time-wasting,” “interminable,” and “repetitious,” it is very clear what the consequences will be of holding a sequestered voir dire of each prospective juror. Before today‘s decision, the trial judge in a capital case could shortcut the voir dire proceedings considerably by instructing and interrogating the panel collectively regarding the death penalty issues. It seems inevitable to me that very much more time and energy henceforth will be required to complete the selection process under the procedure mandated by the majority.
Nor can I accept the majority‘s premise that a sequestered voir dire is necessary to protect the defendant‘s rights in a capital case. If the perhaps extensive voir dire interrogation regarding penalty issues is indeed found to have an undesirable effect upon the jurors’ ability to give defendant a fair trial on the guilt issues, any such problem can be alleviated following such interrogation by a careful admonition and instruction regarding defendant‘s presumption of innocence and the prosecutor‘s burden of proof. Moreover, I doubt that sequestration will inhibit the tendency of any prospective juror to prejudge the guilt issues, because the supposedly undue emphasis upon penalty issues may still occur.
Finally, it should be noted that the majority‘s concerns about collective voir dire are based entirely upon a single study (the Haney study) which polled only 67 persons who viewed a simulated, videotaped voir dire undertaken by defense attorneys in the principal roles. I doubt that we should so readily accept the conclusions of a single, small-scale study of this type, when the consequences of doing so require some disruption of our judicial processes. It should also be observed that the Haney study may be as fatally flawed as the Witherspoon studies which are criticized by the majority in an earlier portion of its opinion. Although the Haney videotape depicted the disqualification of two jurors who were incapable of imposing the death penalty, the tape contained no similar disqualification of persons who would automatically impose the death penalty in every capital case. As the majority itself acknowledges (ante, p. 78, fn. 132]), such a depiction might well have counteracted any tendency on the part of the 67 polled observers to assume
For all the foregoing reasons, it seems to me premature to discard a collective voir dire system which has served us rather well in preventing undue delays and in educating prospective jurors regarding their responsibilities under the law.
I would deny the peremptory writ in its entirety.
Clark, J., and Manuel, J., concurred.
Notes
The court did not reverse Witherspoon‘s substantive conviction for murder. It found the empirical studies tendered on his behalf on appeal “too tentative and fragmentary” to establish that the broad exclusion of
which the petitioner was entitled under the Sixth and Fourteenth Amendments. See Glasser v. United States, 315 U.S. 60, 84-86; Irvin v. Dowd, 366 U.S. 717, 722-723; Turner v. Louisiana, 379 U.S. 466, 471-473.” (391 U.S. at p. 518 [20 L.Ed.2d at p. 783].) While this statement might appear to indicate that the “impartial jury” requirements of the
A “death-qualified” jury is drawn from a subpopulation of this neutral jury pool. Under present law, certain persons are ineligible for a “death-qualified” jury because of their attitudes toward the death penalty. However, many jurors who are unable to be fair and impartial at the penalty phase would be capable of giving a fair hearing as to issues of guilt or innocence. Therefore, it follows that when a “death-qualified” jury pool is used to select jurors for the guilt phase of a trial, prospective jurors are excluded who could be fair and impartial at that phase.
Under Witherspoon, the use of a “death-qualified” jury pool to select a guilt phase jury would be unconstitutional if juries so selected would tend to return more verdicts favorable to the prosecution than would juries selected from a “neutral” jury pool.
Thus, even if petitioner can establish that a “death-qualified” jury is not neutral, it will nevertheless be impossible to specify in which individual trial the exclusion of the “guilt phase includables” will prejudice the accused. However, it can be confidently asserted that, over time, some persons accused of capital crimes will be convicted of offenses—and to a higher degree—who would not be so convicted if the jury were more representative of the populace.
The x2 test generates probabilities—or “p” values—indicating the likelihood or probability that the differences observed are due to chance. The lower the “p” value, the less likely it is that the differences are due to chance and the more likely that they are real. A “p” value of .08 means that there is an 8 percent probability that the differences are due to chance and a 92 percent probability that there are real differences between the groups.
Normally in the social sciences, a “p” value of .05 is said to be “statistically significant.” Values between .05 and .10 are said to be “marginally significant,” and a “p” value of .01 is considered “highly significant.” A “p” value above .10 is generally said to be “not significant.”
A finding that a “p” value exceeds .10 does not necessarily indicate that the observed differences are in fact spurious. The x2 test is dependent, inter alia, upon the size of the sample groups being compared. True differences between groups may be reported as “not significant” under the x2 test simply because the sample sizes are too small. More
In another category (i.e., 6-to-6 first ballot splits), jurors without conscientious scruples against capital punishment voted for conviction slightly less often (37 percent to 38 percent) than did jurors with such scruples. They also voted for acquittal less often (33 percent to 46 percent). The explanation for this apparent inconsistency seems to be that in this category, jurors without conscientious scruples voted “undecided” more often than did jurors with scruples (30 percent to 16 percent).
It is difficult to give significant weight to this reasoning. In Witherspoon, the Supreme Court had before it only a “preliminary, unpublished summary of the results of [his] study” (391 U.S. at p. 517, fn. 10 [20 L.Ed.2d at p. 782]), not the data nor the analysis that underlay his conclusions, nor indeed his final conclusions themselves.
Dr. Zeisel did testify at the hearing below and he fully agreed that the Supreme Court had been justified in not giving weight to what fragments of his study were before it. However, the leap from the fragmentary nature of the “preliminary summary” to a conclusion that the final study itself was unpersuasive is a nonsequitur.
This study was undertaken in 1966 and 1967 but not published in final form until 1970. However, the Supreme Court had before it in Witherspoon an unpublished manuscript based on the 1966-1967 data. (391 U.S. at p. 517, fn. 10 [20 L.Ed.2d at p. 782].) Apparently, this unpublished material consisted of “sections of the unpublished findings and a summary of the study. . . .” (Goldberg, supra, at p. 57.)
Response 1 on the CPAQ(B) spectrum corresponds to the “automatic life imprisonment” group; response 2 to the “oppose death penalty” group; response 3 to the “indifferent” group; response 4 to the “favor death penalty” group; and response 5 to the “automatic death penalty” group. Responses 2-to-5 are “Witherspoon-qualified” jurors.
Nevertheless, even the main prosecution witness at the evidentiary hearing below stated that “Professor Jurow did a decent attempt at improving the research in that field up to that time.” Since Jurow, there have been several more studies done, and it seems wholly appropriate to consider Jurow along with the other studies in resolving the question now before the court.
ELLSWORTH POST-DELIBERATION FOLLOW-UP DATA
| Juror Voting Behavior, Comparison of “Witherspoon-Qualified” and “Guilt Phase Includable” Jurors on Post-Deliberation Ballot | ||
|---|---|---|
| Verdict | “Guilt Phase Includable” Jurors | “Witherspoon-Qualified” Jurors |
| First Degree Murder | 3.4% (1) | 1.0% (2) |
| Second Degree Murder | 13.8% (4) | 17.3% (34) |
| Manslaughter | 48.3% (14) | 68.0% (134) |
| Acquittal | 34.5% (10) | 13.7% (27) |
| 100% (29) | 100% (197) | |