WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS v. WITT
No. 83-1427
Supreme Court of the United States
Argued October 2, 1984—Decided January 21, 1985
469 U.S. 412
Robert J. Landry, Assistant Attorney General of Florida, argued the cause for petitioner. With him on the briefs was Jim Smith, Attorney General.
William C. McLain argued the cause and filed a brief for respondent.*
*A brief of amici curiae urging reversal was filed for the Texas District and County Attorneys Association et al. by David Crump, Charles A. Graddick, Attorney General of Alabama, Ed Carnes, Assistant Attorney General, Robert R. Corbin, Attorney General of Arizona, William J. Schafer III, Assistant Attorney General, Steve Clark, Attorney General
JUSTICE REHNQUIST delivered the opinion of the Court.
This case requires us to examine once again the procedures for selection of jurors in criminal trials involving the possible imposition of capital punishment, see Witherspoon v. Illinois, 391 U. S. 510 (1968), and to consider standards for federal courts reviewing those procedures upon petition for a writ of habeas corpus.
I
Respondent Johnny Paul Witt was convicted of first-degree murder in Florida and sentenced to death. The murder was committed while respondent and a friend were bow-and-arrow hunting. The evidence at trial showed that the two had spoken together on other occasions about killing a human, and had even stalked persons as they would stalk animal prey. On the day in question, respondent, then aged 30, and his younger accomplice were hunting in a wooded area near a trail often used by children. When the victim, an 11-year-old boy, rode by on his bicycle, respondent‘s accomplice hit the child on the head with a star bit from a drill. Respondent and his accomplice then gagged the stunned victim, placed him in the trunk of respondent‘s car, and drove to a deserted grove. Upon opening the trunk, the conspirators discovered that the victim had died by suffocating from the gag. The two committed various sexual and violent acts on the body, then dug a grave and buried it.
The only claim the Eleventh Circuit found meritorious was respondent‘s Witherspoon claim. The court found the following exchange during voir dire, between the prosecutor and venireman Colby, to be insufficient to justify Colby‘s excusal for cause:1
“[Q. Prosecutor:] Now, let me ask you a question, ma‘am. Do you have any religious beliefs or personal beliefs against the death penalty?
“[A. Colby:] I am afraid personally but not—
“[Q]: Speak up, please.
“[A]: I am afraid of being a little personal, but definitely not religious. “[Q]: Now, would that interfere with you sitting as a juror in this case?
“[A]: I am afraid it would.
“[Q]: You are afraid it would?
“[A]: Yes, Sir.
“[Q]: Would it interfere with judging the guilt or innocence of the Defendant in this case?
“[A]: I think so.
“[Q]: You think it would.
“[A]: I think it would.
“[Q]: Your honor, I would move for cause at this point.
“THE COURT: All right. Step down.” Tr. 266-267.
Defense counsel did not object or attempt rehabilitation.
In Witherspoon, this Court held that the State infringes a capital defendant‘s right under the Sixth and Fourteenth Amendments to trial by an impartial jury when it excuses for cause all those members of the venire who express conscientious objections to capital punishment. As the Court of Appeals in this case noted, however, the Witherspoon Court also recognized the State‘s legitimate interest in excluding those jurors whose opposition to capital punishment would not allow them to view the proceedings impartially, and who therefore might frustrate administration of a State‘s death penalty scheme. The Court of Appeals drew the standard for determining when a juror may properly be excluded from Witherspoon‘s footnote 21; jurors may be excluded for cause if they make it
“unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant‘s guilt.” 391 U. S., at 522, n. 21 (emphasis in original).
In a footnote, the Court of Appeals noted its uncertainty over whether a state trial court‘s finding of bias should be accorded a presumption of correctness under the federal statute governing habeas corpus proceedings,
II
Witherspoon is best understood in the context of its facts. The case involved the capital sentencing procedures for the State of Illinois. Under the Illinois death sentencing statute, the jury was asked to decide only whether death was “the proper penalty” in a given case. Another Illinois statute provided:
“In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same.” Witherspoon, 391 U. S., at 512.
Pursuant to this statute, nearly half the veniremen at Witherspoon‘s trial were excused for cause because they “expressed qualms about capital punishment.” Id., at 513. This Court held that under this procedure the jury obtained would not be the impartial jury required by the Sixth Amendment, but rather a jury “uncommonly willing to condemn a man to die.” Id., at 521. It concluded that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id., at 522.
Despite Witherspoon‘s limited holding, later opinions in this Court and the lower courts have referred to the language in footnote 21, or similar language in Witherspoon‘s footnote 9, as setting the standard for judging the proper exclusion of a juror opposed to capitаl punishment. See, e. g., Maxwell v. Bishop, 398 U. S. 262, 265 (1970); Boulden v. Holman, 394
But more recent opinions of this Court demonstrate no ritualistic adherence to a requirement that a prospective juror make it “unmistakably clear...that [she] would automatically vote against the imposition of capital punishment....” In Lockett v. Ohio, 438 U. S. 586, 595-596 (1978), prospective capital jurors were asked:
“‘[D]o you feel that you could take an oath to well and truely [sic] try this case...and follow the law, or is your conviction so strong that you cannot take an oath, knowing that a possibility exists in regard to capital punishment?‘”
We held that the veniremen who answered that they could not “take the oath” were properly excluded. Although the Lockett opinion alluded to the second half of the footnote 21 standard, dealing with a juror‘s inability to decide impartially a defendant‘s guilt, the Court did not refer to the “automatically” language. Instead, it simply determined that each of the excluded veniremen had made it “‘unmistakably clear’ that they could not be trusted to ‘abide by existing law’ and ‘to follow conscientiously the instructions’ of the trial judge.” Id., at 596.
This Court again examined the Witherspoon standard in Adams v. Texas, 448 U. S. 38 (1980). Adams involved the
“This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.” Id., at 45 (emphasis added).
The Court went on to hold that as applied in that case certain veniremen had been improperly excluded under the Texas statute, because their acknowledgment that the possible imposition of the death penalty would or might “affect” their deliberations was meant only to indicate that they would be more emotionally involved or would view their task “with greater seriousness and gravity.” Id., at 49.3 The Court
reasoned that such an “effect” did not demonstrate that the prospective jurors were unwilling or unable to follow the law or obey their oaths.
The state of this case law leaves trial courts with the difficult task of distinguishing between prospective jurors whose opposition to capital punishment will not allow them to apply the law or view the facts impartially and jurors who, though opposed to capital punishment, will nevertheless conscientiously apply the law to the facts adduced at trial. Although this task may be difficult in any event, it is obviously made more difficult by the fact that the standard applied in Adams differs markedly from the language of footnote 21. The tests with respect to sentencing and guilt, originally in two prongs, have been merged; the requirement that a juror may be excluded only if he would never vote for the death penalty is now missing; gonе too is the extremely high burden of proof. In general, the standard has been simplified.
There is good reason why the Adams test is preferable for determining juror exclusion. First, although given Witherspoon‘s facts a court applying the general principles of Adams could have arrived at the “automatically” language of Witherspoon‘s footnote 21, we do not believe that language can be squared with the duties of present-day capital sentencing juries. In Witherspoon the jury was vested with unlimited discretion in choice of sentence. Given this discretion, a juror willing to consider the death penalty arguably was able to “follow the law and abide by his oath” in choosing the “proper” sentence. Nothing more was required. Under this understanding the only veniremen who could be deemed excludable were those who would
After our decisions in Furman v. Georgia, 408 U. S. 238 (1972), and Gregg v. Georgia, 428 U. S. 153 (1976), however, sentencing juries could no longer be invested with such discretion. As in the State of Texas, many capital sentencing juries are now asked specific questions, often factual, the answers to which will determine whether death is the appropriate penalty. In such circumstances it does not make sense to require simply that a juror not “automatically” vote against the death penalty; whether or not a venireman might vote for death under certain personal standards, the State still may properly challenge that venireman if he refuses to follow the statutory scheme and truthfully answer the questions put by the trial judge. To hold that Witherspoon requires anything more would be to hold, in the name of the Sixth Amendment right to an impartial jury, that a State must allow a venireman to sit despite the fact that he will be unable to view the case impartially.4
Second, the statements in the Witherspoon footnotes are in any event dicta. The Court‘s holding focused only on circumstances under which prospective jurors could not be excluded; under Witherspoon‘s facts it was unnecessary to decide when they could be. This Court has on other occasions similarly rejected language from a footnote as “not controlling.” See McDaniel v. Sanchez, 452 U. S. 130, 141 (1981).
As with any other trial situation where an adversary wishes to exclude a juror because of bias, then, it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality. See Reynolds v. United States, 98 U. S. 145, 157 (1879). It is then the trial judge‘s duty to determine whether the challenge is proper. This is, of course, the standard and procedure outlined in Adams, but it is equally true of any situation where a party seeks to exclude a biased juror. See, e. g., Patton v. Yount, 467 U. S. 1025, 1036 (1984) (where a criminal defendant sought to excuse a juror for cause and the trial judge refused, the question was simply “did [the] juror swear
We therefore take this oрportunity to clarify our decision in Witherspoon, and to reaffirm the above-quoted standard from Adams as the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment. That standard is whether the juror‘s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”5 We note that, in addition to dispensing with Witherspoon‘s reference to “automatic” decisionmaking, this standard likewise does not require that a juror‘s bias be proved with “unmistakable clarity.” This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply can-
Given this standard, it is clear that the Court of Appeals below erred at least in part; the court focused unduly on the lack of clarity of the questioning of venireman Colby, and on whether her answers indicated that she would “automatically” vote against the death penalty. Since there are portions of the Court of Appeals’ opinion that suggest that its result could be squared with Adams, however, we proceed to discuss another very important question in the administration of Witherspoon challenges—the degree of deference that a federal habeas court must pay to a state trial judge‘s determination of bias.
III
This case arises from respondent‘s petition for habeas corpus under
This Court has recently decided several cases dealing with the scope of the
It will not always be easy to separate questions of “fact” from “mixed questions of law and fact” for
In so holding, we in no way denigrate the importance of an impartial jury. We reiterate what this Court stressed in Dennis v. United States, 339 U. S. 162, 168 (1950): “[T]he trial court has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges
IV
Turning to the facts, we conclude that juror Colby was properly excused for cause. Applying the analysis required by
The transcript of the voir dire reprinted above shows that juror Colby was questioned in the presence of both counsel and the judge; at the end of the colloquy the prosecution challenged for cause; and the challenge was sustained when the judge asked juror Colby to “step down.” Nothing more was required under the circumstances to satisfy the statute. Anyone familiar with trial court practice knows that the court reporter is relied upon to furnish an accurate account of what is said in the courtroom. The trial judge regularly relies upon this transcript as written indicia of various findings and rulings; it is not uncommon for a trial judge to merely make extemporaneous statements of findings from the bench.
Our conclusion is strengthened by a review of available alternatives. We decline to require the judge to write out in a separate memorandum his specific findings on each juror excused. A trial judge‘s job is difficult enough without senseless make-work. Nor do we think under the circumstances that the judge was required to announce for the record his conclusion that juror Colby was biased, or his reasoning. The finding is evident from the record. See Marshall v. Lonberger, 459 U. S., at 433. In this regard it is noteworthy that in this case the court was given no reason to think that elaboration was necessary; defense counsel did
The finding of the trial judge is therefore “presumed correct” unless one of the enumerated reasons for avoiding the presumption is present here. Respondent does not suggest that paragraphs 1 through 7 are applicable; he must therefore rest his case on the exception in paragraph 8—that the finding of bias is “not fairly supported” by the record viewed “as a whole.” Respondent attacks the record in two ways. First, he notes that venireman Colby was the first juror questioned, and claims that from the record there is no way to determine whether the trial judge applied the correct standard. As we have stated on other occasions, however, where the record does not indicate the standard applied by a state trial judge, he is presumed to have applied the correct one. See Marshall v. Lonberger, supra, at 433; LaVallee v. Delle Rose, 410 U. S. 690, 694-695 (1973); Townsend v. Sain, 372 U. S. 293, 314-315 (1963). Here, in addition, there is every indication that the judge indeed applied the correct standard. Although the judge did not participate in questioning venireman Colby, the record shows that on several subsequent occasions during voir dire he did participate in questioning. On each of those occasions the judge asked
Respondent‘s second contention is that the colloquy between the prosecutor and Colby is simply too ambiguous to support the trial court‘s decision to excuse her. Respondent claims that the ambiguity he sees is due to the prosecutor‘s use of the word “interfere” in his questioning of Colby; merely because juror Colby affirmed that her views would
If we were so brash as to undertake a treatise on synonyms and antonyms, we would agree that the dictionary definitions of “interfere” are not identical with the dictionary definitions of “prevent.” But that, of course, is not the question. The fact that a particular verb is used in a key passage of an appellate opinion stating the standard for excusing jurors for cause does not mean that that word, and no other, must be used in all the thousands of subsequent proceedings in which the prosecution challenges jurors for cause. The law is stated in an opinion such as Adams; but the question in subsequent cases is whether a trial court finding that the standard was met is “fairly supported” by the “record . . . considered as a whole . . . .” The standard in this case is the easily understood one enunciated in Adams; whether the juror‘s views “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” 448 U. S., at 45. Relevant voir dire questions addressed to this issue need not be framed ex-
As we emphasized in Marshall v. Lonberger, 459 U. S., at 432, the question is not whether a reviewing court might disagree with the trial court‘s findings, but whether those findings are fairly supported by the record. Here we think there is ample support for the trial court‘s finding that Colby‘s views would have prevented or substantially impaired the performance of her duties as a juror. On four separate occasions she affirmed that her beliefs would interfere with her sitting as a juror. One common meaning of “interfere” is to “create an obstacle.” Respondent argues that in Colby‘s case, the obstacle was not insurmountable; but the trial court found to the contrary. As we stated in Marshall v. Lonberger, supra, at 434:
“As was aptly stated by the New York Court of Appeals, although in a case of rather different substantive nature: ‘Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth. . . . How can we say the judge is wrong? We never saw the witnesses. . . . To the sophistication and sagacity of the trial judge the law confides the duty of appraisal.’ Boyd v. Boyd, 252 N. Y. 422, 429, 169 N. E. 632, 634.”
Thus, whatever ambiguity respondent may find in this record, we think that the trial court, aided as it undoubtedly was by its assessment of Colby‘s demeanor, was entitled to resolve it in favor of the State. We note in addition that respondent‘s counsel chose not to question Colby himself, or to object to the trial court‘s excusing her for cause. This
Respondent‘s attempt to separate the answers from the questions misses the mark; the trial court, hopefully imbued with a fair amount of common sense as well as an understanding of the applicable law, views the questioning as a whole. It is free to interrupt questioning to clarify any particular statement. There is nothing in this record which indicates that anybody had trouble understanding the meaning of the questions and answers with respect to Colby. One of the purposes of
The trial court‘s finding of bias was made under the proper standard, was subject to
It is so ordered.
JUSTICE STEVENS, concurring in the judgment.
Because the Court‘s opinion contains so much discussion that is unnecessary to the resolution of this case, I am unable to join it.1 Much of that discussion is inconsistent with the standard announced in Adams v. Texas, 448 U. S. 38 (1980), which the entire Court continues to endorse today.2 The majority, however, does identify the facts that are critical to a proper disposition of this case.3
Defense cоunsel did not object to the exclusion of venireman Colby and made no attempt, either by cross-examination or in colloquy with the court, to demonstrate that she could properly serve as a juror, or that defendant wanted her to serve. The entire examination of Colby, who was the first prospective juror to be specifically questioned about her views on the death penalty, consists of the few lines quoted by the Court. Ante, at 415-416. The contrast between defense counsel‘s silence when Colby was excused, and his reaction to the prosecutor‘s motion to excuse venireman Kazmierczak is illuminating.
After answering several questions of the prosecutor, juror Kazmierczak stated: “I don‘t think [my views on the death penalty] would interfere with the guilt or innocence of the person, but the decision of what guilt and what the outcome would be for his destiny, I could not go along with the death penalty.” Tr. 273. When the prosecutor later moved to excuse her for cause, defense counsel objected, further questioning ensued, and when the trial court expressed concern “that you have a state of mind that might make you unable to follow the law of this State,” Kazmierczak unequivocally responded: “I could not bring back a death penalty.” Id., at 341. The record thus demonstrates that defense counsel wanted Kazmierczak to serve as a juror, but that she was properly excused.
Defense counsel‘s objection to the excusing of Kazmierczak, notwithstanding her stronger testimony indicating bias, lends credence to the hypothesis that competent trial counsel could well have made a deliberate decision not to object to the exclusion of Colby because he did not want her
Accordingly, I concur in the Court‘s judgment.7
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would affirm the judgment of the Court of Appeals for the Eleventh Circuit to the extent it vacates respondent Johnny Paul Witt‘s sentence of death. Even if I thought otherwise, however, I would vote to affirm the decision below in this case. If the presently prevailing view of the Constitution is to permit the State to exact the awesome punishment of taking a life, then basic justice demands that juries with the power to decide whether a capital defendant lives or dies not be poisoned against the defendant.
The Sixth Amendment jury guarantee “reflect[s] a profound judgment about the way in which law should be enforced and justice administered. . . . Providing an accused with the right to be tried by a jury of his peers [gives] him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” Duncan v. Louisiana, 391 U. S. 145, 155-156 (1968). In Witherspoon v. Illinois, 391 U. S. 510, 521 (1968), the Court recognized that the voir dire practice of “death qualification“—the exclusion for cause, in capital cases, of jurors opposed to capital punishment—can dangerously erode this “inestimable safeguard” by creating unrepresentative juries “uncommonly willing to condemn a man to die.” See also Adams v. Texas, 448 U. S. 38, 44-45, 48-50 (1980). To protect against this risk, Witherspoon and its progeny have required the State to make an exceptionally strong showing that a prospective juror‘s views about the death penalty will result in actual bias toward the defendant before рermitting exclusion of the juror for cause.
The Court of Appeals below correctly applied the stringent Witherspoon standards to the voir dire colloquy between the prosecutor and prospective juror Colby. Reversing this decision, the Court today abandons Witherspoon‘s strict
I
A
Because the Court is not forthright about the extent to which today‘s decision departs from Witherspoon and its progeny, and because the Court does not even acknowledge the constitutional rights Witherspoon is meant to protect, a detailed exposition of Witherspoon v. Illinois is in order.
In the typical case not involving the possibility of a death penalty, the State is given significant leeway to exclude for cause those jurors who indicate that various circumstances might affect their impartiality.4 Broad exclusion is generally permitted even though some such jurors, if pressed further on voir dire, might be discovered to possess the ability to lay aside their prejudices and judge impartially. Although, as we held in Witherspoon, exclusion on “any broader basis” than a juror‘s unambiguously expressed inability to follow instructions and abide by an oath serves no legitimate state interest, 391 U. S., at 522, n. 21, such broader exclusion is typically permitted for the sake of convenience because it disserves no interest of the defendant.
The Court‘s crucial perception in Witherspoon was that such broad exclusion of prospective jurors on the basis of the possible effect of their views about capital punishment infringes the rights of a capital defendant in a way that broad exclusion for indicia of other kinds of bias does not. No systemic skew in the nature of jury composition results from exclusion of individuals for random idiosyncratic traits likely
This perception did not, however, lead us to ban all inquiry into a prospective juror‘s views about capital punishment. We also acknowledged, as the Court today correctly points out, that the State‘s legitimate interest in an impartial jury encompasses the right to exclude jurors whose views about capital punishment would so distort their judgment that they could not follow the law. Witherspoon accommodated both the defendant‘s constitutionally protected rights and the State‘s legitimate interests by permitting the State to exclude jurors whose views about capital punishment would
Three important consequences flow from Witherspoon‘s stringent standard for exclusion. First, it permits exclusion only of jurors whose views would prevent or substantially impair them from following instructions or abiding by an oath, and not those whose views would simply make these tasks more psychologically or emotionally difficult, nor those whose views would in good faith color their judgment of what a “reasonable doubt” is in a capital case. Adams v. Texas, 448 U. S., at 48-51. Second, it precludes exclusion of jurors
These restrictions not only trace narrowly the compass of permissible exclusion but also allocate to the State the cost of unavoidable uncertainty with respect to whether a prospective juror with scruples about capital punishment should be excluded. They do so in much the same way, and for much the same reason, that the “proof beyond a reasonable doubt” standard of guilt allocates to the State the cost of uncertainty with respect to whether a particular defendant committed a crime. See In re Winship, 397 U. S. 358, 370-373 (1970) (Harlan, J. concurring). At voir dire some prospective jurors may make clear that their opposition to capital punishment will color their judgment but may not make clear whether the effect will rise to the level of “conscious distortion or bias.” Adams v. Texas, supra, at 46. Many others will not bring to the voir dire a considered position about capital punishment and thus may respond with uncertainty, ambiguity, evasion, or even self-contradiction during the death-qualification process. When the time for decision arrives such jurors might or might not turn out to be so affected by the prospect of a death sentence in the case before them that they render a biased judgment; typically neither eventuality can bе divined at the voir dire stage.
If under our Constitution we viewed the disadvantage to the defendant from exclusion of unbiased prospective jurors opposed to the death penalty as equivalent to the disadvantage to the prosecution from inclusion of a biased prospective juror, then the law would impose no particular burden favoring or disfavoring exclusion. Because—at least until
Later cases came to see the essence of Witherspoon as being embedded in the language of footnote 21 of that case. See Adams v. Texas, supra; Boulden v. Holman, supra; Maxwell v. Bishop, supra. The crucial portion of the footnote reads:
“[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant‘s guilt.” Witherspoon, 391 U. S., at 522-523, n. 21 (emphasis in original).
This particular two-part inquiry, as the Court today correctly notes, ante, at 419, carries no talismanic significance. Its purpose is to expose the ability vel non of a juror to follow
That permissible Witherspoon inquiries may depart from the language of footnote 21 does not mean, however, that the State may ignore Witherspoon‘s strict standards of proof for exclusion when a different form of inquiry is put to the prospective juror. We have repeatedly stressed that the essence of Witherspoon is its requirement that only jurors who make it unmistakably clear that their views about capital punishment would prevent or substantially impair them from following the law may be excluded. Maxwell v. Bishop, 398 U. S. 262 (1970); Boulden v. Holman, 394 U. S. 478 (1969). Thus in summarily reversing several state-court decisions, this Court invalidated death sentences imposed by juries from which jurors had been excluded because their voir dire responses indicated ambiguity or uncertainty as to whether their views about capital punishment would affect their ability to be impartial. Pruett v. Ohio, 403 U. S. 946 (1971), rev‘g 18 Ohio St. 2d 167, 248 N. E. 2d 605 (1969); Adams v. Washington, 403 U. S. 947 (1971), rev‘g 76 Wash. 2d 650, 458 P. 2d 558 (1969); Mathis v. New Jersey, 403 U. S. 946 (1971), rev‘g 52 N. J. 238, 245 A. 2d 20 (1968). And in Lockett v. Ohio, supra, we approved exclusions because the excused prospective jurors had made it “unmistakably clear” that
B
A comprehensive understanding of the principles of Witherspoon makes clear that the decision of the Court of Appeals below was correct. The court below faithfully sought to implement Witherspoon‘s accommodation of the interests of the defendant in avoiding a jury “‘uncommonly willing to condemn a man to die,‘” 714 F. 2d 1069, 1076-1080 (1984) (quoting Witherspoon, supra, at 521), and of the State in “the necessity of excusing for cause those prospective jurors who, because of their lack of impartiality from holding unusually strong views agаinst the death penalty, would frustrate a state‘s legitimate effort to administer an otherwise constitutionally valid death penalty scheme.” 714 F. 2d, at 1076-1080. Following Adams v. Texas, supra, the court below articulated an accurate understanding of the stringent burdens of proof Witherspoon places on the State:
“[A] prospective juror must be permitted great leeway in expressing opposition to the death penalty before he or she qualifies for dismissal for cause. A prospective juror may even concede that his or her feelings about the death penalty would possibly color an objective determination of the facts of a case without admitting of the necessary partiality to justify excusal.” 714 F. 2d, at 1076-1080.
See Adams v. Texas, supra, at 49-50.
Applying this correct understanding of the law to the colloquy between the prosecutor and prospective juror Colby, the court held that Colby‘s “statements fall far short of the cer-
“The word ‘interfere’ admits of a great variety of interpretations, and we would find it quite unnatural for a person, who has already expressed her concern about the death penalty, to respond otherwise than that her feelings would ‘interfere’ with, ‘color,’ or ‘affect’ her determinations. Such a response does not indicate an inability, in all cases, to apply the death sentence or to find the defendant guilty where such a finding could lead to capital punishment because it fails to reflect the profundity of any such ‘interference.‘” Ibid.
Though critical of the prosecutor‘s decision to fashion his questioning around the word “interfere,” the cоurt below did not base its decision on this divergence from the precise inquiry of Witherspoon‘s footnote 21. 714 F. 2d, at 1083.7 Rather, the court relied on Witherspoon‘s stringent standards of proof in deciding that the exclusion of Colby was improper. Colby‘s statement that she thought her personal views about capital punishment might interfere with “judg-
II
A
Adams v. Texas, supra, is, ironically, precisely the authority the Court today invokes to reverse the Court of Appeals below. In what must under the circumstances be taken as a tacit admission that application of Witherspoon‘s stringent standards of proof would validate the decision of the Court of Appeals, the Court casts Adams as a substantial retrenchment; “the standard applied in Adams,” claims the Court, “differs markedly from the language of footnote 21 [of Witherspoon].” Ante, at 421. To the extent the Court reads Adams as eschewing unthinking adherence to the particular two-part inquiry propounded in footnote 21, I have no quarrel. See supra, at 445-446. The Court, however, purports to find in Adams a renunciation of Witherspoon‘s stringent standards of proof. Ante, at 421 (“[G]one too is the extremely high burden of proof“). In essence the Court reads Adams as saying that there is no constitutional distinction between exclusion for death penalty bias and exclusion for other types of bias. See Patton v. Yount, 467 U. S. 1025 (1984). Had the Court of Appeals understood that this more lenient exclusion standard governed, today‘s opinion asserts, it would have realized that the state trial court‘s voir dire excusal of Colby should not be disturbed.
Adams did not, however, desert the principles of Witherspoon. It is the Court‘s brazenly revisionist reading of Adams today that leaves Witherspoon behind. JUSTICE REHNQUIST, dissenting from Adams, thought the opinion of the Court “expand[ed]” the scope of Witherspoon‘s restrictions. 448 U. S., at 52. Virtually all federal and state
One need look no further than the text of Adams to understand why it has been perceived until today as consistent with Witherspoon. Adams quoted Witherspoon‘s footnote 21 with approval and stated that the test in that footnote was “clearly designed” to accommodate both the State‘s interest and the defendant‘s interest. Adams, supra, at 44. Reaffirming that Witherspoon must be seen as “a limitation on the Statе‘s power to exclude,” Adams held that “if prospective jurors are barred from jury service because of their views about capital punishment on ‘any broader basis’ than inability to follow the law or abide by their oaths, the death sentence cannot be carried out. Witherspoon v. Illinois, 391 U. S., at 522, n. 21.” 448 U. S., at 48. In holding that the State may exclude only those whose views about capital punishment “would prevent or substantially impair” their ability to follow instructions and abide by an oath, id., at 45, the Court made clear that the State may exclude only jurors whose views would lead to “conscious distortion or bias.” Id., at 46 (emphasis added).
Nothing in Adams suggests that the Court intended to abandon Witherspoon‘s strict standards of proof. The Court‘s intent to reaffirm these standards is evident in its approving quotation of the “unmistakably clear” language of
Adams was true to Witherspoon‘s recognition that the
B
Rewriting Adams to suit present purposes, the Court has of course relieved itself of much of its burden of justification; invoking precedent, the Court dodges the obligation to provide support for its decision to deprive the capital defendant of protections long recognized as fundamental. Nonetheless, perhaps in tacit recognition that today‘s departure calls for an explanation, the Court has offered three reasons for preferring what it misleadingly calls the “Adams test.” Ante, at 421. Stripped of their false lustre of precedential force, these justifications neither jointly nor severally support the Court‘s abandonment of Witherspoon.
The Court‘s first justification is linked to changes in the role of juries in capital cases. Because jurors no longer have the unfettered discretion to impose or withhold capital punishment that they had in Illinois and other States at the time of Witherspoon, the Court asserts, there is no longer any reason to require empaneling of jurors who will merely consider a sentence of death under some circumstances. The Statе
More to the point, this reasoning does not in any way justify abandonment of the restrictions Witherspoon has placed on the exclusion of prospective jurors. Without a doubt, a State may inquire whether a particular juror will be able to follow his or her oath to abide by the particulars of a guided discretion sentencing approach, and upon receiving an unmistakably clear negative response the State may properly move to exclude that juror. Lockett v. Ohio, supra, at 595-596. But the existence of a guided discretion scheme in no way diminishes the defendant‘s interest in a jury composed of a fair cross section of the community and a jury not “uncommonly willing to condemn a man to die.” Witherspoon v. Illinois, 391 U. S., at 521. Even under a guided discretion proceeding a juror must have the opportunity to consider all available mitigating evidence, Eddings v. Oklahoma, 455 U. S. 104 (1982), and to decide against imposition of the death sentence in any individual case, Woodson v. North Carolina, 428 U. S. 280 (1976). Under our
“who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected . . . would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.” Id., at 50.
The risks that Witherspoon sought to minimize through defining high standards of proof for exclusions based on death penalty scruples are, we correctly held in Adams, equally prevalent in the context of guided discretion sentencing schemes.
As a second justification for the so-called “Adams test” the Court serves up the claim that Witherspoon‘s footnote 21 approach was dictum. That footnote 21 might have been dictum is not, of course, an affirmative reason for adopting the particular alternative the Court advances today. Were the claim correct it would merely leave more leeway to depart from the Witherspoon restrictions. More importantly, the label “dictum” does not begin to convey the status that the restrictions embodied in footnote 21 have achieved in this Court and state and federal courts over the last decade and a half. See supra, at 445, 450-451. From Boulden v. Holman, 394 U. S. 478 (1969), and Maxwell v. Bishop, 398 U. S. 262 (1970), through Adams, supra, this Court has applied the strict burdens of proof of Witherspoon‘s footnote 21 to invalidate sentences imposed by juries from which scrupled jurors had been too readily excluded. The Court concedes as much at another point in its opinion when it
The Court‘s third proffered justification is that the so-called “Adams standard . . . is in accord with the traditional reasons for excluding jurors and with the circumstances under which such determinations are made.” Ante, at 423. In essence, the Court argues that the so-called Adams standard should be followed because it excludes jurors for bias on the same grounds and using the same standards as would be used for exclusion based on any other type of bias: “exclu[sion of] jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias . . . .” Ante, at 429. This position is at the core of the Court‘s holding in this case, but between this position and the basic principles of Witherspoon lies an unbridgeable chasm.
The crux of Witherspoon was its recognition of a constitutionally significant distinction between exclusion of jurors opposed to capital punishment and exclusion of jurors for the “innumerable other reasons which result in bias.” Ante, at 429. The very nature of a Witherspoon challenge illuminates the difference. In typical cases involving an allegation of juror bias unrelated to death penalty scruples, the convicted defendant challenges the inclusion of particular jurors. E. g., Patton v. Yount, 467 U. S. 1025 (1984); Smith v. Phillips, 455 U. S. 209 (1982). In a Witherspoon case the convicted defendant challenges the exclusion of particular jurors. If, as the Court suggests, the only interest at stake in a Witherspoon case is the equivalent right of the defendant and the State to impartial individual jurors, ante, at 423, then the entire thrust of the Witherspoon inquiry makes no sense. To be relevant to the right the Court claims is at stake, the inquiry would have to focus on whether the individual jurors who replaced the excluded prospective jurors were impartial; if so, then no harm would result from the exclusion of particular prospective jurors, whatever the reason for the exclusion.
The Court today eliminates both protections. It rejects the rule that stricter standards govern death-qualification, and as a justification for doing so indulges precisely the presumption of bias Witherspoon prohibited: “we do not think, simply because a defendant is being tried for a capital crime, that he is entitled to a legal presumption or standard that allows jurors to be seated who quite likely will be biased in his favor.” Ante, at 423 (emphasis added). The trick in the majority opinion should by now be clear. The Court simply refuses to recognize the constitutional rights Witherspoon‘s stringent standards of proof were designed to safeguard. The Court limits the
This bit of legerdemain permits the Court to offer an easy analogy to exclusion for other types of bias and argue that
III
Witherspoon, as the foregoing discussion makes clear, is best understood in the context of our cases preserving the integrity of the jury both as an impartial factfinder and as the voice of the community. As such the protection of Witherspoon‘s stringent standards of proof could not be more important to the capital defendant:
“The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. . . . Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one
judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.” Duncan v. Louisiana, 391 U. S. 145, 155-156 (1968) (footnote omitted).
Crucial to the jury right is the requirement that “the jury be a body truly representative of the community.” Smith v. Texas, 311 U. S. 128, 130 (1940). As we said in Taylor v. Louisiana, 419 U. S. 522, 530 (1975), “[t]his prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool.” Id., at 530. The death-qualification process is fraught with threats to these constitutional guarantees.10
The risk of the “overzealous prosecutor and . . . the compliant, biased, or eccentric judge,” Duncan v. Louisiana, supra, at 156, is particularly acute in the context of a capital case. Passions, as we all know, can run to the extreme when the State tries one accused of a barbaric act against society, or one accused of a crime that—for whatever reason—inflames the community. Pressures on the government to secure a conviction, to “do something,” can overwhelm even those of good conscience. See Patton v. Yount, 467 U. S., at 1053 (STEVENS, J., dissenting). When prosecutors and judges are elected, or when they harbor political ambitions, such pressures are particularly dangerous. Cf. Spaziano v. Florida, 468 U. S. 447, 467 (1984) (STEVENS, J., concurring in part and dissenting in part). With such pressures invariably being brought to bear, strict controls on the death-
Broad death-qualification threatens the requirement that juries be drawn from a fair cross section of the community and thus undermines both the defendant‘s interest in a representative body and society‘s interest in full community participation in capital sentencing. “One of the most important
That the Court would be willing to place the life of this capital defendant, and all others, in the hands of a skewed jury is unpardonable. Of perhaps equal gravity are the implications of today‘s opinion for the established right of every criminal defendant to a jury drawn from a fair cross section of the community. Taylor v. Louisiana, supra. If, as the Court suggests, the
IV
Though the unexplained evisceration of Witherspoon‘s protections of a capital defendant‘s
Had the Court maintained Witherspoon‘s strict standards for death-qualification, there would be no question that trial-court decisions to exclude scrupled jurors would not be questions of fact subject to the presumption of correctness. Whether a prospective juror with qualms about the death penalty expressed an inability to abide by an oath with sufficient strength and clarity to justify exclusion is certainly a “mixed question“—an application of a legal standard to undisputed historical fact. Even if one were to accept the Court‘s redefinition of the proper standards for death-qualification, it would not follow that the Court‘s holding with respect to the applicability of
V
Today‘s opinion for the Court is the product of a saddening confluence of three of the most disturbing trends in our constitutional jurisprudence respecting the fundamental rights of our people. The first is the Court‘s unseemly eagerness to
Notes
I do agree with the Court‘s observation that dictum is not binding in future cases. See ante, at 422.
The Court has depicted the lurid details of respondent Witt‘s crime with the careful skill of a pointillist. Had the Court been equally diligent in rendering the holding below, it might not have neglected to mention that, as in every case of a violation of Witherspoon v. Illinois, 391 U. S. 510 (1968), only the defendant‘s death sentence and not his conviction was vacated. However heinous Witt‘s crime, the majority‘s vivid portrait of its gruesome details has no bearing on the issue before us. It is not for this Court to decide whether Witt deserves to die. That decision must first be made by a jury of his peers, so long as the jury is impartial and drawn from a fair cross section of the community in conformity with the requirements of the Sixth and Fourteenth Amendments.
The Court, ante, at 423, expressly endorses the following statement in the Adams opinion:
“As an initial matter, it is clear beyond a peradventure that Witherspoon is not a ground for challenging any prospective juror. It is rather a limitation on the State‘s power to exclude: if prospective jurors are barred from jury service because of their views about capital punishment on ‘any broader basis’ than inability to follow the law or abide by their oaths, the death sentence cannot be carried out.” 448 U. S., at 47-48.
JUSTICE BRENNAN, in his dissent today, also endorses that standard. See post, at 450 (BRENNAN, J., joined by MARSHALL, J., dissenting).
Witherspoon held that a sentence of death imposed by such a jury violated the Sixth Amendment, but, because the evidence was fragmentary at that time, declined to hold that an underlying conviction by such a jury was also unconstitutionally infirm because the jury would be conviction-prone. Id., at 517-518. See n. 11, infra.
“Defense counsel did not object or attempt rehabilitation.” Ante, at 416.
“In this regard it is noteworthy that in this case the court was given no reason to think that elaboration was necessary; defense counsel did not see fit to object to juror Colby‘s recusal, or to attempt rehabilitation.” Ante, at 430-431.
“Nevertheless, counsel‘s failure to speak in a situation later claimed to be so rife with ambiguity as to constitute constitutional error is a circumstance we feel justified in considering when assessing respondent‘s claims. We note that since Witt was decided by the Florida Supreme Court that court has enforced a contemporaneous-objection rule when dealing with Witherspoon [v. Illinois, 391 U. S. 510 (1968),] challenges. See Brown v. State, 381 So. 2d 690, 693-694 (Fla. 1980).” Ante, at 431, n. 11.
“We note in addition that respondent‘s counsel chose not to question Colby himself, or to object to the trial court‘s excusing her for cause. This
See Gross, Determining the Neutrality of Death-Qualified Juries, 8 Law and Human Behavior 7, 26-28 (1984).
As I have previously suggested, the absence of аn objection at trial sheds important light on the significance of an alleged constitutional error even when it does not create an absolute procedural bar to review. Engle v. Isaac, 456 U. S. 107, 136, n. 1 (1982) (STEVENS, J., concurring in part and dissenting in part) (“The failure to object generally indicates that defense counsel felt that the trial error was not critical to his client‘s case; presumably, therefore, the error did not render the trial fundamentally unfair“); Wainwright v. Sykes, 433 U. S. 72, 96 (1977) (STEVENS, J., concurring) (“The record persuades me that competent trial counsel could well have made a deliberate decision not to object to the admission of the respondent‘s in-custody statement“).
See generally 2 W. Lafave & J. Israel, Criminal Procedure § 21.3 (1984).
Earlier in the voir dire, Colby had been repeatedly admonished to speak louder, Tr. 237-238, and her demeanor in answering several of the prosecutor‘s questions may have indicated to counsel that it would be inconvenient for her to serve on the jury: “Well, it will cause me to lose my work. This is all. . . . I have made plans—of course, this is a [holiday] as far as the post office is concerned—so I was off today.” Id., at 238. She added that she could make arrangements to serve on the jury, “if I have to.” Id., at 239.
In Witherspoon the Court defined the excludable class as those whose views would “prevent” impartiality. 391 U. S., at 522, n. 21. Adams v. Texas, 448 U. S. 38 (1980), defined the excludable class as those whose views would prevent or substantially impair impartiality. Id., at 45. This variation is not significant; the primary focus of the Witherspoon inquiry, as Adams made clear, remains on whether the prospective juror can follow instructions and abide by an oath. Adams, supra, at 45, 49-50.
“THE COURT: Well, the law requires that we have to have a definite answer.
“[A]: I understand, right.
“THE COURT: Because the law does allow people to be excused because of certain beliefs that could be prejudicial or biased for one side or the other, and both sides just want to know if you can keep an open mind, consider the entire full range of punishment, whatever that may be, and under the proper set of circumstances, if they do exist and you feel they exist, that you could return that verdict. And that‘s in essence what they‘re asking.
“[A]: Indirectly, I guess I would have to say no.
“THE COURT: You could not?
“[A]: I would have to say no then, to give you a yes or no answer.
“THE COURT: Then, am I to believe by virtue of that answer that regardless of what the facts would reveal, regardless of how horrible the circumstances may be, that you would automatically vote against the imposition of the death penalty?
“[A]: As I say, I don‘t know.
“THE COURT: Well, that‘s the question I have to have a yes or no to.
“[A]: Right.
“THE COURT: And you‘re the only human being alive who knows, Mr. Pfeffer.
“[A]: Right, I understand. If I have to make a choice between yes and no, I would say I couldn‘t make the judgment.‘”
Some period later, juror Pfeffer gave the following answer:
“THE COURT: You yourself are in such a frame of mind that regardless of how horrible the facts and circumstances are, that you would automatically vote against the imposition of the death penalty? Is that correct?
“[A]: Well, if it says a yes or no, I would have to say yes, I would automatically vote against, to give a correct answer.”
See Rose v. Lundy, 455 U. S. 509, 544-545 (1982) (STEVENS, J., dissenting).
At the time of Witherspoon Illinois left to the complete discretion of the jury the choice whether a convicted capital defendant lived or died. Thus any juror who would consider the death penalty under some circumstances—who, in other words, would not automatically vote against it—could abide by the instructions and oath in Illinois at the time. Witherspoon, 391 U. S., at 519-520.
“In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other rеliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
“(1) that the merits of the factual dispute were not resolved in the State court hearing;
“(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
“(3) that the material facts were not adequately developed at the State court hearing;
“(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;“(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
“(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
“(7) that the applicant was otherwise denied due process of law in the State court proceeding;
“(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
“And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraрhs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.”
I should note that the defense counsel also did not object to the exclusion of either venireman Gehm or Miller. When Gehm was asked whether he could keep an open mind as to whether to vote for the death penalty or life, he responded: “No, I could not.” Tr. 296. The most relevant portion of Miller‘s examination reads as follows:
“[Q]: And you wouldn‘t be able to follow the law as instructed by the Court?
“[A]: When it comes down to a death penalty, I wouldn‘t.
“[Q]: You could not do it. Okay. Regardless of the law?
“[A]: No, sir.” Id., at 356.
The opinion of this Court suggests that the court below, slavishly devoted to the precise wording of Witherspoon‘s footnote 21, invalidated the exclusion because the prosecutor used the word “interfere” instead of footnote 21‘s language. Ante, at 432-434. The most cursory reading of the court‘s opinion belies this representation of the decision as turning on a semantic quibble about “synonyms and antonyms.” Ante, at 433. In rejecting precisely this argument bеlow, the Court of Appeals explicitly stated that it based its decision on an evaluation of the “totality of the circumstances.” 714 F. 2d, at 1083. Its evaluation involved far more than the form of the question, and the opinion criticized the form of the question only insofar as it failed to elicit a degree of certainty sufficient to permit exclusion under Witherspoon.
Reversing the Court of Appeals below, this Court places some weight on, and JUSTICE STEVENS concurring in the judgment gives determinative weight to, the fact that Witt‘s counsel did not object to the exclusion of prospective juror Colby. See ante, at 430-431, and n. 11, 434-435; ante, at 437-438 (STEVENS, J., concurring in judgment). Because the state courts did not enforce a contemporaneous-objection bar and thus ruled on Witt‘s claimed Witherspoon violation, the federal courts were of course free to consider the claim on a petition for habeas corpus. Ulster County Court v. Allen, 442 U. S. 140, 154 (1979). Nonetheless the Court relies on the failure to object either as evidence that Colby was not ambiguous in expressing her views, ante at 431, n. 11, or to suggest that defense counsel had some duty to attempt rehabilitation in order to resolve any ambiguities in Colby‘s testimony, ante, at 434-435. JUSTICE STEVENS relies on the failure to object as proof sufficient to rebut the argument that “the State‘s failure to make the kind of record required by Adams v. Texas constitutes an error so fundamental that it infects the validity of the death sentence in this case.” Ante, at 438 (concurring in judgment).
With respect to the Court‘s reliance on the failure to object, counsel‘s failure could be evidence of no more than a lack of competence or attentiveness. And I fail to see how any demeanor evidence, the existence of which the Court infers from counsel‘s silence, could turn Colby‘s statement that she thought her views about capital punishment might interfere with her ability to judge guilt or innocence into an unmistakably clear declaration that she would be unable to follow instructions and abide by an oath. In any event, Witherspoon placed on defense counsel no burden to rehabilitate an ambiguous venireperson. As the Court of Appeals correctly held below, unless the prosecution resolves ambiguity to the extent of showing an unmistakably clear inability to follow the law, the juror may not be excluded.
With respect to the form of “harmless error” analysis in JUSTICE STEVENS’ separate opinion, this Court has held on direct review that the improper exclusion of one prospective juror under Witherspoon precludes imposition of the death penalty irrespective of who replaces that prospec-
“[T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case.”
The Court recognizes that most juror responses to death-qualifications will be ambiguous, in large part because “veniremen may not know how they will react when faced with imposing the death sentence . . . .” Ante, at 425. Nevertheless, the Court goes on to ascribe to the trial judge the power to divine through demeanor alone which of such jurors “would be unable to faithfully and impartially apply the law,” ante, at 426, and requires deference to the trial-court decisions to exclude for this reason. Not surprisingly, the Court provides no support for the rather remarkable assertion that a judge will, despite ambiguity in a juror‘s response, be able to perceive a juror‘s inability to follow the law and abide by an oath when the juror himself or herself does not yet know how he or she will react to the case at hand.See, e. g., the questioning of Ms. Kazmierczak:
“THE COURT: Wait a minute, ma‘am. I haven‘t made up my mind yet. Just have a seat. Let me ask you these things. Do you have any prefixed ideas about this case at all?
“[A]: Not at all.
“THE COURT: Will you follow the law that I give you?
“[A]: I could do that.
“THE COURT: What I am concerned about is that you indicated that you have a state of mind that might make you be unable to follow the law of this State.
“[A]: I could not bring back a death penalty.
“THE COURT: Step down.” Tr. 341.
and the questioning of Mrs. Hill:
“THE COURT: Well, ma‘am, what I am concerned about is whether or not you will render a fair and impartial verdict, whether you have any prefixed ideas about this case, and whether you will follow the law. That‘s the whole shebang right there.
“[A]: I would give a true verdict. I mean, I wouldn‘t—I can do that.
“THE COURT: Well, from what you are saying, I have some concern. Will you follow the law in this case?
“[A]: Pardon?
“THE COURT: Will you follow the law in this case?
“[A]: Yes, unless it was that I had to give a death sentence. I couldn‘t do that.” Id., at 372.
Respondent seeks affirmance of the judgment of the Court of Appeals on the alternative ground that the Supreme Court of Florida at the time of his appeal of his conviction was engaged in soliciting and receiving psychiatric, psychological, and other reports concerning the mental condition and backgrounds of individuals sentenced to death which had not been introduced in the trial proceedings. In Ford v. Strickland, 696 F. 2d 804, 811 (CA11), cert. denied, 464 U. S. 865 (1983), a majority of the Court of