Document Type


Publication Date

Summer 2001


Voir dire in capital cases, Capital jurors, Capital punishment, Death penalty, Furman v. Georgia, Capital Jury Project, CJP


Applied Statistics | Criminal Procedure | Legal History


The conventional wisdom is that most trials are won or lost in jury selection. If this is true, then in many capital cases, jury selection is literally a matter of life or death. Given these high stakes and Supreme Court case law setting out standards for voir dire in capital cases, one might expect a sophisticated and thoughtful process in which each side carefully considers which jurors would be best in the particular case. Instead, it turns out that voir dire in capital cases is woefully ineffective at the most elementary task--weeding out unqualified jurors.

Empirical evidence reveals that many capital jurors are in fact unqualified to serve. Moreover, the ineffectiveness of the process is far from even-handed. A juror is not "death-qualified" if she would always vote against a death sentence, regardless of the circumstances, and a handful of the jurors who actually serve in capital cases are in fact unqualified for this reason. On the other hand, a juror is not "life qualified” if she would always vote for a death sentence upon the proof of capital murder; if she is a "burden shifter," a person who requires the defendant to demonstrate why she deserves to live; or because she is "mitigation impaired," a person who is unwilling to consider one or more mitigating factors that the Supreme Court has said jurors must be willing to consider. In contrast to the small number of "death unqualified" jurors who actually serve in capital cases, far larger numbers of jurors who are not "life qualified" serve in capital cases.

Part II of this article will summarize the law relevant to determining who is qualified to sit as a juror in a capital case, and then demonstrate the magnitude of the problem of unqualified jurors as revealed by the current empirical findings of capital juror studies. Part III then examines how and why voir dire malfunctions in capital cases, thereby allowing unqualified jurors to sentence defendants to death. Part IV will suggest several ways in which courts may help rectify the problem of the unconstitutional empanelment of jurors who are "uncommonly willing to condemn a man to die."

Publication Citation

Published in: Hofstra Law Review, vol. 29, no. 4 (Summer 2001).