Document Type


Publication Date

Fall 1995


Capital jurors, Death penalty, Capital punishment, Jury decision making, Capital Jury Project, Chicago Jury Project, Jury studies


Criminal Law | Criminal Procedure


In 1988 I concluded a review of what was then known about capital jury decision-making with the following observations: “[T]he penalty phase presents significant incongruities. The jurors are charged with representing the community's judgment, yet the voir dire and challenge processes have eliminated significant segments of the public from the jury. Jurors have been influenced by preceding events during voir dire questioning and the trial in pivotal ways, yet they are instructed to focus only on aggravating and mitigating evidence. They are told to ignore their emotions in perhaps one of the most emotionally charged decisions they will ever make, when a human life quite literally hangs in the balance. The court's assistance is limited to technical legal advice, likely to be mysterious and difficult to follow.... Whether the penalty phase jury is fully equipped to handle its burden remains an unanswered question.... [T]here are gaps in our knowledge of how the jury confronts the problem of deciding death.”

Seven years later, some of these gaps are being filled by the groundbreaking work of the Capital Jury Project. Not since the Chicago Jury Project of the 1950's has there been a comparable national study of jury decision-making. The Chicago Jury Project, sponsored by the Ford Foundation, was the first systematic empirical examination of the institution of the jury. It resulted in several books and scores of articles that greatly expanded our knowledge of the jury's decision-making process. Harry Kalven, Jr., and Hans Zeisel, two central figures of the Chicago Jury Project, described the results of their landmark study of judge-jury disagreement in the monograph The American Jury. It was a remarkable contribution and stimulated generations of scholars to undertake empirical work on the jury. In my view, the Capital Jury Project has similar potential. Its scope is broad and its potential for enhancing our theoretical understanding of juror decision-making is considerable. It promises to illuminate the now-mysterious processes by which jurors decide on life and death. Even at this relatively early stage, it is generating data and exciting new hypotheses that other scholars are discussing and debating. Indeed, the Capital Jury Project is likely to revolutionize our thinking not only about death penalty juries but also about our system of administering capital punishment.

Publication Citation

Published in: Indiana Law Journal, vol. 70, no. 4 (Fall 1995).