NCJ Number
55895
Date Published
1978
Length
20 pages
Annotation
IN WITHERSPOON V. ILLINOIS (1968) THE U.S. SUPREME COURT BARRED CHALLENGES FOR CAUSE JUST BECAUSE OF A JUROR'S OPPOSITION TO THE DEATH PENALTY. WAYS THE DEFENSE LAWYER CAN USE WITHERSPOON IN JURY SELECTION ARE REVIEWED.
Abstract
A MAJOR PROBLEM FACING THE DEFENSE IS THAT THOSE WHO FIRMLY BELIEVE IN THE DEATH PENALTY OFTEN FEEL A NEAR MESSIANIC DUTY TO SERVE AND CAREFULLY ANSWER THE COURT'S QUESTIONING TO ENSURE THEY WILL SERVE, WHILE THOSE WHO ARE OPPOSED ARE VERY OPEN IN THEIR OPPOSITION AND ARE EASY TARGETS FOR PROSECUTION CHALLENGES. IN WITHERSPOON THE U.S. SUPREME COURT HELD THAT A JUROR WHO WAS OPPOSED TO THE DEATH PENALTY COULD BE EXCUSED ONLY IF (1) THE ATTITUDE AGAINST THE DEATH PENALTY WAS SO FIXED THAT, IRRESPECTIVE OF ANY EVIDENCE, THE JUROR WOULD AUTOMATICALLY VOTE AGAINST THE DEATH PENALTY, AND (2) THE ATTITUDE WAS SUCH THAT A FAIR AND IMPARTIAL DECISION WITH RESPECT TO GUILT OR INNOCENCE COULD NOT BE MADE. MUCH CONTROVERSY SURROUNDS THE USE OF 'WITHERSPOON' QUESTIONS. SOME DEFENSE ATTORNEYS MOVE TO PROHIBIT ALL QUESTIONS ABOUT CAPITAL PUNISHMENT. THIS STRATEGY ALSO LIMITS THE DEFENSE AND SHOULD BE WEIGHED CAREFULLY. WITHERSPOON STATED THAT A JURY FROM WHICH ALL PERSONS OPPOSED TO CAPITAL PUNISHMENT WERE EXCLUDED WAS NEITHER IMPARTIAL NOR A CROSS-SECTION OF THE COMMUNITY. VARIOUS TECHNIQUES FOR INCORPORATING THIS POINT INTO PRETRIAL MOTIONS ARE EXPLAINED, WITH EXAMPLES DRAWN FROM CALIFORNIA LAW. IF UNLIMITED QUESTIONING IS ALLOWED ON THE DEATH PENALTY, THE DEFENSE IS WARNED TO QUESTION EACH OUT OF THE HEARING OF OTHER PROSPECTIVE JURORS TO AVOID CONTAMINATION OF THE PANEL. DEFENSE ATTORNEYS ARE ALSO URGED TO GAIN ACCESS TO THE PROSECUTOR'S 'JURY BOOK,' WHICH CONTAINS BACKGROUND INFORMATION ON PROSPECTIVE JURORS. (GLR)