Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor\u27s Council Report

Lyon, Andrea

English

Lyon, Andrea D.

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 80 | Issue 1 Article 12Winter 2005Negative Effects of Capital Jury SelectionAndrea D. LyonFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Courts Commons, Criminal Law Commons, and the Judges CommonsThis Symposium is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationLyon, Andrea D. (2005) "Negative Effects of Capital Jury Selection," Indiana Law Journal: Vol. 80: Iss. 1, Article 12.Available at: http://www.repository.law.indiana.edu/ilj/vol80/iss1/12INDIANA LAWJOURNALSecond, the recommendation that the police should audio- and videotapedefendant's statements should also lead to an increase in accuracy, because it willprovide better, more reliable evidence. And better evidence should have the effect ofdecreasing both false positives and false negatives. There are, of course, other costsassociatd with such proposals but they are outside my scope today. But viewed simplyas a maiter of enhancing accuracy, this proposal strikes me as quite commendable.I will conclude by simply noting that the fourth recommendation has a possibility ofraising some of these other issues but others here on the panel are going to discuss it inmore detail, so I will leave it to them. Thank you very much.THE NEGATIVE EFFECTS OF CAPITAL JURY SELECTIONAndrea D. LyonFirst, the burden of proof and $1.75 will get you on the bus. There is no such thingas a jury that presumes innocence. It is counterintuitive. It is not the way we think. Isthere anyone in this room who thinks Kenneth Lay is innocent of anything? When youstart out trying a death penalty case you have an awful crime that people are going tobe upset about; and a jury that thinks: "where there's smoke there's fire." The policewould not arrest someone who hadn't committed a crime. So increasing the burden ofproof is a nice thing to be able to say and may help ajuror who is trying to fend offtheother jurors. But in real life it is not going to make any difference, in my opinion. Myopinion is anecdotal perhaps, but it is informed by 132 murder trials that I've triedmyself.I also want to address the Report's failure to talk about not death qualifying jurors.The reason to have two juries would be to have a non-death qualified jury make adetermination as to guilt or innocence. The only reason to have a death-qualified jurywould be predicated on the theory that a juror who opposes the death penalty-whowould never give the death penalty and thus could not apply the law. The only law sucha juror couldn't apply is the law to impose the death penalty.If you're going to have two juries, and if that's an option, then the option shouldencompass the defendant's right to choose not to have a death-qualified jury decide ifhe did it or not. Let me tell you why we don't want that: the most errors get made in themost serious cases. A jury is far more likely to try to presume innocence when facedwith a burglary of an attached garage than if you're talking about a dead baby. Peoplefeel things about dead babies. I feel things about dead babies. Everyone does. And wecan all intellectualize all we want do, but we vote with our hearts first and then ourheads follow second.Thus, you end up with a jury from which the prosecution has been able to excuse-for cause-the jurors most likely to seriously question the evidence. That's whatconcerns me about this recommendation. A lot of these recommendations are great. Sowhen I pick out things to pick on, I'm simply picking on things, not saying that therearen't good things in here-there are. If the jury instruction idea would include thatthey should be written in English, preferably not by a committee of lawyers, that wouldbe good to. You have to be from Illinois to understand this problem. Our no-deathverdict is: "We, the jury, cannot unanimously find that there are no mitigating factors[Vol. 80:47PANEL TWO-THE CAPITAL JURYsufficient to preclude the imposition of death." Only a committee of lawyers couldwrite something that bad.What happens is you have a jury from which everyone who opposes the deathpenalty is excused for cause, from which everyone who waivers on it (if it was BinLaden, I could do it, but it would have to be that bad) gets excused peremptorily by theprosecution. It's been my experience that people who oppose the death penalty tend tobe pretty honest about it, but people who support it tend to lie and will say uponrehabilitation, "oh, sure, I'll consider mitigation if the judge tells me to."The death penalty is such a watershed political issue that it allows for theidentification ofjurors who are sympathetic to the prosecution point of view, the pro-authoritarian point of view. It removes people who have experiences in their lives thatcause them to just say, "hold on a minute, let's compare these two police officers'testimony and see if there are contradictions." These people get exposed and they'reremoved. So you are most likely to have the most inaccurate false positives, to borrowmy colleagues term here, in the most serious cases because everyone who is likely toquestion the facts has been removed for cause or peremptorily by the prosecution, whowant, as Judge Murphy pointed out, to win.Being a prosecutor has got to be the hardest thing in the world because you havetwo competing interests: doing justice and winning. In my experience, the ego thingtakes over. I'm talking to a lot of lawyers and law students at this conference, right?We are all laid back and not control freaks. We don't care who wins as long as thegame is played well? This is not human nature. Thus, I have real concerns about therecommendation that does not include not death qualifying the fact finding part. Thereare lots of different ways you could think about how to avoid this problem, like pickinga larger jury and death qualifying later. I wish the Commission had thought about thisproblem.I would also like to see a requirement of good jury selection. Jury selection isterribly idiosyncratic around the country. When I'm trying to explain to a client whatjury selection is, they think you just go out and pick them. They don't know that it's aprocess of elimination that is carried out in an intimidating courtroom environment,with a seal, and a person in a robe, and a bailiff who is ordering people around whilearmed. It's set up to scare you to death. As a result, jurors look for the "correct" answerto the question-the civics answer. So, ifajuror is asked by the judge if they will "holdit against the defendant if he doesn't testify if I tell you that the law is you can't hold itagainst him, will you follow the law?" The civics answer is: "No, I won't." But the realanswer is: "Yes, I will." So, you need to be able to ask those questions and ferret outwhether what you have is a challenge for cause or whether you need to exercise aperemptory on either side on many of these thorny issues that come up in criminalcases.So I would have liked the Report to address the concept of individual-sequestered,attorney-conducted voir dire. My experience is that at the beginning ofjury selectionthe attorneys and judge take their time and are careful; they give a lot more attention toprocedural protections. But once the knife is bloodied it becomes easier to kill, and thedynamic changes.As for the recommendations that require more skepticism when looking at evidence,I don't disagree with my colleague here on the panel. I don't think it is going to resultin a lot of acquittals. First of all, you don't get a lot of acquittals anyway. You do losecases, if you do defense work, because of presumption and because the police do catchthe right guy some of the time. But it is worthwhile to give jurors tools to2005]INDIANA LA WJOURNALcounterbalance the intuitive belief that the prosecutor's pointing of a finger counts asevidence. Because jurors simply believe identification testimony, it is important toexplain to them the ways in which to think about what could be wrong. Identificationtestimony has this aura of believability about it; and usually the witness believes itthemselves, even if they're wrong. You don't often have people getting up and saying,"I don't like your shirt so I'm going to just point at you and say you committed therobbery." Normally, by the time they get to court, through the process of suggestion,reassurance, et cetera, even if they're wrong, they believe they're right.Finally, I have to disagree with Professor Leipold about remorse. I know juries careabout remorse. But what if you have someone who didn't do it? What are theysupposed to do? Look sorry that they didn't do it? And how does one show remorse?Jury studies tell us that when a defendant cries he looks phony, and when he doesn'tcry he looks cold. There is no good way for a defendant to behave that willcommunicate remorsefulness, even if they feel it, to juries. So, in the jury instructionrecommendations I would have liked to have seen the issue of remorse addressed, inparticular, telling the jury that remorse is not a reason either to kill or not kill, eventhough it does figure greatly for a lot ofjuries.A PSYCHOLOGIST'S PERSPECTIVE ON CAPITAL JURIESSteven J. ShermanI'm the psychologist here. All the law that I know I learned from ProfessorHoffmann and teaching a course with him on the law and psychology of culpability,blame, and punishment. And because he's so good, I have learned a lot. I do work inthe area of judgment and decisionmaking: the kinds of decisions that jurors have tomake. So I suppose that qualifies me to some extent.I have a couple of narrow issues that I want to focus on, but before I begin thecomments that I prepared, I want to take a minute to respond to some things thatProfessor Lillquist said about errors in judgment. As psychologists, we know there aretwo kinds of errors: misses and false alarms. I too think the Council erred in saying thatthis Report was geared to increasing accuracy. It's not. It's geared to changing thebalance of errors. Is that worth it or not? I think the reason this all started was we wantto change the balance of errors. People in Illinois were being executed and they wereinnocent. If you want to stop that you have to change the balance of errors. It would belovely to say we are going to reduce the false positives without increasing the falsenegatives, but you aren't going to be able to do that very easily. So I think that theCouncil was aware that they were not necessarily increasing accuracy; but they weretrying to prevent innocent people from being executed. And those two kinds of errorsare not equal in my mind.Now I want to address the issue of the choice of two separate juries versus stayingwith one jury. There are two real concerns that I have with this issue. The first is fromthe defendant's point of view. The very language allows the defendant a meaningfulchoice between two strategies, as if this is strategic, or about a game, rather than aboutcapital crime and execution. Imagine that you're an innocent defendant who has justbeen found guilty at the innocence-guilt stage. Now you have a choice between twostrategies. "A": I know I'm innocent. I can stay with this jury who has already made an[Vol. 80:47

Negative Effects of Capital Jury Selection

bepress Legal Repository

Valparaiso University

Valparaiso UniversityValpoScholarLaw Faculty Publications Law Faculty Presentations and Publications2005The Negative Effects of Capital Jury SelectionAndrea LyonValparaiso University, Andrea.Lyon@valpo.eduFollow this and additional works at: http://scholar.valpo.edu/law_fac_pubsPart of the Criminal Law Commons, and the Criminal Procedure CommonsThis Article is brought to you for free and open access by the Law Faculty Presentations and Publications at ValpoScholar. It has been accepted forinclusion in Law Faculty Publications by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staffmember at scholar@valpo.edu.Recommended CitationAndrea D. Lyon, The Negative Effects of Capital Jury Selection, 80 Ind. L. J. 52 (2005).     