1. “Death-Qualification” of Jurors in Capital Cases Lockhart v. McCree 476 U.S. 162 (1986)

2. Background McCree charged with capital murder in 1978; state sought the death penalty McCree charged with capital murder in 1978; state sought the death penalty State excluded jurors who said they would not consider the death penalty as punishment at voir dire State excluded jurors who said they would not consider the death penalty as punishment at voir dire McCree convicted of murder McCree convicted of murder Sentenced to life w/o parole, not death Sentenced to life w/o parole, not death McCree appealed, alleging violation of Sixth and Fourteenth Amendment rights McCree appealed, alleging violation of Sixth and Fourteenth Amendment rights Appeal denied by Arkansas Supreme Court, but the federal district court granted habeus relief, affirmed by 8 th Cir. COA Appeal denied by Arkansas Supreme Court, but the federal district court granted habeus relief, affirmed by 8 th Cir. COA Supreme Court reverses Supreme Court reverses

3. Witherspoon v. Illinois Capital murder case appealed to Supreme Court Capital murder case appealed to Supreme Court Court presented with three social science studies purporting to demonstrate that “death-qualified” juries were “less than neutral with respect to guilt” Court presented with three social science studies purporting to demonstrate that “death-qualified” juries were “less than neutral with respect to guilt” Court dismisses studies as “too tentative and fragmentary” Court dismisses studies as “too tentative and fragmentary” Allows exclusion of jurors absolutely opposed to the death penalty Allows exclusion of jurors absolutely opposed to the death penalty

4. Categories of Jurors Automatic Death Penalty Group Automatic Death Penalty Group Always vote for DP in capital case Always vote for DP in capital case Favor Death Penalty Group Favor Death Penalty Group Support DP but won’t always vote for it Support DP but won’t always vote for it Indifferent Group Indifferent Group No feelings one way or another No feelings one way or another Oppose Death Penalty Group Oppose Death Penalty Group Oppose DP or have doubts but would be willing to vote for it Oppose DP or have doubts but would be willing to vote for it Automatic Life Imprisonment Group Automatic Life Imprisonment Group Witherspoon-excludibles Witherspoon-excludibles Two subcategories: nullifiers and guilt-phase includibles Two subcategories: nullifiers and guilt-phase includibles

5. “Witherspoon-excludibles” Two subcategories: “nullifiers” and “guilt-phase includible” Two subcategories: “nullifiers” and “guilt-phase includible” Nullifiers largely accepted as excludible Nullifiers largely accepted as excludible Generally thought to be between 11-17% of population Generally thought to be between 11-17% of population Percent of each group classified as WE: Percent of each group classified as WE: Author Black White Female Male Harris46%29%37%24% F & E 26%16%21%13% Precision29%9%13%8%

6. Overview of Studies Wilson: 248 students, written descriptions, p<.02 Wilson: 248 students, written descriptions, p<.02 Goldberg: 200 students, written descriptions, p<.06 Goldberg: 200 students, written descriptions, p<.06 Zeisel: 264 jurors, actual cases, p<.04 Zeisel: 264 jurors, actual cases, p<.04 Cowan-Deliberation: 288 jury-eligible residents of San Mateo and Santa Clara Counties, p<.01 Cowan-Deliberation: 288 jury-eligible residents of San Mateo and Santa Clara Counties, p<.01 Jurow: 211 people, 1/3 were former jury members, showed videotape, p<.10 Jurow: 211 people, 1/3 were former jury members, showed videotape, p<.10 Harris: nationwide random sample of 2068, read written descriptions, p<.001 Harris: nationwide random sample of 2068, read written descriptions, p<.001

7. Why does the Court disregard the studies? Throw out initial three (Zeisel, Goldberg, Wilson) because they weren’t sufficient in Witherspoon Throw out initial three (Zeisel, Goldberg, Wilson) because they weren’t sufficient in Witherspoon Studies dealing with attitudes towards criminal justice system thrown out as “at best, only marginally relevant” Studies dealing with attitudes towards criminal justice system thrown out as “at best, only marginally relevant” Some did not exclude nullifiers Some did not exclude nullifiers Did not allow for group deliberation Did not allow for group deliberation A single credible study doesn’t suffice A single credible study doesn’t suffice

8. Strengths and Weaknesses/Criticisms Strengths: Strengths: Statistical strength Statistical strength Relevance Relevance Replicability (dozens of studies over 30 years) Replicability (dozens of studies over 30 years) Weaknesses: Weaknesses: External validity? External validity? Problems of attitudinal studies and simulations Problems of attitudinal studies and simulations Failure to exclude “nullifiers” Failure to exclude “nullifiers” Lack of consensus? Lack of consensus? Does each study need to be able to stand alone? Does each study need to be able to stand alone?

9. External Validity Questions Are these results applicable to actual jury deliberations? Are these results applicable to actual jury deliberations? How could a study overcome any concerns about external validity? How could a study overcome any concerns about external validity? Can’t have “parallel” trials w/ different juries Can’t have “parallel” trials w/ different juries Access to actual jurors restricted Access to actual jurors restricted

10. Broader Questions Do the studies need to individually stand alone or should they be considered collectively? Do the studies need to individually stand alone or should they be considered collectively? Would having two juries, one for trial and another for sentencing be worthwhile? Would this be too costly or do the studies compel this solution? Would having two juries, one for trial and another for sentencing be worthwhile? Would this be too costly or do the studies compel this solution?

11. Convicting “Bad People”: The Use of Prior Convictions in Criminal Trials People v. Allen 429 Mich. 558 (1988)

12. Questions to Consider Should the prosecution be allowed to use prior convictions as evidence to impeach defendants’ testimony? Should the prosecution be allowed to use prior convictions as evidence to impeach defendants’ testimony? How should the courts make this determination? How should the courts make this determination? Do special jury instructions help or harm defendants who have had their testimony impeached? Do special jury instructions help or harm defendants who have had their testimony impeached? Strategically, is it generally better for a defendant to testify and risk having his or her testimony impeached? Strategically, is it generally better for a defendant to testify and risk having his or her testimony impeached?

13. Background Five consolidated cases in which defendant had testified on his own behalf Five consolidated cases in which defendant had testified on his own behalf State used past convictions to impeach testimony of defendants State used past convictions to impeach testimony of defendants Michigan Supreme Court asked to interpret rules of evidence Michigan Supreme Court asked to interpret rules of evidence Court amended the MRE to provide a bright line rule that prior convictions were not admissible unless the crime contained either an element of dishonesty or false statement or an element of theft and was punishable by imprisonment in excess of one year or death and the probative value outweighed its prejudicial effect Court amended the MRE to provide a bright line rule that prior convictions were not admissible unless the crime contained either an element of dishonesty or false statement or an element of theft and was punishable by imprisonment in excess of one year or death and the probative value outweighed its prejudicial effect

14. Michigan Rule of Evidence MRE 690: MRE 690: (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross examination, but only if (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross examination, but only if (1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of punishment, and (1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of punishment, and (2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination. (2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.

15. Risks Jury will determine that defendant is a “bad person” worthy of punishment regardless of guilt Jury will determine that defendant is a “bad person” worthy of punishment regardless of guilt Jury may be led to lower the burden of proof required given defendant’s past convictions Jury may be led to lower the burden of proof required given defendant’s past convictions Jury will determine that defendant has a propensity to commit crime and is therefore probably guilty Jury will determine that defendant has a propensity to commit crime and is therefore probably guilty

16. Study Overviews Rosenberg & Oshan: general psychological background; establishes that people infer favorable or unfavorable traits from stimulus traits Rosenberg & Oshan: general psychological background; establishes that people infer favorable or unfavorable traits from stimulus traits Doob & Kirschenbaum: look at likelihood of conviction with knowledge of prior convictions Doob & Kirschenbaum: look at likelihood of conviction with knowledge of prior convictions Columbia Journal of Law & Social Problems: survey lawyers and judges Columbia Journal of Law & Social Problems: survey lawyers and judges Wissler & Saks: look at impact of prior convictions on perception of credibility Wissler & Saks: look at impact of prior convictions on perception of credibility Broeder: conducted interviews of actual jurors to determine how evidence was used Broeder: conducted interviews of actual jurors to determine how evidence was used

17. Columbia Journal of Law of Social Problems Survey Methodology: Methodology: Sent survey to 99 judges in five states and 200 attorneys in 42 states Sent survey to 99 judges in five states and 200 attorneys in 42 states Asked if juries were able to understand instructions on use of prior record Asked if juries were able to understand instructions on use of prior record Not especially scientific Not especially scientific Findings: Findings: 98% of attorneys and 43% of judges respond negatively 98% of attorneys and 43% of judges respond negatively

18. Doob Study Methodology: Approached 48 people in and around “various public buildings,” split into four groups and read each a four- hundred word description of crime. Methodology: Approached 48 people in and around “various public buildings,” split into four groups and read each a four- hundred word description of crime. First group heard nothing else, second heard that defendant did not testify, third told that defendant testified, said nothing of importance and had his testimony impeached with seven prior convictions, fourth heard same as third group but with judge’s limiting instructions as well. First group heard nothing else, second heard that defendant did not testify, third told that defendant testified, said nothing of importance and had his testimony impeached with seven prior convictions, fourth heard same as third group but with judge’s limiting instructions as well. Everyone asked to rate guilt on scale of 1 (definitely guilty) to 7 (definitely not guilty) Everyone asked to rate guilt on scale of 1 (definitely guilty) to 7 (definitely not guilty) Findings: Average Guilt Rating by Group Findings: Average Guilt Rating by Group Group 1 4.00 Group 2 4.33 Group 3 3.25 Group 4 3.00

19. Strengths and Weaknesses Strengths: Strengths: Significance Significance Weaknesses: Weaknesses: Sample size Sample size Very small; dissent emphasizes this Very small; dissent emphasizes this External validity External validity Unknowns: how were subjects selected? (doesn’t always look quite random) how many declined to participate or dropped out? (mortality) Unknowns: how were subjects selected? (doesn’t always look quite random) how many declined to participate or dropped out? (mortality)