Federal Judicial Center -- 2004
Go to Federal Manuals Table of Contents - Go to Resource Guide Table of Contents

        A      Jury Issues
        A-1  Size Of The Panel
        A-2  Juror Questionnaires
        A-3  Jury-Selection Procedures
        A-4  Sequestration

For several reasons, selecting and impaneling a jury in a capital case involves substantial preparation, time, and care. First, because any capital trial potentially involves both a guilt phase and a penalty phase, prospective jurors must be screened to ensure that they can sit through the duration of both phases. As one judge pointed out, this means not only eliminating jurors who have previous commitments that make them unable to sit, but also taking into account any health problems or frailty that might affect a juror’s ability to serve for the full period of time, even if such a juror would be able to sit on a normal, single-phase trial.

Second, because some prospective jurors will be unable to serve based on their views about the death penalty, and because each side is afforded a larger-than-usual number of peremptory strikes, a large number of potential jurors must be summoned and questioned to determine their ability to sit on the capital-case jury.

Third, all judges we interviewed used questionnaires to screen jurors in their death-penalty cases, and many of them mailed the questionnaires to jurors in advance of the trial. Thus, substantial advance preparation might be required to draft, mail, and review the juror questionnaires before the jurors are even brought to the courthouse. Finally, the voir dire process is generally much more extensive than that in a typical criminal action. The death-qualification process is often painstaking and involves individual voir dire with many prospective jurors.

A-1    Size Of The panel

In United States v. Hammer, 25 F. Supp. 2d 518, 519 (M.D. Pa. 1998), more than 200 additional jurors were required to be summoned during the jury-selection process to supplement the 250 originally summoned. The judges we interviewed summoned from 125 to 500 jurors for their death-penalty cases, the average being about 225. One judge who did not give an absolute number said he summoned a panel about twice the size he would normally summon for a criminal case, although he later determined that was unnecessary. Similarly, a judge who had two death-penalty trials summoned a smaller jury panel the second time (150 jurors) than she had the first time (200 jurors). In addition to the fact that the case is a capital one, other factors—such as the amount of local publicity the case is receiving—will have an influence on the size of the panel to be summoned.

Federal Rule of Criminal Procedure 24(b) allows each side in a capital case twenty peremptory challenges, and more are permissible if there is more than one defendant. At a minimum, then, assuming each side will use all of its twenty peremptory challenges for jurors and two for alternates, sixty prospective jurors are required to seat a jury of twelve and four alternates in a case with a single defendant. In addition, as a rule of thumb, an experienced capital defense attorney suggests that a judge can expect about 20% of jurors in the panel to be disqualified on the basis of their death-penalty attitudes. In cases we reviewed for which this information was available, up to one third of potential jurors were disqualified on this basis. Finally, some jurors will be struck for cause for reasons unrelated to their death-penalty attitudes, particularly given the length of a potential two-phase trial.

The larger panels necessary for death-penalty cases present logistical problems, particularly in smaller courts. One judge in a small district found it necessary to rent the town’s civic center, across the street from the courthouse, to accommodate the 300 jurors he had summoned. The clerk of court assisted in making those arrangements, and jurors were brought to the courthouse in smaller groups during the voir dire process. Another judge, who had summoned 500 jurors in his death-penalty case, split up the panel and brought jurors to the courthouse on different days for general orientation and questioning. A third judge had jurors report to the local community center to fill out the initial juror questionnaire. These experiences suggest that judges in smaller districts who are assigned death-penalty cases should anticipate the need to accommodate larger-than-usual jury panels and work with the clerk of court or other court staff to identify and procure the necessary physical facilities.

A-2    Juror Questionnaires

Nearly all federal judges who have had a death-penalty trial to date have used a written juror questionnaire to help inform the voir dire process and identify jurors who will be unable to serve. The timing and content of the questionnaire, however, differs quite a bit from judge to judge.

a. Timing. A slight majority of judges from whom we obtained case materials mailed the questionnaire to members of the jury pool in advance. In most cases the prospective jurors were provided with a postage-paid envelope and asked to return the questionnaire to the court by a specified date, usually two or three weeks prior to the scheduled trial date. One judge had the jurors bring their completed questionnaires to the courthouse when they reported for jury duty.

The remaining judges administered the questionnaires when jurors first reported to the courthouse for jury selection. Although most used written questionnaires, one judge had jurors write down answers to questions that were asked orally by a courtroom clerk; the judge then reviewed the jurors’ answers and interviewed jurors individually about them.

b. Length and content. The questionnaires used by judges in federal death-penalty cases vary in length from a two-page questionnaire containing 27 brief questions about biographical and personal information (e.g., education level, religious affiliation, hobbies, magazines read regularly) to a twenty-three-page pamphlet containing more than 125 questions. Most questionnaires have been in the range of ten to fifteen pages.

Judges expressed different views about whether the juror questionnaire should contain questions about jurors’ attitudes toward the death penalty. Some omitted any questions about the death penalty out of concern that jurors who were alerted that the case was a capital one might try to think of ways to get out of serving. Others included one or two questions touching on the issue (e.g., whether the juror was a member of a group that took a position on capital punishment), but did not probe extensively about juror attitudes. At the other extreme, a number of judges included detailed questions exploring the nuances of jurors’ attitudes about the death penalty. For example, the following multipart question appeared in a number of questionnaires we collected:

Regarding the death penalty, which of the following statements most accurately represents the way you feel? (You can circle one or more than one of the choices):

a. If a person is convicted of murder and the death penalty is requested, I will always vote to impose it, regardless of the facts and the law in the case.

b. I am strongly in favor of the death penalty, and would have a difficult time voting against it, regardless of the facts of the case.

c. I generally favor the death penalty, but I would base a decision to impose it on the facts

and the law in the case.

d. I am generally opposed to the death penalty, but I believe I can put aside my feelings against the death penalty and impose it if it is called for by the facts and law in the case.

e. I feel that my opposition to the death penalty will make it difficult for me as a juror to reach a verdict of guilty or not guilty, despite the facts and law in the case.

f. I am strongly opposed to the death penalty, and I will have a difficult time voting to impose it, regardless of the facts and the law in the case.

g. I am personally, morally, or religiously opposed to the death penalty, and would never vote to impose it, regardless of the facts and the law in the case.

Judges who included such detailed questions in their questionnaires reasoned that jurors would be more candid about their attitudes if they could answer such questions in the privacy of their own homes, and that having the answers available to the court and counsel in advance would save time during voir dire.

In most of the cases we reviewed, attorneys for both prosecution and defense advocated including questions about death-penalty attitudes in the questionnaire. One judge, who said her personal preference would have been to exclude such questions, allowed them because both sides wanted them.

c. Drafting the questionnaire. Judges had a number of sources to consult in drafting juror questionnaires. Several judges used as a starting point questionnaires used by judges who had previously had federal death-penalty trials. The appendices contain several of these questionnaires, reflecting different lengths and choices about content.

One judge who had one of the earliest federal death-penalty trials modeled his questionnaire after one that had been used in the state court covered by his district. Other judges asked the parties to submit proposed questionnaires, either separately or jointly, and worked from those submissions to create the final questionnaire. All of the judges we spoke with gave the attorneys an opportunity to suggest questions to be used or to object to those proposed by the court.

A-3    Jury-Selection Procedures

In most cases, both the judge and counsel reviewed the jurors’ questionnaire responses prior to beginning the voir dire process. A few judges reviewed only those questionnaires that a law clerk or other staff member brought to their attention because they raised difficult questions about whether a prospective juror should be excused. Judges who reviewed the questionnaires made notes or tabbed questionnaires to indicate responses they wanted to follow up on during voir dire.

a. Individual voir dire regarding death-penalty attitudes. Although they reported rarely using individual voir dire in their other criminal cases, all judges whose materials we reviewed used a combination of general and individual voir dire in their death penalty cases. Most frequently, the judge assembled the entire panel for general voir dire, explaining some information about the case and determining jurors’ abilities to sit for a potentially lengthy trial. After excusing some jurors for cause based on their responses in the general voir dire, jurors were brought back in smaller groups on subsequent days to undergo individual voir dire. Judges generally reported that they were able to complete individual voir dire of thirty to forty jurors a day. One judge recommended beginning individual voir dire of the first few jurors on the day the entire panel has been assembled for general voir dire, to get an idea of how many jurors can be questioned individually in one hour and thereby determine how many jurors to summon on succeeding days.

The Supreme Court has determined that potential jurors whose attitudes about the death penalty will "prevent or substantially impair" the performance of their duties as jurors in a capital case cannot be permitted to serve. Wainwright v. Witt, 469 U.S. 412, 424 (1985). Such jurors include those whose opposition to the death penalty would prevent them from being impartial at the guilt phase of the trial; jurors whose opposition to the death penalty would prevent them from considering it as a sentencing option were the defendant to be found guilty; and jurors who would automatically vote to impose death if the defendant were found guilty of a capital crime.

Prospective jurors typically must undergo individual questioning to determine whether their attitudes about the death penalty will impair their ability to serve. This specialized voir dire is known as "death-qualification," and jurors who are determined to be able to serve after undergoing this process are called "death-qualified."

One judge with an early death-penalty case determined, after reviewing relevant Supreme Court case law and the testimony of an expert in this area of law, that the qualifications of jurors to serve on a capital case could be ascertained through their answers to two basic questions, each addressing one extreme of juror attitudes. The first question asked was the following:

For any reason—whether as a matter of moral or religious or philosophical beliefs or as a matter of conscience or personal belief, or for any other reason—can you say that you would never vote to impose the death penalty under any circumstances, in accordance with the statutory procedure that I have outlined?

Assuming the response to the first question did not disqualify the juror, the judge asked this question:

Suppose you wind up sitting as a juror in this case, and that the jury finds the defendant guilty, so the case goes into phase two, the sentencing hearing. Remember that if the jury finds the defendant not guilty, that is the end of it.

The case then goes into the second phase [the court then summarizes the statutory procedures to be followed in the sentencing phase of the case]. Assume that, at that stage, what you conclude on looking at the entire thing is that it is a situation in which the jury could legally impose the death penalty, but the jury is not obligated to do it. Would you always in that situation vote to impose the death penalty?

The other judges from whom we collected materials also used similar questions to identify jurors who could be excluded for cause based on their death-penalty attitudes. Although these questions seem relatively straightforward, voir dire transcripts from federal death-penalty trials show that jurors are often conflicted about the death penalty and have difficulty answering questions such as these and related follow-up questions. The following is an example:

Judge: . . . if you find any of these three defendants I named guilty, and if the evidence and the law justifies the recommendation of the death penalty, could you vote to recommend the death penalty?

Juror: I don’t know. I just never have had to do that, and basically I don’t believe in it, so I just don’t [know] whether I could or not.

Judge: All right. . . . It’s important for you to know whether your views—you tell us about your views on the death penalty. But would your views and personal opinion on the death penalty in any way prevent you from performing your duty; that is, from following the law that I give you on the death penalty and all other matters in this case?

Juror: I’m afraid it might. If your ruling recommended the death penalty I still just don’t know if I could do that.

Judge: All right. Now, I won’t recommend the death penalty, nor will I recommend to the jury not to give the death penalty. That is the decision of the jury. But you must follow my instructions and consider the death penalty, and consider not recommending the death penalty.

Let me ask it this way. In some cases it would not be appropriate for you to recommend the death penalty, and you must also consider that alternative. You see, there are two alternatives: to recommend the death penalty and [to] not recommend the death penalty. And you must consider both of those alternatives. If the evidence and the law justifies it, will you consider the alternative of not recommending the death penalty?

Juror: Yes.

Judge: If the evidence and the law justifies it, will you also consider the alternative of recommending the death penalty?

Juror: I still am at a loss. I don’t know what to say. I would probably consider it, but I still don’t—how far do you go when you consider it? I still don’t know if I can say, "Yes, I would recommend the death penalty," on my part.

Judge: Well, do you know that you can consider the death penalty, consider the recommendation

of the death penalty?

Juror: I don’t know that I could. I believe I could. I know those aren’t very good answers.

Judge: . . . Do you think that these views which you have expressed to me . . . on the death penalty would in any way prevent you or substantially prevent you from performing your duty as a juror and following the law that I give you?

Juror: No.

Judge: . . . My job will be to present the instructions on the law and I will instruct you that you must consider recommending—that the jury must consider recommending—the death penalty as the first alternative. And I will further tell you that you must also consider not recommending the death penalty. So it just boils down to, will your personal opinion keep you, or substantially keep you, from considering those two alternatives?

Juror: Okay. I don’t have a problem with considering.

Judge: Not giving the death penalty? Not recommending the death penalty?

Juror: Right. Right. I don’t have any problem with that.

Judge: All right.

Juror: But I think there are other means to punish someone.

Judge: All right.

Juror: But since I basically don’t believe in the death penalty and that was the way the rest of the jury wanted to go, then I might have a problem with that.

After extensive further questioning of this juror by the judge and attorneys, the judge denied the prosecutor’s challenge for cause.

b. Attorney participation in voir dire. Judges in death-penalty cases have taken a number of approaches with respect to allowing attorney participation in the voir dire process. Most have allowed attorney participation in some form, even if this is not their standard procedure in criminal cases. Most frequently, judges allow attorneys to question the jurors directly, often placing a time limit on the questioning of each juror. Although one judge we interviewed said that allowing attorneys to question jurors in her case was "a disaster" and that the attorneys had confused the jurors, other judges reported favorable experiences.

Some judges allow attorneys to submit proposed questions for jurors, but conduct the voir dire themselves. In some cases, attorneys have also been allowed to submit supplementary questions after the judge’s questioning of a juror.

c. Peremptory challenges. Federal Rule of Criminal Procedure 24(b) provides that in a capital case, each side is entitled to twenty peremptory challenges. On the basis of past experience, judges can expect that most or all of these challenges will in fact be exercised.

For cases in which there is more than one defendant, Rule 24(b) says the court "may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly." Many federal death-penalty cases, particularly those brought under 21 USC 848, involve multiple defendants, and the judge will need to determine how many peremptories each side will be allowed. One judge who had a case with two death-penalty defendants gave the defendants ten additional peremptory strikes, to be exercised jointly, and gave the government six additional strikes. Another judge, whose case involved both capital and non-capital defendants, allocated strikes in the following way:

• The government was given twenty strikes plus one additional for each noncapital defendant, up to twenty-six.

• The non-capital defendants were given two strikes each, to be exercised jointly.

• The three capital defendants were given thirty strikes, to be exercised jointly.

This judge said that in retrospect, he was not sure he would allocate strikes this way again, as he was not sure it served any reasonable purpose.

d. Alternate jurors. The fact that many death-penalty cases involve both a guilt phase and a penalty phase raises issues both about the number of alternate jurors to seat and what to do with the alternate jurors if the defendant has been convicted at the guilt phase. Federal Rule of Criminal Procedure 23(b) provides that criminal juries must be composed of twelve people, but that the parties may stipulate in writing prior to verdict that the jury may consist of fewer than twelve people if the court finds it necessary to excuse a juror for cause after the trial starts. Once jurors have begun deliberating, the court has discretion, even without the parties’ stipulation, to excuse a juror for cause if necessary and have the verdict returned by the remaining jurors.

A problem could arise under Rule 23(b) if the judge discharges the alternate jurors at the end of the guilt phase and then finds it necessary to excuse one or more regular jurors before or during the penalty phase. If defense counsel did not then stipulate to a jury of fewer than twelve people for the penalty phase, this situation could create a prospect of a mistrial for the penalty phase.

To avoid this problem, several judges did not discharge the alternates after the guilt phase of their death-penalty trials. Instead, the alternates remained under instructions not to discuss the case or follow news reports about it. When the penalty phase began, the alternates were called back to listen to that phase, so that they had heard all evidence and argument that the original jury heard. In some cases, the judge asked the parties to stipulate to this procedure, in light of former Federal Rule of Criminal Procedure 24(c)’s mandate that alternate jurors are to be discharged when the jury retires to consider its verdict. That rule was changed (effective December 1, 1999) to allow the court, at its discretion, to retain alternate jurors during deliberations, provided that the court ensures that the alternates do not discuss the case with any other person unless and until they replace a regular juror. If an alternate juror replaces a regular juror, deliberations are to start anew.

A-4    Sequestration

In several cases, defendants have filed motions to have the jury sequestered. Judges have taken several different approaches with respect to sequestration of jurors in a death-penalty trial. The majority of those we spoke with had not sequestered their juries. Several judges sequestered the jury only for the penalty phase, and one judge sequestered the jury for the entire trial.

The judges who did not sequester the jury said they saw no need to do so in the absence of threats to jurors or large amounts of pretrial publicity. One judge said he felt the admonition to jurors to avoid publicity and not discuss the case was sufficient. Several other judges mentioned that, although the crimes that were the subject of their trials had received a good deal of publicity when the defendants were first charged, the media and public interest had abated quite a bit by the time of the trial.

In making the decision whether to sequester the jury, judges focused primarily on whether jurors had been or might be threatened. For example, a judge who sequestered the jury for the penalty phase but not the guilt phase was concerned about jurors’ safety because of the defendants’ alleged involvement with organized crime. Another judge did not sequester the jurors but made arrangements for them to be escorted to the courthouse by security guards after they arrived at a designated area.

Finally, one judge who did sequester the jury said she felt strongly that sequestration should be "seriously considered" in any capital case, particularly one with high publicity. This judge pointed out that sequestration insulates the jury from outside influence and possible jury tampering, makes the task of the U.S. marshal easier, and eliminates the possibility of postconviction claims based on contact with jurors.