The Effects of Bifurcation and Death Qualification on Assignment of Penalty in Capital Crimes

The Effects of Bifurcation and Death Qualification on Assignment of Penalty in Capital Crimes’

IRWIN A. HOROWITZ~ AND DAVID G. SEGUIN

The Universify of Toledo

An experiment was conducted to test the effects ofthe bifurcated trial procedure and the death qualification process on sentencing and verdicts in death penalty cases. Forty-four I2-person juries, assigned to one of five trial conditions, returned verdicts indicating that death qualified, bifurcated juries gave the most severe verdicts and the highest proportion of guilty verdicts, while non-death qualified, trial only, juries returned the least severe verdicts and the highest proportion of not guilty or hung outcomes. Thirty-seven penalty phasejuries, of which 20 had previously assigned guilt, were distributed among five penalty conditions. The sentencing data revealed that the most severe sentences were given by the death qualified, bifurcated juries. The least severe sentences were returned by the non-death qualified, bifurcated juries. Juries impaneled for the penalty phase only and death qualified meted out moderate sentences.

The availability of capital punishment in the United States was placed into serious constitutional doubt by a 5:4 decision of the Supreme Court in 1972. In separate opinions, a controlling plurality of three Justices (Douglas, Stewart, and White) found the death penalty, as then statutorily constituted, unconstitutional because of the apparent arbitrariness of its administration, and therefore violated the eighth amendment’s clause forbidding cruel and unusual punishments (Furman v. Georgia). In 1976, the Court, ruling on a Georgia capital punishment statute enacted after Furman, altered course, and in a 7:2 decision upheld the use of capital punishment under specific and carefully delineated conditions (Gregg v. Georgia). Concurrently, the court in 1976 reviewed newly imposed capital sentencing procedures in Florida (Profitt v. Florida), Texas (Jurek v. Texas), North Carolina (Woodson v. North Carolina), and Louisiana (Roberts v. Louisiana), approving statutes that permitted “a structured exercise of discretion while guaranteeing individualized sentencing” (Greenberg, 1982).

‘The research was funded by grants given by the University of Toledo Graduate School and

*Requests for reprints should be sent to Irwin A. Horowitz, Department of Psychology, The Office of Arts & Sciences, and by Jamestown Community College.

University of Toledo, 2801 W. Bancroft Street, Toledo, OH 43606.

165

Journal of Applied Social Psychology, 1986, 16, 2, pp. 165-185. Copyright Q 1986 by V. H. Winston 8, Sons, Inc. Al l rights reserved.

166 HOROWITZ AND SEGUIN

In Gregg, the Supreme Court approved the Georgia system under which determinations of guilt and punishment were severed. In this bifurcated system, capital juries first determine the defendant’s guilt or innocence; if the defendant is found guilty, a second trial ensues during which the same jury hears additional evidence and arguments concerning mitigating and aggravating factors. This bifurcated schema emphasizes individualized sentencing. Thirty-eight states employ the bifurcated system (Gillers, 1980).

The first issue to which this research is addressed is the effect of bifurcation on both guilt and sentencing determinations in capital cases. Specifically, we are interested in delineating the effects of one jury, in two separate trials (guilt and penalty phases), determining culpability and punishment. We expect that there will be a relationship between verdict and sentencing severity, and that bifurcated juries, once they determine guilt, will be more severe in their sentencing than two unitary juries, one that determines guilt, and a second, separate jury that determines sentence. Secondly, we are interested in demonstrating the effects of both the process and timing of death qualification on the determination of both guilt and penalty in capital punishment juries. Our expectation is that a bifurcatedjury that is death qualified prior t o hearing the trial will be more severe in their determination of guilt than a bifurcated jury that is death qualified after determining guilt and prior to sentencing. Lastly, we are interested in determining the effect of suggested procedural remedies to the standard death qualified, bifurcated jury on verdict and sentencing outcomes.

Social scientists and jurists suspect that the bifurcated procedure may be inherently flawed (Grigsby v. Mubry, 1980). In this procedure, the jury is required, if the evidence warrants, t o commit itself to a guilty verdict. Jurors then know that such a verdict will require a second trial t o address the penalty to be imposed. Precisely how the initial decision to find for guilt affects the second separate, but related decision to assign penalty, is unclear, or at least we cannot point to specific empirical findings.

Without question, in the bifurcated procedure, some of the evidence presented in the penalty phase as to possible mitigating and aggravating circumstances will, perforce, already have been presented in the trial phase. There- fore, ineluctably, there will be some cognitive overlap among the evidence presented in the two phases.

Davis, Stasser, Spitzer, and Holt (1976) have demonstrated that the act of publicly affirming the defendant’s guilt will very likely affect juries’ subsequent behavior. The Davis et al. study dealt specifically with the effects of requiring some juries to defend their decisions in a public forum, The findings suggest that these “pub1ic”juries do some strong cognitive work in order to reaffirm and bolster their original findings. The Davis et al. (1976) report that, as compared to private juries who did not have to go public with the decision,

EFFECT OF BIFURCATION AND DEATH QUALIFICATION 167

public juries and jurors are generally more confident and decisive about their verdicts. These jurors were more certain than private jurors that the defendant did commit the crime. The results suggest that these subjective reactions may result from a greater “interaction investment” in the public juries, who, knowing that their decisions would entail future public consequences, ex- hibited greater opinion changes, particularly late in the deliberations, than did “private”juries (Davis et al., 1976). Public juries appeared to have had a more dynamic, variable deliberation, and therefore a greater investment in the outcome and future affirmation of their decision.

If one is willing to consider the Davis et al. (1976) paradigm as a rough analogue to the bifurcated procedure in capital trials, the mere knowledge that single juries in the bifurcated trial possess, namely, that they will have to sustain, in some way, their decision in another, separate public forum (the penalty phase), could lead these jurors to be more confident and decisive in their decision making. It is interesting to note that in the Davis et al. study, those juries who had come to their verdict in a “private” as opposed to “pub1ic”condition were less likely to be certain of their verdict, less inclined to regard the defendant as likely to have committed the crime, and less likely to have rated the defendant guilty.

It is also true that juries in capital crimes may be sequestered, particularly during the penalty phase (Ohio v. Rogers, 1982). Sequestration likely increases group cohesiveness, suggesting a process of responsibility infusion in which there is an increased felt responsibility towards the members of the group (thejurors) and a corresponding decrease in felt responsibility towards outsiders (the defendant) (Lamm & Myers, 1978).

The use of bifurcation was initiated because of a need to find a fair and equitable procedure to assign guilt and penalty for each individual defendant in a capital case. The unitary trial in which a jury assigned both guilt and penalty within the context of a single proceeding was deemed to be inherently unfair. A separate penalty proceeding was thought to be necessary for defen- dants found guilty in capital cases in order t o ensure that the imposition of the death penalty was not done in an arbitrary and capricious manner.

The bifurcated trial is not the only unique feature of capital cases. Jurors in death penalty cases must be “death qualified” in order to sit on the jury ( Witherspoon v. Illinois, 1968). The Witherspoon decision allows for excusal for cause two classes of jurors from capital punishment cases because of their views on the death penalty: (1) Thosejurors who could never consider imposing the death penalty regardless of the evidence and (2) those jurors who could not be fair and impartial in determining guilt and innocence in a capital punishment case. A third class ofjurors, those who are opposed to the death penalty but who would impose it under some circumstances, are called “scrupled” jurors. These jurors are very often excluded by peremptory prosecutorial


challenge (Winick, 1982). The Supreme Court has very recently relaxed the Witherspoon criteria of exclusion for cause (Wainwright v. Witt , 1985) and set a new standard in which jurors can be excluded if their views interfere with the performance of their duties as set forth by the judge’s instructions and their oath. The Wainwright criteria will lead to the exclusion for cause of a larger group of potential jurors and therefore increase the effect of death qualification on the determination of guilt and penalty (Tanke, 1985).

Furthermore, the death qualification process requires that the potential jurors are asked about their views concerning penalty before they know the precise nature of the case or the evidence to be considered. The exclusion in open court (except in California which has a sequestered capital case voir dire) of death opponents via cause or premptory challenge conveys to other po- tentialjurors that the state disapproves of such scruples. Attempts to “rehabilitate” scrupled jurors often adds to the ambiance of death permeating this process. Jurors who state their opposition to death are often presented with horrific examples of hypothetical or real murder cases to ascertain whether their oppostion is total. Often this rehabilitation process is successful but at the cost of making the death penalty more acessible in the minds of thejurors.

The defense in Witherspoon v. Illinois (1968) had argued that the absence of death penalty opponents from guilt determination increased the likelihood of a guilty verdict. The reasoning was that death qualified jurors were more conviction prone and more prosecution prone than death opponent jurors. The court was not persuaded by this argument in 1968 and correctly noted that the evidence was thin and fragmentary, consisting of three then unpub- lished studies. Currently, the evidence is overwhelming that jurors who are death qualifiable are more likely to convict a capital defendant than those jurors who are excludable (unwilling to impose death), and that these death qualified jurors are, as a jury, less critical of witnesses, less able to remember evidence, and more satisfied with their jury than the excludables (Cowan, Thompson, & Ellsworth, 1984). Ellsworth and her colleagues have also clearly demonstrated that the death qualification process effectively limits the diversity of the jury excludingat least 17% of the potential jurors, particularly a significant proportion of blacks and females, who are more likely to vote against the death penalty (Fitzgerald & Ellsworth, 1984).

Ellworth’s research demonstrates that a juror’s attitudes toward the death penalty are predictive as to their likely verdict. Death qualified jurors appear t o hold a “lower threshold of conviction” than held by the Witherspoon excludables (Thompson, Cowan, Ellsworth, & Harrington, 1984). The dispositional proclivities of death qualifiable jurors toward the prosecution is clear and has been recognized by various courts (Hovey v. Superior Court, 1980). In Grigsby v. Marby (1980), an Arkansas federal district court held that death qualified juries were unconstitutional. The Grigsby decision was based on

EFFECTS OF BIFURCATION AND DEATH QUALIFICATION 169

empirical evidence which showed that individuals excluded from juries because of their opposition to the death penalty hold attitudes which reliably distinguish them from death qualified jurors. The Grigsby court also held that death qualified juries also fail to meet the constitutional requirement of representativeness (Grigsby v. Mubry, 1980).

Therefore, not only are death qualified jurors dispositionally different than that proportion of the population which is excludable, but Haney( 1984a) has argued persuasively that the very process of death qualification biases the jury, whatever their dispositional characteristics, against the defendant. The process of death qualification contains the insinuation that the defendant is guilty, therefore why else consider penalty prior to the evidence. The process also desensitizes prospective jurors with respect to the death penalty, requires a public affirmation of the death penalty as a requirement of acceptance on the jury, and makes the death penalty more likely as jurors, during the “rehabilitation” process, are often asked to imagine horrific crimes which would over- come any scruples as t o the imposition of the ultimate penalty (Haney, 1984a).

Direct empirical evidence that the process of death qualification, qua process, is biasing, aside from the showing by Ellsworth and her colleagues that the procedure impanels dispositionally biased individuals, is available in the form of a study by Haney (1984b). Haney asked subjects to imagine that they were actual jurors and had these jurors watch a videotape of a simulated voir dire in a capital case. The experimental group was shown a 2-hour voir dire including death qualification. The control group was shown a 1 %-hour simulated voir dire with death qualification edited out. Neither group of observers, therefore, directly experienced the voir dire or the death qualification process.

After completion of the viedotapes, subject-jurors completed a questionnaire. The results indicate that those subject-jurors who observed the death qualification were more likely to believe the defendant guilty of first degree murder and felt it was more probable that the defendant would subsequently be convicted of first degree murder and be sentenced to death. Generally, Haney’s (1984b) findings demonstrate that the observers exposed to death qualification are more likely to believe the prosecution and differ from those who did not view the process in ways that were inimical to the rights of the defendant.

The death qualification procedure, as currently constituted, is inextricably bound with the bifurcated trial. Jurors are questioned about their death penalty attitudes in part because of the second trial, the penalty phase. Naturally, a penalty trial will only follow if the defendant is found guilty. Jurors, of course, are so informed routinely by judge and counsel. Neverthe- less, both procedurally and semantically, it is difficult to put forth questions about death penalty attitudes without the presumption of a penalty trial.


Our primary concerns in the present study are to present an experimental demonstration of the effects of bifurcation and death qualification on the assignment of penalty in capital crimes. We are also interested in determining, experimentally, the effect of bifurcation on guilt determination.

We are also concerned with demonstrating the differential effects of various procedural remedies as compared to the typical death qualified, single jury, bifurcated procedures. Judge Eisele (Grigsby v. Mabry , 1980) suggested dual juries, one non-death qualified for the trial (guilt) phase, and a second jury, impanelled only if the defendant is found guilty, death qualified, t o assign penalty.

Method

Subjects

Seven hundred and eight subjects were employed as jurors, comprising a total of 59, 12-person juries. Subjects were recruited from eligible jurors in Toledo, Ohio and Jamestown, New York. One hundred fifty-six jurors were recruited in Jamestown, while the remaining 552 were recruited in Toledo, Ohio.

Subjects were asked to read and sign an informed consent form telling them of the general purposes of the study (research on jury decision making), and a request was made for permission to tape the jury deliberations.

Only eligible jurors were recruited. In Lucas County, Ohio, with the aid of the Lucas County common pleas administrative court judges, prospective jurors were contacted by telephone to arrange their participation. Juror subjects were also recruited from evening classes at The University of Toledo.

In Jamestown, New York the primary mode of recruitment was through a newspaper advertisement procedure for eligible jurors. After contact was made, telephone calls were used to confirm appointments.

Design

Table 1, presented below, outlines the design of this study.

Description of Conditions

Jury 1 is a death qualified jury in a bifurcated trial, assigned both to the trial

Jury 2 is a non-death qualified jury in a bifurcated trial, assigned to both

Jury 3 is non-death qualified for the trial and, if the defendant is found

and, if it returns a guilty verdict, t o the penalty phase as well.

trial and penalty phases.

guilty, is then death qualified prior t o the penalty phase as Jury 3a.


Table 1

Design

Trial phase Penalty phase

Condition Procedure Juries Condition Procedure Juries

Jury 1 Death Bifurcated

Jury 2 Non-death Bifurcated

Jury 3 Non-death Bifurcated

Jury 4 Non-death Trial only

Jury 5 Death Trial only

qualified

qualified

qualified

qualified

qualified

9 Jury 1 8

1 I Jury 2 8

8 Jury3a Death qualified

6

- Jury6 Death Penalty only 7

- Jury 7 Death Penalty only 8

qualified

qualified

Note. All juries are 12-person juries. Total = 59 juries.

Jury 4 is non-death qualified and is assigned to the trial phase only. Jury 5 is death qualified and is assigned to the trial phase only. Jury 6 is a death qualified jury, assigned to the penalty phase only. Jury 6

hears the entire audiotape of the trial, excluding the trial voir dire. Jury 7 is a death qualified jury assigned to the penalty phase only. Jury 7

hears an audiotaped summary of the essential trial facts. In summary, there are two single juries, assigning both guilt and penalty in a

bifurcated trial, one death qualified and one non-death qualified (Juries 1 and 2). A third jury, Jury 3, is assigned to a bifurcated trial, is non-death qualified for the guilt phase, but is then death qualified if it goes on to assign penalty (Jury 3a).

Additionally, four other juries are included as variations of Judge Eisele’s suggested remedy in Grigsby v. Mubry (1980). Onejury is non-death qualified and is assigned to the trial only (Jury 4) while a second jury is death qualified and also assigned to the trial only (Jury 5) .

Both juries 6 and 7 are impaneled for the penalty phase alone. Jury 6 hears the full audiotape of the trial, while Jury 7 hears an audiotaped summary of


the facts. Jury 7 was conceptualized as the analogue to real penalty juries which are impaneled on re-trial and hear the penalty trial only. These juries are typically given a summarized version of the trial evidence.

Differences between the bifurcated penalty juries (Juries 1,2, and 3a) and Jury 7 , if they occurred, could be due to a confounding in that the bifurcated penalty juries have at their disposal all the trial evidence while Jury 7 has a truncated version. Jury 6 was run as a control for this confound.

Procedure

The Toledo, Ohio(Lucas County) juries were run in the moot courtroom of the University of Toledo Law School. A somewhat smaller room, on the campus of the Jamestown Community College, designed as a courtroom, was used to run the New York State juries.

Upon arrival in the courtroom, the jurors were greeted by an “administrative” judge played by I.A.H. or D.S. The administrative judge was distinct from the trial judge heard on the trial audiotapes. Law students, Graduate students, and other faculty assumed the role of the “live” voir dire attorneys and were distinct from the attorneys heard on the audiotapes. Because of the length of the actual running time of the study (September, 1983 until May, 1984), it was not possible to maintain the same cast throughout the study, with the exception, of course, of the trial tapes.

In order to have a full complement of 12 jurors in Juries 1 and 5 in the trial phase and Juries 3a, 6, and 7 in the penalty phase, a venire of at least 15 jurors were needed, assuming that 20% of the jurors would be excluded from serving on these death qualified juries (Kadane, 1984). For the non-death qualified juries, Juries 2 and 4, a venire with one alternate, that is, 13 potential jurors were deemed sufficient.

Whenever possible, more than onejufy was scheduled for the same session. That is, if scheduling permitted, two or more juries might sit through the same voir dire. Juries in different conditions were never run together.

Jury 3 and 3a required a slightly different treatment. At least 15 po’tential jurors had to be available before Jury 3 would be convened. This was so because while Jury 3 would be non-death qualified for the trial phase, it would, if the defendant was found guilty, be death qualified at the penalty phase. At least three of the trial phase jurors were randomly declared alter- nates who sat through the trial and the deliberations; they were told not to take an active part, but simply to listen.

Voir Dire and Death Qualfication: Trial Phase

The trial phase participants (Juries 1-5) listened to audiotapes of voir dire questions. They were told that both the voir dire and the subsequent audio-


taped trial which they would hear were dramatized versions of an actual murder case.

In fact, the voir dire questions, slightly modified, were extracted from the transcript of Ohio v. Billy Rogers (1982). The death qualified voir dire, considerably shortened from the Rogers’ version, lasted approximately 30 minutes on the audiotape. The non-death qualified version took about 25 minutes.

Bifurcated juries were informed of the nature of the bifurcated procedures (Juries 1,2, and 3), while Juries 4 and 5 were informed that their responsibility would end with a determination of a guilty or not guilty verdict.

The jurors responded to the voir dire questions on coded questionnaire sheets. After completion of the voir dire tapes, potential jurors who had answered critical questions about death qualifications which likely would exclude them were asked to stand by the “administrative” judge. In the non-death qualified juries, jurors who could not be impartial were asked to stand (of course, this was true of the death qualified jurors).

At this point, the attorneys attempted to “rehabilitate” those jurors who appeared to be excludable. If jurors made it “unmistakably clear” that they would automatically vote against the death penalty regardless of the trial evidence, o r that their attitude toward capital punishment made it impossible for them to be impartial as to guilt, they were then excluded, dismissed, and paid by the administrative judge. The latter actions were taken outside the courtroom.

The same procedures would be instituted for subjects who might state that they automatically favored the death penalty, regardless of the evidence.

This “group” voir dire obviously has some logistical advantages. It should be noted that in Hovey v. Superior Court (1980), the California Supreme Court held for a sequestered voir dire in death penalty cases. Nevertheless, a group voir dire, roughly analogous to this procedure, is permissible. The U.S. Court of Appeals for the Eleventh Circuit held that a trial judge in a death penalty case could excuse venire persons who had been questioned as a group by the prosecutor as to their death penalty attitudes, and who stepped forward when asked to d o so if their opinions prevented them from imposing a sentence of death (McCorguodale v. Balcom, 1983).

All juror excusals in the voir dire phase were made by the administrative judge.

The Trial

The five trial juries (1-5) listened to a n audiotaped trial of a 23-year-old male alleged to have committed murder while committing armed robbery. The audiotape contained all the standard features of a trial, that is, opening


and closing statements of the defense and prosecution and testimony of the witnesses for the prosecution (there were no witnesses for the defense, and the defendant did not testify in his behalf). The taped closed with the judge’s patterned instructions, explanations, definitions, and charges to the jury. The trial lasted for approximately one hour. This trial was performed by actors from the Toledo Repertory Theatre. The version used had previously been rated as moderate in evidentiary strength, favoring the prosecution.

Upon termination of the audiotapes, jurors were asked to respond to a preliminary verdict scale. The scale was a 6-point, bracketed scale (1-3, not guilty; 4-6, guilty). The extremes of the scale indicated strong confidence in the verdict ( 1 -2 for not guilty, and 5-6 for guilty). Jurors were told that these were nonbinding, preliminary responses and that they should not feel bound to these preliminary opinions.

Jurors were then escorted from the courtrom in which they had gone through the voir dire and heard the trial to adjacent deliberation rooms. Juries were asked to select a foreperson and to deliberate to a unanimous verdict.

After juries made a decision, or were in fact unable to do so, all jurors were asked to respond again to the 6-point bracketed verdict scale. Jurors in the trial phase only (juries 4 and 5) or bifurcated trial jurors who found the defendant not guilty, or who were members of a hung jury, were dismissed, thanked, and paid by the administrative judge.

It should be noted here that members of bifurcated juries were paid $10.00 each while non-bifurcated jury members were paid $5.00 each.

Penalty Phase

Juries 1,2, and 3 which had found the defendant guilty were reconvened in

Newly impaneled juries 6 and 7 also met in the courtroom. Penalty juries 1 and 2 listened to an audiotape of the penalty trial. Jury 3, prior to hearing the penalty audiotape, went through a death

qualification voir dire. An edited version of the original trial voir dire used for death qualified conditions was used. The same procedure as in the trial was followed in the penalty phase voir dire.

Juries 6 and 7 were also death qualified in the same manner as Jury 3a. Jury 6 then heard the full audiotape of the trial before hearing the penalty phase trial. Jury 7 heard an audiotaped summary version of the guilt phase trial.

The audiotape of the penalty phase trial was based upon the format derived from the transcripts of Ohio v. Rogers (1982). Definitions and description and judicial instructions were derived from the transcripts of Ohio v. Rogers, including specifications of aggravating and mitigating circumstances and the three sentencing options.

the courtrom after a refreshment break.


The Ohio Revised Code 190.3 pertaining to penalty phase procedures appears to be generally in concurrence with other states (Perkins, 1983). Ohio specifies the following aggravating circumstances: murder for pecuniary gain; committed by an imprisoned person; done in a manner heinous, atrocious, and cruel; and committed during the commission of a felony.

The audiotaped presentation of the penalty trial was performed by actors of the Toledo Repertory Theatre. The actual tape had a duration of about 35 minutes.

As in the trial phase, all jurors responded to a pre- and post-deliberation sentence form: 1 = life with parole after 20 years, 2 = life with parole after 30 years, 3 the death penalty. These sentencing options were modeled after the Ohio Revised Code, Section 2929.03 (D) (2), which specifies that the penalities for aggravated murder are either the death sentence or life imprisonment with parole eligibility after serving 20 full years, or life imprisonment with parole eligibiity after serving 30 full years.

Following presentation of the audiotape, jurors were taken to the adjacent deliberation rooms. Jurors were told that their predeliberation sentence was to be considered nonbinding and only their unanimous jury sentence counted.

Juries were instructed to deliberate to a unanimous decision. Absent such an agreement they were told, based upon the Ohio Revised Code, Section 2929.03 (D) (2), that if they could not unanomously agree, after weighing all mitigating and aggravating circumstances, on the death penalty, they had to recommend a life sentence.

The penalty evidence had been prerated and given a mean sentence of 1.6, which falls between life with 20 years and life with 30 years. Twenty percent of the pilot subjects would have voted for the death penalty.

All jurors were thanked and paid for their participation.

Results

Verdicts

Table 2 presents the mean verdict scores and trial outcomes for all fivejury conditions.

A one-way analysis of variance was performed on the jurors’verdict scores. The analysis revealed a significant effect, F(4,524) = 27.74, p < .001.

As Table 2 indicates, the jurors in Jury 1, the death qualified, bifurcated jury, returned the most severe verdicts and did not give any not guilty verdicts. Jury 1 jurors differed significantly from all the other trial jurors, including the jurors in Jury 5, the death qualified, non-bifurcated jury.

Interestingly, the jurors Judge Eisele’s Jury4, the non-death qualified, trial only, jury, not only yielded the least severe verdict scores, along with Jury 2, but also returned only three guilty verdicts in eight juries.


Table 2

Mean Verdict Scores and Outcomes f o r All Trial Juries

Not Hung Verdict Condition Procedure Guilty score guilty

Jury I Death Bifurcated 5.12, 8 0 1

Jury 2 Non-death Bifurcated 3.95, 8 2 I

Jury 3 Non-death Bifurcated 4.44b 6 1 1

Jury 4 Non-death Trial only 3.94, 3 2 3

J u r y 5 Death Trial only 4.49b 6 2 0

qualified

qualified

qualified

qualified

qualified ~

Note. Means which do not share a common subscript differ significantly. (p < .05) by Newman Keuls Multiple Range Test.

The chi-square analysis of the jury verdict outcomes, comparing guilty versus not guiltyand hungverdicts, wassignificant(x2z 15.18,df= 1, p< .01). There were 3 I guilty verdicts and 14 not guilty or hung juries.

In the death qualification procedure, 13.4% of the venire were categorized as excludable on the automatic death penalty grounds.

Sentencing

Table 3 below presents the mean sentence returned for all penalty juries. A one-way analysis of variance was performed on the jurors’ post-

deliberation sentence scores. The analysis revealed a significant effect, F(4,441) 2 4 . 4 9 , ~ < .001.

As Table 3 reveals, Jury 1 , the standard death qualified bifurcated jury, clearly returned the most severe sentence. Furthermore, fully half of the eight jurys returned a death penalty sentence.

Jury 2, the non-death qualified, bifurcated jury returned the least severe sentence, and did not impose one death penalty sentence.

Jury 7 , which was impaneled for, and death qualified in the penalty phase, and heard an audiotaped summary of the trial facts, differed significantly, returning a less severe sentence, from Juries 3a and 6.


Jury 3a, it will be recalled, operated under a bifurcated procedure and was death qualified only in the penalty phase, while Jury 6 differed from Jury 7 only in that Jury6 heard the entire vidiotape of the trial with the trial voir dire edited out.

A one-way analysis of variance was performed on the sentence returned for penalty juries (using the jury sentence as the unit of analysis). The analysis indicated a significant sentencing effect, F(4,32) = 3 . 9 5 , ~ = .01. Subsequent analysis using a Newman Kuels test indicated a significant difference (p < .05) among the sentences returned by the Juries 1 as compared to Juries 2 and 7 .

A chi-square performed on the jury sentencing outcomes, comparing death with life sentences, also revealed a significant difference ( x 2 = 1 1.94, df= 1 ,p < .01). There were 29 life sentences meted out and 8 death penalties, fully half occurring in Jury 1.

Table 4 presents the relationship between the severity of verdict and

Table 3

Mean Sentence for All Penalty Juries

Death Condition Procedure Sentence Juries penalty

verdicts

Jury 1

Jury 2

Jury 3a

Jury 6

Jury 7

Death Bifurcated 2.50, 8 4

Non-death Bifurcated 1.09d 8 0

Death Bifurcated 1.911, 6 1

qualified in trial phase

qualified in trial phase

qualified in penalty phase



Death Penalty only 2.14b 7 2

Death Penalty only 1.48, 8 1

Note. Sentence scores which do not share a common subscript differ significantly (p < .05) by Newman Keuls Multiple Range Test.


sentence for thejuries assigning both guilt and penalty(Juries I , 2, and 3 (3a)). The correlation between jury verdicts and sentences, while not significant 0, .067), warranted looking at the relationship between juror post-verdict and post-sentencing judgments within each of the three types of bifurcated juries. Separate Spearman rank order correlations were run on these juries to determine if a relationship existed between the individual jurors post-deliberation verdict and post-deliberation sentencing scores. Only Jury 1 scores were significantly correlated ( N 96, rs .4417,p < .OOl).

As Table 4 suggests, there was a definite tendency for severity of verdict scores to be related to severity of sentencing (x2 = 28.9, df 2, p < .001). Viewing jurors individually, 50% of jurors who had voted six on their guilt scores returned a death penalty sentence. Curiously, all 12 jurors who were excludable from Jury 3a had voted five on their verdict scores.

Demographic Characteristics of Juror Samples

Table 5 presents the characteristics of the two jurors’ samples used in the present study.

The primary difference which should be noted concerning the two samples is that Jamestown, New York is a rural area some 60 miles west of Buffalo, hard by the Pennsylvania state line. Toledo, Ohio is a medium sized city of some 350,000 residents, a Great Lakes Port city in a highly industrialized and urbanized section of northwest Ohio and southeastern Michigan.

The Toledo jurors, which make up the bulk of the subjects (78%) can be described as slightly older, more likely to be married, Catholic, and to claim affiliation with the Democratic party. Furthermore, the Toledo sample con-

Table 4

Relationship Between Severity of Verdict and Sentence f o r Juries Assigning Guilt and Penalty, Juries I , 2, and 3 (3a)

Verdict

4 5 6 Sentence Total Percent

Life w/ 20 1 3 0 4 18.2 Life w 130 6 5 2 13 59.1 Death 1 2 2 5 22.7

Total 8 10 4 22 -

Percent 36.4 54.4 18.2 100


Table 5

Demographic Characteristics of Jurors

Jamestown Toledo

n Age Gender Race

Marital status

Religion

Political affiliation

Mean income Mean education

156 27.16 years 64% Female 97% Caucasian

2% Native American 1 % Hispanic

31% Married 57% Single 10% Divorced 38% Protestant 41% Catholic

1% Jewish 19% Other 43% Democratic 25% Republican 2 1 % Independent 11% Other $6,279 13.5 years

552 32.5 years 59% Female 77% Caucasian 12% Black 6% Hispanic 5% Other

56% Married 36% Single 8% Divorced

34% Protestant 49% Catholic

2% Jewish 15% Other 52% Democratic 18% Republican 26% Independent 4% Other

$13,231 14.7 years

tained more Blacks, somewhat more Hispanics, was slightly better educated, and had a significantly higher income.

Behavioral Differences Between the Two Samples

One-way analyses of variance were performed on the verdict and sentence scores of the Jamestown and Toledo samples. The differences on both measures were significant.

Toledo jurors tended to reach less severe verdicts ( M 4.15, SD = .989) than did the Jamestown group ( M 5.16,SD .749), F = 98.7 ( 1 /526),p< .001. In contradistinction, the Jamestown penalty jurors gave less severe sentences ( M 1.66, S D = .947), than did the Toledo sample ( M = 2.03, SD = .903), F 5.39 (1/443),p < .02.

How much of these differences could be attributable to sample differences and how much to the fact that there were only 13 Jamestown juries, spread


unevenly among the conditions, is not determinable, given our data. The different modes of recrutment may also have contributed.

The decision to pool these two jury samples was based on the assumption that a broad base of heterogeneous juries would allow only the most robust effects of the different jury conditions. This assumption is supported as evidenced by the consistent effect that the standard death qualified bifurcated jury (Juries I ) demonstrates, that is, more severe verdicts and sentences.

The 13 Jamestown juries were distributed as follows: twojuries in the Jury I condition; three juries in the Jury 2 condition; two juries in the Jury 3 condition; three juries in the Jury 4 condition; and three juries in the Jury 7 condition. None of the Jamestown penalty juries returned a death sentence. The overall effects of the Jamestown juries were to increase the overall verdict severity and to depress the sentence severity.

Duration of Experiment and Trial Procedures

The experiment was begun in early September, 1983 and completed in April of 1984. The trial phase required a mean of 2.83 hours to complete (1.33 hours of deliberation) with a range of 20 to 150 minutes to reach a verdict o r t o be hung.

The penalty phase took a mean of 1.52 hours to complete ( M = 52 minutes for deliberations) for bifurcated juries. Jury 3a required an additional 30 minutes for the penalty voir dire. Jury 6 required a mean of 2.88 hours to be run (33 minutes for deliberation time). Jury 7 required a mean of 2.25 hours; 55 minutes of that time was utilized in the deliberations. Ju ry6 listened to the 60-minute trial tape while Jury 7 heard a 10-minute summary of the trial facts.

In addition to the 59 juries included in this study, an additional 7 juries reached various stages of completion but due to attrition, mechanical failures, and other difficulties could not be included in the analyses.

Discussion

The verdicts reached by the trial juries generally support previous findings. The procedure most commonly used in capital cases, the bifurcated, death qualified jury (Jury 1) returned the most severe verdicts and did not, in this experiment, acquit the defendant in any of the nine trials in which this procedure was utilized.

The procedure suggested, as a remedy for the effects of death qualification, by Judge Thomas Eisele in his decision in Grigsby v. Mubry (1983), a non- death qualified jury impaneled for the trial only, returned the fewest guilty verdicts and had the most hung juries.

There was also a tendency for jurors which operated under a bifurcated


procedure to be more severe in their verdicts that jurors who would not assign penalty if a guilty verdict is returned. Thus, the jurors in Jury 5 , which was death qualified, but would assign verdict only, reached significantly less severe verdicts. The jurors in Jury 5 also had a less proportion of guilty verdicts than did the jurors in Jury I , which was death qualified under a bifurcated proceeding.

While the verdict scores revealed significant statistical differences among the various trial conditions, the psychological and legal implications of these differences, we should think, are relatively minimal. All of the trial conditions produced verdict scores which are, for all intents and purposes, full within the guilty range. Therefore, the original 6-point verdict scale, in that event, was really a 3- or 4-point scale, a t best. Furthermore, the trial case utilized was moderate in evidentiary strength for the prosecution, no doubt accounting for the scale compression. At least in the trial phase, it matters little to the defendant if she is found “moderately”gui1ty or “severely” guilty.

The most interesting finding with respect to the trial phase data, we believe, resides in the differences observed between Juries 1 and 4. Jury 1 is the procedure commonly used in capital cases while Jury 4 is a proposed remedy for the biasing effects of death qualification. Jury 4, the non-death qualified, trial only, jury returned the least severe verdict scores (along with Jury 2) and handed out the lowest proportion of guilty verdicts and highest proportion of hung juries.

It would also appear that, generally, death qualified juries d o reach more severe verdicts and that a bifurcated proceeding also tends toward greater severity in the verdict scores. The present design did not allow for a specifica- tion of the causes of the severity, but we suspect that one cause may reside in the jurors’ “mere knowledge” of future penalty duties, as evidenced by the significant difference in jurors’ verdict severity found in Juries 1 vs. 5. The effects of bifurcation very likely interact with death qualification and severity of verdicts in bifurcated juries is clearly lessened when jurors are not death qualified.

Sent en cing

The primary interest we have had has related to the effects of bifurcation and death qualification on the sentencing behavior of the juries. The one non-death qualified penalty jury returned the least severe sentences and was the only condition in which a death penalty sentence was not returned by a single jury.

Equally as clear is that our baseline condition, Jury 1, the bifurcated, death qualified jury, returned the most severe sentences and one half of all the


death penalty outcomes were reached in this condition. Those were the two obvious findings concerning the penalty phase.

Juries 3a, 6, and 7, which were all possible remedies for the effects of death qualification in the trial phase and also possibly for the impact of bifurcation, yielded mixed results. Judge Eisele’s preferred remedy in the penalty phase, Jury 7, impaneled and death qualified for penalty, hearing a summary of the trial, was the most lenient of all the death qualified juries. Juries 3a, bifurcated and death qualified only for the penalty phase, did not differ from Jury 6, but both of these death qualified juries were more lenient than Jury 1.

Jury 7, as compared to the other death qualified juries, differed in its limited exposure to the trial facts; as it will be recalled, Jury 7 heard only a relatively brief audiotaped summary of the trial facts. This is likely the essential cause of the more lenient sentences meted out by juries in this condition.

The penalty phase data, again, demonstrated the effects of death qualification on the assignment of penalty. The evidence clearly shows that the process of death qualifyingjurors, as Haney’s( 1984b) subjects-observers have shown, is likely to lead to more severe judgments. In the present study, this severity effect occurred regardless of when the death qualification procedure was instituted, either at the trial or at the penalty phase. One qualification is that the most severe sentences were observed when jurors were death qualified in the trial phase of a bifurcated proceeding.

The finding that there was a highly consistent relationship between the jurors’verdicts and the severity of the sentencing is interesting but difficult to interpret. The finding appears to us to be too consistent.

Some courtroom observers have suggested that jurors who reach a severe verdict often try to balance this out with a less severe sentence in a capital case. This anecdotal observation was not borne out by our data. Nevertheless, because of the simulated nature of this experiment, the subject jurors were very likely more aware that their behavior was being monitored than would actual jurors and quite possibly endeavored to maintain an unnatural and forced consistency in their responses, despite the anonymity conferred upon their behavior.

The differences observed among death qualified juries and non-death qualified juries may not be due to the process of death qualification alone. In this experiment, we did not purposely assign all death qualified jurors to one condition and all excludables to another(Cowen et al., 1984). Our interest was in delineating the effects of procedure and process. Perhaps our results may have occurred in sharper relief if the juries were homogeneous. Nevertheless, it is quite likely that the non-death qualified juries were in fact mixed juries, made up of both excludables and death qualifiable jurors. Therefore, differences between our death qualified juries and non-death qualified juries may


also be attributable to possible differences in functioning between mixed juries and homogeneous juries.

Thompson et al. (1984) have reported that jurors comprised of excludables and those comprised of death qualified jurors differ essentially because death qualified jurors may have a lower threshold of conviction than excludable jurors and the consistently observed relationship between death penalty attitudes and verdicts may be mediated by differential thresholds of conviction.

The differences between homogeneous juries and mixed juries is as yet not as clearly specified as that between excludables and death qualified juries. Cowen et al. (1984) d o suggest that mixed juries may be more critical in their evaluations, more likely to find the case difficult, and not as certain that they were fair than homogeneous juries. The Cowen et al. data also suggest that mixed juries tend to d o better at remembering and reporting the trial evidence than homogeneous juries. All of this adds to the contention that juries which are characterized by diversity of composition not only better reflect the community form which they are drawn, but most likely render a more judi- cious verdict.

We realize the present study is but a demonstration of the possible effects of the death qualification process and bifurcation on sentencing and also on verdict outcomes. We further realize that it is but a modest demonstration at that.

The limitations of the present study are clear. Despite the fact that nearly 1,000 subjects were used as a venire, :?o condition had more than 11 juries, one as few as 6 .

The voir dire procedure was quite likely too truncated to be as accurate reflection of a trial voir dire as one may prefer. Haney (1984b), for example, had his observer-jurors watch a 2-hour voir dire as compared to the present voir dire procedure which took from 30 to 45 minutes, depending upon the responses of the potential jurors. The mass voir dire we used, although constitutionally acceptable, as we have noted, is not as effective in eliciting honest responses as a private, sequestered voir dire in capital cases (Nietzel & Dillehay, 1982). While we endeavored to incorporate as many actual courtroom particulars into our simulated voir dire as possible, it is also clear that some of these were but shadows of their real life counterparts.

For example, an important component of the voir dire in the death qualification process are the attempts to “rehabilitate” jurors who at first blush appear to be “excludable.” The vividness of these rehabilitation attempts in the courtroom is typically much sharper than our simulations.

The trial case used was moderate in evidentiary strength for the prosecution. We could not afford too large an attrition rate from our trial to our penalty phase. The effects ofthe trial procedures would likely have been delineated


more fully if either a more ambiguous evidentiary case was used or a second such case was also employed.

While we are convinced of the intrinsic quality and inherent drama of our audiotaped trials, videotape versions, had they been available, would have added versimilitude.

With these most obvious caveats in mind, nevertheless, the present findings d o present an empirical demonstration of the effects of the bifurcated proceed- ings and the death qualification process, particularly with regard to jury judgments made in the penalty phase of a capital trial.

TABLE OF CASES

Furman v. Georgia, 408 U.S. 238 (1972). Gregg v. Georgia, 428 U.S. 153 (1976). Grigsby v. Mabry, 483 F.Supp. 1372 (E. D . Ark. 1980) modijkd and re-

Hovey v. Superior Court, 616 P.2d, 1301 (1980). Jurek v. Texas, 428 U.S. 262 (1976). McCorquodale v. Balkom, 34 Criminal Law Reporter 2345 (12/30/83). Ohio v. Rogers, CR 8 1-6906, Lucas County Common Pleas, Lucas County,

Proffit v. Florida, 428 U.S. 242 (1976). Roberts v. Louisiana, 43 1 U S . 633 (1977). Wainwright v. Witt, 53 LW 4108 (1/22/85). Witherspoon v. Illinois, 391 U.S. 510 (1968). Woodson v. North Carolina, 482 U S . 280 (1976).

manded, 637 F.2d 525 (8th Cir. 1980).

Ohio (1 982).

Reference3

Cowan, C., Thompson, W., & Ellsworth, P. (1984). The effects of death qualification on jurors’ predisposition to convict and on the quality of deliberation. Law and Human Behavior, 8( 1 & 2), 53-80.

Davis, J. H., Stasser, G., Spitzer, C., & Holt, R. (1976). Changes in group members’ decision preferences during discussion: An illustration with mock juries. Journal of Personality andsocial Psychology, 34, 1 177-1 187.

Fitzgerald, R., & Ellsworth, P. (1984). Due process vs. crime control: Death qualification and jury attitudes. Law and Human Behavior, 8(1 & 2), 3 1-52.

Gillers, S. (1980). Deciding who dies. University of Pennsylvania Law Review, 129, 1-124.

Greenberg, J. (1982). Capital punishment as a system. Yale Law Journal, 91, pp. 908-936.


Haney, C. (1984a). On selection of capital juries: The biasing effects of the death qualification process. Law and Human Behavior, 8( 1 & 2), 133-152.

Haney, C. (1984b). Examining death qualification: Further analysis of the process effect. Law and Human Behavior, 8(1 & 2), 153-158.

Kadane, J . (1984). After Hovey: A note of taking account of the automatic death penalty jurors. Law and Human Behavior, 8( 1 & 2), I 1 5-1 20.

Lamm, H., & Meyers, D. G. (1978). Group-induced polarization of attitudes and behavior. In L. Berkowitz (Ed.), Advances in experimental social psychology. New York: Academic Press.

Nietzel, M. T., & Dillehay, R. C. (1982). The effects of variations in voir dire procedures in capitl murder trials. Law and Human Behavior, 6, 1-13.

Perkins, J. R., Jr . (1983). Capital punishment: Impairment ofadeath sentence by the invalidity of an aggravating circumstance. University of Cincinnati Law Review, 52, 541 -557.

Tanke, E. (1985, April). A P A Monitor, 31. Thompson, W., Cowan, C., Ellsworth, P., & Harrington, J. (1984). Death

penalty attitudes and conviction-proneness: The translation of attitudes into verdicts. Law and Human Behavior, 8(1 & 2), 95-1 14.

Winick, B. (1982). Prosecutorial peremptory challenge practices in capital cases: An empirical study and a constitutional analysis. Michigan Law Review, 81, 1-98.

Documents

The Effects of Bifurcation and Death Qualification on Assignment of Penalty in Capital Crimes