Capital Punishment



Capital Punishment

The defense

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Psychology & Law

Robert Mauro

Winter 2005

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Andy Mean

Amelia Cordy

Elizabeth Shields

TABLE OF CONTENTS

Page

I. STATEMENT OF INTEREST……………….1

II. LEGAL ARGUMENT………………………..2

III. PSYCHOLOGICAL ARGUMENT………...7

A. Real Jury Findings……….......................7

B. Simulated Jury Experience…………….10

C. Further Studies…………………………15

IV. CONCLUSION……………………………..21

V. REFERENCES

TABLE OF AUTHORITIES

Cases Page

Boyde v. California (1991)………………………..5

Buchanan v. Angelone (1998)……………………6

Furman v. Georgia (1972)………………………..3

Gregg v. Georgia (1976)………………………..3,6

Lockett v. Ohio (1978)……………………………5

McGautha v. California (1971)………………..2,6

Mills v. Maryland (1988)…………………………5

Weeks v. Angelone (2000)………………………..6

I. STATEMENT OF INTEREST

America’s obsession with justice and equality has bred an adversarial system so entwined with the population that theoretically any citizen can make their case before the Supreme Court, the highest court in the country, and be entitled to due process of law. This is explicitly stated in the constitution under the fourth amendment. Ideally, the process of justice should be as logical as absolutely possible from beginning to end. The end result, given that the process goes smoothly, is punishment for criminals and vindication for victims. Shockingly, the United States is one of the few nations in the industrialized world that still uses the death penalty to execute criminals that are found guilty of particularly heinous crimes. The criminals that are sentenced to death, by definition, are guilty of abnormally brutal and heinous crimes against society which is ultimately why they given death in the first place. While one cannot deny the brutality and reprehensible acts they committed, the purpose of this brief is not to call into question whether these criminals deserve death but whether the death sentence itself is functioning according to its purpose. By necessity, the absoluteness of capital punishment requires the utmost precision and accuracy in usage, for any mistakes along the process would undermine the entire system and its purpose. Capital punishment is such a definitive and finalizing procedure that any degrees of arbitration are unacceptable. From beginning to end, the process must be systematic and unbiased. However, breakthrough psychological evidence has tested the capital sentencing process for arbitration and produced alarming results. If such arbitrariness is indeed found to exist, devastating implications on our legal system would undoubtedly surface.

II. LEGAL ARGUMENT

Initially, the death sentence was left to the discretion of juries because the Supreme Court decided that the constitution did not require states to adopt specific guidelines. In McGautha v. California (1971), the court ruled that guidelines were not needed simply because juries would not be able to follow them. “Justice Harlan made the empirical assumption that jurors would not or could not follow rules designed to guide their discretion in imposing the death penalty and that therefore there was no need to even try and establish a set of guidelines, and of course no need to empirically examine the decision making process of capital jurors” (Weiner et. al. 2004). The Supreme Court ruled that creating guidelines simple enough for juries to understand and use was too daunting of a task to be done without undermining the complexity of a capital sentence. Interestingly enough, psychological studies have led some to believe that Justice Harlan’s assumption about juries does have merit to it. If in fact juries are not able to follow such guidelines for various reasons, it would seem to support the argument that the process of death-sentencing is in fact arbitrary by nature.

In order for a jury to properly review a case, determine guilt, and give a sentence, the jury must be competent and remain unbiased throughout the entirety of the proceeding. Yet juries are selected from pools of ordinary citizens who most likely have no legal training or experience. Furthermore, these juries are potentially biased and will likely have pre-determined conceptions of the defendant before the trial is finished. The actual process of jury selection is more of a balancing act than a filtering act. Although attorneys are encouraged to select biased jurors in their favor through during voir dire, the hope is that both the prosecution and the defense’s selections will balance each other out. Yet, some jurors, whose biases are not accounted for are able to slip through the system and sway the ultimate jury decision. These unintended jury effects only contribute to the degree of arbitrariness in death sentencing that is in question.

Legally speaking, the clash between the death penalty and the constitutional rights guaranteed by the 8th amendment did not exist within the judicial system until 1972. One year after McGautha’s case, in the landmark case of Furman v. Georgia (1972), the Supreme Court reversed its ruling and deemed death sentencing unconstitutional without guidelines due to varying degrees of arbitration. “Justice Brennan went so far as to say that the death is “a unique punishment in the United States” (p. 286) and that its “finality and enormity” puts it “in a class by itself” (Weiner et. al. 2004). The reason it was deemed unconstitutional is because the 8th amendment of the constitution states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. The “cruel and unusual punishment” clause was descriptive of the arbitrary nature of sentencing, before Furman v. Georgia (1972). Without proper guidelines to normalize and standardize death sentencing from one state to the next leaves the process subject to the discretion of the jury. This leads to morally conflicting possibilities such as being sentenced to death in one state and receiving a life sentence in another. Quite obviously guidelines were sorely needed. Following Furman v. Georgia (1972), courts across the country began to review and revise their own death-penalty proceedings.

However, further examination by the Supreme Court revealed that simply stating that guidelines were needed was not sufficient and that inherent flaws with death sentencing still existed. In Gregg v. Georgia (1976), the court required that additional measures be taken before sentencing. “The Supreme Court upheld Georgia's death penalty statute, concluding that the death penalty could only be applied if procedures were in place to ensure that the imposition of death was “directed and limited so as to minimize the risk of wholly arbitrary and capricious action” (Weiner et. al. 2004). The Supreme Court praised Georgia’s bifurcation system in which the sentencing process was divided into a guilt determination phase and if necessary followed by a sentencing phase. The court also added that “guided discretion demanded that jury decision making in the penalty phase be aided by aggravating factors listed in statute and by mitigating factors also listed in statute” (Weiner et. al. 2004). The court believed that the separation of guilt and sentencing accompanied with the consideration of mitigating and aggravating factors would finally bring death sentencing out of conflict with the 8th amendment. The Supreme Court assumed that essentially, there were certain aggravating factors that, if present, called for the death penalty while certain mitigating factors would not. The jurors were to determine the presence of them and then reach a conclusion from there. While this would appear to be a relatively easy process of just evaluating which items are on the checklist, one has to take into account the complexity of the evidence and the other factors of the particular situation such as motives. The court still relies too heavily on the assumption that the jurors will act rationally without bias and that the evidence will point to only one of two outcomes. In practice the evidence does not always fit neatly into aggravating or mitigating factors which, once again, leaves it open to the discretion of the jurors. While the concept of a two-phased process coupled with mitigating and aggravating factors is a step closer to the systematic removal of arbitrariness in sentencing, much discretion is still left to the juries. It should also be noted that this system has not been adopted by any other states. The issue of jury discretion involving mitigating and aggravating factors would later prove to be yet another thorn in the process of death sentencing.

Lockett v. Ohio (1978) built upon the precedence set by Gregg’s case. Attempting to widen the scope of what was considered “mitigating evidence”, the Supreme Court allowed jurors to broaden their interpretations to include “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death” (Weiner et. al. 2004). Ironically, rather than settling the dispute in determining what constituted as mitigating, widening the scope of mitigating factors only proved to intensify the problem. For example, Mills v. Maryland (1988) involved a jury that could not even agree on a mitigating factor. “The Court invalidated Maryland's jury verdict forms because they did not allow a prison sentence when all jurors found different mitigating factors that were sufficient to offset aggravating factors” (Weiner et. al. 2004). The lack of consistency between the jurors forced the court to rule that the jury’s discretion would not be fit to arbitrate the case.

In Boyde v. California (1991) the Supreme Court ruled that “there cannot be a “reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence” (Weiner et. al. 2004). In an attempt to stress the importance of mitigating evidence, the court decided that any jury instruction used to aid in sentencing cannot be used in a way could possible hinder the consideration of such important evidence. Yet this ruling would later prove to be the turning point in which later court rulings would conclude that jury instructions can not be used as such without complicating other phases of sentencing.

The Supreme Court again attempted to remedy the problem with mitigating evidence in Buchanan v. Angelone (1998). Building upon Gregg v. Georgia (1976), the Supreme Court has emphasized two distinct processes within death sentencing: eligibility and selection. Again the court instructed the jury to consider mitigating evidence but this time, “the state is not required to structure in a particular way the manner in which juries consider mitigating evidence.” (Weiner et. al. 2004). The Supreme Court completely disregarded any guidelines they once imposed, as recommended by Justice Harlan in McGautha v. California (1971) thirty years earlier, on mitigating evidence in an attempt to quell jury confusion. Not surprisingly, the court was forced to again rely on jury discretion. After attempting for thirty years to instigate guidelines upon jurors, the court proved unsuccessful. Justice Harlan’s empirical assumptions about juries still prove to be true thirty years afterwards leading us to believe that juries simply cannot follow guidelines and that forcing them to do so can only create a degree of arbitrariness and confusion in which the juries discretion can be described as a clear violation of the 8th amendment. Even the court itself has started to question the comprehension of jury instructions by juries. In Weeks v. Angelone (2000), the jury repeatedly questioned the Judge about the instructions to which the Judge could only direct them back to the instructions. This act of asking the judge additional questions lead the defense counsel to bring into question the violation of the defendant’s right to due process of law. “Given that the Court itself has examined empirical evidence to determine whether jurors have understood the instructions in the penalty phase, it should come as no surprise that psychologists have also attempted to challenge jury instructions with empirical evidence that demonstrates high levels of confusion under state-approved death penalty phase instructions” (Weiner et. al. 2004). The inability of the court to successfully instigate guidelines upon specific evidence factors in a trial has led the court to more frequently question the jury’s level of comprehension. With the Supreme Court expressing concerns about the process of death sentencing, psychologists discovered a newfound interest in the legal system. Tests and studies of varying degrees began emerging, specifically studying capital cases.

III. PSYCHOLOGICAL ARGUMENT

Social science research into jury comprehension of instructions and laws surrounding capital cases have repeatedly and consistently shown confusion and miscomprehension of vital legal issues and instructions. However even with this consistency, the research has been criticized and declared faulty by the courts. In the following sections the main criticisms to the social science research will be addressed.

A. Real Jury Findings

One of the main criticisms aimed at the social science research addressing jury comprehension has been its use of mock juries rather then real ones. The courts persist that the research using these mock juries must be questioned since the participants could not have felt the experienced of what a real juror would and therefore the findings are not applicable.

Reifman, Gusick, and Ellsworth (1992), completed a study with the purpose of testing the generalizability of the laboratory demonstration of poor juror understanding of the law by examining real jurors ability to comprehend the law in cases they served on. Participants for this study were selected from a pool of 558 citizens who had been called for jury duty in Michigan. Potential participants were sent a seven-page questionnaire asking them about the trial they served on, and testing their knowledge of the law. Participants were also questioned on if they had asked the judge for clarification on the jury instruction they were given. The researchers received 224 questionnaires back. The participants who filled out these questionnaires fell into three groups, those that participated in criminal cases (118), civil cases, (22), and those that ended up not serving at all (94).

The results from the questionnaire showed an overall poor comprehension of the law and jury instructions. Participants got questions right about the law less then half of the time. The judge’s instructions seemed to help more with the juries understanding of procedural law but not with their comprehension of substantive law. Participants that asked the judge for clarification preformed 36% better on the questionnaire. However it was noted by the researchers that many of the jurors commented that they felt intimidated by the judge and did not feel that they were encouraged to or could ask questions. Jurors that were on criminal cases got 41% of the legal issues questions that were valid for their specific case right and 33% of the questions correct on legal issues that were not valid to their specific case. This was not a very significant difference. Jurors that did not hear any specific cases and therefore did not receive further instructions got 35% of these legal questions correct, again not very far of 41%. Reifman, Guisck, and Ellsworth concluded that their findings showed the same pattern as studies done in the laboratories and because of this, these studies and the findings of low comprehension should, be taken seriously.

An experiment done by Frank and Applegate, (1998) investigated the mock jury criticism. The participants in this study were actual jurors awaiting assignment, so the findings of this study are said to be from “real” jurors, not mock ones. Frank and Applegate (1998) tested the improved version of the Ohio state jury instructions compared to the old version of instruction to see if the revision helped with jury comprehension in their study. Participants in this study were citizens from Franklin County, Ohio that had been called to jury duty and were awaiting assignment.

For this study, participants were escorted into a courtroom where they were shown a videotape of an actual judge providing a synopsis of facts from a real homicide case. The judge then read sentencing instructions. Participants at this time were broken up into smaller groups and allowed 20-30 minutes to deliberate about the case. After this they were given a questionnaire. For one group of participants that performed the above-mentioned tasks the instructions they heard were the revised version and for the other group heard the old version. Also one group received a written copy of the instructions and the other did not. The questionnaire consisted of questions that asked the participant to judge the actions of a jury as lawful or not, and a legal statement that the participants judged for correctness.

On average, the participants correctly answered 57% of the questions. With the old instructions they correctly answered 50% of the questions and with the new set they correctly answered 68% of the questions. If participants were allowed to have a copy of the instructions this helped improved the number they got correct. The questions that were missed the most were questions that dealt with the understanding of mitigating factors, standard of proof for mitigating factors and the way to properly weigh aggravating and mitigating factors. So not only was the other comprehension of the instruction poor, the least understood information was information that would have been vital to the defendants case. The conclusion that Frank and Applegate reached was that their study provided evidence that jury understanding of the instructions they were given was lacking and that this brought into question whether the jurors were being successfully guided.

The two research studies presented above were done on real jurors. The data seems to indicate that these real jurors were substantially confused by the legal issues that were critical to the overall comprehension of the case. Perhaps even more alarming was that the jurors were most confused by the legal factors that would determine a defendant’s eligibility for death.

B. Simulated Jury Experience

Another criticism laid on the social science research is that participants in these studies do not experience what a juror does, they do not go through the whole process, and therefore the findings of the studies are again not applicable. While it would be implausible for researchers to conduct real trials, they have gone to great lengths to satisfy the courts demands for more solid evidence by modeling simulated trials as realistically as possible.

Lynch and Haney (2000) built upon Frank and Applegate (1998) and went even further in their study in trying to recreate the experience of a trial for their participants. They had their participants watch a simulated trial from beginning to end. The participants in the study were jury eligible residents in the county that the study took place in. Potential participants filled out the death penalty juror questionnaire to test their eligibility for being on a jury for a capital punishment case.

Participants in this study watched a videotape of a simulated capital penalty trial. They observed a brief synopsis of the guilty phase followed by the penalty phase. They saw opening statements, the mock witnesses and closing arguments. The judge then read the set of penalty jury instructions used in California. Afterwards, the participants were given a written copy of these instructions and asked to fill out a questionnaire. This questionnaire consisted of several open-ended questions about the decision making process and some forced choose questions. Participants also filled out the jury comprehension test.

Overall participants preformed poorly on these tests. On average participants got 16 out of 35 questions right or about 47% correct. Only 2% or seven participants scored 30 or above and 6 participants got nothing right. Aggravating and mitigating factors were a source of major confusion for participants in this study. Among those participants that voted for the death penalty, 34% misunderstood mitigating factors. It was also found that participants that scored the lowest on comprehension were more likely to vote in support of the death penalty. These finding are indeed alarming. Not only do potential jurors not seem to understand the legal issues at play in capital punishment cases, but this confusion did not seem to stop them from voting to end someone’s life, it actually made death more likely.

A study done by Wiener (2000) and his lab hoped to find a method of providing instructions that were less confusing to those serving on a murder-one jury. Each participant came to a session and served as a member for the mock jury group for that session. Several participants were lost for a variety of reasons, thus the data analyzed is comprised of 665 participants. The researchers used a videotaped reenactment of State v. Kneses; a case in which the defendant was convicted of rape and murder of his wife and mother of his infant son.

During the session, trial information presented to the participants was held constant across all conditions, but each jury session received one of eight versions of penalty phase instructions. After participants had a chance to view the instructions, they were asked by the experimenter to answer some open-ended questions pertaining to the instructions they were give. After viewing the entire case and again after deliberating, each mock juror completed a 36-item multiple-choice, juror comprehension survey modeled after one used in Wiener et al. (1998). The mock jurors also watched the penalty phase State v. Nelson and then proceeded to complete a juror survey, which assessed the juror’s procedural and declarative knowledge. After the deliberations, the participants completed a second version of the jury survey. It is important to note that, the first and the second survey, counterbalanced across participants, contained identical questions but were varied in the order in which the questions were presented. The members of the mock jury also completed a fact sheet asking about the State V. Knese case they previously viewed.

From this study several conclusions were made in regards to each task resented to the mock jurors. First, in relation to the fact sheet completed near the end of the session, it can be said that the mock jurors were attentive to the videotape, generally understood the facts, and were able to recognize the correct answer on 9 out of 10 questions on the fact sheet about the case. It was also concluded from the participant’s responses that the videotape accurately portrayed a case in which the defended was determine to be overall (83% of the jurors) guilty of first-degree murder.

One of the strongest findings of this particular study is that it suggests that jurors sentence defendants in capital murder cases with inadequate grounding in the accepted penalty phase procedure. This means that the balance of aggravating and mitigating factors is unclear to the jurors and the MAI’s (Missouri Approved Instructions) provide little or no guidance beyond chance on these rule applications. It was also found that while jurors did not understand the instructions, there are several instructions modifications available that could potentially increase accuracy in declarative state, declarative constitutional, procedural state, and procedural constitutional law. By correcting errors and giving practice with capital cases outcomes, along with simplifying instructions jurors have the ability to more easily grasp the concepts that make up penalty phase law.

Another highly important finding retrieved from the analysis of sentencing across deliberating juries is that those juries “who showed the greatest comprehension of procedural state knowledge were more likely to unanimously agree on a sentence of life in prison without the possibility of probation or parole” (Wiener ET AL. p 565). This is true regardless of the type of instructions given or the distribution of prior attitudes toward the death penalty. In short, only the knowledge of the penalty phase instructions and how to apply them predicted the decision of life imprisonment.

These few findings alone hold important consequences in regard to the number of death sentence given out in reality. With a clearer set of instructions in the penalty phase of a trial it could be assumed that far less defendants would be issued a death sentence. It is both unfair and unconstitutional for the defendants to receive a biased sentence based on the comprehension capabilities of the assigned jurors.

A second simulation study was done by Wiener and associated in 2000. This study was comprised of 185 participants. All participants were “death qualified”. The participants were assigned to two different conditions, one pre and post-deliberation survey and other post-deliberation only. Besides the two conditions, the procedure for the replication was identical to the MAI condition in the first simulation study.

The results in reference to the fact sheet were the same; the mock jurors paid attention to the videotape and understood the facts presented. 84% of the jurors believed the defendant to be guilty, and thus believed the verdict to be correct. So overall the videotape was effective in presenting a realistic case in which the defendant was guilty of first-degree murder. Overall, the data collected in the second simulation study replicated the pattern of the results reached in the first study.

From the work presented, the experimenters made several conclusions. While state-approved jury instructions follow statues and precedents set in case law, they are difficult for the layperson to understand. The jurors who do not fully understand the instructions can be considered more likely to assign a death sentence, even after a period of deliberation, that are jurors who have enough understanding of the law to comprehend the instructions.

The researchers proposed several methods to make the instructions more clear to those who dictate the sentence. And while some may argue that variations in the approved jury instructions will bias the jurors, the current data does not support such a claim. The data in fact supports the ideas that variations in instructions would work “indirectly by increasing understanding of the safeguards in the penalty phase process, and by tilting the judgment process in one direction or the other” (Wiener ET AL. p571)

The researchers in the previous studies tried to make their participants experience what a real jury would. While no experimenter will ever be able to set up an experiment that will totally capture the exact experience of a trial, what has been done can be seen as the next best thing and the findings should not be overlooked or seen as invalid.

C. Further Studies

As mentioned earlier there has been a great interest around the issue of jury’s decision making process in capital cases. The following are several more examples of research in this field that show the results of miscomprehension and confusion in juries.

Wiener, Pritchard, and Weston (1995) did research exploring the compressibility of jury instructions in the penalty phase of murder trials. Their research focused on the comprehension of the Missouri approved jury instructions. They collected data to ascertain whether miscomprehension of the jury instructions limited the laws ability to direct juror discretions as called for in the 8th amendment. Specifically they attempted with their research to address the question if lay people eligible for jury duty understand the elements of the instructions that the judge presents during the penalty phase.

Comprehension was measured for four different sets of instructions. The first set of instructions was a control set, which left out the definitions for aggravating, mitigating, and beyond a reasonable doubt, it also left out information about the responsibilities of the court, and instructions on how to compare aggravating and mitigating factors. The control set instructions was used to test the subject’s prior knowledge, assumptions and bias. The second set of instructions was the original Missouri instructions. The third set was a revised instructions set. This consisted of the original Missouri instructions plus more information about mitigating factors. The final set of instructions was a model set consisting of more clarifying and simple definitions and instructions in non-legal language. The subjects for this study were jury eligible community members from the county where the study took place. Subjects were screened for their willingness to apply the death penalty, thereby making them eligible to be a juror on a capital punishment cases.

After subjects were screened and found eligible, they were split into two different groups and presented with fact patterns from two recently tried Missouri cases. They were then given a written copy and heard the jury instructions read to them. Following this, participants filled out a questionnaire aimed at testing their knowledge about the instructions.

The results showed that subjects were confused by the instructions. With the original instructions the mean accuracy rate failed to reach 60%. The only area where participants seemed not to be confused was that the ultimate responsibility for imposing a sentence rested on the jury not the court. The improved set of instructions showed no significant impact on improving the subjects understanding of the instruction. The model instruction set seemed to have some positive impact on comprehension for one group but not the other.

The researchers in this study were also interested in seeing what effect this confusion could have on the outcome of a trial. They asked subjects to report what sentence they would have imposed in the case they heard. The disturbing finding was that overall the better the subjects understood the instructions; the less likely they were to give the death penalty. So subjects that did not understand the jury instructions and were more confused were also more likely to impose death. Wiener, Pritchard, and Weston concluded that their findings challenged the idea of the jury instructions being able to direct and limit jury discretion called for by the 8th amendment.

Haney and Lynch preformed a follow up study in 1997 to their 1994 study that tested jury comprehension using the California penalty phase instructions. This study tested the new improved instructions for any positive effect it had on jury comprehension compared to findings in 1994 with the old version.

Their previous research found that the California instructions were difficult for the layperson to understand and in particular the concept of mitigation produced large amounts of confusion. Since their last study, the state of California has added information clarifying aggravating and mitigating factors to their penalty phase jury instructions. This study tested to see if these changes helped.

Participants for this study were 215 upper-division college students. The researchers admitted that this sample might not be representative of the general population but believe that this population should perform better then the general population on comprehension. Therefore if this population was confused by the new instructions, it could be gathered that the general population would also be confused.

Participants read a description of the general capital trial process in California, then were read the jury instructions that included information on the decision they had to make, guidelines about how to reach that decision, and specific factors to consider before rendering a verdict. The instructions were read three times. Participants were then asked to write a definition for aggravating and mitigating factors and judge if eleven items were one or the other.

The results show that 71% of the participants got the definition for aggravating factors at least partially right, 52% got the definitions for mitigating factors at least partially right, but only 41% got both of them right. Of the nine factors that were considered aggravating only one factor was correctly identified by a high percentage of the participants, 80%. The other factors were misjudged by an average 20-37% of the participants.

The researchers reported that these findings were very similar to the findings in their first study. These findings showed that participants had a hard time understanding factors and procedures that were vital to helping them and directing them in making a decision in a capital penalty case. Because of this, there is a significant threat to the fairness and reliability of the capital penalty decision-making process.

A study done in 1998, conducted by Wiener, Rogers, & Winter, hypothesized that mock jurors fail to understand the law when deciding upon the death penalty, in part because of the content, process and bias in their own information-processing system. It followed that rewriting jury instructions in a clear and simple language will not completely de-bias juror decisions. The researchers reasoned that only by instructing jurors specifically not to rely on faulty declarative knowledge about the law could the comprehension of the actual instructions delivered at trial be improved. To discover and catalogue the types of errors that people make about the sentencing process articulated in the law of first-degree murder, the researchers began by conducting a set of open-ended interviews with 126 jury-eligible citizens around St. Louis.

Each participant was interviewed and asked to describe in detail a first-degree murder story in which the jury found the defendant guilty and was thus given the death penalty. This was done to help the participants make available the recollections and understandings of the law regarding homicide. Next, the interviewer gave the definition for aggravating circumstance as descried by Missouri law: “Any factor about the crime and the defendant that makes the defendant more deserving of the death penalty”. The interviewer then requested the participants to define mitigating circumstances in their own words. Then the Missouri definition for mitigations circumstances was given: “Any factor about the crime or the defendant that makes the defendant less deserving of the death penalty”. The questions were also asked to a “control” group in the reverse order to avoid effects.

The mitigating and aggravating definitions given by the participants were coded. After the process of coding was complete, it was obvious that jurors were not blank slates but are active processors of social information who possess initial levels of declarative knowledge that may compromise their ability to adopt the judges’ instructions. Of the 126 participants interviewed, 77% of the respondent’s demonstrated knowledge about aggravation that was incorrect (25% offered definitions that were too narrow and 52% thought that aggravation implied less punishment). Further, 52% showed incorrect definitions of mitigation (42% had a definition that was to narrow and 9% thought mitigation required more punishment). These results help demonstrate the level of confusion jury’s encounter during the penalty phase in capital punishment trials. This, as well as many other psychological investigations, suggests that jury’s comprehension of the instructions given, can be considered significantly confused. This study led researchers to believe the “jurors bring to the judgment task a variety of misconceptions and errors concerning aggravation and mitigation that may interfere with their ability to comprehend and apply the jury instructions that the judge presents at trial” (Wiener p.537)

All of the previous studies presented have shown similar results. They have all found confusion around the legal issues and instructions given to juries in the penalty phase of trials. This confusion was found in studies done on real jurors, in studies that simulated the trial experience for the participants, and in other studies done in this field. These studies taken together present overwhelming evidence that jury confusion exists, and therefore arbitrariness exists, in the death sentencing process. While faults can be found in any signal study alone and therefore one can try to discount those finding, when research continues to present the same results over and over again the findings become harder to discredit and so it is with this research. The social science presented here supports and must lead one to see that arbitrariness exists in the jury decision-making process of our legal system as it now stands.

IV. CONCLUSION

The existence of arbitration in death sentencing presents the legal community with a dilemma. The courts can no longer ignore the psychological evidence on jury comprehension. Studies that have gone so far as using real jurors, exact descriptions of real trials, and replicated evidence and witnesses, have consistently shown appallingly low levels of jury comprehension time and time again. Even the studies that are only partially modeled after trials have shown the same consistent results. The complaints of studies being unrealistic, because they are not using real jurors, no longer have any merit as many studies have used actual jurors and shown the same results as those that did not. The social sciences have even proposed changes to jury instructions that could help with confusion but as the courts discredited their research, they also ignored their proposals. Faced with such daunting evidence and numerous instances, the courts must recognize that a discrepancy within the death sentencing process does in fact exist. While one can argue the degree to which it exists, the fact that it even exists at all must be brought to attention. Forcing a defendant to be judged by a pool of jurors, who would just as soon give him a life sentence as a death sentence due to a lack of comprehension, is at the very least cruel and unusual. It is a mockery of everything that the legal system of this country stands for, hinders one’s right to due process, and is a violation of the eight amendment. These arbitrary jurors are not just deciding the duration of a jail sentence, they are deciding if a person should live or die. Such a task cannot be allowed to contain any arbitration for fear that each one of us could potentially be judged the same way. The legal community needs to address this pressing issue with the utmost care in order to salvage the country’s faith in the system.

V. REFERENCES

Boyde v. California (1991)

Buchanan v. Angelone (1998)

Haney, G. & Lynch, M. (1997). Clarifying life and death matters: an analysis of instructional comprehension and penalty phase closing arguments. Law & Human Behavior, 21 (6), 575-595

Frank,J. & Applegate B. (1998). Assessing juror understanding of capital sentencing instructions. Crime & Delinquency, 44(3), 412-433

Furman v. Georgia (1972)

Gregg v. Georgia (1976)

Lynch, M. & Haney, G. (2000). Discrimination and instructional comprehension: guided discretion, racial bias, and the death penalty. Law and Human Behavior, 24(3), 337-358

Lockett v. Ohio (1978)

McGautha v. California (1971)

Mills v. Maryland (1988)

Reifman, A., Gusick, S., & Ellsworth, P. (1992). Real jurors’ understanding of the law in real cases. Law and Human Behavior,16, 539-554

Weeks v. Angelone (2000)

Weiner, R., Protchard, C., & Weston, M. (1995). Comprehensibility of approved jury instructions in capital murder cases. Journal of Applied Psychology, 18(4), 455-46

Weiner, R., Rodgers, M., & Winter, R. (2004). Guided Jury Discretions in Capital Murder Cases, The Role of Declarative and Procedural Knowledge. Psychology, Public Policy, and Law, 10(4), 516-576.

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