Publication Title

Texas Law Review


capital punishment, death-qualified juries

Document Type



This Article assesses, in light of fifteen years of judicial experience under Witherspoon v. Illinois, 391 U.S. 510 (1968), the meaning and impact of that decision and the practical and legal problems that arise in its application. The analysis draws heavily on actual voir dires reported in published opinions and considers the problems that judges and attorneys face when attempting to distinguish jurors who cannot be excluded under Witherspoon(commonly referred to as "death-qualified" jurors) from jurors who may be excluded for cause. Part II discusses the ways in which Witherspoon altered the law regarding jury selection in capital cases and considers

the theoretical and practical importance of its insistence that the disqualification of any excluded juror be "unmistakably clear."1 6 Part III describes the wide variety of juror responses to questions regarding their positions on capital punishment and assesses the legal problems posed by those responses. Part IV analyzes in light of those responses the nature of the inquiry required by Witherspoon, exploring both the problems that have arisen in framing adequate questions and the explanations needed to assure that the replies elicited are accurate and meaningful. This Article proposes a new method of questioning scrupled jurors that would implement Witherspoon in a more straightforward and administrable manner.



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