Another Approach to Death-Qualified Jurors


In jury selection for my aggravated assault trial last week, I objected to the State’s use of a challenge for cause to exclude a potential juror whose religion forbade him judging other people. The objection was under Article I, Section 4 of the Texas Constitution, which provides in relevant part, “No religious test shall ever be required as a qualification to any office, or public trust, in this State.” (The U.S. Constitutionin Article VI Section 3, also forbids religious tests for public offices.) My reasoning, as I’ve discussed here before, was that jury duty is an office or public trust, and that it is a religious test to bar from that office a person who, for religious reasons alone, could not find a defendant guilty.

The judge (a retired appellate judge) asked me if that wouldn’t mean that jurors who couldn’t consider imposing the death penalty because of their religion would be able to serve as jurors. I had to concede that this was a good question, and that in my opinion it would.

But what about Wainwright and Witherspoon?

Anne Reed at Deliberations yesterday posted about the death qualification of jurors — barring from jury duty on a capital case any jurors who can’t consider the death penalty. In Anne’s view, Supreme court precedent allows a potential capital juror to be struck for cause

. . . if his religious views on the death penalty “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”  (The quote is from Wainwright.)

This isn’t quite right. Neither the 1968 Supreme Court case of Witherspoon v. Illinois nor the 1985 Supreme Court case of Wainwright v. Witt addressed the propriety of a religious test for jury duty. Witherspoon discussed “religious or conscientious” or “religious or philosophical” objections to imposing the death penalty; Wainwright discussed “religious or personal” or “religious or conscientious” objections. The potential jurors in both cases apparently did not specify that their objections religious. Wainwright and Witherspoon dealt with the substance of the objection rather than its basis.

For a “religious test” challenge to have any chance of success, the trial lawyer has to nail the potential juror down on her “judge not” beliefs being religious, rather than personal, conscientious, or philosophical.

Further, both Wainwright and Witherspoon focused not on the jurors’ right to serve, but rather on the defendants’ rights under the Sixth and Fourteenth Amendments. Likewise the 1986 Supreme Court case of Batson v. Kentucky was hinged on Equal Protection for the accused, though the Court in that case recognized the harm done by race-based peremptory challenges to the excluded jurors.

In Powers v. Ohio in 1991 the Court explicitly recognized a defendant’s standing to raise jurors’ equal-protection claims; in Georgia v. McCollum in 1992 the Court solidified jurors’ protections against race-based peremptory challenges by allowing the State (which has no constitutional rights) to make a Batson challenge in response to a defendant’s peremptory strikes.

Even though the potential juror in Campbell v. Louisiana, which was the impetus for Anne’s return to this issue, specified that it was her religious belief that made it difficult for her to consider the dealth penalty, Article VI Section 3 is not at issue in that case. In light of Batson, Powers, and McCollum, however, maybe it should be — it’s time to visit the use of religious tests to exclude people from jury duty because of their religious beliefs in the courts — not only in capital cases, but in all criminal cases.

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