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jury.Cambridge, MA: Harvard University Press.
Johnson v. Louisiana, 406 U.S. 356 (1972).
Saks, M. J. (1977). Jury verdicts: The role of group size and
social decision rule. Lexington, MA: Lexington Books.
Saks, M. J., & Marti, M. W. (1997). A meta-analysis of the
effects of jury size. Law and Human Behavior, 21,
451–467.
Williams v. Florida, 399 U.S. 78 (1970).
Zeisel, H. (1971)....And then there were none: The
diminution of the federal jury. University of Chicago Law
Review, 38,710–724.JURYUNDERSTANDING OFJUDGES’
INSTRUCTIONS IN CAPITALCASES
Research has shown that jurors in many types of cases
frequently fail to understand the jury instructions they
receive. However, this failure to understand has special
implications in capital, or death penalty, cases. As in
other cases, juror comprehension of instructions in
death penalty cases is very low, and the difficulty of
some of the terms and concepts used in the death
penalty context exacerbates their confusion. But this
misunderstanding carries with it an additional set of
consequences in capital cases. Not only will jurors who
misunderstand a judge’s instructions in a death penalty
case have difficulty in applying the law accurately, but
these jurors may also be more easily influenced by bias
or prejudice in their decision-making process and may
be more likely to vote for a sentence of death.Guided Discretion
In 1972, in Furman v. Georgia, when the Supreme
Court held that the death penalty was unconstitu-
tional, it based its decision in part on the fact that the
jury’s decision-making processes in capital cases at
the time seemed “arbitrary” and “capricious.” When
the Supreme Court approved new death penalty laws
4 years later, in Gregg v. Georgiaand several other
cases, it was because the Court felt that the new laws
provided jurors with a framework intended to guide
their decision-making process, guaranteeing that
the jury’s discretion was controlled or channeled.
Because this sort of guided discretion (communicated
to the jury through jury instructions) was central to theCourt’s decision to bring back the death penalty in the
United States, it is important that jurors in capital
cases actually understand the jury instructions intended
to provide that guidance.
Several components of death penalty cases make
the jurors, the trials, and the jury instructions in those
trials unique. During the jury selection process, for
example, the death qualification process eliminates
from service those potential jurors who have such
strong views about the death penalty that those views
might affect their ability to make an unbiased decision
in an individual case. In addition, a capital trial is fre-
quently divided into two phases: a “guilt phase,” in
which jurors are asked to decide if the defendant is
guilty or not guilty, followed by a “penalty phase” if
the defendant was found guilty during the first phase.
In the penalty phase, the same jurors are asked to
decide whether a defendant should be sentenced to life
in prison without the possibility of parole or to death.Penalty Phase Instructions
A significant amount of research has focused on the
jury instructions used in the penalty phase of capital
trials. This research has focused on several concepts
that are central to the penalty phase and the structure
approved by the Supreme Court. First, the term aggra-
vating circumstancesis used in death penalty cases to
describe the evidence that suggests that the defendant
should receive a death sentence. This evidence is usu-
ally presented by the prosecution. Aggravating evi-
dence includes those aspects about the crime or the
defendant that, if true, should encourage jurors to vote
for the death penalty. Aggravating factors are fre-
quently limited to those listed in state statutes and can
include things such as prior felony convictions or the
circumstances of the crime in question. The term mit-
igating circumstances, on the other hand, describes
the evidence to be considered by jurors that weighs in
favor of a life sentence. Mitigating evidence is infor-
mation about the crime, the defendant, or his or her
life circumstances that, if true, should encourage a life
sentence. Sometimes, specific examples of mitigation
are included in jury instructions (e.g., the age or men-
tal capacity of the defendant or social history), but
mitigating evidence is not limited by law. The
Supreme Court has said that jurors in death penalty
cases should be able to consider any and all mitigating
circumstances. As a result, death penalty statues fre-
quently include a “catch all” category to let jurors426 ———Jury Understanding of Judges’ Instructions in Capital CasesJ-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 426