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5 Utah J. Crim. L. 26 (2021)
Coaxing Authoritarians out of the Jury Pool

handle is hein.journals/uthcrm5 and id is 30 raw text is: Utah Journal of Criminal Law COAXING AUTHORITARIANS OUT OF THE JURY POOL DAVID FERGUSON AND LEN LECCI, PH.D.1 THE AUTHORITARIAN JUROR PROBLEM In 1968 the U.S. Supreme Court was asked to set aside both a defend- ant's conviction and death sentence.2 The issue on appeal revolved around the jury selection in the case. Forty-seven members of the jury panel expressed reservation about imposing the death penalty. The court excused them all be- cause, in the court's mind, only people who unhesitatingly supported the death penalty could sit on a death-qualified jury. The chosen jury convicted the de- fendant and, unsurprisingly, sentenced him to death. On appeal, the defendant argued that a jury stacked with pro-death jurors is a jury that is more likely to convict a defendant in the first place, making the entire trial tainted because of a biased, pro-conviction jury. To sup- port this claim the defendant produced research showing that a juror who un- reservedly supports the death penalty is the kind of juror who would too read- ily ignore the presumption of the defendant's innocence, accept the prosecution's version of the facts, and return a verdict of guilt.3 The Supreme Court was unpersuaded. They reversed the death sentence because the jury had been clearly skewed toward a pro-death bias, but they affirmed the conviction. In upholding the conviction, the Court decided that the defendant's research was too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.A What the defendant's research hinted at in 1968 was later confirmed.5 And confirmed repeatedly.6 But more than that, over the next few decades David Ferguson is a public defender is Salt Lake County, Utah (e-mail: davidalex- ferg@gmail.com). Dr. Len Lecci is a professor in the Department of Psychology at the Univer- sity of North Carolina at Wilmington (e-mail: leccil@uncwil.edu). Thanks to Elisabeth Fergu- son, Margaret Ferguson, and Luke Henry for comments on earlier drafts and sustained support. 2 Witherspoon v. State ofIll., 391 U.S. 510, 516-17 (1968). 3 Id. 4 Id. at 517. 5 Robert M. Bray and Audrey M. Noble, Authoritarianism and Decisions of Mock Juries: Evidence of Jury Bias and Group Polarization, 36 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 1424, 1429 (1978). 6 Douglas J. Narby, et. al., A Meta-Analysis of the Association Between Authoritarianism and Juror's Perceptions of Defendant Culpability, 78 JOURNAL OF APPLIED PSYCHOLOGY 34 (1993) (hereinafter A Meta-Analysis); Brooke Butler and Gary Moran, The Impact of Death Qualification, Belief in a Just World, Legal Authoritarianism, and Locus of Control on Veni- repersons' Evaluations of Aggravating and Mitigating Circumstances in Capital Trials, 25 BEHAVIORAL SCIENCES & THE LAW, 57 (2007). 26

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