Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases

63 Pages Posted: 5 Jan 2000

See all articles by Stephen P. Garvey

Stephen P. Garvey

Cornell Law School

Sheri Lynn Johnson

Cornell Law School

Paul Marcus

William & Mary Law School

Multiple version iconThere are 3 versions of this paper

Abstract

Capital jurors are never required to impose the death penalty. So when the members of a capital sentencing jury ask whether they must impose the death penalty if they believe the state has proven an aggravating circumstance, should the court be required to give a clarifying instruction to that effect? The Virginia judge in Weeks v. Angelone thought not. Over defense counsel's objection, the judge simply told the jurors to go back and re-read the original instruction. A panel of the Fourth Circuit also thought not, mainly because the panel's members believed that no reasonable juror would in fact have found the original instruction confusing. The case is now pending before the Supreme Court, which heard oral argument in December.

We conducted a mock jury study in order to test the Fourth Circuit's factual premises. Our study was conducted in Virginia and was based as closely as possible on the actual facts in Weeks. Most of the mock jurors did indeed find the relevant instruction confusing. Forty-one percent believed they were required to sentence the defendant to death if they believed the state proved the defendant's conduct was heinous, vile or depraved, when in fact capital jurors are never required to impose a death sentence, no matter what the state proves. Moreover, if the trial court judge had actually given the kind of clarifying instruction requested by the defense, the number of confused jurors would in all likelihood have dropped dramatically, down by some twenty percentage points.

Based on these findings, we conclude that the Fourth Circuit was wrong: Reasonable jurors do find the instruction at issue confusing, and a clarifying instruction would have significantly reduced that confusion. Accordingly, when a capital jury sends the court an inquiry concerning a critical sentencing instruction, as did the jury in Weeks, we argue that the court is constitutionally obligated to give a clarifying instruction in order to correct the jury's deadly confusion.

Suggested Citation

Garvey, Stephen P. and Johnson, Sheri Lynn and Marcus, Paul, Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases. Available at SSRN: https://ssrn.com/abstract=203028 or http://dx.doi.org/10.2139/ssrn.203028

Stephen P. Garvey (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-8589 (Phone)
607-255-7193 (Fax)

Sheri Lynn Johnson

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-6478 (Phone)
607-255-7193 (Fax)

Paul Marcus

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3900 (Phone)
757-221-3261 (Fax)

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