*1049 GUIDELINE 10.10.2--VOIR DIRE AND JURY SELECTION

  A. Counsel should consider, along with potential legal challenges to the procedures for selecting the jury that would be available in any criminal case (particularly those relating to bias on the basis of race or gender), whether any procedures have been instituted for selection of juries in capital cases that present particular legal bases for challenge. Such challenges may include challenges to the selection of the grand jury and grand jury forepersons as well as to the selection of the petit jury venire.

  B. Counsel should be familiar with the precedents relating to questioning and challenging of potential jurors, including the procedures surrounding "death qualification" concerning any potential juror's beliefs about the death  penalty. Counsel should be familiar with techniques: (1) for exposing those prospective jurors who would automatically impose the death penalty following a murder conviction or finding that the defendant is death-eligible, regardless of the individual circumstances of the case; (2) for uncovering those prospective jurors who are unable to give meaningful consideration to mitigating evidence; and (3) for rehabilitating potential jurors whose initial indications of opposition to the death penalty make them possibly excludable.

  C. Counsel should consider seeking expert assistance in the jury selection process.

History of Guideline

  This Guideline is based on Guideline 11.7.2 of the original edition. Subsection A of the Guideline has been amended to make clear that potential jury composition challenges should not be limited to the petit jury, but should also include the selection of the grand jury and grand *1050 jury forepersons. Subsection B has been amended to reflect recent scholarship demonstrating that the starkest failures of capital voir dire are the failure to uncover jurors who will automatically impose the death penalty following a conviction or finding of the circumstances which make the defendant eligible for the death penalty, and the failure to uncover jurors who are unable to consider particular mitigating circumstances. Subsection C is new. Its language is derived from Nat'l Legal Aid & Defender Ass'n, Performance Guidelines for Criminal Defense Representation Guideline 7.2(a)(7) (1995) ("Voir Dire and Jury Selection"), and the accompanying commentary.

Related Standards

  ABA Standards for Criminal Justice: Defense Function Standard 4-7.2  ("Selection of Jurors"), in ABA Standards for Criminal Justice: Prosecution Function and Defense Function (3d ed. 1993).

  ABA Standards for Criminal Justice: Trial by Jury Standard 15-2.1 ("Selection of Prospective Jurors"), in ABA Standards for Criminal Justice: Discovery and Trial by Jury (3d ed. 1996).

  ABA Standards for Criminal Justice: Trial by Jury Standard 15-2.2 ("Juror Questionnaires"), in ABA Standards for Criminal Justice: Discovery and Trial by Jury (3d ed. 1996).
  ABA Standards for Criminal Justice: Trial by Jury Standard 15-2.3 ("Challenge to the Array"), in ABA Standards for Criminal Justice: Discovery and Trial by Jury (3d ed. 1996).

  ABA Standards for Criminal Justice: Trial by Jury Standard 15-2.4 ("Conduct of Voir Dire Examination"), in ABA Standards for Criminal Justice: Discovery and Trial by Jury (3d ed. 1996).

  ABA Standards for Criminal Justice: Trial by Jury Standard 15-2.5 ("Challenges for Cause"), in ABA Standards for Criminal Justice: Discovery and Trial by Jury (3d ed. 1996).

  *1051 ABA Standards for Criminal Justice: Trial by Jury Standard 15-2.6  ("Peremptory Challenges"), in ABA Standards for Criminal Justice: Discovery and Trial by Jury (3d ed. 1996).

  ABA Standards for Criminal Justice: Trial by Jury Standard 15-2.7 ("Procedure for Exercise of Challenges; Swearing the Jury"), in ABA Standards for Criminal Justice: Discovery and Trial by Jury (3d ed. 1996).

  ABA Standards for Criminal Justice: Trial by Jury Standard 15-2.8  ("Impermissible Peremptory Challenges"), in ABA Standards for Criminal Justice: Discovery and Trial by Jury (3d ed. 1996).

  ABA Standards for Criminal Justice: Trial by Jury Standard 15-2.9 ("Alternate Jurors"), in ABA Standards for Criminal Justice: Discovery and Trial by Jury (3d ed. 1996).

  Nat'l Legal Aid & Defender Ass'n, Performance Guidelines for Criminal Defense Representation, Guideline 7.2 (1995) ("Voir Dire and Jury Selection").

Commentary

  Jury selection is important and complex in any criminal case.  In capital cases, it is all the more critical. Counsel should devote substantial time to determining the makeup of the venire, preparing a case-specific set of voir dire questions, planning a strategy for voir dire, and choosing a jury most favorable to the theories of mitigation that will be presented. Given the intricacy of the process and the sheer amount of data to be managed, counsel should consider obtaining the assistance of an expert jury consultant. 

  *1052 Counsel's jury selection strategy should minimize the problem of  "death qualified" juries that result from exclusion of potential jurors whose opposition to capital punishment effectively skews the jury pool not only as to imposition of the death penalty but as to conviction.  Case law stemming from Supreme Court decisions that address capital jury selection procedures  has resulted in a highly specialized and technical procedure. As a practical matter, the burden rests with defense counsel to "life qualify" a jury. Counsel should conduct a voir dire that is broad enough to expose those prospective jurors who are unable or unwilling to follow the applicable sentencing law, whether because they will automatically vote for death in certain circumstances or because *1053 they are unwilling to consider mitigating evidence.  Counsel should also develop a strategy for rehabilitating those prospective jurors who have indicated opposition to the death penalty. Bearing in mind that the history of capital punishment in this country is intimately bound up with its history of race relations,  counsel should determine whether discrimination is involved in the jury selection process. Counsel should investigate whether minorities or women are underrepresented on the jury lists from which grand and petit juries are drawn, or if race or gender played a role in the selection of grand jury forepersons.  The defense in a capital case is entitled to voir dire to discover those potential jurors poisoned by racial bias, and should do so when appropriate.  Death qualification often results in the removal of more prospective jurors who are members of minority groups than those who are white, because minority jurors are more likely to express reservations about the death penalty.  Neither race nor gender may form a basis for peremptory challenges,  but a recent empirical analysis of capital murder cases supports the conclusion that "discrimination in the use of peremptory challenges on the basis of race and gender . . . is widespread."  Counsel should listen closely to the prosecutor's voir *1054 dire, challenges for cause and reasons for exercising peremptory challenges, make appropriate objections,and ensure that all information critical to a discrimination claim is preserved on the record. 

. See John H. Blume et al., Probing "Life Qualification" Through Expanded Voir Dire, 29 Hofstra L. Rev. 1209, 1209 & n.1 (2001) ("The conventional wisdom is that most trials are won or lost in jury selection."); Nat'l Legal Aid & Defender Ass'n, Performance Guidelines For Criminal Defense Representation, Guideline 7.2 & cmt. (1995) ("Voir Dire and Jury Selection").

. See Nat'l Legal Aid & Defender Ass'n, Performance Guidelines For Criminal Defense Representation, Guideline 7.2 & cmt. (1995) ("Voir Dire and Jury Selection") (noting that the need for jury selection experts is "most obvious in extraordinary cases such as death penalty cases"). In addition, counsel investigating a capital case should be particularly alert to the possibility that, notwithstanding surface appearances, one or more jurors were unqualified to sit at either phase of the trial and make every effort to develop the relevant facts, whether by interviewing jurors or otherwise. Such inquiries can be "critical in discovering constitutional errors." Hertz & Liebman, supra note 28, at 489 n.40; see, e.g., Williams v. Taylor, 529 U.S. 420, 440-43 (2000) (explaining that because state post-conviction counsel made a reasonable effort to investigate possibility that a juror concealed on voir dire a relationship that would have disqualified her from sitting at the guilt phase, petitioner was entitled to pursue claim on federal habeas corpus); Fullwood v. Lee, 290 F.3d 663, 681-84 (4th Cir. 2002) (relying on affidavit from juror obtained during state post-conviction proceedings to order evidentiary hearing on federal habeas corpus claim that extraneous influences prejudiced jury at penalty phase), cert. denied, 123 S. Ct. 890 (2003). If applicable law places undue limits on such investigations, it should be challenged.

. See Blume et al., supra note 259, at 1232. 
  [E]xposure to the death qualification process makes a juror more likely to assume the defendant will be convicted and sentenced to death; more likely to assume that the law disapproves of persons who oppose the death penalty; more likely to assume that the judge, prosecutor, and defense attorney all believe the defendant is guilty and will be sentenced to die; and more likely to believe that the defendant deserves the death penalty; 
Id.; see also Liebman, supra note 29, at 2097 & n.164 (discussing studies demonstrating that death qualification process produces juries more likely to convict than non-death-qualified juries, and that repeated discussion of death penalty during voir dire in capital cases makes jurors substantially more likely to vote for death). Nonetheless, the current state of Supreme Court case law is that a jurisdiction does not violate the federal Constitution by using the death qualification process. See Lockhart v. McCree, 476 U.S. 162, 173 (1986).

. See, e.g., Morgan v. Illinois, 504 U.S. 719, 729  (1992) (holding "juror[s] who will automatically vote for the death penalty in every case" or are unwilling or unable to give meaningful consideration to mitigating evidence must be disqualified from service); Wainwright v. Witt, 469 U.S. 412, 424-26 (1985) (holding that trial judges may exclude from a capital jury persons whose "views on [capital punishment] would 'prevent or substantially impair the performance of [their] duties...."'); Adams v. Texas, 448 U.S. 38, 42, 49 (1980) (invalidating statute disqualifying any juror who would not swear "that the mandatory penalty of death or imprisonment for life would not affect his deliberations on any issue of fact"); Witherspoon v. Illinois, 391 U.S. 510, 519-23 (1968) (holding that persons who have qualms about the death penalty in general and who might be inclined to oppose it as a matter of public policy, but who can put aside those reservations in a particular case, and in compliance with their oaths as jurors, consider imposing the death penalty according to the relevant state law, may not be precluded from serving as jurors in a death penalty case).

. See Blume et al., supra note 259, at 1247-53; Marshall Dayan, Using Mitigating Evidence in Jury Selection in Capital Trials, The Champion, July 1993.

. See Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433, 439-42 (1995) (examining the historic relationship between racial violence and the death penalty, and describing how racial prejudice continues to influence capital sentencing decisions); William S. Lofquist, Putting Them There, Keeping Them There, and Killing Them: An Analysis of State-Level Variations in Death Penalty Intensity, 87 Iowa L. Rev. 1505, 1535 (2002) (presenting social science data correlating death penalty intensity with race-specific factors).

. See Campbell v. Louisiana, 523 U.S. 392, 395 (1998); Rose v. Mitchell, 443 U.S. 545, 548 (1979); cf. Amadeo v. Zant, 486 U.S. 214, 216- 18 (1988) (describing habeas petitioner's challenge to composition of grand jury based on district attorney's policy to under-represent women and racial minorities on master jury lists).

. See generally Turner v. Murray, 476 U.S. 28, 36-37  (1986) (Brennan, J., concurring in part and dissenting in part).

. See Bright, supra note 225, at 20.

. See, e.g., Batson v. Kentucky, 476 U.S. 79, 84, 90 (1986);  J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128-29 (1994); see also Miller-El v. Cockrell, 537 U.S. 322, 329-32 (2003).

. David C. Baldus et al., The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 10 (2001); see generally Jeffrey S. Brand, The Supreme Court, Equal Protection and Jury Selection: Denying That Race Still Matters, 1994 Wis. L. Rev. 511 (finding persistent widespread discrimination in the use of peremptory challenges and attributing it to unwillingness or inability of the courts to scrutinize manifestly pretextual nonracial justifications). These findings emphasize the duty of counsel to pursue this area energetically, both factually and legally. See, e.g., Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges, 76 Cornell L. Rev. 1, 124-25 (1990) (proposing Thirteenth Amendment theory entitling a minority defendant to specific number of minority jurors). In particular, in light of the considerations discussed in this paragraph of text and the history described supra note 28, counsel would be unwise to assume the permanence of the 5-4 ruling in McCleskey v. Kemp, 481 U.S. 279 (1987).

. See supra Guideline 10.8(B)(2) and text accompanying note 238.