469 U.S.

412
105 S.Ct. 844
83 L.Ed.2d 841

Louie L. WAINWRIGHT, Secretary, Florida Department of

Corrections, Petitioner
v.
Johnny Paul WITT.
No. 83-1427.
Argued Oct. 2, 1984.
Decided Jan. 21, 1985.

Syllabus
Respondent was tried by a jury in a Florida state court and convicted of
first-degree murder. In accordance with the jury's recommendation, he
was sentenced to death. On appeal, respondent claimed that several
prospective jurors had been improperly excluded for cause because of
their opposition to capital punishment, in violation of the decision in
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, but
the Florida Supreme Court affirmed the conviction and sentence. After
unsuccessfully seeking postconviction review in the state courts,
respondent filed a petition for a writ of habeas corpus in Federal District
Court under 28 U.S.C. 2254. That court denied the petition. The Court
of Appeals reversed and granted the writ, holding that, on the basis of the
voir dire questioning by the prosecutor, one of the prospective jurors was
improperly excused for cause under Witherspoon. The court drew the
standard for determining when a juror may properly be excluded from
Witherspoon, supra, at 522, n. 21, 88 S.Ct., at 1777, n. 21, which states
that jurors may be excluded for cause if they make it "unmistakably clear"
that they would "automatically" vote against capital punishment without
regard to the evidence or that their attitude toward the death penalty would
prevent them from making an impartial decision as to the defendant's
"guilt."
Held:
1. The proper standard for determining when a prospective juror may be

excluded for cause because of his views on capital punishment is whether

the juror's views would "prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his oath."
Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581.
In addition to dispensing with Witherspoon reference to "automatic"
decisionmaking, this standard does not require that a juror's bias be proved
with "unmistakable clarity." Here, given this standard, the Court of
Appeals at a minimum erred in focusing unduly on the lack of clarity of
the questioning of the prospective juror, and in focusing on whether her
answers indicated that she would "automatically" vote against the death
penalty. Pp. 418-426.
2. On a petition for habeas corpus under 28 U.S.C. 2254, the question of
challenge of a prospective juror for bias is a "factual issue" subject to
2254(d), which requires a federal reviewing court to accord any findings
of the state courts on "factual issues" a "presumption of correctness."
Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847. This rule
applies to a trial court's determination, such as the one made in this case,
that a prospective capital sentencing juror was properly excluded for
cause. Pp. 426-430.
3. Under the facts of this case, the prospective juror in question was
properly excused for cause. There were adequate "written indicia" of the
trial judge's factual finding to satisfy 2254(d). The transcript of voir dire
shows that the prospective juror was questioned in the presence of both
counsel and the trial judge, that at the end of the colloquy between the
prosecutor and the juror the prosecutor challenged for cause, and that the
challenge was sustained. Nothing more was required. The judge was not
required to write a specific finding or announce for the record his
conclusion that, or his reasons why, the prospective juror was biased. The
judge's finding is therefore "presumed correct" absent anything in the
record showing one of the reasons enumerated in the statute for avoiding
the presumption. The question under the statute is whether the trial court's
findings are fairly supported by the record, and here there is ample
support for the trial judge's finding that the prospective juror's views
would have prevented or substantially impaired the performance of her
duties as a juror. Pp. 430-435.
714 F.2d 1069 (CA11 1983) and 723 F.2d 769, (CA11 1984) reversed.
Robert J. Landry, New Orleans, La., for petitioner.
William C. McLain, Fort Myers, Fla., for respondent.

Justice REHNQUIST delivered the opinion of the Court.

This case requires us to examine once again the procedures for selection of
jurors in criminal trials involving the possible imposition of capital punishment,
see Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968), and to consider standards for federal courts reviewing those procedures
upon petition for a writ of habeas corpus.

* Respondent Johnny Paul Witt was convicted of first-degree murder in Florida

and sentenced to death. The murder was committed while respondent and a
friend were bow-and-arrow hunting. The evidence at trial showed that the two
had spoken together on other occasions about killing a human, and had even
stalked persons as they would stalk animal prey. On the day in question,
respondent, then aged 30, and his younger accomplice were hunting in a
wooded area near a trail often used by children. When the victim, an 11-yearold boy, rode by on his bicycle, respondent's accomplice hit the child on the
head with a star bit from a drill. Respondent and his accomplice then gagged
the stunned victim, placed him in the trunk of respondent's car, and drove to a
deserted grove. Upon opening the trunk, the conspirators discovered that the
victim had died by suffocating from the gag. The two committed various sexual
and violent acts on the body, then dug a grave and buried it.

Respondent was tried by a jury and convicted of first-degree murder. In

accordance with the recommendation of the jury, the trial judge sentenced him
to death. On appeal to the Florida Supreme Court respondent raised a number
of claims, one of which was that several prospective jurors had been improperly
excluded for cause because of their opposition to capital punishment, in
violation of this Court's decision in Witherspoon v. Illinois, supra. The Florida
Supreme Court affirmed the conviction and sentence, and this Court denied
certiorari. Witt v. State, 342 So.2d 497, cert. denied, 434 U.S. 935, 98 S.Ct.
422, 54 L.Ed.2d 294 (1977). After unsuccessfully petitioning for
postconviction review in the state courts, see Witt v. State, 387 So.2d 922 (Fla.),
cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), respondent
filed this petition for a writ of habeas corpus in the United States District Court
for the Middle District of Florida, raising numerous constitutional claims. That
court denied the petition. On appeal, the Court of Appeals for the Eleventh
Circuit reversed and granted the writ. 714 F.2d 1069 (CA11 1983), modified,
723 F.2d 769 (CA11 1984).

The only claim the Eleventh Circuit found meritorious was respondent's
Witherspoon claim. The court found the following exchange during voir dire,

between the prosecutor and veniremember Colby, to be insufficient to justify

Colby's excusal for cause:1
5

"[Q. Prosecutor:] Now, let me ask you a question, ma'am. Do you have any
religious beliefs or personal beliefs against the death penalty?

"[A. Colby:] I am afraid personally but not

"[Q]: Speak up, please.

"[A]: I am afraid of being a little personal, but definitely not religious.

"[Q]: Now, would that interfere with you sitting as a juror in this case?

10

"[A]: I am afraid it would.

11

"[Q]: You are afraid it would?

12

"[A]: Yes, Sir.

13

"[Q]: Would it interfere with judging the guilt or innocence of the Defendant in
this case?

14

"[A]: I think so.

15

"[Q]: You think it would.

16

"[A]: I think it would.

17

"[Q]: Your honor, I would move for cause at this point.

18

"THE COURT: All right. Step down." Tr. 266-267.

19

Defense counsel did not object or attempt rehabilitation.

20

In Witherspoon, this Court held that the State infringes a capital defendant's
right under the Sixth and Fourteenth Amendments to trial by an impartial jury
when it excuses for cause all those members of the venire who express

conscientious objections to capital punishment. As the Court of Appeals in this

case noted, however, the Witherspoon Court also recognized the State's
legitimate interest in excluding those jurors whose opposition to capital
punishment would not allow them to view the proceedings impartially, and who
therefore might frustrate administration of a State's death penalty scheme. The
Court of Appeals drew the standard for determining when a juror may properly
be excluded from Witherspoon footnote 21; jurors may be excluded for cause
if they make it
21

"unmistakably clear (1) that they would automatically vote against the
imposition of capital punishment without regard to any evidence that might be
developed at the trial of the case before them, or (2) that their attitude toward
the death penalty would prevent them from making an impartial decision as to
the defendant's guilt." 391 U.S., at 522, n. 21, 88 S.Ct., at 1777, n. 21
(emphasis in original).

22

The Court of Appeals construed our decisions to require that jurors expressing
objections to the death penalty be given "great leeway" before their expressions
justify dismissal for cause. "A prospective juror may even concede that his or
her feelings about the death penalty would possibly color an objective
determination of the facts of a case without admitting of the necessary partiality
to justify excusal." 714 F.2d, at 1076-1080. The court concluded that the
colloquy with venireman Colby reprinted above did not satisfy the Witherspoon
standard. Colby's limited expressions of "feelings and thoughts" failed to
"unequivocally state that she would automatically be unable to apply the death
penalty . . . ." Id., at 1082. In part, the court found the ambiguity in the record
was caused by the lack of clarity of the prosecutor's questions. The prosecutor's
question whether Colby's feelings about the death penalty would "interfere"
with her sitting was ambiguous, because the fact of such "interference" failed to
satisfy Witherspoon requirement that she be unable to apply the death
sentence under any circumstances. The court found its holding consistent with
Circuit precedent applying the Witherspoon standard. See Granviel v. Estelle,
655 F.2d 673 (CA5 1981); Burns v. Estelle, 626 F.2d 396 (CA5 1980).

23

In a footnote, the Court of Appeals noted its uncertainty over whether a state
trial court's finding of bias should be accorded a presumption of correctness
under the federal statute governing habeas corpus proceedings, 28 U.S.C.
2254(d). The court stated, however, that under the circumstances it would reach
the same result regardless of the standard of review. 714 F.2d, at 1083, n. 10.
Because this case raises questions on which there is considerable confusion in
the lower courts, concerning the degree of deference that a federal habeas court
should pay to a state trial judge's determination that a juror may be excused for

cause under Witherspoon, see Darden v. Wainwright, 725 F.2d 1526, 15281530 (CA11 1984); O'Bryan v. Estelle, 714 F.2d 365 (CA5 1983), cert. denied,
465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Texas v. Mead, 465
U.S. 1041, 1043, 104 S.Ct. 1318, 1320, 79 L.Ed.2d 714 (1984) (REHNQUIST,
J., dissenting from denial of certiorari), and because of what seemed to us as
more general confusion surrounding the application of Witherspoon, we
granted certiorari. 466 U.S. 957, 104 S.Ct. 2168, 80 L.Ed.2d 551. We reverse.
II
24

Witherspoon is best understood in the context of its facts. The case involved the
capital sentencing procedures for the State of Illinois. Under the Illinois death
sentencing statute, the jury was asked to decide only whether death was "the
proper penalty" in a given case. Another Illinois statute provided:

25

"In trials for murder it shall be a cause for challenge of any juror who shall, on
being examined, state that he has conscientious scruples against capital
punishment, or that he is opposed to the same." Witherspoon, 391 U.S., at 512,
88 S.Ct., at 1772.

26

Pursuant to this statute, nearly half the veniremen at Witherspoon's trial were
excused for cause because they "expressed qualms about capital punishment."
Id., at 513, 88 S.Ct., at 1772. This Court held that under this procedure the jury
obtained would not be the impartial jury required by the Sixth Amendment, but
rather a jury "uncommonly willing to condemn a man to die." Id., at 521, 88
S.Ct., at 1776. It concluded that "a sentence of death cannot be carried out if
the jury that imposed or recommended it was chosen by excluding veniremen
for cause simply because they voiced general objections to the death penalty or
expressed conscientious or religious scruples against its infliction." Id., at 522,
88 S.Ct., at 1777.

27

Despite Witherspoon limited holding, later opinions in this Court and the
lower courts have referred to the language in footnote 21, or similar language in
Witherspoon footnote 9, as setting the standard for judging the proper
exclusion of a juror opposed to capital punishment. See, e.g., Maxwell v.
Bishop, 398 U.S. 262, 265, 90 S.Ct. 1578, 1580, 26 L.Ed.2d 221 (1970);
Boulden v. Holman, 394 U.S. 478, 482, 89 S.Ct. 1138, 1140, 22 L.Ed.2d 433
(1969);2 Hackathorn v. Decker, 438 F.2d 1363, 1366 (CA5 1971); People v.
Washington, 71 Cal.2d 1061, 1091-1092, 80 Cal.Rptr. 567, 584-585, 458 P.2d
479, 496-497 (1969). Later cases in the lower courts state that a veniremember
may be excluded only if he or she would "automatically" vote against the death
penalty, and even then this state of mind must be "unambiguous," or

"unmistakably clear." See, e.g., Burns v. Estelle, supra, at 398.

28

But more recent opinions of this Court demonstrate no ritualistic adherence to a

requirement that a prospective juror make it "unmistakably clear . . . that [she]
would automatically vote against the imposition of capital punishment . . . ." In
Lockett v. Ohio, 438 U.S. 586, 595-596, 98 S.Ct. 2954, 2959-2960, 57 L.Ed.2d
973 (1978), prospective capital jurors were asked:

29

" '[D]o you feel that you could take an oath to well and truely [sic ] try this case
. . . and follow the law, or is your conviction so strong that you cannot take an
oath, knowing that a possibility exists in regard to capital punishment?' "

30

We held that the veniremen who answered that they could not "take the oath"
were properly excluded. Although the Lockett opinion alluded to the second
half of the footnote 21 standard, dealing with a juror's inability to decide
impartially a defendant's guilt, the Court did not refer to the "automatically"
language. Instead, it simply determined that each of the excluded veniremen
had made it " 'unmistakably clear' that they could not be trusted to 'abide by
existing law' and 'to follow conscientiously the instructions' of the trial judge."
Id., at 596, 98 S.Ct., at 2960.

31

This Court again examined the Witherspoon standard in Adams v. Texas, 448
U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Adams involved the Texas
capital sentencing scheme, wherein jurors were asked to answer three specific
questions put by the trial judge. The court was required to impose the death
sentence if each question was answered affirmatively. A Texas statute provided
that a prospective capital juror " 'shall be disqualified . . . unless he states under
oath that the mandatory penalty of death or imprisonment for life will not affect
his deliberations on any issue of fact.' " Id., at 42, 100 S.Ct., at 2525. Before
deciding whether certain jurors had been properly excluded pursuant to this
statute, this Court attempted to discern the proper standard for making such a
determination. The Court discussed its prior opinions, noting the Witherspoon
Court's recognition, in footnote 21, that States retained a "legitimate interest in
obtaining jurors who could follow their instructions and obey their oaths." 448
U.S., at 44, 100 S.Ct., at 2526. The Court concluded:

32

"This line of cases establishes the general proposition that a juror may not be
challenged for cause based on his views about capital punishment unless those
views would prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath. The State may insist,
however, that jurors will consider and decide the facts impartially and

conscientiously apply the law as charged by the court." Id., at 45, 100 S.Ct., at
2526 (emphasis added).
33

The Court went on to hold that as applied in that case certain veniremen had
been improperly excluded under the Texas statute, because their
acknowledgment that the possible imposition of the death penalty would or
might "affect" their deliberations was meant only to indicate that they would be
more emotionally involved or would view their task "with greater seriousness
and gravity." Id., at 49, 100 S.Ct., at 2528. 3 The Court reasoned that such an
"effect" did not demonstrate that the prospective jurors were unwilling or
unable to follow the law or obey their oaths.

34

The state of this case law leaves trial courts with the difficult task of
distinguishing between prospective jurors whose opposition to capital
punishment will not allow them to apply the law or view the facts impartially
and jurors who, though opposed to capital punishment, will nevertheless
conscientiously apply the law to the facts adduced at trial. Although this task
may be difficult in any event, it is obviously made more difficult by the fact
that the standard applied in Adams differs markedly from the language of
footnote 21. The tests with respect to sentencing and guilt, originally in two
prongs, have been merged; the requirement that a juror may be excluded only if
he would never vote for the death penalty is now missing; gone too is the
extremely high burden of proof. In general, the standard has been simplified.

35

There is good reason why the Adams test is preferable for determining juror
exclusion. First, although given Witherspoon's facts a court applying the
general principles of Adams could have arrived at the "automatically" language
of Witherspoon's footnote 21, we do not believe that language can be squared
with the duties of present-day capital sentencing juries. In Witherspoon the jury
was vested with unlimited discretion in choice of sentence. Given this
discretion, a juror willing to consider the death penalty arguably was able to
"follow the law and abide by his oath" in choosing the "proper" sentence.
Nothing more was required. Under this understanding the only veniremembers
who could be deemed excludable were those who would never vote for the
death sentence or who could not impartially judge guilt.

36

After our decisions in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33
L.Ed.2d 346 (1972), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976), however, sentencing juries could no longer be invested
with such discretion. As in the State of Texas, many capital sentencing juries
are now asked specific questions, often factual, the answers to which will
determine whether death is the appropriate penalty. In such circumstances it

does not make sense to require simply that a juror not "automatically" vote
against the death penalty; whether or not a venireman might vote for death
under certain personal standards, the State still may properly challenge that
venireman if he refuses to follow the statutory scheme and truthfully answer the
questions put by the trial judge. To hold that Witherspoon requires anything
more would be to hold, in the name of the Sixth Amendment right to an
impartial jury, that a State must allow a venireman to sit despite the fact that he
will be unable to view the case impartially.4
37

Second, the statements in the Witherspoon footnotes are in any event dicta. The
Court's holding focused only on circumstances under which prospective jurors
could not be excluded; under Witherspoon's facts it was unnecessary to decide
when they could be. This Court has on other occasions similarly rejected
language from a footnote as "not controlling." See McDaniel v. Sanchez, 452
U.S. 130, 141, 101 S.Ct. 2224, 2231, 68 L.Ed.2d 724 (1981).

38

Finally, the Adams standard is proper because it is in accord with traditional

reasons for excluding jurors and with the circumstances under which such
determinations are made. We begin by reiterating Adams' acknowledgment that
"Witherspoon is not a ground for challenging any prospective juror. It is rather
a limitation on the State's power to exclude . . . ." Adams v. Texas, 448 U.S., at
47-48, 100 S.Ct., at 2527-2528. Exclusion of jurors opposed to capital
punishment began with a recognition that certain of those jurors might frustrate
the State's legitimate interest in administering constitutional capital sentencing
schemes by not following their oaths. Witherspoon simply held that the State's
power to exclude did not extend beyond its interest in removing those particular
jurors. But there is nothing talismanic about juror exclusion under Witherspoon
merely because it involves capital sentencing juries. Witherspoon is not
grounded in the Eighth Amendment's prohibition against cruel and unusual
punishment, but in the Sixth Amendment. Here, as elsewhere, the quest is for
jurors who will conscientiously apply the law and find the facts. That is what
an "impartial" jury consists of, and we do not think, simply because a defendant
is being tried for a capital crime, that he is entitled to a legal presumption or
standard that allows jurors to be seated who quite likely will be biased in his
favor.

39

As with any other trial situation where an adversary wishes to exclude a juror
because of bias, then, it is the adversary seeking exclusion who must
demonstrate, through questioning, that the potential juror lacks impartiality.
See Reynolds v. United States, 98 U.S. 145, 157, 25 L.Ed. 244 (1879). It is then
the trial judge's duty to determine whether the challenge is proper. This is, of
course, the standard and procedure outlined in Adams, but it is equally true of

any situation where a party seeks to exclude a biased juror. See, e.g., Patton v.
Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984)
(where a criminal defendant sought to excuse a juror for cause and the trial
judge refused, the question was simply "did [the] juror swear that he could set
aside any opinion he might hold and decide the case on the evidence, and
should the juror's protestations of impartiality have been believed").
40

We therefore take this opportunity to clarify our decision in Witherspoon, and

to reaffirm the above-quoted standard from Adams as the proper standard for
determining when a prospective juror may be excluded for cause because of his
or her views on capital punishment. That standard is whether the juror's views
would "prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath."5 We note that, in addition to
dispensing with Witherspoon's reference to "automatic" decisionmaking, this
standard likewise does not require that a juror's bias be proved with
"unmistakable clarity." This is because determinations of juror bias cannot be
reduced to question-and-answer sessions which obtain results in the manner of
a catechism. What common sense should have realized experience has proved:
many veniremen simply cannot be asked enough questions to reach the point
where their bias has been made "unmistakably clear"; these veniremen may not
know how they will react when faced with imposing the death sentence, or
may be unable to articulate, or may wish to hide their true feelings.6 Despite
this lack of clarity in the printed record, however, there will be situations where
the trial judge is left with the definite impression that a prospective juror would
be unable to faithfully and impartially apply the law. For reasons that will be
developed more fully infra, this is why deference must be paid to the trial judge
who sees and hears the juror.

41

Given this standard, it is clear that the Court of Appeals below erred at least in
part; the court focused unduly on the lack of clarity of the questioning of
venireman Colby, and on whether her answers indicated that she would
"automatically" vote against the death penalty. Since there are portions of the
Court of Appeals' opinion that suggest that its result could be squared with
Adams, however, we proceed to discuss another very important question in the
administration of Witherspoon challengesthe degree of deference that a
federal habeas court must pay to a state trial judge's determination of bias.

III
42

This case arises from respondent's petition for habeas corpus under 28 U.S.C.
2254, and therefore a federal reviewing court is required to accord any findings
of the state courts on "factual issues" a "presumption of correctness" under 28

U.S.C. 2254(d).7 Although the District Court relied on this section and
accorded deference to the state trial judge's finding of bias, Witt v. Wainwright,
No. 80-545-CIV-T-GC (MD Fla., May 14, 1981), the Court of Appeals did not
decide whether this finding was subject to the presumption because in its
opinion the facts of the case required reversal of the sentence "under even the
least rigorous standard of appellate review." 714 F.2d, at 1083, n. 10. The court
did note confusion over whether 2254(d) applies to a Witherspoon finding,
however, and subsequently the Eleventh Circuit adopted the position that such
a finding was a "mixed question of law and fact" not subject to the section. See
Darden v. Wainwright, 725 F.2d, at 1528-1530.
43

This Court has recently decided several cases dealing with the scope of the
2254(d) presumption. See, e.g., Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885,
81 L.Ed.2d 847 (1984); Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78
L.Ed.2d 267 (1983); Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74
L.Ed.2d 646 (1983); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71
L.Ed.2d 480 (1982) (Sumner II ); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764,
66 L.Ed.2d 722 (1981) (Sumner I ). These cases have emphasized that statecourt findings of fact are to be accorded the presumption of correctness. See
Sumner II, supra, 455 U.S., at 597, n. 10, 102 S.Ct., at 1307, n. 10; Cuyler v.
Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980).8
Last Term, in Patton, supra, we held that a trial judge's finding that a particular
venireman was not biased and therefore was properly seated was a finding of
fact subject to 2254(d). We noted that the question whether a venireman is
biased has traditionally been determined through voir dire culminating in a
finding by the trial judge concerning the venireman's state of mind. We also
noted that such a finding is based upon determinations of demeanor and
credibility that are peculiarly within a trial judge's province.9 Such
determinations were entitled to deference even on direct review; "[t]he respect
paid such findings in a habeas proceeding certainly should be no less." Id., 467
U.S., at 1038, 104 S.Ct., at 2892. 10

44

Patton's holding applies equally well to a trial court's determination that a

prospective capital sentencing juror was properly excluded for cause. In
Darden v. Wainwright, supra, at 1529, the Court of Appeals for the Eleventh
Circuit reached a contrary conclusion because it viewed the exclusion of jurors
under Witherspoon as a "mixed question of law and fact." But the Darden court
reached its conclusion because it labored under the misapprehension that the
standard for determining exclusion was that found in Witherspoon's footnote 21
which imposed "a strict legal standard" and "a very high standard of proof."
725 F.2d, at 1528. Given this rather complex law, the court reasoned, a
prospective juror's answers would not alone decide the issues; the trial judge

must still interpret them in light of the legal standard. Since the trial court's
function was application of law to fact, the determination was subject to
independent review.
45

It will not always be easy to separate questions of "fact" from "mixed questions
of law and fact" for 2254(d) purposes, cf. Patton, supra, 467 U.S., at 1037, n.
12, 104 S.Ct., at 2892, n. 12. But it is nevertheless clear, based on the foregoing
discussion concerning the standard for exclusion, that reasoning such as that
found in Darden is destined for the same end as the footnote upon which it is
based. Once it is recognized that excluding prospective capital sentencing
jurors because of their opposition to capital punishment is no different from
excluding jurors for innumerable other reasons which result in bias, Patton
must control. The trial judge is of course applying some kind of legal standard
to what he sees and hears, but his predominant function in determining juror
bias involves credibility findings whose basis cannot be easily discerned from
an appellate record. These are the "factual issues" that are subject to 2254(d).

46

In so holding, we in no way denigrate the importance of an impartial jury. We

reiterate what this Court stressed in Dennis v. United States, 339 U.S. 162, 168,
70 S.Ct. 519, 521, 94 L.Ed. 734 (1950): "[T]he trial court has a serious duty to
determine the question of actual bias, and a broad discretion in its rulings on
challenges therefor. . . . In exercising its discretion, the trial court must be
zealous to protect the rights of an accused."

IV
47

Turning to the facts, we conclude that juror Colby was properly excused for
cause. Applying the analysis required by 2254(d), we have already
determined that the question of challenge for bias is a "factual issue" covered
by the section. Nor does respondent seriously urge that the trial court's decision
to excuse juror Colby for bias was not a "determination after a hearing on the
merits." Respondent does argue, however, that this conclusion was not
"evidenced by a written finding, written opinion, or other reliable and adequate
written indicia . . . ." We disagree.

48

The transcript of the voir dire reprinted above shows that juror Colby was
questioned in the presence of both counsel and the judge; at the end of the
colloquy the prosecution challenged for cause; and the challenge was sustained
when the judge asked juror Colby to "step down." Nothing more was required
under the circumstances to satisfy the statute. Anyone familiar with trial court
practice knows that the court reporter is relied upon to furnish an accurate
account of what is said in the courtroom. The trial judge regularly relies upon

this transcript as written indicia of various findings and rulings; it is not

uncommon for a trial judge to merely make extemporaneous statements of
findings from the bench.
49

Our conclusion is strengthened by a review of available alternatives. We

decline to require the judge to write out in a separate memorandum his specific
findings on each juror excused. A trial judge's job is difficult enough without
senseless make-work. Nor do we think under the circumstances that the judge
was required to announce for the record his conclusion that juror Colby was
biased, or his reasoning. The finding is evident from the record. See Marshall
v. Lonberger, 459 U.S., at 433, 103 S.Ct., at 850. In this regard it is noteworthy
that in this case the court was given no reason to think that elaboration was
necessary; defense counsel did not see fit to object to juror Colby's recusal, or to
attempt rehabilitation.11

50

The finding of the trial judge is therefore "presumed correct" unless one of the
enumerated reasons for avoiding the presumption is present here. Respondent
does not suggest that paragraphs 1 through 7 are applicable; he must therefore
rest his case on the exception in paragraph 8that the finding of bias is "not
fairly supported" by the record viewed "as a whole." Respondent attacks the
record in two ways. First, he notes that veniremember Colby was the first juror
questioned, and claims that from the record there is no way to determine
whether the trial judge applied the correct standard. As we have stated on other
occasions, however, where the record does not indicate the standard applied by
a state trial judge, he is presumed to have applied the correct one. See Marshall
v. Lonberger, supra, at 433, 103 S.Ct., at 850; LaVallee v. Delle Rose, 410 U.S.
690, 694-695, 93 S.Ct. 1203, 1205-1206, 35 L.Ed.2d 637 (1973); Townsend v.
Sain, 372 U.S. 293, 314-315, 83 S.Ct. 745, 757-758, 9 L.Ed.2d 770 (1963).
Here, in addition, there is every indication that the judge indeed applied the
correct standard. Although the judge did not participate in questioning
veniremember Colby, the record shows that on several subsequent occasions
during voir dire he did participate in questioning. On each of those occasions
the judge asked questions entirely consistent with the Adams standard.12 There
is no reason to believe, as respondent seems to suggest, that the judge's
understanding of the standard changed between the time of the questioning of
Colby and the questioning of the later veniremen.

51

Respondent's second contention is that the colloquy between the prosecutor and
Colby is simply too ambiguous to support the trial court's decision to excuse
her. Respondent claims that the ambiguity he sees is due to the prosecutor's use
of the word "interfere" in his questioning of Colby; merely because juror Colby
affirmed that her views would "interfere" with her sitting does not necessarily

indicate whether she could in any event have applied the law impartially.
Respondent agrees that some jurors might interpret "interfere" to mean
"prevent" (the word which is used in the key passage in our Adams opinion),
but claims that other equally reasonable jurors could understand it to mean
"make difficult," "create emotional turmoil," or "impair, but not substantially."
As a corollary, respondent suggests that because the posited ambiguity was
caused by the question, rather than the answer, there is no reason to defer to the
trial judge's finding, since a finding based upon Colby's demeanor would be
worthless without a finding that she had a particular understanding of the
question. The Court of Appeals agreed with respondent that "[t]he word
'interfere' admits of a great variety of interpretations," and that the colloquy
between the prosecutor and Colby did not indicate the extent of the
"interference." 714 F.2d, at 1082.
52

If we were so brash as to undertake a treatise on synonyms and antonyms, we

would agree that the dictionary definitions of "interfere" are not identical with
the dictionary definitions of "prevent." But that, of course, is not the question.
The fact that a particular verb is used in a key passage of an appellate opinion
stating the standard for excusing jurors for cause does not mean that that word,
and no other, must be used in all the thousands of subsequent proceedings in
which the prosecution challenges jurors for cause. The law is stated in an
opinion such as Adams; but the question in subsequent cases is whether a trial
court finding that the standard was met is "fairly supported" by the "record . . .
considered as a whole . . . ." The standard in this case is the easily understood
one enunciated in Adams; whether the juror's views "would prevent or
substantially impair the performance of his duties as a juror in accordance with
his instructions and his oath." 448 U.S., at 45, 100 S.Ct., at 2526. Relevant voir
dire questions addressed to this issue need not be framed exclusively in the
language of the controlling appellate opinion; the opinion is, after all, an
opinion and not an intricate devise in a will.

53

As we emphasized in Marshall v. Lonberger, 459 U.S., at 432, 103 S.Ct., at

849, the question is not whether a reviewing court might disagree with the trial
court's findings, but whether those findings are fairly supported by the record.
Here we think there is ample support for the trial court's finding that Colby's
views would have prevented or substantially impaired the performance of her
duties as a juror. On four separate occasions she affirmed that her beliefs would
interfere with her sitting as a juror. One common meaning of "interfere" is to
"create an obstacle." Respondent argues that in Colby's case, the obstacle was
not insurmountable; but the trial court found to the contrary. As we stated in
Marshall v. Lonberger, supra, at 434, 103 S.Ct., at 851:

54

"As was aptly stated by the New York Court of Appeals, although in a case of
rather different substantive nature: 'Face to face with living witnesses the
original trier of the facts holds a position of advantage from which appellate
judges are excluded. In doubtful cases the exercise of his power of observation
often proves the most accurate method of ascertaining the truth. . . . How can
we say the judge is wrong? We never saw the witnesses. . . . To the
sophistication and sagacity of the trial judge the law confides the duty of
appraisal.' Boyd v. Boyd, 252 N.Y. 422, 429, 169 N.E. 632, 634."

55

Thus, whatever ambiguity respondent may find in this record, we think that the
trial court, aided as it undoubtedly was by its assessment of Colby's demeanor,
was entitled to resolve it in favor of the State. We note in addition that
respondent's counsel chose not to question Colby himself, or to object to the
trial court's excusing her for cause. This questioning might have resolved any
perceived ambiguities in the questions; its absence is all the more conspicuous
because counsel did object to the trial court's excusing other veniremen later on
during the voir dire. Indeed, from what appears on the record it seems that at
the time Colby was excused no one in the courtroom questioned the fact that
her beliefs prevented her from sitting. The reasons for this, although not crystal
clear from the printed record, may well have been readily apparent to those
viewing Colby as she answered the questions.

56

Respondent's attempt to separate the answers from the questions misses the
mark; the trial court, hopefully imbued with a fair amount of common sense as
well as an understanding of the applicable law, views the questioning as a
whole. It is free to interrupt questioning to clarify any particular statement.
There is nothing in this record which indicates that anybody had trouble
understanding the meaning of the questions and answers with respect to Colby.
One of the purposes of 2254(d) was to prevent precisely this kind of parsing
of trial court transcripts to create problems on collateral review where none
were seen at trial.

57

The trial court's finding of bias was made under the proper standard, was
subject to 2254(d), and was fairly supported by the record. Since respondent
has not adduced "clear and convincing evidence that the factual determination
by the State court was erroneous," we reverse the judgment of the Court of
Appeals.13

58

It is so ordered. Justice STEVENS, concurring in the judgment.

59

Because the Court's opinion contains so much discussion that is unnecessary to

the resolution of this case, I am unable to join it.1 Much of that discussion is
inconsistent with the standard announced in Adams v. Texas, 448 U.S. 38, 100
S.Ct. 2521, 65 L.Ed.2d 581 (1980), which the entire Court continues to endorse
today. 2 The majority, however, does identify the facts that are critical to a
proper disposition of this case.3
60

Defense counsel did not object to the exclusion of venireman Colby and made
no attempt, either by cross-examination or in colloquy with the court, to
demonstrate that she could properly serve as a juror, or that defendant wanted
her to serve. The entire examination of Colby, who was the first prospective
juror to be specifically questioned about her views on the death penalty,
consists of the few lines quoted by the Court. Ante, at 415-416. The contrast
between defense counsel's silence when Colby was excused, and his reaction to
the prosecutor's motion to excuse venireman Kazmierczak is illuminating.

61

After answering several questions of the prosecutor, juror Kazmierczak stated:

"I don't think [my views on the death penalty] would interfere with the guilt or
innocence of the person, but the decision of what guilt and what the outcome
would be for his destiny, I could not go along with the death penalty." Tr. 273.
When the prosecutor later moved to excuse her for cause, defense counsel
objected, further questioning ensued, and when the trial court expressed
concern "that you have a state of mind that might make you unable to follow
the law of this State," Kazmierczak unequivocally responded: "I could not bring
back a death penalty." Id., at 341. The record thus demonstrates that defense
counsel wanted Kazmierczak to serve as a juror, but that she was properly
excused.

62

Defense counsel's objection to the excusing of Kazmierczak, notwithstanding

her stronger testimony indicating bias, lends credence to the hypothesis that
competent trial counsel could well have made a deliberate decision not to
object to the exclusion of Colby because he did not want her to serve as a juror.4
Given the gruesome facts of this case, see ante, at 414, and Colby's somewhat
timorous responses, it is entirely possible that her appearance and demeanor
persuaded trial counsel that he would prefer a more vigorous or less reluctant
juror.5 In view of that possibility, I am unable to conclude that the State's
failure to make the kind of record required by Adams v. Texas constitutes an
error so fundamental that it infects the validity of the death sentence in this
case. 6

63

Accordingly, I concur in the Court's judgment.7

64

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

64

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

65

Adhering to my view that the death penalty is in all circumstances cruel and
unusual punishment prohibited by the Eighth and Fourteenth Amendments,
Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859
(1976), I would affirm the judgment of the Court of Appeals for the Eleventh
Circuit to the extent it vacates respondent Johnny Paul Witt's sentence of death.
Even if I thought otherwise, however, I would vote to affirm the decision below
in this case. If the presently prevailing view of the Constitution is to permit the
State to exact the awesome punishment of taking a life, then basic justice
demands that juries with the power to decide whether a capital defendant lives
or dies not be poisoned against the defendant.

66

The Sixth Amendment jury guarantee "reflect[s] a profound judgment about the
way in which law should be enforced and justice administered. . . . Providing
an accused with the right to be tried by a jury of his peers [gives] him an
inestimable safeguard against the corrupt or overzealous prosecutor and against
the compliant, biased, or eccentric judge." Duncan v. Louisiana, 391 U.S. 145,
155-156, 88 S.Ct. 1444, 1450-1451, 20 L.Ed.2d 491 (1968). In Witherspoon v.
Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 1776, 20 L.Ed.2d 776 (1968), the
Court recognized that the voir dire practice of "death qualification"the
exclusion for cause, in capital cases, of jurors opposed to capital punishment
can dangerously erode this "inestimable safeguard" by creating
unrepresentative juries "uncommonly willing to condemn a man to die." See
also Adams v. Texas, 448 U.S. 38, 44-45, 48-50, 100 S.Ct. 2521, 2526, 25282529, 65 L.Ed.2d 581 (1980). To protect against this risk, Witherspoon and its
progeny have required the State to make an exceptionally strong showing that a
prospective juror's views about the death penalty will result in actual bias
toward the defendant before permitting exclusion of the juror for cause.

67

The Court of Appeals below correctly applied the stringent Witherspoon

standards to the voir dire colloquy between the prosecutor and prospective
juror Colby. Reversing this decision, the Court today abandons Witherspoon
strict limits on death-qualification and holds instead that death-qualification
exclusions be evaluated under the same standards as exclusions for any other
cause. 1 Championing the right of the State to a jury purged of all possibility of
partiality toward a capital defendant, the Court today has shown itself willing to
ignore what the Court in Witherspoon and its progeny thought crucial: the
inevitable result of the quest for such purity in the jury room in a capital case is
not a neutral jury drawn from a fair cross section of the community but a jury
biased against the defendant, at least with respect to penalty,2 and a jury from
which an identifiable segment of the community has been excluded. Until today
it had been constitutionally impermissible for the State to require a defendant to

place his life in the hands of such a jury; our fundamental notions of criminal
justice were thought to demand that the State, not the defendant, bear the risk
of a less than wholly neutral jury when perfect neutrality cannot, as in this
situation it most assuredly cannot,3 be achieved. Today the State's right to
ensure exclusion of any juror who might fail to vote the death penalty when the
State's capital punishment scheme permits such a verdict vanquishes the
defendant's right to a jury that assuredly will not impose the death penalty when
that penalty would be inappropriate.
* A.
68
69

Because the Court is not forthright about the extent to which today's decision
departs from Witherspoon and its progeny, and because the Court does not even
acknowledge the constitutional rights Witherspoon is meant to protect, a
detailed exposition of Witherspoon v. Illinois is in order.

70

In the typical case not involving the possibility of a death penalty, the State is
given significant leeway to exclude for cause those jurors who indicate that
various circumstances might affect their impartiality.4 Broad exclusion is
generally permitted even though some such jurors, if pressed further on voir
dire, might be discovered to possess the ability to lay aside their prejudices and
judge impartially. Although, as we held in Witherspoon, exclusion on "any
broader basis" than a juror's unambiguously expressed inability to follow
instructions and abide by an oath serves no legitimate state interest, 391 U.S., at
522, n. 21, 88 S.Ct., at 1777, n. 21, such broader exclusion is typically
permitted for the sake of convenience because it disserves no interest of the
defendant.

71

The Court's crucial perception in Witherspoon was that such broad exclusion of
prospective jurors on the basis of the possible effect of their views about capital
punishment infringes the rights of a capital defendant in a way that broad
exclusion for indicia of other kinds of bias does not. No systemic skew in the
nature of jury composition results from exclusion of individuals for random
idiosyncratic traits likely to lead to bias. Exclusion of those opposed to capital
punishment, by contrast, keeps an identifiable class of people off the jury in
capital cases and is likely systemically to bias juries. Such juries are more
likely to be hanging juries, tribunals more disposed in any given case to impose
a sentence of death. Id., at 523, 88 S.Ct., at 1778. These juries will be unlikely
to represent a fair cross section of the community, and their verdicts will thus
be unlikely to reflect fairly the community's judgment whether a particular
defendant has been shown beyond a reasonable doubt to be guilty and deserving
of death. For a community in which a significant segment opposes capital

punishment, "proof beyond a reasonable doubt" in a capital case might be a

stricter threshold than "proof beyond a reasonable doubt" in a noncapital case.
A jury unlikely to reflect such community views is not a jury that comports
with the Sixth Amendment. Adams v. Texas, supra, 448 U.S., at 50, 100 S.Ct.,
at 2529. See Witherspoon, 391 U.S., at 519-520, 88 S.Ct., at 1775-1776. Cf.
Peters v. Kiff, 407 U.S. 493, 503-504, 92 S.Ct. 2163, 2168-2169, 33 L.Ed.2d 83
(1972) (opinion of MARSHALL, J.) ("It is not necessary to conclude that the
excluded group will consistently vote as a class in order to conclude . . . that its
exclusion deprives the jury of a perspective on human events that may have
unsuspected importance"); Ballard v. United States, 329 U.S. 187, 193-194, 67
S.Ct. 261, 264, 91 L.Ed. 181 (1946) (discussing "subtle interplay of influence
one on the other" among jurors of varying perspectives).
72

This perception did not, however, lead us to ban all inquiry into a prospective
juror's views about capital punishment. We also acknowledged, as the Court
today correctly points out, that the State's legitimate interest in an impartial jury
encompasses the right to exclude jurors whose views about capital punishment
would so distort their judgment that they could not follow the law. Witherspoon
accommodated both the defendant's constitutionally protected rights and the
State's legitimate interests by permitting the State to exclude jurors whose
views about capital punishment would prevent them from being impartial but
requiring strict standards of proof for exclusion. In particular, Witherspoon
precluded any speculative presumption that a juror opposed to capital
punishment would for that reason lack the ability to be impartial in a particular
case; "[a] man who opposes the death penalty, no less than one who favors it,
can make the discretionary judgment entrusted to him by the State and can thus
obey the oath he takes as a juror." Witherspoon, supra, 391 U.S., at 519, 88
S.Ct., at 1777. Accord, Maxwell v. Bishop, 398 U.S. 262, 265, 90 S.Ct. 1578,
1580, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 483-484, 89
S.Ct. 1138, 1141-1142, 22 L.Ed.2d 433 (1969). Beyond prohibiting any
presumption of bias, Witherspoon imposed, as the Court today recognizes, an
"extremely high burden of proof" of actual bias. Ante, at 421. The State may
exclude only those jurors who make it "unambiguous" or "unmistakably clear,"
Witherspoon, supra, 391 U.S., at 515-516, n. 9, 522, n. 21, 88 S.Ct., at 17731774, n. 9, 1777, n. 21, that their views about capital punishment would prevent
or substantially impair them from following the law.5

73

Three important consequences flow from Witherspoon 's stringent standard for
exclusion. First, it permits exclusion only of jurors whose views would prevent
or substantially impair them from following instructions or abiding by an oath,
and not those whose views would simply make these tasks more
psychologically or emotionally difficult, nor those whose views would in good

faith color their judgment of what a "reasonable doubt" is in a capital case.

Adams v. Texas, 448 U.S., at 48-51, 100 S.Ct., at 2528-2529. Second, it
precludes exclusion of jurors whose voir dire responses to death-qualification
inquiries are ambiguous or vacillating. Witherspoon, supra, 391 U.S., at 515516, n. 9, 522, n. 21, 88 S.Ct., at 1773-1774, n. 9, 1777, n. 21. Third, it
precludes exclusion of jurors who do not know at voir dire whether their views
about the death penalty will prevent them abiding by their oaths at trial. Adams,
supra, 448 U.S., at 50, 100 S.Ct., at 2529. See generally Schnapper, Taking
Witherspoon Seriously: The Search for Death-Qualified Jurors, 62 Texas
L.Rev. 977, 981-993 (1984).
74

These restrictions not only trace narrowly the compass of permissible exclusion
but also allocate to the State the cost of unavoidable uncertainty with respect to
whether a prospective juror with scruples about capital punishment should be
excluded. They do so in much the same way, and for much the same reason,
that the "proof beyond a reasonable doubt" standard of guilt allocates to the
State the cost of uncertainty with respect to whether a particular defendant
committed a crime. See In re Winship, 397 U.S. 358, 370-373, 90 S.Ct. 1068,
1075-1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). At voir dire some
prospective jurors may make clear that their opposition to capital punishment
will color their judgment but may not make clear whether the effect will rise to
the level of "conscious distortion or bias." Adams v. Texas, supra, 448 U.S., at
46, 100 S.Ct., at 2527. Many others will not bring to the voir dire a considered
position about capital punishment and thus may respond with uncertainty,
ambiguity, evasion, or even self-contradiction during the death-qualification
process. When the time for decision arrives such jurors might or might not turn
out to be so affected by the prospect of a death sentence in the case before them
that they render a biased judgment; typically neither eventuality can be divined
at the voir dire stage.

75

If under our Constitution we viewed the disadvantage to the defendant from

exclusion of unbiased prospective jurors opposed to the death penalty as
equivalent to the disadvantage to the prosecution from inclusion of a biased
prospective juror, then the law would impose no particular burden favoring or
disfavoring exclusion. Becauseat least until todaywe viewed the risks to a
defendant's Sixth Amendment rights from a jury from which those who oppose
capital punishment have been excluded as far more serious than the risk to the
State from inclusion of particular jurors whose views about the death penalty
might turn out to predispose them toward the defendant, we placed on the State
an extremely high burden to justify exclusion. Cf. In re Winship, supra, 397
U.S., at 370-373, 90 S.Ct., at 1075-1077 (Harlan, J., concurring); Speiser v.
Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1341-1342, 2 L.Ed.2d 1460

(1958) ("There is always in litigation a margin of error . . . . Where one party

has at stake an interest of transcending valueas a criminal defendant his
libertythis margin of error is reduced as to him by the process of placing on
the other party the burden . . ."). To protect the rights of the capital defendant
Witherspoon prohibits exclusion of the ambiguous, evasive, or uncertain juror.
76

Later cases came to see the essence of Witherspoon as being embedded in the
language of footnote 21 of that case. See Adams v. Texas, supra; Boulden v.
Holman, supra; Maxwell v. Bishop, supra. The crucial portion of the footnote
reads:

77

"[N]othing we say today bears upon the power of a State to execute a defendant
sentenced to death by a jury from which the only veniremen who were in fact
excluded for cause were those who made unmistakably clear (1) that they
would automatically vote against the imposition of capital punishment without
regard to any evidence that might be developed at the trial of the case before
them, or (2) that their attitude toward the death penalty would prevent them
from making an impartial decision as to the defendant's guilt." Witherspoon,
391 U.S., at 522-523, n. 21, 88 S.Ct., at 1777-1778, n. 21 (emphasis in
original).

78

This particular two-part inquiry, as the Court today correctly notes, ante, at
419, carries no talismanic significance. Its purpose is to expose the ability vel
non of a juror to follow instructions and abide by an oath with respect to both
sentencing (the first prong) and determining guilt or innocence (the second
prong).6 We have held that different forms of inquiry passed muster under
Witherspoon so long as they were similarly directed at ascertaining whether a
juror could follow instructions and abide by an oath. E.g., Adams v. Texas, 448
U.S., at 44-45, 100 S.Ct., at 2526; Lockett v. Ohio, 438 U.S. 586, 595-596, 98
S.Ct. 2954, 2959-2960, 57 L.Ed.2d 973 (1978).

79

That permissible Witherspoon inquiries may depart from the language of

footnote 21 does not mean, however, that the State may ignore Witherspoon's
strict standards of proof for exclusion when a different form of inquiry is put to
the prospective juror. We have repeatedly stressed that the essence of
Witherspoon is its requirement that only jurors who make it unmistakably clear
that their views about capital punishment would prevent or substantially impair
them from following the law may be excluded. Maxwell v. Bishop, 398 U.S.
262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478,
89 S.Ct. 1138, 22 L.Ed.2d 433 (1969). Thus in summarily reversing several
state-court decisions, this Court invalidated death sentences imposed by juries
from which jurors had been excluded because their voir dire responses

indicated ambiguity or uncertainty as to whether their views about capital

punishment would affect their ability to be impartial. Pruett v. Ohio, 403 U.S.
946, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971), rev'g 18 Ohio St.2d 167, 248
N.E.2d 605 (1969); Adams v. Washington, 403 U.S. 947, 91 S.Ct. 2273, 29
L.Ed.2d 855 (1971), rev'g 76 Wash.2d 650, 458 P.2d 558 (1969); Mathis v.
New Jersey, 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed.2d 855 (1971), rev'g 52 N.J.
238, 245 A.2d 20 (1968). And in Lockett v. Ohio, supra, we approved
exclusions because the excused prospective jurors had made it " 'unmistakably
clear' " that they could not take an oath to be impartial. 438 U.S., at 596, 98
S.Ct., at 2960 (quoting Witherspoon, supra, 391 U.S., at 522-523, n. 21, 88
S.Ct., at 1777-1778, n. 21). Most recently, in Adams v. Texas, this Court
reaffirmed that exclusion absent a juror's unambiguously stated inability to
follow the law and abide by an oath was constitutionally impermissible. 448
U.S., at 50, 100 S.Ct., at 2529.
B
80

A comprehensive understanding of the principles of Witherspoon makes clear

that the decision of the Court of Appeals below was correct. The court below
faithfully sought to implement Witherspoon's accomodation of the interests of
the defendant in avoiding a jury " 'uncommonly willing to condemn a man to
die,' " 714 F.2d 1069, 1076-1080 (1984) (quoting Witherspoon, supra, 391
U.S., at 521, 88 S.Ct., at 1777), and of the State in "the necessity of excusing
for cause those prospective jurors who, because of their lack of impartiality
from holding unusually strong views against the death penalty, would frustrate
a state's legitimate effort to administer an otherwise constitutionally valid death
penalty scheme." 714 F.2d, at 1076-1080. Following Adams v. Texas, supra,
the court below articulated an accurate understanding of the stringent burdens
of proof Witherspoon places on the State:

81

"[A] prospective juror must be permitted great leeway in expressing opposition

to the death penalty before he or she qualifies for dismissal for cause. A
prospective juror may even concede that his or her feelings about the death
penalty would possibly color an objective determination of the facts of a case
without admitting of the necessary partiality to justify excusal." 714 F.2d, at
1076-1080.

82

See Adams v. Texas, supra, 448 U.S., at 49-50, 100 S.Ct., at 2528-2529.

83

Applying this correct understanding of the law to the colloquy between the
prosecutor and prospective juror Colby, the court held that Colby's "statements
fall far short of the certainty required by Witherspoon to justify for cause

excusal." 714 F.2d, at 1082. The court traced this lack of certainty in part to
"the State's failure to frame its questions in an appropriately unambiguous
manner," given the standard of proof the State had to meet to justify exclusion.
Ibid. Specifically, the court criticized the State's use of the word "interfere" in
its examination:
84

85

"The word 'interfere' admits of a great variety of interpretations, and we would

find it quite unnatural for a person, who has already expressed her concern
about the death penalty, to respond otherwise than that her feelings would
'interfere' with, 'color,' or 'affect' her determinations. Such a response does not
indicate an inability, in all cases, to apply the death sentence or to find the
defendant guilty where such a finding could lead to capital punishment because
it fails to reflect the profundity of any such 'interference.' " Ibid.
Though critical of the prosecutor's decision to fashion his questioning around
the word "interfere," the court below did not base its decision on this
divergence from the precise inquiry of Witherspoon's footnote 21. 714 F.2d, at
1083.7 Rather, the court relied on Witherspoon's stringent standards of proof in
deciding that the exclusion of Colby was improper. Colby's statement that she
thought her personal views about capital punishment might interfere with
"judging [the] guilt or innocence [of the defendant]," 714 F.2d, at 1083, was,
the court held, not a sufficiently unambiguous statement of inability to follow
instructions or abide by an oath to justify exclusion under applicable principles.
This decision is perfectly congruent with our recent holding in Adams. 448
U.S., at 49-50, 100 S.Ct., at 2528-2529. The court therefore ordered
resentencingnot retrialfor Witt in accord with Sixth and Fourteenth
Amendment requirements. 8

II
A.
86

Adams v. Texas, supra, is, ironically, precisely the authority the Court today
invokes to reverse the Court of Appeals below. In what must under the
circumstances be taken as a tacit admission that application of Witherspoon
stringent standards of proof would validate the decision of the Court of
Appeals, the Court casts Adams as a substantial retrenchment; "the standard
applied in Adams," claims the Court, "differs markedly from the language of
footnote 21 [of Witherspoon ]." Ante, at 421. To the extent the Court reads
Adams as eschewing unthinking adherence to the particular two-part inquiry
propounded in footnote 21, I have no quarrel. See supra, at 445-446. The Court,
however, purports to find in Adams a renunciation of Witherspoon stringent

standards of proof. Ante, at 421 ("[G]one too is the extremely high burden of
proof"). In essence the Court reads Adams as saying that there is no
constitutional distinction between exclusion for death penalty bias and
exclusion for other types of bias. See Patton v. Yount, 467 U.S. 1025, 104 S.Ct.
2885, 81 L.Ed.2d 847 (1984). Had the Court of Appeals understood that this
more lenient exclusion standard governed, today's opinion asserts, it would
have realized that the state trial court's voir dire excusal of Colby should not be
disturbed.
87

Adams did not, however, desert the principles of Witherspoon. It is the Court's
brazenly revisionist reading of Adams today that leaves Witherspoon behind.
Justice REHNQUIST, dissenting from Adams, thought the opinion of the Court
"expand[ed]" the scope of Witherspoon restrictions. 448 U.S., at 52, 100
S.Ct., at 2530. Virtually all federal and state appellate courts considering
Witherspoon claims in light of Adams have read the case as a clear
endorsement of the Witherspoon approach encapsulated in footnote 21. See,
e.g., Darden v. Wainwright, 725 F.2d 1526, 1528-1529 (CA11 1984) (en banc);
Davis v. Zant, 721 F.2d 1478, 1486 (CA11 1983); Spencer v. Zant, 715 F.2d
1562, 1576 (CA11 1983); Hance v. Zant, 696 F.2d 940, 954 (CA11 1983);
O'Bryan v. Estelle, 691 F.2d 706, 709 (CA5 1982); Burns v. Estelle, 626 F.2d
396, 397-398 (CA5 1980); Herring v. State, 446 So.2d 1049, 1055 (Fla.1984);
People v. Velasquez, 28 Cal.3d 461, 171 Cal.Rptr. 507, 622 P.2d 952 (1980);
People v. Gaines, 88 Ill.2d 342, 351-352, 58 Ill.Dec. 795, 800, 430 N.E.2d
1046, 1051 (1981); State v. Mercer, 618 S.W.2d 1, 6 (Mo.1981) (en banc).

88

One need look no further than the text of Adams to understand why it has been
perceived until today as consistent with Witherspoon. Adams quoted
Witherspoon footnote 21 with approval and stated that the test in that footnote
was "clearly designed" to accommodate both the State's interest and the
defendant's interest. Adams, supra, 448 U.S., at 44, 100 S.Ct., at 2526.
Reaffirming that Witherspoon must be seen as "a limitation on the State's power
to exclude," Adams held that "if prospective jurors are barred from jury service
because of their views about capital punishment on 'any broader basis' than
inability to follow the law or abide by their oaths, the death sentence cannot be
carried out. Witherspoon v. Illinois, 391 U.S., at 522, n. 21, 88 S.Ct., at 1777, n.
21." Adams, 448 U.S., at 48, 100 S.Ct., at 2528. In holding that the State may
exclude only those whose views about capital punishment "would prevent or
substantially impair" their ability to follow instructions and abide by an oath,
id., at 45, 100 S.Ct., at 2526, the Court made clear that the State may exclude
only jurors whose views would lead to "conscious distortion or bias." Id., at 46,
100 S.Ct., at 2527 (emphasis added).

89

Nothing in Adams suggests that the Court intended to abandon Witherspoon

strict standards of proof. The Court's intent to reaffirm these standards is
evident in its approving quotation of the "unmistakably clear" language of
footnote 21, Adams, supra, at 44, 100 S.Ct., at 2526, and, more importantly, in
its delineation of the circumstances in which exclusion is impermissible. Adams
explicitly prohibited exclusion of jurors whose views about capital punishment
might invest their deliberations with greater seriousness, 448 U.S., at 49-50,
100 S.Ct., at 2528-2529, those whose views would make it emotionally more
difficult for them to follow their oaths, ibid., and those who cannot
affirmatively say whether or not their views would distort their determinations,
id., at 50, 100 S.Ct., at 2529. Even those "who frankly concede that the
prospects of the death penalty may affect what their honest judgment of the
facts will be or what they may deem to be a reasonable doubt" may not be
excluded if "they aver that they will honestly find the facts . . . if they are
convinced beyond [a] reasonable doubt." Ibid.

90

Adams was true to Witherspoon recognition that the Constitution prohibits

imposition of a death sentence by a jury from which a juror was excluded on
any broader basis than an unambiguous affirmatively stated inability to follow
instructions and abide by an oath. The Court today establishes an entirely new
standard significantly more lenient than that of Witherspoon. The difference
does not lie in the freedom of the State to depart from the precise inquiry of
Witherspoon footnote 21; that freedom, as I have made clear, has long been
established. See supra, at 445-446; Lockett v. Ohio, 438 U.S., at 595-596, 98
S.Ct., at 2959-2960. The crucial departure is the decision to discard
Witherspoon stringent standards of proof. The Court no longer prohibits
exclusion of uncertain, vacillating, or ambiguous prospective jurors. It no
longer requires an unmistakably clear showing that a prospective juror will be
prevented or substantially impaired from following instructions and abiding by
an oath. Instead the trial judge at voir dire is instructed to evaluate juror
uncertainty, ambiguity, or vacillation to decide whether the juror's views about
capital punishment "might frustrate administration of a State's death penalty
scheme." Ante, at 416 (emphasis added). 9 If so, that juror may be excluded. In
essence, the Court has shifted to the capital defendant the risk of a biased and
unrepresentative jury. This result debases the Sixth Amendment's jury
guarantees.

B
91

Rewriting Adams to suit present purposes, the Court has of course relieved
itself of much of its burden of justification; invoking precedent, the Court
dodges the obligation to provide support for its decision to deprive the capital

defendant of protections long recognized as fundamental. Nonetheless, perhaps

in tacit recognition that today's departure calls for an explanation, the Court has
offered three reasons for preferring what it misleadingly calls the "Adams test."
Ante, at 421. Stripped of their false lustre of precedential force, these
justifications neither jointly nor severally support the Court's abandonment of
Witherspoon.

92

93

The Court's first justification is linked to changes in the role of juries in capital
cases. Because jurors no longer have the unfettered discretion to impose or
withhold capital punishment that they had in Illinois and other States at the
time of Witherspoon, the Court asserts, there is no longer any reason to require
empaneling of jurors who will merely consider a sentence of death under some
circumstances. The State should be permitted to exclude all jurors unable to
follow the guided discretion procedures that, as a result of the Court's Eighth
Amendment decisions, now govern capital sentencing. Ante, at 422. In the
interest of candor, the Court might have mentioned that precisely this analysis
prompted Justice REHNQUIST's dissent in Adams. 448 U.S., at 52, 100 S.Ct.,
at 2530 ("[A]t a time when this Court should be re-examining the doctrinal
underpinnings of Witherspoon in light of our intervening decisions in capital
cases, it instead expands that precedent as if those underpinnings had remained
wholly static"). It is most curious that the identical reasoning is now marshaled
to justify a "test" purportedly derived from the Court's holding in that case.
More to the point, this reasoning does not in any way justify abandonment of
the restrictions Witherspoon has placed on the exclusion of prospective jurors.
Without a doubt, a State may inquire whether a particular juror will be able to
follow his or her oath to abide by the particulars of a guided discretion
sentencing approach, and upon receiving an unmistakably clear negative
response the State may properly move to exclude that juror. Lockett v. Ohio,
supra, 438 U.S., at 595-596, 98 S.Ct., at 2959-2960. But the existence of a
guided discretion scheme in no way diminishes the defendant's interest in a jury
composed of a fair cross section of the community and a jury not "uncommonly
willing to condemn a man to die." Witherspoon v. Illinois, 391 U.S., at 521, 88
S.Ct., at 1776. Even under a guided discretion proceeding a juror must have the
opportunity to consider all available mitigating evidence, Eddings v. Oklahoma,
455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and to decide against
imposition of the death sentence in any individual case, Woodson v. North
Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Under our
Constitution, the capital sentencer must undertake a sensitive " 'consideration of
the character and record of the individual offender and the circumstances of the
particular offense as a[n] . . . indispensable part of the process of inflicting the
penalty of death.' " Eddings, supra, 455 U.S., at 112, 102 S.Ct., at 875 (quoting

Woodson, supra, 428 U.S., at 304, 96 S.Ct., at 2991). As Adams recognizes,

making such judgments "is not an exact science, and the jurors . . . unavoidably
exercise a range of judgment and discretion while remaining true to their
instructions and their oaths." 448 U.S., at 46, 100 S.Ct., at 2527. That is why
the State may not exclude jurors
94

"who frankly concede that the prospects of the death penalty may affect what
their honest judgment of the facts will be or what they may deem to be a
reasonable doubt. Such assessments and judgments by jurors are inherent in the
jury system, and to exclude all jurors who would be in the slightest way
affected . . . would be to deprive the defendant of the impartial jury to which he
or she is entitled under the law." Id., at 50, 100 S.Ct., at 2529.

95

The risks that Witherspoon sought to minimize through defining high standards
of proof for exclusions based on death penalty scruples are, we correctly held
in Adams, equally prevalent in the context of guided discretion sentencing
schemes.

96

As a second justification for the so-called "Adams test" the Court serves up the
claim that Witherspoon footnote 21 approach was dictum. That footnote 21
might have been dictum is not, of course, an affirmative reason for adopting the
particular alternative the Court advances today. Were the claim correct it would
merely leave more leeway to depart from the Witherspoon restrictions. More
importantly, the label "dictum" does not begin to convey the status that the
restrictions embodied in footnote 21 have achieved in this Court and state and
federal courts over the last decade and a half. See supra, at 445, 450-451. From
Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and
Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970),
through Adams, supra, this Court has applied the strict burdens of proof of
Witherspoon footnote 21 to invalidate sentences imposed by juries from
which scrupled jurors had been too readily excluded. The Court concedes as
much at another point in its opinion when it acknowledges that footnote 21
"se[t] the standard" for subsequent cases. Ante, at 418.

97

The Court's third proffered justification is that the so-called " Adams standard . .
. is in accord with the traditional reasons for excluding jurors and with the
circumstances under which such determinations are made." Ante, at 423. In
essence, the Court argues that the so-called Adams standard should be followed
because it excludes jurors for bias on the same grounds and using the same
standards as would be used for exclusion based on any other type of bias:
"exclu[sion of] jurors because of their opposition to capital punishment is no
different from excluding jurors for innumerable other reasons which result in

bias . . . ." Ante, at 429. This position is at the core of the Court's holding in this
case, but between this position and the basic principles of Witherspoon lies an
unbridgeable chasm.
98

The crux of Witherspoon was its recognition of a constitutionally significant

distinction between exclusion of jurors opposed to capital punishment and
exclusion of jurors for the "innumerable other reasons which result in bias."
Ante, at 429. The very nature of a Witherspoon challenge illuminates the
difference. In typical cases involving an allegation of juror bias unrelated to
death penalty scruples, the convicted defendant challenges the inclusion of
particular jurors. E.g., Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81
L.Ed.2d 847 (1984); Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d
78 (1982). In a Witherspoon case the convicted defendant challenges the
exclusion of particular jurors. If, as the Court suggests, the only interest at stake
in a Witherspoon case is the equivalent right of the defendant and the State to
impartial individual jurors, ante, at 423, then the entire thrust of the
Witherspoon inquiry makes no sense. To be relevant to the right the Court
claims is at stake, the inquiry would have to focus on whether the individual
jurors who replaced the excluded prospective jurors were impartial; if so, then
no harm would result from the exclusion of particular prospective jurors,
whatever the reason for the exclusion.

99

Witherspoon, of course, focused on the very different sort of injury that might
result from systematic exclusion of those opposed to capital punishment: the
risk of hanging juries, 391 U.S., at 521, n. 20, 88 S.Ct., at 1776, n. 20, from
which a distinct segment of the community has been excluded. Id., at 520, 88
S.Ct., at 1776. Witherspoon prohibition against presuming bias and its
requirement of an unmistakably clear showing of actual bias sufficient to
prevent or substantially impair a juror's ability to abide by an oath are the
means by which the risk of constitutional injury is minimized.

100 The Court today eliminates both protections. It rejects the rule that stricter
standards govern death-qualification, and as a justification for doing so indulges
precisely the presumption of bias Witherspoon prohibited: "we do not think,
simply because a defendant is being tried for a capital crime, that he is entitled
to a legal presumption or standard that allows jurors to be seated who quite
likely will be biased in his favor." Ante, at 423 (emphasis added). The trick in
the majority opinion should by now be clear. The Court simply refuses to
recognize the constitutional rights Witherspoon stringent standards of proof
were designed to safeguard. The Court limits the Sixth Amendment to the
partiality vel non of individual jurors; "[h]ere, as elsewhere, the quest is for
jurors who will conscientiously apply the law and find the facts." Ante, at 423

(emphasis added). As today's opinion would have it, the Sixth Amendment has
nothing to say about the overall composition of the jury, and in particular about
the capital defendant's right to a jury not predisposed toward the death sentence
and representative of a fair cross section of the community. A defendant's
established right to a jury that reflects the community's judgment about whether
the evidence supporting conviction and execution for a particular crime crosses
the "reasonable doubt" threshold has been made to disappear.
This bit of legerdemain permits the Court to offer an easy analogy to exclusion
101 for other types of bias and argue that death-qualification should be evaluated
under the same lenient standards. Ante, at 423-424. Because the Court never
acknowledges the constitutional rights Witherspoon was meant to protect, it
need not explain why Witherspoon protections are no longer needed. It is bad
enough that the Court is so eager to discard well-established Sixth Amendment
rights of a capital defendant for the sake of efficient capital punishment. But if
the Court is to take such a precipitate step, at the very least it should
acknowledge having done so and explain why these consistently recognized
rights should be recognized no longer.
III
102 Witherspoon, as the foregoing discussion makes clear, is best understood in the
context of our cases preserving the integrity of the jury both as an impartial
factfinder and as the voice of the community. As such the protection of
Witherspoon stringent standards of proof could not be more important to the
capital defendant:
103 "The guarantees of jury trial in the Federal and State Constitutions reflect a
profound judgment about the way in which law should be enforced and justice
administered. A right to jury trial is granted to criminal defendants in order to
prevent oppression by the Government. . . . Providing an accused with the right
to be tried by a jury of his peers gave him an inestimable safeguard against the
corrupt or overzealous prosecutor and against the compliant, biased, or
eccentric judge. If the defendant preferred the common-sense judgment of a
jury to the more tutored but perhaps less sympathetic reaction of the single
judge, he was to have it. Beyond this, the jury trial provisions in the Federal
and State Constitutions reflect a fundamental decision about the exercise of
official powera reluctance to entrust plenary powers over the life and liberty
of the citizen to one judge or to a group of judges. Fear of unchecked power, so
typical of our State and Federal Governments in other respects, found
expression in the criminal law in this insistence upon community participation
in the determination of guilt or innocence." Duncan v. Louisiana, 391 U.S. 145,

155-156, 88 S.Ct. 1444, 1450-1451, 20 L.Ed.2d 491 (1968) (footnote omitted).

104 Crucial to the jury right is the requirement that "the jury be a body truly
representative of the community." Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct.
164, 165, 85 L.Ed. 84 (1940). As we said in Taylor v. Louisiana, 419 U.S. 522,
95 S.Ct. 692, 42 L.Ed.2d 690 (1975), "[t]his prophylactic vehicle is not
provided if the jury pool is made up of only special segments of the populace or
if large, distinctive groups are excluded from the pool." Id., at 530, 95 S.Ct., at
697. The death-qualification process is fraught with threats to these
constitutional guarantees.10
105 The risk of the "overzealous prosecutor and . . . the compliant, biased, or
eccentric judge," Duncan v. Louisiana, supra, 391 U.S., at 156, 88 S.Ct., at
1451, is particularly acute in the context of a capital case. Passions, as we all
know, can run to the extreme when the State tries one accused of a barbaric act
against society, or one accused of a crime thatfor whatever reasoninflames
the community. Pressures on the government to secure a conviction, to "do
something," can overwhelm even those of good conscience. See Patton v.
Yount, 467 U.S., at 1053, 104 S.Ct., at 2900 (STEVENS, J., dissenting). When
prosecutors and judges are elected, or when they harbor political ambitions,
such pressures are particularly dangerous. Cf. Spaziano v. Florida, 468 U.S.
447, 467, 104 S.Ct. 3154, 3167, 82 L.Ed.2d 340 (1984) (STEVENS, J.,
concurring in part and dissenting in part). With such pressures invariably being
brought to bear, strict controls on the deathqualification process are imperative.
Death-qualification works to the advantage of only the prosecutor; if not
carefully controlled, it is tool with which the prosecutor can create a jury
perhaps predisposed to convict11 and certainly predisposed to impose the
ultimate sanction.
106 Broad death-qualification threatens the requirement that juries be drawn from a
fair cross section of the community and thus undermines both the defendant's
interest in a representative body and society's interest in full community
participation in capital sentencing. "One of the most important functions any
jury can perform in making such a selection [of life or death] is to maintain a
link between contemporary community values and the penal systema link
without which the determination of punishment could hardly reflect 'the
evolving standards of decency that mark the progress of a maturing society.' "
Witherspoon, 391 U.S., at 519, n. 15, 88 S.Ct., at 1775, n. 15 (quoting Trop v.
Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (opinion of
WARREN, C.J.)). As Justice STEVENS wrote last Term, "if the decision that
capital punishment is the appropriate sanction in extreme cases is justified
because it expresses the community's moral sensibilityits demand that a

given affront to humanity requires retributionit follows . . . that a

representative cross section of the community must be given the responsibility
for making that decision." Spaziano v. Florida, supra, 468 U.S., at 481, 104
S.Ct., at 3174 (concurring in part and dissenting in part).
107 That the Court would be willing to place the life of this capital defendant, and
all others, in the hands of a skewed jury is unpardonable. Of perhaps equal
gravity are the implications of today's opinion for the established right of every
criminal defendant to a jury drawn from a fair cross section of the community.
Taylor v. Louisiana, supra. If, as the Court suggests, the Sixth Amendment jury
right requires only a "quest . . . for jurors who will conscientiously apply the
law and find the facts," ante, at 423if, in other words, the only pertinent
question is whether the individual jurors are impartial, see Duren v. Missouri,
439 U.S. 357, 371, n. , 99 S.Ct. 664, 672, n. , 58 L.Ed.2d 579 (1979)
(REHNQUIST, J., dissenting); Taylor v. Louisiana, supra, 419 U.S., at 538, 95
S.Ct., at 701 (REHNQUIST, J., dissenting)then the right to a jury drawn
from a fair cross section of the community is lost.
IV
108 Though the unexplained evisceration of Witherspoon 's protections of a capital
defendant's Sixth Amendment rights is the most troubling accomplishment of
the opinion for the Court, its discussion of the proper standard of review of
state-court Witherspoon determinations cannot pass without some comment.
One evident purpose of the Court's redefinition of the standards governing
death-qualification is to bring review of death-qualification questions within
the scope of the presumption of correctness of state-court factual findings on
federal collateral review. 28 U.S.C. 2254(d). In recent cases the Court has
held that the question whether a juror is biased is a question of fact and
therefore review of a trial court's voir dire decision to exclude or not exclude
receives a presumption of correctness under 2254(d). E.g., Patton v. Yount,
467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984).
109 Had the Court maintained Witherspoon strict standards for deathqualification, there would be no question that trial-court decisions to exclude
scrupled jurors would not be questions of fact subject to the presumption of
correctness. Whether a prospective juror with qualms about the death penalty
expressed an inability to abide by an oath with sufficient strength and clarity to
justify exclusion is certainly a "mixed question"an application of a legal
standard to undisputed historical fact. Even if one were to accept the Court's
redefinition of the proper standards for death-qualification, it would not follow
that the Court's holding with respect to the applicability of 2254(d) is correct.

Justice STEVENS, dissenting in Patton v. Yount, supra, has persuasively

demonstrated that "the question whether a juror has an opinion that disqualifies
is a mixed one of law and fact," id., at 1052, 104 S.Ct., at 2899, because the
question is " 'whether the nature and strength of the opinion formed are such as
in law necessarily . . . raise the presumption of partiality.' " Ibid., (quoting Irvin
v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961)).
V
110 Today's opinion for the Court is the product of a saddening confluence of three
of the most disturbing trends in our constitutional jurisprudence respecting the
fundamental rights of our people. The first is the Court's unseemly eagerness to
recognize the strength of the State's interest in efficient law enforcement and to
make expedient sacrifices of the constitutional rights of the criminal defendant
to such interests. United States v. Leon, 468 U.S. 897, 929-930, 104 S.Ct. 3405,
3430, 82 L.Ed.2d 677 (1984) (BRENNAN, J., dissenting). The second is the
Court's increasing disaffection with the previously unquestioned principle,
endorsed by every Member of this Court, that "because of its severity and
irrevocability, the death penalty is qualitatively different from any other
punishment, and hence must be accompanied by unique safeguards. . . ."
Spaziano v. Florida, supra, 468 U.S., at 468, 104 S.Ct., at 3167 (STEVENS, J.,
concurring in part and dissenting in part). E.g., Pulley v. Harris, 465 U.S. 37,
104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Spaziano v. Florida, supra, 468 U.S., at
461-464, 104 S.Ct., at 3162-3164 (opinion of the Court); Barclay v. Florida,
463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). The third is the Court's
increasingly expansive definition of "questions of fact" calling for application
of the presumption of correctness of 28 U.S.C. 2254(d) to thwart vindication
of fundamental rights in the federal courts. E.g., Patton v. Yount, supra; Rushen
v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); Marshall v.
Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). These trends
all reflect the same desolate truth: we have lost our sense of the transcendent
importance of the Bill of Rights to our society. See United States v. Leon,
supra, 468 U.S., at 980, 104 S.Ct., at 3456 (STEVENS, J., dissenting) ("[I]t is
the very purpose of a Bill of Rights to identify values that may not be sacrificed
to expediency"). We have lost too our sense of our own role as Madisonian
"guardians" of these rights. See 1 Annals of Cong. 439 (1789) (remarks of
James Madison). Like the death-qualified juries that the prosecution can now
mold to its will to enhance the chances of victory, this Court increasingly acts
as the adjunct of the State and its prosecutors in facilitating efficient and
expedient conviction and execution irrespective of the Constitution's
fundamental guarantees. One can only hope that this day too will soon pass.

Respondent argued in the Court of Appeals that 3 of the 11 prospective jurors

excused for causeveniremen Colby, Gehm, and Millerwere improperly
excused. The court considered Mrs. Colby's colloquy the "least certain
statement of inability to follow the law as instructed," and limited its discussion
to her questioning. See 714 F.2d, at 1081 (emphasis in original). We agree that
Mrs. Colby provided the least clear example of a biased venireman, and we
therefore need not discuss the voir dire of veniremen Gehm and Miller.

Maxwell and Boulden cited the following language from footnote 9:

"Unless a venireman states unambiguously that he would automatically vote
against the imposition of capital punishment no matter what the trial might
reveal, it simply cannot be assumed that that is his position." Maxwell, 398
U.S., at 265, 90 S.Ct., at 1580; Boulden, 394 U.S., at 482, 89 S.Ct., at 1140
(emphasis added).

The Court cited the following answer of venireman Jenson, whom the Court
found was improperly excluded: " 'Well, I think it probably would [affect my
deliberations] because afterall [sic ], you're talking about a man's life here. You
definitely don't want to take it lightly.' " 448 U.S., at 50, n. 7, 100 S.Ct., at
2529, n. 7. The Court also found other veniremen improperly excluded who had
been unable to state whether their views would or would not "affect" their
deliberations. Id., at 50, 100 S.Ct., at 2529.

For similar reasons the references to "automatic" decisionmaking in both

Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), and
Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), also
can be discounted. At the time those cases were decided the death sentencing
statutes in Arkansas and Alabama, respectively, apparently allowed juries
unlimited discretion in imposing the death sentence. In addition, both cases
involved jurors who were excused merely because they had "conscientious"
objections to, or did not "believe in," the death penalty. Maxwell, supra, 398
U.S., at 264-265, 90 S.Ct., at 1580; Boulden, supra, 394 U.S., at 483-484, 89
S.Ct., at 1141-1142.

The dissent chides us for our failure to discuss in greater detail the Witherspoon
case, and apparently seeks to remedy this defect by devoting page after page to
its own exegesis of that decision. Much of this exegesis, however, is a latter-day
version of a "fair cross section" theme barely adumbrated by that opinion. But
even accepting the dissent's latter-day underpinnings for Witherspoon, that case
represented a necessary balancing of the accused defendant's right to a jury

panel drawn from a "fair cross section of the community"which if carried to

its logical conclusion would require that a juror be seated who frankly avowed
that he could not and would not follow the judge's instructions on the law
against the traditional right of a party to challenge a juror for biaswhich if
carried to its logical extreme would permit exclusion from jury panels of groups
of people whose general philosophical views might have no bearing on their
ability to follow a judge's instructions. We adhere to the essential balance
struck by the Witherspoon decision rendered in 1968, if not to the version of it
presented by today's dissent; we simply modify the test stated in Witherspoon
footnote 21 to hold that the State may exclude from capital sentencing juries
that "class" of veniremen whose views would prevent or substantially impair
the performance of their duties in accordance with their instructions or their
oaths.
6

See, for example, the excerpts of the voir dire of venireman Pfeffer set out in
O'Bryan v. Estelle, 714 F.2d 365, 379 (CA5 1983), cert. denied, 465 U.S. 1013,
104 S.Ct. 1015, 79 L.Ed.2d 245 (1984):
" 'THE COURT: Well, the law requires that we have to have a definite answer.
" '[A]: I understand, right.
" 'THE COURT: Because the law does allow people to be excused because of
certain beliefs that could be prejudicial or biased for one side or the other, and
both sides just want to know if you can keep an open mind, consider the entire
full range of punishment, whatever that may be, and under the proper set of
circumstances, if they do exist and you feel they exist, that you could return
that verdict. And that's in essence what they're asking.
" '[A]: Indirectly, I guess I would have to say no.
" 'THE COURT: You could not?
" '[A]: I would have to say no then, to give you a yes or no answer.
" 'THE COURT: Then, am I to believe by virtue of that answer that regardless
of what the facts would reveal, regardless of how horrible the circumstances
may be, that you would automatically vote against the imposition of the death
penalty?
" '[A]: As I say, I don't know.
" 'THE COURT: Well, that's the question I have to have a yes or no to.

" '[A]: Right.

" 'THE COURT: And you're the only human being alive who knows, Mr.
Pfeffer.
" '[A]: Right, I understand. If I have to make a choice between yes and no, I
would say I couldn't make the judgment.' "
Some period later, juror Pfeffer gave the following answer:
" 'THE COURT: You yourself are in such a frame of mind that regardless of
how horrible the facts and circumstances are, that you would automatically
vote against the imposition of the death penalty? Is that correct?
" '[A]: Well, if it says a yes or no, I would have to say yes, I would
automatically vote against, to give a correct answer.' "
7

Section 2254(d) provides:

"In any proceeding instituted in a Federal court by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court,
a determination after a hearing on the merits of a factual issue, made by a State
court of competent jurisdiction in a proceeding to which the applicant for the
writ and the State or an officer or agent thereof were parties, evidenced by a
written finding, written opinion, or other reliable and adequate written indicia,
shall be presumed to be correct, unless the applicant shall establish or it shall
otherwise appear, or the respondent shall admit
"(1) that the merits of the factual dispute were not resolved in the State court
hearing;
"(2) that the factfinding procedure employed by the State court was not
adequate to afford a full and fair hearing;
"(3) that the material facts were not adequately developed at the State court
hearing;
"(4) that the State court lacked jurisdiction of the subject matter or over the
person of the applicant in the State court proceeding;
"(5) that the applicant was an indigent and the State court, in deprivation of his
constitutional right, failed to appoint counsel to represent him in the State court
proceeding;
"(6) that the applicant did not receive a full, fair, and adequate hearing in the

State court proceeding; or

"(7) that the applicant was otherwise denied due process of law in the State
court proceeding;
"(8) or unless that part of the record of the State court proceeding in which the
determination of such factual issue was made, pertinent to a determination of
the sufficiency of the evidence to support such factual determination, is
produced as provided for hereinafter, and the Federal court on a consideration
of such part of the record as a whole concludes that such factual determination
is not fairly supported by the record:
"And in an evidentiary hearing in the proceeding in the Federal court, when due
proof of such factual determination has been made, unless the existence of one
or more of the circumstances respectively set forth in paragraphs numbered (1)
to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by
the respondent, or unless the court concludes pursuant to the provisions of
paragraph numbered (8) that the record in the State court proceeding,
considered as a whole, does not fairly support such factual determination, the
burden shall rest upon the applicant to establish by convincing evidence that the
factual determination by the State court was erroneous."
8

In Cuyler, 446 U.S., at 342, 100 S.Ct., at 1715, this Court held that "mixed
determination[s] of law and fact" are not subject to the 2254(d) presumption.

In Reynolds v. United States, 98 U.S. 145, 156-157, 25 L.Ed. 244 (1879), this
Court stated:
"[T]he manner of the juror while testifying is oftentimes more indicative of the
real character of his opinion than his words. That is seen below, but cannot
always be spread upon the record. Care should, therefore, be taken in the
reviewing court not to reverse the ruling below upon such a question of fact,
except in a clear case."

10

In O'Bryan v. Estelle, 714 F.2d, at 392 (Higginbotham, J., concurring

specially), Judge Higginbotham artfully discusses those factors, in addition to
the trial court's advantage of having seen and heard the juror, which dictate
deference to the trial judge's decision under these circumstances. He suggests
deference is mandated in general in the interest of finalityto preserve a trial
court's integrity as a court of law, instead of as an "entrance gate" for fact
collecting subject to appellate review. In addition, he points out that on habeas
review, comity and federalism indicate the need to defer to the independent
mechanisms of state government that already have reached one decision on the
same facts. See also Darden v. Wainwright, 725 F.2d 1526, 1551 (CA11 1984)

(Fay, J., concurring in part and dissenting in part).

11

In so stating, we do not mean to suggest that respondent "waived" his

Witherspoon claim under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977), by failing to contemporaneously object. There is no doubt
that in spite of respondent's failure to object, the Florida courts reached the
merits of his Witherspoon claim. See Witt v. State, 342 So.2d 497 (Fla.), cert.
denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). Under
circumstances where the state courts do not rely on independent state grounds
for disposing of a claim and instead reach the merits of a federal question, the
federal question is properly before us. See Ulster County Court v. Allen, 442
U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). Nevertheless,
counsel's failure to speak in a situation later claimed to be so rife with
ambiguity as to constitute constitutional error is a circumstance we feel justified
in considering when assessing respondent's claims. We note that since Witt was
decided by the Florida Supreme Court that court has enforced a
contemporaneous-objection rule when dealing with Witherspoon challenges.
See Brown v. State, 381 So.2d 690, 693-694 (1980).

12

See, e.g., the questioning of Ms. Kazmierczak:

"THE COURT: Wait a minute, ma'am. I haven't made up my mind yet. Just
have a seat. Let me ask you these things. Do you have any prefixed ideas about
this case at all?
"[A]: Not at all.
"THE COURT: Will you follow the law that I give you?
"[A]: I could do that.
"THE COURT: What I am concerned about is that you indicated that you have
a state of mind that might make you be unable to follow the law of this State.
"[A]: I could not bring back a death penalty.
"THE COURT: Step down." Tr. 341.
and the questioning of Mrs. Hill:
"THE COURT: Well, ma'am, what I am concerned about is whether or not you
will render a fair and impartial verdict, whether you have any prefixed ideas
about this case, and whether you will follow the law. That's the whole shebang
right there.

"[A]: I would give a true verdict. I mean, I wouldn'tI can do that.

"THE COURT: Well, from what you are saying, I have some concern. Will you
follow the law in this case?
"[A]: Pardon?
"THE COURT: Will you follow the law in this case?
"[A]: Yes, unless it was that I had to give a death sentence. I couldn't do that."
Id., at 372.
Since it is clear that the trial judge applied a standard in accord with our
decision today, there is no need to address respondent's contention that the
Florida Supreme Court applied the incorrect standard on direct review.
13

Respondent seeks affirmance of the judgment of the Court of Appeals on the

alternative ground that the Supreme Court of Florida at the time of his appeal of
his conviction was engaged in soliciting and receiving psychiatric,
psychological, and other reports concerning the mental condition and
backgrounds of individuals sentenced to death which had not been introduced in
the trial proceedings. In Ford v. Strickland, 696 F.2d 804, 811 (CA11), cert.
denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983), a majority of the
Court of Appeals accepted the Supreme Court of Florida's determination that it
did not in fact make use of the material in question in its review of capital cases.
We see no reason to disturb this essentially factual determination by the Court
of Appeals.

I do agree with the Court's observation that dictum is not binding in future
cases. See ante, at 422.

The Court, ante, at 423, expressly endorses the following statement in the
Adams opinion:
"As an initial matter, it is clear beyond a peradventure that Witherspoon is not a
ground for challenging any prospective juror. It is rather a limitation on the
State's power to exclude: if prospective jurors are barred from jury service
because of their views about capital punishment on 'any broader basis' than
inability to follow the law or abide by their oaths, the death sentence cannot be
carried out." 448 U.S., at 47-48, 100 S.Ct., at 2527-2528.
Justice BRENNAN, in his dissent today, also endorses that standard. See post,
at 450 (BRENNAN, J., joined by MARSHALL, J., dissenting).

"Defense counsel did not object or attempt rehabilitation." Ante, at 416.

"In this regard it is noteworthy that in this case the court was given no reason to
think that elaboration was necessary; defense counsel did not see fit to object to
juror Colby's recusal, or to attempt rehabilitation." Ante, at 430-431.
"Nevertheless, counsel's failure to speak in a situation later claimed to be so rife
with ambiguity as to constitute constitutional error is a circumstance we feel
justified in considering when assessing respondent's claims. We note that since
Witt was decided by the Florida Supreme Court that court has enforced a
contemporaneous-objection rule when dealing with Witherspoon [v. Illinois,
391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968),] challenges. See Brown v.
State, 381 So.2d 690, 693-694 (Fla.1980)." Ante, at 431, n. 11.
"We note in addition that respondent's counsel chose not to question Colby
himself, or to object to the trial court's excusing her for cause. This questioning
might have resolved any perceived ambiguities in the questions; its absence is
all the more conspicuous because counsel did object to the trial court's excusing
other veniremembers later on during the voir dire." Ante, at 434-435.

As I have previously suggested, the absence of an objection at trial sheds

important light on the significance of an alleged constitutional error even when
it does not create an absolute procedural bar to review. Engle v. Isaac, 456 U.S.
107, 136 n. 1, 102 S.Ct. 1558, 1576, n. 1, 71 L.Ed.2d 783 (1982) (STEVENS,
J., concurring in part and dissenting in part) ("The failure to object generally
indicates that defense counsel felt that the trial error was not critical to his
client's case; presumably, therefore, the error did not render the trial
fundamentally unfair"); Wainwright v. Sykes, 433 U.S. 72, 96, 97 S.Ct. 2497,
2511, 53 L.Ed.2d 594 (1977) (STEVENS, J., concurring) ("The record
persuades me that competent trial counsel could well have made a deliberate
decision not to object to the admission of the respondent's in-custody
statement").

Earlier in the voir dire, Colby had been repeatedly admonished to speak louder,
Tr. 237-238, and her demeanor in answering several of the prosecutor's
questions may have indicated to counsel that it would be inconvenient for her to
serve on the jury: "Well, it will cause me to lose my work. This is all. . . . I
have made plansof course, this is a [holiday] as far as the post office is
concernedso I was off today." Id., at 238. She added that she could make
arrangements to serve on the jury, "if I have to." Id., at 239.

See Rose v. Lundy, 455 U.S. 509, 544-545, 102 S.Ct. 1198, 1216-1217, 71
L.Ed.2d 379 (1982) (STEVENS, J., dissenting).

I should note that the defense counsel also did not object to the exclusion of
either venireman Gehm or Miller. When Gehm was asked whether he could
keep an open mind as to whether to vote for the death penalty or life, he
responded: "No, I could not." Tr. 296. The most relevant portion of Miller's
examination reads as follows:
"[Q]: And you wouldn't be able to follow the law as instructed by the Court?
"[A]: When it comes down to a death penalty, I wouldn't.
"[Q]: You could not do it. Okay. Regardless of the law?
"[A]: No, sir." Id., at 356.

The Court has depicted the lurid details of respondent Witt's crime with the
careful skill of a pointillist. Had the Court been equally diligent in rendering the
holding below, it might not have neglected to mention that, as in every case of a
violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d
776 (1968), only the defendant's death sentence and not his conviction was
vacated. However heinous Witt's crime, the majority's vivid portrait of its
gruesome details has no bearing on the issue before us. It is not for this Court to
decide whether Witt deserves to die. That decision must first be made by a jury
of his peers, so long as the jury is impartial and drawn from a fair cross section
of the community in conformity with the requirements of the Sixth and
Fourteenth Amendments.

Witherspoon held that a sentence of death imposed by such a jury violated the
Sixth Amendment, but, because the evidence was fragmentary at that time,
declined to hold that an underlying conviction by such a jury was also
unconstitutionally infirm because the jury would be conviction-prone. Id., at
517-518, 88 S.Ct., at 1774-1775. See n. 11, infra.

See Gross, Determining the Neutrality of Death-Qualified Juries, 8 Law and

Human Behavior 7, 26-28 (1984).

See generally 2 W. Lafave & J. Israel, Criminal Procedure 21.3 (1984).

In Witherspoon the Court defined the excludable class as those whose views
would "prevent" impartiality. 391 U.S., at 522, n. 21, 88 S.Ct., at 1777, n. 21.
Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), defined
the excludable class as those whose views would prevent or substantially
impair impartiality. Id., at 45, 100 S.Ct., at 2526. This variation is not
significant; the primary focus of the Witherspoon inquiry, as Adams made
clear, remains on whether the prospective juror can follow instructions and

abide by an oath. Adams, supra, at 45, 49-50, 100 S.Ct., at 2526, 2528-2529.
6

At the time of Witherspoon Illinois left to the complete discretion of the jury
the choice whether a convicted capital defendant lived or died. Thus any juror
who would consider the death penalty under some circumstanceswho, in
other words, would not automatically vote against itcould abide by the
instructions and oath in Illinois at the time. Witherspoon, 391 U.S., at 519-520,
88 S.Ct., at 1775-1776.

The opinion of this Court suggests that the court below, slavishly devoted to the
precise wording of Witherspoon's footnote 21, invalidated the exclusion
because the prosecutor used the word "interfere" instead of footnote 21's
language. Ante, at 432-434. The most cursory reading of the court's opinion
belies this representation of the decision as turning on a semantic quibble about
"synonyms and antonyms." Ante, at 433. In rejecting precisely this argument
below, the Court of Appeals explicitly stated that it based its decision on an
evaluation of the "totality of the circumstances." 714 F.2d, at 1083. Its
evaluation involved far more than the form of the question, and the opinion
criticized the form of the question only insofar as it failed to elicit a degree of
certainty sufficient to permit exclusion under Witherspoon.

Reversing the Court of Appeals below, this Court places some weight on, and
Justice STEVENS concurring in the judgment gives determinative weight to,
the fact that Witt's counsel did not object to the exclusion of prospective juror
Colby. See ante, at 430-431, and n. 11, 434-435; ante, at 437-438 (STEVENS,
J., concurring in judgment). Because the state courts did not enforce a
contemporaneous-objection bar and thus ruled on Witt's claimed Witherspoon
violation, the federal courts were of course free to consider the claim on a
petition for habeas corpus. Ulster County Court v. Allen, 442 U.S. 140, 154, 99
S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). Nonetheless the Court relies on the
failure to object either as evidence that Colby was not ambiguous in expressing
her views, ante, at 431, n. 11, or to suggest that defense counsel had some duty
to attempt rehabilitation in order to resolve any ambiguities in Colby's
testimony, ante, at 434-435. Justice STEVENS relies on the failure to object as
proof sufficient to rebut the argument that "the State's failure to make the kind
of record required by Adams v. Texas constitutes an error so fundamental that it
infects the validity of the death sentence in this case." Ante, at 438 (concurring
in judgment).
With respect to the Court's reliance on the failure to object, counsel's failure
could be evidence of no more than a lack of competence or attentiveness. And I
fail to see how any demeanor evidence, the existence of which the Court infers
from counsel's silence, could turn Colby's statement that she thought her views

about capital punishment might interfere with her ability to judge guilt or
innocence into an unmistakably clear declaration that she would be unable to
follow instructions and abide by an oath. In any event, Witherspoon placed on
defense counsel no burden to rehabilitate an ambiguous venireperson. As the
Court of Appeals correctly held below, unless the prosecution resolves
ambiguity to the extent of showing an unmistakably clear inability to follow the
law, the juror may not be excluded.
With respect to the form of "harmless error" analysis in Justice STEVENS'
separate opinion, this Court has held on direct review that the improper
exclusion of one prospective juror under Witherspoon precludes imposition of
the death penalty irrespective of who replaces that prospective juror. Davis v.
Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 339 (1976).
Particularly when a defendant's right to continue living is at issue, I fail to
understand how an error held to be so fundamental as to preclude any harmlesserror analysis on direct review should be treated as any less fundamental on
habeas corpus review.
9

The Court recognizes that most juror responses to death-qualifications will be

ambiguous, in large part because "veniremen may not know how they will react
when faced with imposing the death sentence. . . ." Ante, at 425. Nevertheless,
the Court goes on to ascribe to the trial judge the power to divine through
demeanor alone which of such jurors "would be unable to faithfully and
impartially apply the law," ante, at 426, and requires deference to the trialcourt decisions to exclude for this reason. Not surprisingly, the Court provides
no support for the rather remarkable assertion that a judge will, despite
ambiguity in a juror's response, be able to perceive a juror's inability to follow
the law and abide by an oath when the juror himself or herself does not yet
know how he or she will react to the case at hand.

10

Though these cases involve systematic exclusion from the jury pool and not
from a particular jury, death-qualification is the functional equivalent of
exclusion from the pool. The prosecution has unlimited ability to challenge
prospective jurors for cause and uses the challenges to remove all members of
an identifiable segment of the community from the pool.

11

As noted in n. 2, supra, Witherspoon declined to hold that broad exclusion of

those opposed to capital punishment would render juries conviction-prone.
Since that time numerous studies have all but confirmed that death-qualified
juries are conviction-prone. E.g., Sequin & Horowitz, The Effects of "Death
Qualification" on Juror and Jury Decisioning: An Analysis from Three
Perspectives, 8 L. Psychology Rev. 49 (1984); Fitzgerald & Ellsworth, Due
Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law and

Human Behavior 31 (1984); Cowan, Thompson, & Ellsworth, The Effects of

Death Qualification on Jurors' Predisposition to Convict and on the Quality of
Deliberation, 8 Law and Human Behavior 53 (1984); Thompson, Cowan,
Ellsworth, & Harrington, Death Penalty Attitudes and Conviction Proneness:
The Translation of Attitudes into Verdicts, 8 Law and Human Behavior 95
(1984). Some studies have even suggested that the process of deathqualification tends to bias remaining jurors toward the prosecution. Haney, On
the Selection of Capital Juries: The Biasing Effects of the Death-Qualification
Process, 8 Law and Human Behavior 121 (1984).
At least one Federal District Court has held that even juries death-qualified
under the strict standards of Witherspoon are constitutionally infirm because
they are, as a matter of empirical fact, more likely to convict than a jury drawn
from a fair cross section of the community. Grigsby v. Mabry, 569 F.Supp.
1273 (ED Ark.1983) (appeal en banc pending in Eighth Circuit). One other
district court held to the same effect, Keeton v. Garrison, 578 F.Supp. 1164
(WDNC 1984), but the Fourth Circuit recently reversed this decision. Keeton v.
Garrison, 742 F.2d 129 (CA 4 1984). Instead of recognizing that the process of
death-qualification creates serious risks, even within the contours of
Witherspoon, this Court abandons any limits on the process and thereby
enhances the possibility of erroneous convictions as well as erroneous
sentences.