Capital Voir Dire-Relevant Case Law : Capital Voir Dire-Relevant Case Law
The Right To An Impartial Jury : The Right To An Impartial Jury
Irvin v. Dowd 366 U.S. 717, 722-723 (1961) : Irvin v. Dowd 366 U.S. 717, 722-723 (1961) It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Irvin v. Dowd 366 U.S. at 723 : Irvin v. Dowd 366 U.S. at 723 The adoption of such a rule, however, ‘cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner's life or liberty without due process of law.’ … [T]he test is ‘whether the nature and strength of the opinion formed are such as in law necessarily * * * raise the presumption of partiality. The question thus presented is one of mixed law and fact * * *.’. ‘The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside * * *. If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed.’
Patton v. Yount 467 U.S. 1025, 1037 (1984) : Patton v. Yount 467 U.S. 1025, 1037 (1984) FN12. There are, of course, factual and legal questions to be considered in deciding whether a juror is qualified. The constitutional standard that a juror is impartial only if he can lay aside his opinion and render a verdict based on the evidence presented in court is a question of federal law, see Irvin, 366 U.S., at 723, 81 S.Ct., at 1642, 1643; whether a juror can in fact do that is a determination to which habeas courts owe special deference, see Rushen, 464 U.S., at 120, 104 S.Ct., at 456-457.
Patton v. Yount 467 U.S. 1025, (1984) : Patton v. Yount 467 U.S. 1025, (1984) It was the view of all three Court of Appeals judges that the question whether jurors have opinions that disqualify them is a mixed question of law and fact. Thus, they concluded that the presumption of correctness due a state court's factual findings under 28 U.S.C. § 2254(d) does not apply. The opinions below relied for this proposition on Irvin v. Dowd, 366 U.S., at 723. Irvin addressed the partiality of the trial jury as a whole, … . We do not think its analysis can be extended to a federal habeas corpus case in which the partiality of an individual juror is placed in issue. That question is not one of mixed law and fact. Rather it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed.
Thomas v. Com. 864 S.W.2d 252, 259 (Ky.,1993) : Thomas v. Com. 864 S.W.2d 252, 259 (Ky.,1993) As stated in Olympic Realty Co. v. Kamer, 283 Ky. 432, 141 S.W.2d 293, 297 (1940), “the right to challenge a given number of jurors without showing cause is one of the most important rights to a litigant; any system for empaneling of a jury that prevents or embarrasses the full, unrestricted exercise of the right of challenge must be condemned.” The rules specifying the number of peremptory challenges are not mere technicalities, they are substantial rights and are to be fully enforced. See also Penker Construction Company v. Finley, Ky., 485 S.W.2d 244 (1972), reversed for denying full exercise of peremptory challenges because prejudice is presumed; and Ky. Farm Bureau v. Cook, Ky., 590 S.W.2d 875 (1979), holding that the improper allocation of peremptory challenges constituted reversible error notwithstanding the opposing party failed to demonstrate actual prejudice.
Morgan v. Com. 189 S.W.3d 99, 107 (Ky.,2006) : Morgan v. Com. 189 S.W.3d 99, 107 (Ky.,2006) A defendant's right to be tried by an impartial jury is infringed only if an unqualified juror participates in the decision. … As long as the jury that actually hears and decides the case is impartial, there is no constitutional violation. Even if a juror should have been removed for cause, such error does not violate the constitutional right to an impartial jury if the person did not actually sit on the jury. Cf. Turpin v. Commonwealth, 780 S.W.2d 619 (Ky.1989); Cf. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).
The decision in Thomas abrogated the holdings in Turpin and Dunbar. This is a case where the evidence of the Defendant's guilt and abhorrent conduct are overwhelming. To retry this case under the sole dictates of Thomas would be absurd.
Shane v. Com. 243 S.W.3d 336, 341 (Ky.,2007) : Shane v. Com. 243 S.W.3d 336, 341 (Ky.,2007) [T]he correct inquiry is not whether using a peremptory strike for a juror who should have been excused for cause had a reasonable probability of affecting the verdict (harmless error), but whether the trial court who abused its discretion by not striking that juror for reasonable cause deprived the defendant of a substantial right. Harmless error analysis is simply not appropriate where a substantial right is involved, and is indeed logically best suited to the effect of evidence on a verdict, though some procedural errors may also be reviewed in this light. Here, the defendant did not get the trial he was entitled to get. For these reasons, the holding in Morgan must be overturned.
Gabbard v. Com. 297 S.W.3d 844, 854 (Ky.,2009) : Gabbard v. Com. 297 S.W.3d 844, 854 (Ky.,2009) Though this Court's recent cases have not expressly required that a defendant identify the other jurors he would have struck if his for-cause strikes were granted in order to bring a claim under Shane, the wisdom of such a requirement has become clear. Thus, this Court concludes that in order to complain on appeal that he was denied a peremptory challenge by a trial judge's erroneous failure to grant a for-cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck. Appellant did just that here by identifying two additional jurors he would have struck.
Challenges for Cause : Challenges for Cause
Witherspoon v. Illinois, 391 U.S. 510, 513 (1968) : Witherspoon v. Illinois, 391 U.S. 510, 513 (1968) The petitioner was brought to trial in 1960 in Cook County, Illinois, upon a charge of murder. The jury found him guilty and fixed his penalty at death. At the time of his trial an Illinois statute provided:
‘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.'
Through this provision the State of Illinois armed the prosecution with unlimited challenges for cause in order to exclude those jurors who, in the words of the State's highest court, ‘might hesitate to return a verdict inflicting (death).'
Witherspoon : Witherspoon The petitioner contends that a State cannot confer upon a jury selected in this matter the power to determine guilt. He maintains that such a jury, unlike one chosen at random from a cross-section of the community, must necessarily be biased in favor of conviction
The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.
Witherspoon 391 U.S. at 519 : Witherspoon 391 U.S. at 519 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 391 U.S. at 522-523 : Witherspoon 391 U.S. at 522-523 Specifically, we hold 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.FN21 No defendant can constitutionally be put to death at the hands of a tribunal so selected.
Witherspoon, 391 U.S. at 515 : Witherspoon, 391 U.S. at 515 FN9. … Obviously many jurors ‘could, notwithstanding their conscientious scruples (against capital punishment), return * * * (a) verdict (of death) and * * * make their scruples subservient to their duty as jurors.’ … (Thus) a general question as to the presence of * * * reservations (or scruples) is far from the inquiry which separates those who would never vote for the ultimate penalty from those who would reserve it for the direct cases.’ Id., at 308-309. 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.
Witherspoon, 391 U.S. at 523 : Witherspoon, 391 U.S. at 523 FN21. Just as veniremen cannot be excluded for cause on the ground that they hold such views, so too they cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. And a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case law in the relevant jurisdiction would appear to support only a narrower ground of exclusion.
FN 21 cont’d : FN 21 cont’d We repeat, however, that nothing 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. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as oppose to the sentence, in this or any other case.
Adams v. Texas 448 U.S. 38, 45, (1980) : Adams v. Texas 448 U.S. 38, 45, (1980) This line of cases [Witherspoon and Lockett] 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.
Adams, 448 U.S. at 47-48 : Adams, 448 U.S. at 47-48 As an initial matter, it is clear beyond 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. Witherspoon v. Illinois, 391 U.S., at 522, n. 21, 88 S.Ct., at 1777, n. 21. While this point may seem too obvious to bear repetition, it is apparent from their frequent references to Witherspoon as a ground for “disqualifying” prospective jurors that the State, and the Texas Court of Criminal Appeals, might have fallen into the error of assuming that Witherspoon and § 12.31(b) are both grounds for exclusion, so that there is no conflict if § 12.31(b) excludes prospective jurors that Witherspoon does not.
Wainwright v. Witt 469 U.S. 412, 418-419 (1985) : Wainwright v. Witt 469 U.S. 412, 418-419 (1985) Despite Witherspoon 's limited holding, later opinions in this Court and the lower courts have referred to the language in footnote 21, or similar language in Witherspoon 's footnote 9, as setting the standard for judging the proper exclusion of a juror opposed to capital punishment. … 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.”
Witt, 469 U.S. at 421-422 : Witt, 469 U.S. at 421-422 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.
Witt, 469 U.S. at 424-426 : Witt, 469 U.S. at 424-426 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.” FN5 We note that, in addition to dispensing with Witherspoon's reference to “automatic” decision-making, 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.
Witt at 424-426, cont’d : Witt at 424-426, cont’d What common sense should have realized experience has proved: many veniremen simply cannot*425 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.FN6 Despite this lack of clarity in the printed record, however, there will be situations where *426 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.
Witt 469 U.S. at 433-434 : Witt 469 U.S. at 433-434 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 ....” … Relevant voir dire questions addressed to this issue need not be framed exclusively*434 in the language of the controlling appellate opinion; the opinion is, after all, an opinion and not an intricate devise in a will.
Witt 469 U.S. at 434-435 : Witt 469 U.S. at 434-435 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.
Witt 469 U.S. at 435 : Witt 469 U.S. at 435 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.
Adams v. Texas 448 U.S. 38, 50-51 (1980) : Adams v. Texas 448 U.S. 38, 50-51 (1980) We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths. But in the present case Texas has applied § 12.31(b) to exclude jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly that they might or might not *51 be affected. It does not appear in the record before us that these individuals were so irrevocably opposed to capital punishment as to frustrate the State's legitimate efforts to administer its constitutionally valid death penalty scheme.
Lockhart v. McCree 476 U.S. 162, 173 (1986) : Lockhart v. McCree 476 U.S. 162, 173 (1986) Having identified some of the more serious problems with McCree's studies, however, we will assume for purposes of this opinion that the studies are both methodologically valid and adequate to establish that “death qualification” in fact produces juries somewhat more “conviction-prone” than “non-death-qualified” juries. We hold, nonetheless, that the Constitution does not prohibit the States from “death qualifying” juries in capital cases.
Lockhart v. McCree 476 U.S. 162, 175-176 (1986) : Lockhart v. McCree 476 U.S. 162, 175-176 (1986) The group of “ Witherspoon -excludables” involved in the case at bar differs significantly from the groups we have previously recognized as “distinctive.” “Death qualification,” unlike the wholesale exclusion of blacks, women, or Mexican-Americans from jury service, is carefully designed to serve the State's concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of *176 a capital trial.
Lockhart v. McCree 476 U.S. 162, 176, (1986) : Lockhart v. McCree 476 U.S. 162, 176, (1986) Furthermore, unlike blacks, women, and Mexican-Americans, “ Witherspoon -excludables” are singled out for exclusion in capital cases on the basis of an attribute that is within the individual's control. It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law. Because the group of “ Witherspoon -excludables” includes only those who cannot and will not conscientiously obey the law with respect to one of the issues in a capital case, “death qualification” hardly can be said to create an “appearance of unfairness.”
Morgan v. Illinois –Reverse Witherspoon : Morgan v. Illinois –Reverse Witherspoon
Morgan v. Illinois, 504 U.S. 719, 727-728 (1992) : Morgan v. Illinois, 504 U.S. 719, 727-728 (1992) [D]ue process alone has long demanded that, if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment.
Morgan v. Illinois 504 at 727-728 : Morgan v. Illinois 504 at 727-728 Thus it is that our decisions dealing with capital sentencing juries and presenting issues most analogous to that which we decide here today, e.g., Witherspoon v. Illinois, 391 U.S., at 518, 88 S.Ct., at 1774-1775; Adams v. Texas, 448 U.S. 38, 40, 100 S.Ct. 2521, 2524, 65 L.Ed.2d 581 (1980); Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 851-852, 83 L.Ed.2d 841 (1985); Ross v. Oklahoma, 487 U.S., at 85, 108 S.Ct., at 2276-2277, have relied on the strictures dictated by the Sixth and Fourteenth Amendments to ensure the impartiality of any jury that will undertake capital sentencing.
Morgan 504 U.S. at 728, : Morgan 504 U.S. at 728, Witt held that “the proper standard for determining when a prospective juror may be excluded for cause because of his or her 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.’ ” 469 U.S., at 424, 105 S.Ct., at 852 (quoting Adams v. Texas, supra, 448 U.S., at 45, 100 S.Ct., at 2526). Under this standard, it is clear from Witt and Adams, the progeny of Witherspoon that a juror who in no case would vote for capital punishment, regardless of his or her instructions, is not an impartial juror and must be removed for cause.
Morgan 504 U.S. at 729 (1992) : Morgan 504 U.S. at 729 (1992) A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any **2230 prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.
Morgan, 504 U.S. at 729-730 : Morgan, 504 U.S. at 729-730 It is true that “[ v ] oir dire ‘is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’ ” The Constitution, after all, does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury. Even so, part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors.
Morgan at 729-730, cont’d : Morgan at 729-730, cont’d “Voir dire plays a critical function in assuring the criminal defendant that his [constitutional] right to an impartial jury will be honored. Without an adequate voir dire the *730 trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981) (plurality opinion). Hence, “[t]he exercise of [the trial court's] discretion, and the restriction upon inquiries at the request of counsel, [are] subject to the essential demands of fairness.”
Morgan v. Illinois 504 U.S. at 731 : Morgan v. Illinois 504 U.S. at 731 We have also come to recognize that the principles first propounded in Witherspoon v. Illinois, 391 U.S. 510 (1968), the reverse of which are at issue here, demand inquiry into whether the views of prospective jurors on the death penalty would disqualify them from sitting.
Morgan, 504 U.S. at 735-736 : Morgan, 504 U.S. at 735-736 As to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed. More importantly, however, the belief that death should be imposed ipso facto upon conviction of a capital offense reflects directly on that individual's inability to follow the law. See supra, at 2229. Any juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law. It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so.FN9
Morgan, 504 U.S. at 735-736 : Morgan, 504 U.S. at 735-736 A defendant on trial for his life must be permitted on voir dire *736 to ascertain whether his prospective jurors function under such misconception [would impose death regardless of the facts and circumstances of conviction]. The risk that such jurors may have been empaneled in this case and “infected petitioner's capital sentencing [is] unacceptable in light of the ease with which that risk could have been minimized.” Id., at 36, 106 S.Ct., at 1688 (footnote omitted). Petitioner was entitled, upon his request, to inquiry discerning those jurors who, even prior to the State's case in chief, had predetermined the terminating issue of his trial, that being whether to impose the death penalty.
Woodall v. Com. 63 S.W.3d 104, 116 (Ky. 2001) : Woodall v. Com. 63 S.W.3d 104, 116 (Ky. 2001) A) It was not an abuse of discretion by the trial judge to restrict the voir dire of Woodall concerning specific mitigation evidence which he planned to present. The trial judge permitted Woodall to ask general mitigation questions, but prohibited questions about specific mitigating factors such as the low I.Q. attributed to Woodall. Federal courts have recognized that denying a defendant the right to voir dire jurors on specific mitigating factors is not an abuse of discretion. See U.S. v. Tipton, 90 F.3d 861 (4th Cir.1996); U.S. v. McVeigh, 153 F.3d 1166 (10th Cir.1998).
Woodall v. Com. 63 S.W.3d at 116 : Woodall v. Com. 63 S.W.3d at 116 The judge permitted Woodall to question jurors extensively regarding mitigating circumstances so long as the questions were general and did not inquire into specific mitigation. The trial judge has broad discretion in the area of questioning on voir dire. Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985). Questions are not competent when their evident purpose is to have jurors indicate in advance or to commit themselves to certain ideas and views upon final submission of the case to them.
Woodall v. Com. 63 S.W.3d at 116 : Woodall v. Com. 63 S.W.3d at 116 Woodall was trying to get jurors to indicate in advance what their views were regarding his I.Q. of 74. He was seeking to oblige jurors to commit themselves by either accepting a specific mitigator or rejecting it before any evidence was heard. The trial judge was attempting to protect against such danger and did not abuse his broad discretion.
U.S. v. Tipton 90 F.3d 861, 878 (C.A.4 (Va.),1996) : U.S. v. Tipton 90 F.3d 861, 878 (C.A.4 (Va.),1996) It is important in assessing this claim to identify the voir dire right at issue. In general terms it is the right, grounded in the Sixth Amendment, to a voir dire adequate to assure a defendant a jury, all of whose members are “able impartially to follow the court's instructions and evaluate the evidence,” Rosales-Lopez, 451 U.S. at 188, 101 S.Ct. at 1634, here instructions and evidence relevant to imposition of the death penalty. More specifically it is the right to an inquiry sufficient to ensure-within the limits of reason and practicality-a jury none of whose members would “unwaveringly impose death after a finding of guilt” and hence would uniformly reject any and all evidence of mitigating factors, no matter how instructed on the law. Morgan v. Illinois, 504 U.S. 719, 733-34, (1992) (right to such an inquiry established).
Scalia’s Dissent in Morgan : Scalia’s Dissent in Morgan
Scalia’s dissent at 742-743 : Scalia’s dissent at 742-743 In the Court's view, a juror who will always impose the death penalty upon proof of the required aggravating factors FN1 “will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do.” … I would agree with that if it were true that the instructions required jurors to deem certain evidence to be “mitigating” and to weigh that evidence in deciding the penalty. … Remarkably, the Court rests its *743 judgment upon a juror's inability to comply with instructions, without bothering to describe the key instructions. When one considers them, it is perfectly clear that they do not preclude a juror from taking the view that, for capital murder, a death sentence is always warranted.
Scalia’s dissent at 742-743 : Scalia’s dissent at 742-743 The jury in this case was instructed that “[a]ggravating factors are reasons why the Defendant should be sentenced to death”; that “[m]itigating factors are reasons why the Defendant should not be sentenced to death”; that the jury must “consider all the aggravating factors supported by the evidence and all the mitigating factors supported by the evidence”; and that the jury should impose a death sentence if it found, “from [its] consideration of all the evidence, that there are no mitigating factors sufficient to preclude imposition of a death sentence,” The instructions did not in any way further define what constitutes a “mitigating” or an “aggravating” factor, other than to point out that the jury's finding, at the death-eligibility stage, that petitioner committed a contract killing was necessarily an aggravator.
Scalia’s dissent at 742-743 : Scalia’s dissent at 742-743 As reflected in these instructions, Illinois law permitted each juror to define for himself whether a particular item of evidence was mitigating, in the sense that it provided a “reaso[n] why the Defendant should not be sentenced to death.” Thus, it is simply not the case that Illinois law precluded a juror from taking the bright-line position that there are no valid reasons why a defendant who has committed a contract killing should not be sentenced to death. Such a juror does not “fail ... to consider the evidence,” *744 ante, at 2229; cf. Ill.Rev.Stat., ch. 38, ¶ 9-1(c) (Supp.1990) (“The court ... shall instruct the jury to consider any aggravating and any mitigating factors which are relevant ...”); he simply fails to give it the effect the defendant desires.FN3
Scalia’s dissent at 742-743 : Scalia’s dissent at 742-743 FN3. The Court notes that the Illinois statute lists certain potentially mitigating factors, see Ill.Rev.Stat., ch. 38, ¶ 9-1(c) (Supp.1990), and therefore concludes that the legislature “must have deemed [them] relevant” to the imposition of the death penalty. Ante, at 2234. It is of course true that the listed factors are “relevant” in the sense that a juror “may” find them to be mitigating, ¶ 9-1(c), and also in the sense that the defendant must be allowed to introduce evidence concerning these factors. But the statute's permissive and nonexhaustive list clearly does not establish what the Court needs to show, viz., that jurors must deem these (or some other factors) to be actually “mitigating.” The fact that the jury has the discretion to deem evidence to be mitigating cannot establish that there is an obligation to do so. Indeed, it is impossible in principle to distinguish between a juror who does not believe that any factor can be mitigating from one who believes that a particular factor- e.g., “extreme mental or emotional disturbance,” ¶ 9-1(c)(2)-is not mitigating.
Scalia’s dissent at 742-743 : Scalia’s dissent at 742-743 (Presumably, under today's decision a juror who thinks a “bad childhood” is never mitigating must also be excluded.) In any event, in deciding whether to vacate petitioner's sentence on account of juror impartiality- i.e., on the basis that one or more of petitioner's jurors may have refused to follow the instructions-we must be guided, not by the instructions that (perhaps) should have been given (a question of state law which we have no authority to review), but by the instructions that were given.
KRS § 532.025 : KRS § 532.025 (2) In all cases of offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating or mitigating circumstances which may be supported by the evidence:
Fields v. Com. 274 S.W.3d 375, 393 (Ky. 2008) : Fields v. Com. 274 S.W.3d 375, 393 (Ky. 2008) Appellant claims that his constitutional right to a fair and impartial jury was violated when he was unduly restricted from questioning potential jurors about intoxication as a mitigating factor. Defense counsel sought to pose the following question to prospective jurors during individual voir dire: “Under the law of Kentucky, intoxication at the time of the offense is a mitigating circumstance. A mitigating circumstance is a reason to give a less severe penalty. Is intoxication a factor you, as a juror, would be able to consider in imposing a punishment, or is that not something you would be able to consider in imposing a punishment?” The trial court determined that the question attempted to commit the juror in advance to a certain theory or result. Instead, during individual voir dire, the trial court defined mitigation generally and asked prospective jurors if they could follow the instructions to consider mitigating evidence.
Fields v. Com. Cont’d : Fields v. Com. Cont’d However, the trial court did permit questioning about intoxication during general voir dire. Defense counsel invited the panel to share their experiences “being around friends or family that were intoxicated.” A fairly lengthy discussion ensued, wherein the panel discussed the effects of intoxication on personality and whether intoxicated persons should be held responsible for their actions despite the impairment. Defense counsel also asked if any panel member would be unable to hear evidence about intoxication or drug use because of negative experiences in the past. Finally, defense counsel inquired whether evidence of intoxication would “in any way impair your ability to sit and listen to the evidence and consider it in a way the Judge may instruct you to consider.”
Fields v. Com. 274 S.W.3d 375, 393 (Ky.,2008) : Fields v. Com. 274 S.W.3d 375, 393 (Ky.,2008) “[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors.” Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992). Nonetheless, it is within the trial court's discretion to limit the scope of voir dire. Webb, 314 S.W.2d at 545. “The test for abuse of discretion in this respect is whether an anticipated response to the precluded question would afford the basis for a peremptory challenge or a challenge for cause.” Hayes v. Commonwealth, 175 S.W.3d 574, 583 (Ky.2005).
Gray v. Mississippi 481 U.S. 648, 658-659, (1987) : Gray v. Mississippi 481 U.S. 648, 658-659, (1987) The State's power to exclude for cause jurors from capital juries does not extend beyond its interest in removing those jurors who would “frustrate the State's legitimate interest in administering constitutional capital sentencing schemes by not following their oaths.” Wainwright v. Witt, 469 U.S. at 423, 105 S.Ct., at 851. To permit the exclusion for cause of other prospective jurors based on their views of the death penalty unnecessarily narrows the cross section of venire members. It “stack[s] the deck against the petitioner. **2052 To execute *659 [such a] death sentence would deprive him of his life without due process of law.” Witherspoon v. Illinois, 391 U.S., at 523, 88 S.Ct., at 1778.
Gray v. Mississippi 481 U.S. at 668 : Gray v. Mississippi 481 U.S. at 668 Because the Witherspoon-Witt standard is rooted in the constitutional right to an impartial jury … and because the impartiality of the adjudicator goes to the very integrity of the legal system, the Chapman harmless-error analysis cannot apply. We have recognized that “some constitutional rights [are] so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S., at 23, 87 S.Ct., at 827. The right to an impartial adjudicator, be it judge or jury, is such a right. … As was stated in Witherspoon, a capital defendant's constitutional right not to be sentenced by a “tribunal organized to return a verdict of death” surely equates with a criminal defendant's right not to have his culpability determined by a “tribunal ‘organized to convict.’ ”
Voir Dire on Specific Issues : Voir Dire on Specific Issues
Mu'Min v. Virginia 500 U.S. 415 (1991) : Mu'Min v. Virginia 500 U.S. 415 (1991) Voir Dire on the Content of Pretrial Publicity
Mu'Min, 500 U.S. at 422, : Mu'Min, 500 U.S. at 422, Our cases dealing with the requirements of voir dire are of two kinds: those that were tried in federal courts, and are therefore subject to this Court's supervisory power, see Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981); Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931); and Connors v. United States, 158 U.S. 408, 15 S.Ct. 951, 39 L.Ed. 1033 (1895); and those that were tried in state courts, with respect to which our authority is limited to enforcing the commands of the United States Constitution. See Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986); Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); and Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973).
Mu'Min 500 U.S. at 423-424 : Mu'Min 500 U.S. at 423-424 Three of our cases dealing with the extent of voir dire examination have dealt with trials in state courts. The first of these was Ham v. South Carolina, supra. In that case, the defendant was black and had been active in the civil rights movement in South Carolina; his defense at trial was that enforcement officers were “out to get him” because of his civil rights activities, and that he had been framed on the charge of marijuana possession of which he was accused. He requested that two questions be asked regarding racial prejudice and one question be asked regarding prejudice against persons, such as himself, who wore beards. We held that the Due Process Clause of the Fourteenth Amendment required the court to ask “either of the brief, general questions urged by the petitioner” with respect to race, id., 409 U.S., at 527, 93 S.Ct., at 851, but rejected his claim that an inquiry as to prejudice against persons with beards be made, “[g]iven the traditionally broad discretion accorded to the trial judge in conducting voir dire....” Id., at 528, 93 S.Ct., at 851
Mu'Min 500 U.S. at 423-424 : Mu'Min 500 U.S. at 423-424 In Ristaino v. Ross, supra, we held that the Constitution does not require a state-court trial judge to question prospective jurors as to racial prejudice in every case where the races of the defendant and the victim differ, but in Turner v. Murray, supra, we held that in a capital case involving a *424 charge of murder of a white person by a black defendant such questions must be asked.
Mu'Min 500 U.S. at 423-424 : Mu'Min 500 U.S. at 423-424 We enjoy more latitude in setting standards for voir dire in federal courts under our supervisory power than we have in interpreting the provisions of the Fourteenth Amendment with respect to voir dire in state courts. But two parallel themes emerge from both sets of cases: First, the possibility of racial prejudice against a black defendant charged with a violent crime against a white person is sufficiently real that the Fourteenth Amendment requires that inquiry be made into racial prejudice; second, the trial court retains great latitude in deciding what questions should be asked on voir dire.
Mu'Min 500 U.S. at 423-424 : Mu'Min 500 U.S. at 423-424 As we said in Rosales-Lopez, supra:
“Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions.” Id., 451 U.S., at 188, 101 S.Ct., at 1634.
Mu'Min 500 U.S. 415, 424-425 : Mu'Min 500 U.S. 415, 424-425 Undoubtedly, if counsel were allowed to see individual jurors answer questions about exactly what they had read, a better sense of the juror's general outlook on life might be revealed, and such a revelation would be of some use in exercising peremptory challenges. But, since peremptory *425 challenges are not required by the Constitution, Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988), this benefit cannot be a basis for making “content” questions about pretrial publicity a constitutional requirement. Such questions might also have some effect in causing jurors to reevaluate their own answers as to whether they had formed any opinion about the case, but this is necessarily speculative.
RCr 9.38 Examination of jurors : RCr 9.38 Examination of jurors The court may permit the attorney for the Commonwealth and the defendant or the defendant's attorney to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the attorney for the Commonwealth and the defendant or the defendant's attorney to supplement the examination by such further inquiry as it deems proper. The court may itself submit to the prospective jurors such additional questions submitted by the parties or their attorneys as it deems proper. When the Commonwealth seeks the death penalty, individual voir dire out of the presence of other prospective jurors is required if questions regarding capital punishment, race or pretrial publicity are propounded. Further, upon request, the Court shall permit the attorney for the defendant and the Commonwealth to conduct the examination on these issues.
Tamme v. Com. 973 S.W.2d 13, 24 (Ky.,1998) : Tamme v. Com. 973 S.W.2d 13, 24 (Ky.,1998) The trial judge did not conduct individual voir dire regarding pretrial publicity as required by RCr 9.38. The purpose of that provision is to guard against prospective jurors relating their knowledge of the case in open court and thereby tainting other jurors who may not have had any such knowledge. … Since none of the jurors indicated any prior knowledge of the case, there was no need for individual voir dire on this issue.
Woodall v. Com. 63 S.W.3d 104 (Ky. 2001) : Woodall v. Com. 63 S.W.3d 104 (Ky. 2001) Sentencing court's erroneous questioning of three prospective penalty phase jurors in capital murder prosecution, in open court in front of entire jury panel, with respect to pretrial publicity was harmless, in absence of any proof that any prospective jurors gave false answers under oath to voir dire questions to ensure their acceptance or rejection as jurors, where neither court's questions nor prospective jurors' answers stated any information capable of tainting other members of panel.
Furnish v. Com. 95 S.W.3d 34, 43 -44 (Ky.,2002) : Furnish v. Com. 95 S.W.3d 34, 43 -44 (Ky.,2002) Appellant argues that he was denied the opportunity to voir dire potential jurors on the full range of penalties. Specifically, defense counsel sought to elicit *44 from potential jurors whether they could impose a minimum sentence of twenty years for murder.
[Y]ou can identify clearly, ... the four possible range of penalties, term of years imprisonment not less than 20, term of life in prison, term of life in prison without parole for at least 25 years, and death. … I will not allow, “Can you consider 20 years?” I will allow, “Can you consider a penalty of 20 years to the most severe penalty of death?” Because that encompasses the full range of penalties. Twenty years is not an option, by itself. That option is ... not less than 20 years. Which means 20 years to life. … That [asking about the minimum penalty of 20 years for murder] misleads the jury.
Furnish v. Com. 95 S.W.3d 34, 43 -44 (Ky.,2002) : Furnish v. Com. 95 S.W.3d 34, 43 -44 (Ky.,2002) Counsel is entitled to question jurors on whether they “could consider the entire range of penalties in the event a guilty verdict was returned.” Anderson v. Commonwealth, Ky., 864 S.W.2d 909, 911 (1993); see also Springer v. Commonwealth, Ky., 998 S.W.2d 439 (1999). Contrary to Appellant's assertion, this case is not analogous to Fugate v. Commonwealth, Ky., 993 S.W.2d 931, 938 (1999), wherein the trial court “directed the defendant to mention only the terms ‘minimum and maximum’ without mentioning any specific number of years.” Here, defense counsel was not impeded from inquiring whether potential jurors could consider the full range of penalties, including a term of not less than twenty years. No error occurred.
Hodge v. Com. 17 S.W.3d 824, 837 (Ky.,2000) : Hodge v. Com. 17 S.W.3d 824, 837 (Ky.,2000) Juror No. 51, like Juror No. 1, acknowledged that he would consider the full range of penalties, but balked at the prospect of imposing the minimum sentence of twenty years as punishment for committing two intentional murders. Nevertheless, he stated that he would not automatically exclude consideration of the minimum penalty and would consider the full range of penalties. While a juror is disqualified if he or she cannot consider the minimum penalty, Grooms v. Commonwealth, Ky., 756 S.W.2d 131 (1988), excusal for cause is not required merely because the juror favors severe penalties, so long as he or she will consider the full range of penalties. Bowling v. Commonwealth, Ky., 873 S.W.2d 175 (1993), cert. denied, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994).
Caudill v. Com. 120 S.W.3d 635, 654 -655 (Ky.,2003) : Caudill v. Com. 120 S.W.3d 635, 654 -655 (Ky.,2003) No jurisdiction other than Kentucky has ever held that a juror is disqualified simply because he or she cannot consider imposition of the minimum authorized sentence for conviction of an offense for which death is an authorized penalty. That proposition first entered our jurisprudence via obiter dictum in Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 137 (1988). Grooms anticipated the holding in Morgan, supra, by holding that it was reversible error not to *655 excuse for cause a juror who “favors the death penalty to the exclusion of all other penalties as punishment for intentional murder.” 756 S.W.2d at 137. However, Grooms went on to say that “a juror should be excused for cause if he would be unable in any case, no matter how extenuating the circumstances may be, to consider the imposition of the minimum penalty prescribed by law.”
Caudill v. Com. 120 S.W.3d 635, 654 -655 (Ky.,2003) : Caudill v. Com. 120 S.W.3d 635, 654 -655 (Ky.,2003) Giving corporeality to the Grooms dictum, Morris v. Commonwealth, Ky., 766 S.W.2d 58 (1989), held that:
[T]he lower court should have informed the jury there are four penalties for the capital offense of intentional murder-viz, death, life without parole or probation for 25 years, life, or a term of not less than 20 years. KRS 532.030. The jury should be asked the simple question “If you determine under the instructions of the court beyond a reasonable doubt that the defendant is guilty of intentional murder, could you consider the entire range of penalties provided by statutes of this Commonwealth as outlined to you?”
Caudill v. Com. 120 S.W.3d 635, 654 -655 (Ky.,2003) : Caudill v. Com. 120 S.W.3d 635, 654 -655 (Ky.,2003) Here, neither defense counsel was precluded from questioning any potential juror with respect to that juror's ability to consider imposition of the minimum penalty for “aggravated murder.” Indeed, counsel asked the following question of several prospective jurors:
Assume in this case that we get to the sentencing phase. That means that you've already found the defendant guilty of murder and an aggravating circumstance, like a burglary or a robbery or a rape or something like that. If that's the case, can you give a serious and honest consideration to a minimum sentence of twenty years?