Must the jury be unanimous?

From February through August 1982, neo-Nazi Frank Spisak went on a shooting spree, killing three and wounding two in his quest to preserve the Aryan race. At trial, a jury convicted Spisak and sentenced him to death (Smith v. Spisak). Appealing his sentence to the U.S. Supreme Court, Spisak claimed there was a flaw in the mitigation jury instructions presented during his capital trial.

Jury instructions in death penalty trials have three prongs. First, jurors must unanimously agree that a specific aggravating factor exists that makes the defendant worthy of the death penalty. Second, jurors determine whether mitigating factors exist that support a sentence less than death. Finally, jurors balance the aggravating and mitigating factors, sentencing the defendant to death only if they unanimously agree that aggravation outweighs mitigation. Although unanimity is a key element in the first and third prongs, such agreement is not required for mitigation. Indeed, for the second prong, jurors can be persuaded by different mitigators. Moreover, when balancing for the third prong, a lone juror can prevent a death sentence by finding a mitigator not agreed on by the rest of the panel.

In his appeal, Spisak claimed his jury misunderstood the instructions, considering “in mitigation only those factors that the jury unanimously found to be mitigating.” This may have prevented jurors from considering mitigating factors not agreed on by the rest of the jury panel.

In Mills v. Maryland (1988), the Supreme Court ruled that instructions that prevent jurors from focusing on relevant mitigating evidence are unconstitutional. The instructions in Mills blatantly gave that impression, telling jurors to balance aggravating and mitigating evidence only if they had found unanimously that a specific mitigating factor existed. Comparing the unconstitutional instructions in Mills with the instructions in Spisak, the Supreme Court held that the Spisak instructions neither stated nor implied that unanimity was required, and that “reasonable jurors” would not have been confused. Although a side-by-side comparison of Mills and Spisak does show more flaws in Mills’ instructions, questions remain about whether jurors are savvy enough to understand that mitigation unanimity is not required when this information is not explicitly stated.

Unfortunately, research shows that jurors’ understanding of mitigation is generally weak. Part of this stems from jurors’ familiarity with legal cases on television and in movies, which often focus on aggravating factors but rarely address mitigation. The vague nature of mitigation can also lead to confusion. For example, jurors receive a limited number of well-defined aggravating factors, but mitigating factors are unlimited and often ill-defined. In fact, a study with 500 mock jurors found that 64 percent of the sample could demonstrate a partially correct understanding of aggravating factors, whereas only 47 percent could do so for mitigating factors (Haney & Lynch, 1994). In this same study, less than 10 percent of participants could provide legally correct definitions of both terms, and 11 percent could not even guess what “mitigation” meant.

To address concerns about jury comprehension, legal scholars have tried to increase juror understanding using instructions written in “plain English.” There is some success in this area. Using 726 adult participants, Wiener and colleagues (2004) found that providing jurors with simplified death penalty instructions increased juror understanding, though general understanding of mitigation was still low, as was jurors’ understanding that they need not be unanimous when deciding mitigation. Given jurors’ confusion over mitigation, it is presumptuous to think that jurors have the knowledge and ability to decide if unanimity is required without explicit instructions. The impact of Smith v. Spisak on other death penalty cases is already evident. On Jan. 19, a week after deciding Spisak, the Supreme Court considered the death sentence of Mumia Abu-Jamal, a former Black Panther convicted and sentenced to death for killing Philadelphia police office Daniel Faulkner in 1981. Abu-Jamal, whose books and commentaries regarding capital punishment have garnered international attention since his conviction, has become a rallying point for many death penalty opponents. A 2008 appeals court set aside Abu-Jamal’s death sentence based on a potential flaw in his jury instructions that, like Spisak, could have led jurors to think that unanimity was essential in mitigation. In light of Spisak, the Supreme Court has ordered the appeals court to reconsider the death penalty in Abu-Jamal’s case, which could send Abu-Jamal back to death row.

“Judicial Notebook” is written by APA’s Div. 9 (Society for the Psychological Study of Social Issues).