Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis

As presently construed, the Constitution does not prohibit the death penalty. The states and the federal government may punish the commission of certain crimes with death, so long as the extreme penalty is not imposed on a mandatory basis and so long as the procedures used in imposing a death sentence meet constitutional scrutiny.

A demonstration that the prosecutor used the peremptory challenge in the manner described in a single case probably would be insufficient to support a constitutional challenge in the federal courts and in the vast majority of state courts. In these courts a prosecutor’s use of the peremptory in a single case is generally beyond review. To raise a constitutional challenge, a defendant may have to show a systematic pattern in the use of peremptories by prosecutors over a significant number of cases, including the removal of at least one juror opposed to the death penalty in the defendant’s own case.

To determine whether this practice by prosecutors does in fact exist, the author conducted a study of capital jury selection in Florida’s Fourth Judicial Circuit. After presenting the results of that study, this Article analyzes the constitutional issues raised by the data, and proposes restructuring the voir dire in capital cases to prevent abuse of the peremptory challenge.