Lockhart v. McCree


No. 84-1865 Argued: January 13, 1986 --- Decided: May 5, 1986
JUSTICE REHNQUIST delivered the opinion of the Court.

In this case, we address the question left open by our decision nearly 18 years ago in Witherspoon v. Illinois, 391 U.S. 510"]391 U.S. 510 (1968): does the Constitution prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial? See id. at 520, n. 18; 391 U.S. 510 (1968): does the Constitution prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial? See id. at 520, n. 18; Bumper v. North Carolina, 391 U.S. 543, 545 (1968). We hold that it does not.

Respondent Ardia McCree filed a habeas corpus petition in the United States District Court for the Eastern District of Arkansas claiming that such removal for cause violated the Sixth and Fourteenth Amendments and, after McCree's case was consolidated with another habeas case involving the same claim on remand from the Court of Appeals for the Eighth Circuit, the District Court ruled in McCree's favor and granted habeas relief Grigsby v. Mabry, 569 F.Supp. 1273 (1983). A sharply divided Eighth Circuit affirmed, Grigsby v. Mabry, 758 F.2d 226 (1985) (en banc), creating a conflict with recent decisions of the Fourth, Fifth, Seventh, and Eleventh Circuits. See Keeten v. Garrison, 742 F.2d 129, 133-135 (CA4 1984), cert. pending, No. 84-6187; Smith v. Balkcom, 660 F.2d 573, 576-578 (CA5 1981), modified on other grounds, 671 F.2d 858, cert. denied sub nom. Tison v. Arizona, 459 U.S. 882 (1982); Spinkellink v. Wainwright, 578 F.2d 582, 594 (CA5 1978), cert. denied, 440 U.S. 976 (1979); United States ex rel. Clark v. Fike, 538 F.2d 750, 761-762 (CA7 1976), cert. denied, 429 U.S. 1064 (1977); and Corn v. Zant, 708 F.2d 549, 564 (CA11 1983), cert. denied, 467 U.S. 1220 (1984). We granted certiorari to resolve the conflict, 474 U.S. 816 (1985), and now reverse the judgment of the Eighth Circuit.

On the morning of February 14, 1978, a combination gift shop and service station in Camden, Arkansas, was robbed, [p166] and Evelyn Boughton, the owner, was shot and killed. That afternoon, Ardia McCree was arrested in Hot Springs, Arkansas, after a police officer saw him driving a maroon and white Lincoln Continental matching an eyewitness' description of the getaway car used by Boughton's killer. The next evening, McCree admitted to police that he had been at Boughton's shop at the time of the murder. He claimed, however, that a tall black stranger wearing an overcoat first asked him for a ride, then took McCree's rifle out of the back of the car and used it to kill Boughton. McCree also claimed that, after the murder, the stranger rode with McCree to a nearby dirt road, got out of the car, and walked away with the rifle. McCree's story was contradicted by two eyewitnesses who saw McCree's car between the time of the murder and the time when McCree said the stranger got out and walked away, and who stated that they saw only one person in the car. The police found McCree's rifle and a bank bag from Boughton's shop alongside the dirt road. Based on ballistics tests, a Federal Bureau of Investigation officer testified that the bullet that killed Boughton had been fired from McCree's rifle.

McCree was charged with capital felony murder in violation of Ark.Stat.Ann. § 41-1501(1)(a) (1977). In accordance with Arkansas law, see Neal v. State, 259 Ark. 27, 31, 531 S.W.2d 17, 21 (1975), the trial judge at voir dire removed for cause, over McCree's objections, those prospective jurors who stated that they could not under any circumstances vote for the imposition of the death penalty. Eight prospective jurors were excluded for this reason. The jury convicted McCree of capital felony murder, but rejected the State's request for the death penalty, instead setting McCree's punishment at life imprisonment without parole. McCree's conviction was affirmed on direct appeal, McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979), and his petition for state postconviction relief was denied. [p167]

McCree then filed a federal habeas corpus petition raising, inter alia, the claim that "death qualification," or the removal for cause of the so-called "Witherspoon-excludable" prospective jurors, [n1] violated his right under the Sixth and Fourteenth Amendments to have his guilt or innocence determined by an impartial jury selected from a representative cross-section of the community. By stipulation of the parties, this claim was consolidated with another pending habeas case involving the same claim, which had been remanded by the Eighth Circuit for an evidentiary hearing in the District Court. App. 9-11; Grigsby v. Mabry, 637 F.2d 525 (1980). The District Court denied the remainder of McCree's petition, and the Eighth Circuit affirmed. McCree v. Housewright, 689 F.2d 797 (1982), cert. denied, 460 U.S. 1088 (1983).

The District Court held a hearing on the "death qualification" issue in July, 1981, receiving in evidence numerous social science studies concerning the attitudes and beliefs of "Witherspoon-excludables," along with the potential effects of excluding them from the jury prior to the guilt phase of a bifurcated capital trial. In August, 1983, the court concluded, based on the social science evidence, that "death qualification" produced juries that "were more prone to convict" capital defendants than "non-death-qualified" juries. Grigsby v. Mabry, 569 F.Supp. at 1323. The court ruled [p168] that "death qualification" thus violated both the fair cross-section and impartiality requirements of the Sixth and Fourteenth Amendments, and granted McCree habeas relief. Id. at 1324. [n2]

The Eighth Circuit found "substantial evidentiary support" for the District Court's conclusion that the removal for cause of "Witherspoon-excludables" resulted in "conviction-prone" juries, and affirmed the grant of habeas relief on the ground that such removal for cause violated McCree's constitutional right to a jury selected from a fair cross-section of the community. Grigsby v. Mabry, 758 F.2d at 229. The Eighth Circuit did not address McCree's impartiality claim. Ibid. The Eighth Circuit left it up to the discretion of the State "to construct a fair process" for future capital trials that would comply with the Sixth Amendment. Id. at 242-243. Four judges dissented. Id. at 243-251.

Before turning to the legal issues in the case, we are constrained to point out what we believe to be several serious flaws in the evidence upon which the courts below reached the conclusion that "death qualification" produces "conviction-prone" juries. [n3] McCree introduced into evidence [p169] some 15 social science studies in support of his constitutional claims, but only 6 of the studies even purported to measure the potential effects on the guilt-innocence determination of the removal from the jury of "Witherspoon-excludables." [n4] Eight of the remaining nine studies dealt solely with generalized attitudes and beliefs about the death penalty and other aspects of the criminal justice system, and were thus, at best, only marginally relevant to the constitutionality of McCree's conviction. [n5] The 15th and final study [p170] dealt with the effects on prospective jurors of voir dire questioning about their attitudes toward the death penalty, [n6] an issue McCree raised in his brief to this Court, but that counsel for McCree admitted at oral argument would not, standing alone, give rise to a constitutional violation. [n7]

Of the six studies introduced by McCree that at least purported to deal with the central issue in this case, namely, the potential effects on the determination of guilt or innocence of excluding "Witherspoon-excludables" from the jury, three were also before this Court when it decided Witherspoon. [n8] There, this Court reviewed the studies and concluded:

The data adduced by the petitioner . . . 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 [p171] opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.

391 U.S. at 517-518 (footnote omitted). It goes almost without saying that, if these studies were "too tentative and fragmentary" to make out a claim of constitutional error in 1968, the same studies, unchanged but for having aged some 18 years, are still insufficient to make out such a claim in this case.

Nor do the three post-Witherspoon studies introduced by McCree on the "death qualification" issue provide substantial support for the "per se constitutional rule" McCree asks this Court to adopt. All three of the "new" studies were based on the responses of individuals randomly selected from some segment of the population, but who were not actual jurors sworn under oath to apply the law to the facts of an actual case involving the fate of an actual capital defendant. [n9] We have serious doubts about the value of these studies in predicting the behavior of actual jurors. See Grigsby v. Mabry, 758 F.2d at 248, n. 7 (J. Gibson, J., dissenting). In addition, two of the three "new" studies did not even attempt to simulate the process of jury deliberation, [n10] and none of the "new" studies was able to predict to what extent, if any, the presence of one or more "Witherspoon-excludables" on a [p172] guilt-phase jury would have altered the outcome of the guilt determination. [n11]

Finally, and most importantly, only one of the six "death qualification" studies introduced by McCree even attempted to identify and account for the presence of so-called "nullifiers," or individuals who, because of their deep-seated opposition to the death penalty, would be unable to decide a capital defendant's guilt or innocence fairly and impartially. [n12] McCree concedes, as he must, that "nullifiers" may properly be excluded from the guilt-phase jury, and studies that fail to take into account the presence of such "nullifiers" thus are fatally flawed. [n13] Surely a "per se constitutional rule" as far-reaching [p173] as the one McCree proposes should not be based on the results of the lone study that avoids this fundamental flaw.

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.

The Eighth Circuit ruled that "death qualification" violated McCree's right under the Sixth Amendment, as applied to the States via incorporation through the Fourteenth Amendment, see Duncan v. Louisiana, 391 U.S. 145, 148-158 (1968), to a jury selected from a representative cross-section of the community. But we do not believe that the fair cross-section requirement can, or should, be applied as broadly as that court attempted to apply it. We have never invoked the fair cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large. See Duren v. Missouri, 439 U.S. 357, 363-364 (1979); Taylor v. Louisiana, 419 U.S. 522, 538 (1975) ("[W]e impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population"); cf. Batson v. Kentucky, ante at 84-85, n. 4 (expressly declining to address "fair cross-section" challenge to discriminatory use of peremptory challenges). [n14] The limited [p174] scope of the fair cross-section requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly "representative" petit jury, see ante at 85-86, n. 6, a basic truth that the Court of Appeals itself acknowledged for many years prior to its decision in the instant case. See United States v. Childress, 715 F.2d 1313 (CA8 1983) (en banc), cert. denied, 464 U.S. 1063 (1984); Pope v. United States, 372 F.2d 710, 725 (CA8 1967) (Blackmun, J.) ("The point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn"), vacated on other grounds, 392 U.S. 651 (1968). We remain convinced that an extension of the fair cross-section requirement to petit juries would be unworkable and unsound, and we decline McCree's invitation to adopt such an extension.

But even if we were willing to extend the fair cross-section requirement to petit juries, we would still reject the Eighth Circuit's conclusion that "death qualification" violates that requirement. The essence of a "fair cross-section" claim is the systematic exclusion of "a ‘distinctive' group in the community." Duren, supra, at 364. In our view, groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the "Witherspoon-excludables" at issue here, are not "distinctive groups" for fair cross-section purposes.

We have never attempted to precisely define the term "distinctive group," and we do not undertake to do so today. But we think it obvious that the concept of "distinctiveness" must be linked to the purposes of the fair cross-section requirement. In Taylor, supra, we identified those purposes as (1) "guard[ing] against the exercise of arbitrary power" and ensuring that the "common sense judgment of the community" will act as "a hedge against the overzealous or mistaken prosecutor," (2) preserving "public confidence in the [p175] fairness of the criminal justice system," and (3) implementing our belief that "sharing in the administration of justice is a phase of civic responsibility." Id. at 530-531.

Our prior jury representativeness cases, whether based on the fair cross-section component of the Sixth Amendment or the Equal Protection Clause of the Fourteenth Amendment, have involved such groups as blacks, see Peters v. Kiff, 407 U.S. 493 (1972) (opinion of MARSHALL, J.) (equal protection); women, see Duren, supra, (fair cross-section); Taylor, supra, (same); and Mexican-Americans, see Castaneda v. Partida, 430 U.S. 482 (1977) (equal protection). The wholesale exclusion of these large groups from jury service clearly contravened all three of the aforementioned purposes of the fair cross-section requirement. Because these groups were excluded for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case, the exclusion raised at least the possibility that the composition of juries would be arbitrarily skewed in such a way as to deny criminal defendants the benefit of the common-sense judgment of the community. In addition, the exclusion from jury service of large groups of individuals not on the basis of their inability to serve as jurors, but on the basis of some immutable characteristic such as race, gender, or ethnic background, undeniably gave rise to an "appearance of unfairness." Finally, such exclusion improperly deprived members of these often historically disadvantaged groups of their right as citizens to serve on juries in criminal cases.

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 [p176] a capital trial. [n15] There is very little danger, therefore, and McCree does not even argue, that "death qualification" was instituted as a means for the State to arbitrarily skew the composition of capital-case juries. [n16]

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."

Finally, the removal for cause of "Witherspoon-excludables" in capital cases does not prevent them from serving as jurors in other criminal cases, and thus leads to no substantial deprivation of their basic rights of citizenship. They are treated no differently than any juror who expresses the view that he would be unable to follow the law in a particular case.

In sum, "Witherspoon-excludables," or, for that matter, any other group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a [p177] particular case, may be excluded from jury service without contravening any of the basic objectives of the fair cross-section requirement. See Lockett v. Ohio, 438 U.S. 586, 597 (1978) ("Nothing in Taylor, however, suggests that the right to a representative jury includes the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge"). It is for this reason that we conclude that "Witherspoon-excludables" do not constitute a "distinctive group" for fair cross-section purposes, and hold that "death qualification" does not violate the fair cross-section requirement.

McCree argues that, even if we reject the Eighth Circuit's fair cross-section holding, we should affirm the judgment below on the alternative ground, adopted by the District Court, that "death qualification" violated his constitutional right to an impartial jury. McCree concedes that the individual jurors who served at his trial were impartial, as that term was defined by this Court in cases such as Irvin v. Dowd, 366 U.S. 717, 723 (1961) ("It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court"), and Reynolds v. United States, 98 U.S. 145 (1879). He does not claim that pretrial publicity, see Rideau v. Louisiana, 373 U.S. 723 (1963), ex parte communications, see Remmer v. United States, 347 U.S. 227 (1954), or other undue influence, see Estes v. Texas, 381 U.S. 532 (1965), affected the jury's deliberations. In short, McCree does not claim that his conviction was tainted by any of the kinds of jury bias or partiality that we have previously recognized as violative of the Constitution. Instead, McCree argues that his jury lacked impartiality because the absence of "Witherspoon-excludables" "slanted" the jury in favor of conviction.

We do not agree. McCree's "impartiality" argument apparently is based on the theory that, because all individual jurors are to some extent predisposed towards one result or another, a constitutionally impartial jury can be constructed [p178] only by "balancing" the various predispositions of the individual jurors. Thus, according to McCree, when the State "tips the scales" by excluding prospective jurors with a particular viewpoint, an impermissibly partial jury results. We have consistently rejected this view of jury impartiality, including as recently as last Term, when we squarely held that an impartial jury consists of nothing more than "jurors who will conscientiously apply the law and find the facts." Wainwright v. Witt, 469 U.S. 412, 423 (1985) (emphasis added); see also Smith v. Phillips, 455 U.S. 209, 217 (1982) ("Due process means a jury capable and willing to decide the case solely on the evidence before it"); Irvin v. Dowd, supra, at 722 ("In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent' jurors").

The view of jury impartiality urged upon us by McCree is both illogical and hopelessly impractical. McCree characterizes the jury that convicted him as "slanted" by the process of "death qualification." But McCree admits that exactly the same 12 individuals could have ended up on his jury through the "luck of the draw," without in any way violating the constitutional guarantee of impartiality. Even accepting McCree's position that we should focus on the jury, rather than the individual jurors, it is hard for us to understand the logic of the argument that a given jury is unconstitutionally partial when it results from a state-ordained process, yet impartial when exactly the same jury results from mere chance. On a more practical level, if it were true that the Constitution required a certain mix of individual viewpoints on the jury, then trial judges would be required to undertake the Sisyphean task of "balancing" juries, making sure that each contains the proper number of Democrats and Republicans, young persons and old persons, white-collar executives and blue-collar laborers, and so on. Adopting McCree's concept of jury impartiality would also likely require the elimination of peremptory challenges, which are commonly used by both [p179] the State and the defendant to attempt to produce a jury favorable to the challenger.

McCree argues, however, that this Court's decisions in Witherspoon and Adams v. Texas, 448 U.S. 38 (1980), stand for the proposition that a State violates the Constitution whenever it "slants" the jury by excluding a group of individuals more likely than the population at large to favor the criminal defendant. We think McCree overlooks two fundamental differences between Witherspoon and Adams and the instant case, and therefore misconceives the import and scope of those two decisions.

First, the Court in Witherspoon viewed the Illinois system as having been deliberately slanted for the purpose of making the imposition of the death penalty more likely. The Court said:

But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die.

It is, of course, settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal "organized to convict." Fay v. New York, 332 U.S. 261, 294 [1947]. See Tumey v. Ohio, 273 U.S. 510 [1927]. It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.

391 U.S. at 520-521 (footnotes omitted). In Adams v. Texas, supra, the Court explained the rationale for Witherspoon as follows:

In this context, the Court held that a State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination [p180] that they had conscientious scruples against or were otherwise opposed to capital punishment. The State was held to have no valid interest in such a broad-based rule of exclusion, since

[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him . . . , and can thus obey the oath he takes as a juror.

Witherspoon v. Illinois, 391 U.S. at 519.

448 U.S. at 43. Adams, in turn, involved a fairly straightforward application of the Witherspoon rule to the Texas capital punishment scheme. See Adams, supra, at 48 (Texas exclusion statute "focuses the inquiry directly on the prospective juror's beliefs about the death penalty, and hence clearly falls within the scope of the Witherspoon doctrine").

Here, on the other hand, the removal for cause of "Witherspoon-excludables" serves the State's entirely proper interest in obtaining a single jury that could impartially decide all of the issues in McCree's case. Arkansas, by legislative enactment and judicial decision, provides for the use of a unitary jury in capital cases. See Ark.Stat.Ann. § 41-1301(3) (1977); Rector v. State, 280 Ark. 385, 395, 659 S.W.2d 168, 173 (1983), cert. denied, 466 U.S. 988 (1984). We have upheld against constitutional attack the Georgia capital sentencing plan which provided that the same jury must sit in both phases of a bifurcated capital murder trial, Gregg v. Georgia, 428 U.S. 153, 158, 160, 163 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.), and since then have observed that we are "unwilling to say that there is any one right way for a State to set up its capital sentencing scheme." Spaziano v. Florida, 468 U.S. 447, 464 (1984).

The Arkansas Supreme Court recently explained the State's legislative choice to require unitary juries in capital cases:

It has always been the law in Arkansas, except when the punishment is mandatory, that the same jurors who have the responsibility for determining guilt or innocence [p181] must also shoulder the burden of fixing the punishment. That is as it should be, for the two questions are necessarily interwoven.

Rector, supra, at 395, 659 S.W.2d at 173. Another interest identified by the State in support of its system of unitary juries is the possibility that, in at least some capital cases, the defendant might benefit at the sentencing phase of the trial from the jury's "residual doubts" about the evidence presented at the guilt phase. The dissenting opinion in the Court of Appeals also adverted to this interest:

[A]s several courts have observed, jurors who decide both guilt and penalty are likely to form residual doubts or "whimsical" doubts . . . about the evidence, so as to bend them to decide against the death penalty. Such residual doubt has been recognized as an extremely effective argument for defendants in capital cases. To divide the responsibility . . . to some degree would eliminate the influence of such doubts.

758 F.2d at 247-248 (J. Gibson, J., dissenting) (citations omitted). JUSTICE MARSHALL's dissent points out that some States which adhere to the unitary jury system do not allow the defendant to argue "residual doubts" to the jury at sentencing. But while this may justify skepticism as to the extent to which such States are willing to go to allow defendants to capitalize on "residual doubts," it does not wholly vitiate the claimed interest. Finally, it seems obvious to us that in most, if not all, capital cases, much of the evidence adduced at the guilt phase of the trial will also have a bearing on the penalty phase; if two different juries were to be required, such testimony would have to be presented twice, once to each jury. As the Arkansas Supreme Court has noted, "[s]uch repetitive trials could not be consistently fair to the State, and perhaps not even to the accused." Rector, supra, at 396, 659 S.W.2d at 173. [p182]

Unlike the Illinois system criticized by the Court in Witherspoon, and the Texas system at issue in Adams, the Arkansas system excludes from the jury only those who may properly be excluded from the penalty phase of the deliberations under Witherspoon, Adams, and Wainwright v. Witt, 469 U.S. 412 (1985). [n17] That State's reasons for adhering to its preference for a single jury to decide both the guilt and penalty phases of a capital trial are sufficient to negate the inference which the Court drew in Witherspoon concerning the lack of any neutral justification for the Illinois rule on jury challenges.

Second, and more importantly, both Witherspoon and Adams dealt with the special context of capital sentencing, where the range of jury discretion necessarily gave rise to far greater concern over the possible effects of an "imbalanced" jury. As we emphasized in Witherspoon:

[I]n Illinois, as in other States, the jury is given broad discretion to decide whether or not death is "the proper penalty" in a given case, and a juror's general views about capital punishment play an inevitable role in any such decision.

. . . . Guided by neither rule nor standard, "free to select or reject as it [sees] fit," a jury that must choose between life imprisonment and capital punishment can do little more -- and must do nothing less -- than express the conscience of the community on the ultimate question of life or death.

391 U.S. at 519 (emphasis in original; footnotes omitted). Because capital sentencing under the Illinois statute involved such an exercise of essentially unfettered discretion, we held that the State violated the Constitution when it "crossed the [p183] line of neutrality" and "produced a jury uncommonly willing to condemn a man to die." Id. at 520-521.

In Adams, we applied the same basic reasoning to the Texas capital sentencing scheme, which, although purporting to limit the jury's role to answering several "factual" questions, in reality vested the jury with considerable discretion over the punishment to be imposed on the defendant. See 448 U.S. at 46 ("This process is not an exact science, and the jurors under the Texas bifurcated procedure unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths"); cf. Jurek v. Texas, 428 U.S. 262, 273 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.) ("Texas law essentially requires that . . . , in considering whether to impose a death sentence, the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it"). Again, as in Witherspoon, the discretionary nature of the jury's task led us to conclude that the State could not

exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty.

Adams, 448 U.S. at 50.

In the case at bar, by contrast, we deal not with capital sentencing, but with the jury's more traditional role of finding the facts and determining the guilt or innocence of a criminal defendant, where jury discretion is more channeled. We reject McCree's suggestion that Witherspoon and Adams have broad applicability outside the special context of capital sentencing, [n18] and conclude that those two decisions do not support the result reached by the Eighth Circuit here.

In our view, it is simply not possible to define jury impartiality, for constitutional purposes, by reference to some hypothetical mix of individual viewpoints. Prospective jurors [p184] come from many different backgrounds, and have many different attitudes and predispositions. But the Constitution presupposes that a jury selected from a fair cross-section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case. We hold that McCree's jury satisfied both aspects of this constitutional standard. The judgment of the Court of Appeals is therefore


JUSTICE BLACKMUN concurs in the result.

1. In Wainwright v. Witt, 469 U.S. 412 (1985), this Court emphasized that the Constitution does not require "ritualistic adherence" to the "talismanic" standard for juror exclusion set forth in footnote 21 of the Witherspoon opinion. 469 U.S. at 419, 423. Rather, the proper constitutional standard is simply whether a prospective juror's views would "‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Id. at 433, quoting Adams v. Texas, 448 U.S. 38, 45 (1980). Thus, the term "Witherspoon-excludable" is something of a misnomer. Nevertheless, because the parties and the courts below have used the term "Witherspoon-excludables" to identify the group of prospective jurors at issue in this case, we will use the same term in this opinion.

2. James Grigsby, the habeas petitioner with whose case McCree's had been consolidated, died prior to the District Court's decision, so his case became moot. Grigsby v. Mabry, 569 F.Supp. at 1277, n. 2. Dewayne Hulsey, a third habeas petitioner whose "death qualification" claim was consolidated with Grigsby's and McCree's, was found to be procedurally barred, under Wainwright v. Sykes, 433 U.S. 72 (1977), from asserting the claim. Hulsey v. Sargent, 550 F.Supp. 179 (ED Ark.1981).

3. McCree argues that the "factual" findings of the District Court and the Eighth Circuit on the effects of "death qualification" may be reviewed by this Court only under the "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a). Because we do not ultimately base our decision today on the invalidity of the lower courts' "factual" findings, we need not decide the "standard of review" issue. We are far from persuaded, however, that the "clearly erroneous" standard of Rule 52(a) applies to the kind of "legislative" facts at issue here. See generally Dunagin v. City of Oxford, Mississippi, 718 F.2d 738, 748, n. 8 (CA5 1983) (en banc) (plurality opinion of Reavley, J.). The difficulty with applying such a standard to "legislative" facts is evidenced here by the fact that at least one other Court of Appeals, reviewing the same social science studies as introduced by McCree, has reached a conclusion contrary to that of the Eighth Circuit. See Keeten v. Garrison, 742 F.2d 129, 133, n. 7 (CA4 1984) (disagreeing that studies show relationship between generalized attitudes and behavior as jurors), cert. pending, No. 84-6187.

4. The Court of Appeals described the following studies as "conviction-proneness surveys": H. Zeisel, Some Data on Juror Attitudes Toward Capital Punishment (University of Chicago Monograph 1968) (Zeisel); W. Wilson, Belief in Capital Punishment and Jury Performance (unpublished manuscript, University of Texas, 1964) (Wilson); Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law, 5 Harv.Civ.Rights-Civ.Lib.L.Rev. 53 (1970) (Goldberg); Jurow, New Data on the Effect of a "Death Qualified" Jury on the Guilt Determination Process, 84 Harv.L.Rev. 567 (1971) (Jurow); and Cowan, Thompson, & Ellsworth, The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 Law & Hum.Behav. 53 (1984) (Cowan-Deliberation). In addition, McCree introduced evidence on this issue from a Harris Survey conducted in 1971. Louis Harris & Associates, Inc., Study No. 2016 (1971) (Harris-1971).

5. The Court of Appeals described the following studies as "attitudinal and demographic surveys": Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U.Colo.L.Rev. 1 (1970); Bronson, Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California, 3 Woodrow Wilson L.J. 11 (1980); Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum.Behav. 31 (1984); and Precision Research, Inc., Survey No. 1286 (1981). In addition, McCree introduced evidence on these issues from Thompson, Cowan, Ellsworth, & Harrrington, Death Penalty Attitudes and Conviction Proneness, 8 Law & Hum.Behav. 95 (1984); Ellsworth, Bukaty, Cowan, & Thompson, The Death-Qualified Jury and the Defense of Insanity, 8 Law & Hum.Behav. 81 (1984); A. Young, Arkansas Archival Study (unpublished, 1981); and various Harris, Gallup, and National Opinion Research Center polls conducted between 1953 and 1981.

6. McCree introduced evidence on this issue from Haney, On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process, 8 Law & Hum.Behav. 121 (1984).

7. We would in any event reject the argument that the very process of questioning prospective jurors at voir dire about their views of the death penalty violates the Constitution. McCree concedes that the State may challenge for cause prospective jurors whose opposition to the death penalty is so strong that it would prevent them from impartially determining a capital defendant's guilt or innocence. Ipso facto, the State must be given the opportunity to identify such prospective jurors by questioning them at voir dire about their views of the death penalty.

8. The petitioner in Witherspoon cited the Wilson and Goldberg studies, and a prepublication draft of the Zeisel study. 391 U.S. at 517, n. 10; see n. 4, supra.

9. The Harris-1971 study polled 2,068 adults from throughout the United States, the Cowan-Deliberation study involved 288 jury-eligible residents of San Mateo and Santa Clara Counties in California, and the Jurow study was based on the responses of 211 employees of the Sperry Rand Corporation in New York.

10. The Harris-1971 and Jurow studies did not allow for group deliberation, but rather measured only individual responses.

11. JUSTICE MARSHALL's dissent refers to an "essential unanimity" of support among social science researchers and other academics for McCree's assertion that "death qualification" has a significant effect on the outcome of jury deliberations at the guilt phase of capital trials. See post at 189. At least one of the articles relied upon by the dissent candidly acknowledges, however, that its conclusions ultimately must rest on "[a] certain amount of . . . conjecture" and a willingness "to transform behavioral suspicions into doctrine." Finch & Ferraro, The Empirical Challenge to Death-Qualified Juries: On Further Examination, 65 Neb.L.Rev. 21, 67 (1986). As the authors of the article explain:

[U]ncertainty inheres in every aspect of the capital jury's operation, whether one focuses on the method of identifying excludable jurors or the deliberative process through which verdicts are reached. So it is that, some seventeen years after Witherspoon, no definitive conclusions can be stated as to the frequency or the magnitude of the effects of death qualification.

* * * *

Nor is it likely that further empirical research can add significantly to the current understanding of death qualification. The true magnitude of the phenomenon of conviction proneness is probably unmeasurable, given the complexity of capital cases and capital adjudication.

Id. at 66-67 (footnote omitted).

12. Only the Cowan-Deliberation study attempted to take into account the presence of "nullifiers."

13. The effect of this flaw on the outcome of a particular study is likely to be significant. The Cowan-Deliberation study revealed that approximately 37% of the "Witherspoon-excludables" identified in the study were also "nullifiers."

14. The only case in which we have intimated that the fair cross-section requirement might apply outside the context of jury panels or venires, Ballew v. Georgia, 435 U.S. 223 (1978) (opinion of BLACKMUN, J.), did not involve jury selection at all, but rather the size of the petit jury. JUSTICE BLACKMUN's opinion announcing the judgment, and the opinions concurring in the judgment which agreed with him, expressed the view that Georgia's limitation of the size of juries to five "prevents juries from truly representing their communities," id. at 239.

15. See Rector v. State, 280 Ark. 385, 396-397, 659 S.W.2d 168, 173-174 (1983), cert. denied, 466 U.S. 988 (1984). McCree does not dispute the existence of this interest, but merely contends that it is not substantial. See Brief for Respondent 74-79.

16. McCree asserts that the State often will request the death penalty in particular cases solely for the purpose of "death qualifying" the jury, with the intent ultimately to "waive" the death penalty after a conviction is obtained. We need not consider the implications of this assertion, since the State did not "waive" the death penalty in McCree's case.

17. The rule applied by Arkansas to exclude these prospective jurors was scarcely a novel one; as long ago as Logan v. United States,144 U.S. 263 (1892), this Court approved such a practice in the federal courts, commenting that it was also followed "by the courts of every State in which the question has arisen." Id. at 298.

18. The majority in Adams rejected the dissent's claim that there was

no plausible distinction between the role of the jury in the guilt-innocence phase of the trial and its role, as defined by the State of Texas, in the sentencing phase.

448 U.S. at 54 (REHNQUIST, J., dissenting).