May 11
PENNSYLVANIA:
Lawyers Should Appropriately Raise the Death-Penalty Moratorium in Voir Dire
Lawyers should appropriately raise the death-penalty moratorium in voir dire.
I am assigned to try a capital murder trial. May I voir dire the jury on the
moratorium issued by Gov. Tom Wolf on all capital cases?
This is an interesting ethical issue. The best advice is to ask for a sidebar
with the court or file a motion in advance for the court to make a decision.
The worst thing would be for a lawyer to ask that question to a panel of jurors
without prior approval by the judge.
The bottom line is that it appears that it would be an ethical question to ask.
In death penalty cases, the voir dire of jurors is a very important process.
The critical aspect of a voir dire of jurors is not only to educate jurors and
to find out their viewpoints, but also to make sure that jurors will not think
there is anything that will detract from their individual decision on death. In
other words, if a juror believes that they don't have the final say - if they
think the court will change a decision on appeal or the governor will change it
- then the juror feels less responsible and may be more inclined to impose
death, feeling that theirs is not the final decision.
The current death-penalty moratorium could clearly lead a potential juror on a
capital murder case to believe that perhaps whatever they decide is not going
to ever happen. The moratorium may or may not prevail. There is litigation in
the state Supreme Court on that very issue. Interpretation of the Pennsylvania
Constitution and whether a reprieve can only be temporary is an issue that will
be decided at some point by the Supreme Court pursuant to the language of the
Pennsylvania Constitution.
In any event, it would appear that a lawyer has an ethical obligation and legal
duty to clients in picking a capital murder trial to inquire of the jurors if
they are aware of the moratorium and how that would affect their judgment. The
lawyer, as noted above, should file a motion in advance to get court approval
of this line of questioning. But it appears that this would be approved by any
court because of the concern that a juror might feel less than responsible if
they believe the moratorium will prevent the imposition of death.
Therefore, the answer to the question is a lawyer should seek to voir dire
prospective jurors on a capital murder case on the issue of the governor's
moratorium on the death penalty. But it should be done in a professional
fashion, by filing motions and having argument outside the presence of the
prospective jurors, so the court can make a decision on this issue.
If the court decides it cannot be the subject of voir dire, then the lawyers
preserve the issue for future appeals. It would also appear there ought to be
some sort of instruction to the jury in the capital phase about the issue of
the death-penalty moratorium to ensure that the jurors do not feel less
responsible for voting for death because of their belief that the moratorium
has ended the carrying out of death sentences in Pennsylvania.
Also, even if the Supreme Court upholds Wolf, there is no guarantee that a
future governor won't reverse the moratorium. Therefore, this is an important
issue that has to be explored with a jury, but in an appropriate and proper
fashion.
(source: thelegalintelligencer.com)
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