Juries and the Bible

The Colorado Supreme Court issued a Opinion yesterday that should cause all of us great concern. The court held that a juror cannot bring a Bible into the jury room without introducing “passion, prejudice or [another] arbitrary factor” into the decision process. As a result, the court threw out a death penalty sentence, and imposed a lesser sentence of life imprisionment, on a defendant who was convicted of raping and murdering a woman and murdering a second woman who had attempted to rescue the first victim.

The rationale for the court’s decision is as confused as it is shocking.

The jurors acknowledged that they had reviewed Bible passages that at least some of the jurors believed require the death penalty in murder cases. According to the court, “at least one juror in this case could have been influenced by these authoritative passages to vote for the death penalty when he or she may otherwise have voted for a life sentence.” Opinion, at p. 39. The court stated that jurors may discuss their “religious upbringing, education, and beliefs in making the extremely difficult ‘reasoned judgment’ and ‘moral decision’ he or she is called upon to make” in a death penalty case under Colorado law. Opinion, at p. 42. However, bringing a Bible into the jury room amounted to the use of evidence that had not been introduced at trial.

Two judges dissented from the majority’s Opinion. The dissenting judges noted that, in post-trial interviews, the jurors stated that they had not based their death penalty votes on the Bible passages.

Further, the dissenters cited the trial court’s own instructions to the jury (which are standard instructions) that the jury was to “apply its reasoned judgment in deciding whether the situation calls for life imprisionment or the imposition of the death penalty” and to “make a further individual moral assessment” of whether the death penalty was appropriate. According to the dissenters, the Bible is part of the general moral compass of many people, and many jurors “know large parts of the Bible by heart and can quote certain passages verbatim with persuasive alactrity….” Dissenting Opinion, at p. 12.

The dissenters concluded that “[t]o presume that jurors who have a religious background cannot distinguish between written biblical passages referenced here and the written jury instructions — a presmumption that must be made in order to find prejudice in this case — is to underestimate their intelligence and to belittle their participation in our legal system.” Dissenting Opinion, at p. 13.

I think the dissenters are absolutely right. Moreover, I think the ultimate implication of the majority’s opinion is that a religiously-derived belief about the propriety of a particular punishment should not be part of a juror’s “reasoned judgment” and “moral assessment.” This flies in the face of centuries of jurisprudence about the role and function of juries, and is impossible to police. It effectively removes judgments about punishement from the hands of juries and places those judgments entirely into the hands of judges. This is not how our trial system is supposed to work.

I should say here that I’m not a big fan of the death penalty generally. I think the death penalty is morally justifiable in theory but extraordinarly difficult to apply justly in practice. I don’t think the Bible clearly mandates the death penalty at all times in all societies under all forms of government. And, I think juries often get things wrong and that there is a role for careful judicial review when the consequences for the defendant are severe.

Nevertheless, I believe the basic principle underlying our criminal justice system — that ordinary people sitting as juries should judge their peers based on the facts, the law, and their moral sense — is sound. In addition, I think it’s pernicious to suggest that jurors must exercise their moral sense apart from any particular religious teachings. In the end, there is no moral sense apart from faith.