Religion has the ability to affect death penalty trials in numerous ways. The most studied include the effects of jurors’ religiosity and religious appeals used by lawyers during trial. Religion also affects judges’ decisions. Although the study of how religion affects legal decision making is still in its infancy, religion has the potential to affect voir dire, trial presentation, and trial outcomes.
Use of Religion in Voir Dire
Before a trial begins, lawyers have the opportunity to exclude a set number of potential jurors who they believe will not favor their client. Lawyers often exclude potential jurors on the basis of personal characteristics such as religious beliefs or affiliation. For example, lawyers have excluded potential jurors because they were Jewish, Islamic, Jehovah’s Witnesses, Catholic, or Pentecostal. Other potential jurors have been excluded because they had strong religious beliefs, had acted as a missionary, or had served as a pastor.
State courts are divided on whether the exclusion of potential jurors based on religion is legally permissible. Some state courts have held that lawyers can exclude potential jurors based on any religious variable, while others have determined that lawyers cannot exclude a potential juror for any factor related to religion. Still other courts have created rules that govern the exclusion of jurors. For instance, the court in United States v. DeJesus (2003) stated that it was permissible to exclude a juror because of his or her degree of religiosity (e.g., how often the juror prayed) but not because of his or her religious affiliation. The Indiana Supreme Court in Highler v. State (2006) held that lawyers cannot exclude a juror because of religious affiliation but that it is permissible to exclude a juror because his or her occupation is religious in nature. The U.S. Supreme Court had the chance to settle the controversy but declined to do so (Davis v. Minnesota, 1994). Thus, state courts can generally develop their own rules.
Because few states prohibit using religious factors to exclude potential jurors, most lawyers are able to do so. Psychologists can provide information about how religious variables may affect jurors’ decisions, although the research has been sparse and sometimes contradictory. Conflicting findings likely represent the strong relative influence of individual case facts, the type of trial (e.g., capital or noncapital trial), and different measurements of religious variables.
Studies have investigated the relationships between religion and guilt verdicts, sentencing verdicts, and punishment in nontrial settings. Early research shows that jurors who believe in a divine plan and life after death tend to be more likely to find a defendant guilty. Other research has found that individuals who believe in a punitive God or could be categorized as religiously moderate or fundamental/conservative were more punitive. Religious affiliation may influence attitudes toward punishment, as a few studies have found that Protestants are more supportive of the death penalty than Catholics; other studies have found Catholics to be more punitive than Jews. Several studies have found a positive relationship between punitiveness and a belief in a literal interpretation of the Bible. Religious fundamentalism has sometimes been linked to punitiveness and support for the death penalty. Evangelist individuals (i.e., those who actively encourage others to accept Jesus) in one study were less likely to support the death penalty, though other studies have failed to replicate the finding. Devotionalism (i.e., the amount of time one spends in religious activities) has also produced mixed findings.
A more current study found that individuals who support the death penalty were more likely to be Protestant, have fundamentalist beliefs, believe in a literal interpretation of the Bible, believe that God supports the death penalty, believe that God requires the death penalty for murderers, and believe that their own religious groups support the death penalty. All these relationships except literal interpretism also existed among jurors who were death qualified. A mock jury simulation revealed that various religious factors influenced sentencing verdicts. Specifically, a death penalty verdict was related to high scores on the fundamentalism scale, belief in a literal biblical interpretation, belief that God requires the death penalty for murder-ers, and a belief that one’s religious group supports the death penalty. Although research has sometimes produced conflicting results, many individuals do rely on their religious beliefs when making decisions, including death-penalty-sentencing decisions.
Use of Religion by Lawyers during Trial
Both prosecutors and defense attorneys have presented religious appeals and testimony about a defendant’s religiosity to influence capital jurors’ sentencing decisions. Appeals typically are presented in the closing arguments of the sentencing phase; testimony and evidence can come from a variety of sources, including pastors and relatives. Some courts have objected to these uses of religion (especially appeals), determining that religion improperly influences jurors’ decisions.
Prosecutors have used several types of appeals during trial. First, attorneys have quoted biblical passages that support retribution, such as the “an eye for an eye and a tooth for a tooth” passage and the “Whoso sheddeth man’s blood, by man shall his blood be shed” passage. Prosecutors in child murder cases have quoted the passage, “It were better for him that a millstone were hanged about his neck and he were cast into the sea, than that he should offend one of these little ones.” Such appeals communicate that a person who murders should also be put to death.
Second, prosecutors have told jurors that God has given them the authority to make the life-and-death decisions. Other attorneys have claimed that the state legislature, the prosecutor, or the court is acting under God’s authority. Such an instruction implies that God supports, or at least does not object to, the jury giving the defendant the death penalty.
Third, prosecutors have made comparisons between the defendant and biblical characters such as Judas Iscariot and the devil. Attorneys also tell biblical stories of Cain and Abel, David and Goliath, and the Apostle Peter. These stories provide recognizable metaphors for jurors to use in their decisions.
Defense attorneys have also used a variety of religious appeals to persuade jurors. For example, they have quoted biblical passages such as “Do not take revenge, my friends, but leave room for God’s wrath, for it is written: ‘It is mine to avenge; I will repay,’ says the Lord” or argued generally that life-and-death decisions belong to God, not to man.
Defense attorneys have countered the prosecution’s use of the “eye for an eye” argument by presenting quotes from Jesus that advocate “turning the other cheek.” Such appeals promote forgiveness rather than retribution. They have also argued for the importance of forgiveness by telling biblical stories such as the one in the book of John about the woman who is caught committing adultery and is about to be stoned to death. Jesus tells her would-be executioners that only a man who is without sin should throw a stone. After freeing the woman, Jesus forgives her. The purpose of telling the story is to illustrate that no one is without sin, and thus, no one should condemn another person to death. Because Jesus stopped an execution in favor of mercy and forgiveness, jurors should do the same. Another biblical story involves the crucifixion of Jesus. The attorney tells the jury that Jesus asked God to “forgive them for they know not what they do.” Thus, jurors are told that they should forgive the defendant, just as Jesus forgave the people who were killing him.
Finally, defense attorneys have presented evidence of the defendant’s religiosity in an attempt to evoke jurors’ mercy. For example, a lawyer may tell the jury that the defendant deserves mercy because he is a Christian or has converted to Christianity while in prison. The defendant may present evidence or testimony that establishes that he has formed a prison Bible study, has written Christian books, or spends much time in prayer.
Courts have issued a variety of opinions concerning whether it is permissible for attorneys to use religion during trial. Generally, defendant can present evidence of their character that would convince a jury that they do not deserve the death penalty. Thus, evidence of a religious conversion would typically be allowed.
There has been much more controversy over religious appeals by prosecutors and defense attorneys. Some courts have forbidden all religious appeals, while others have provided guidelines for determining what kinds of appeals are allowable—for instance, excluding religious appeals that are excessive, are not related to the character of the defendant, prejudice jurors, or prevent a trial. Still other courts have allowed all appeals. Such courts have determined that appeals are appropriate because they are merely part of lawyers’ theatrics.
Courts have forbidden religious appeals for a variety of reasons. Some courts have determined that such appeals violate the Eighth Amendment prohibition on cruel and unusual punishment. In a death-penalty-sentencing trial, a defendant is allowed to provide evidence of mitigating factors (i.e., evidence that the defendant does not deserve the death penalty). Biblical appeals allegedly do not allow jurors to consider mitigating factors; for instance, the “eye for an eye” command instructs jurors to give murderers the death penalty and does not provide jurors with any reasons to deviate from this biblical principle. Courts have rejected defense appeals as well. Some courts have found defense appeals to be improper because they suggest that jurors deviate from the state law. For instance, a lawyer tells jurors that God forbids them from giving a death sentence, while state law allows a jury to sentence a man to death.
Only a few studies have investigated the effects of religious appeals and testimony. In general, research indicates that appeals used by the prosecution are ineffective. That is, biblical quotes do not encourage jurors to give death sentences. Defense appeals used in one study were influential; however, they actually had the opposite effect from what was intended. Specifically, a defense attorney’s biblical appeal led jurors to be more likely to give a death sentence. On the other hand, the study found that evidence of a religious conversion led jurors to be less punitive. Evidence that the defendant has always been a Christian has either backfired or had no effect.
Use of Religion in Deliberation
In several recent capital trials, jurors have used a Bible during deliberation. Jurors in at least one trial admitted looking up passages such as the “eye for an eye” passage before sentencing the defendant to death. While judges have generally declared the practice impermissible, it is difficult to completely remove religion from the deliberation room. Even without a Bible, jurors can cite scripture from memory or privately rely on their religious convictions during deliberations. The effects of religion in deliberation have not been studied.
Use of Religion by Judges
Judges can also rely on religion in their decisions. They may be persuaded by their religious beliefs when deciding whether to uphold or reverse a death sentence. They may also allow religious factors to determine whether a lawyer has misused religion in a specific trial. Very little research has been conducted on this issue, although one study found that evangelical judges were more likely to uphold a death sentence than their counterparts. This finding opposes another study that found that evangelical individuals were less punitive.
In sum, religion can affect a death penalty trial in various ways, though these effects remain largely unstudied.
- Davis v. Minnesota, 511 U.S. 1115 (1994).
- Highler v. State, 854 N.E.2d 823 (Ind. 2006).
- Miller, M. K., & Bornstein, B. H. (2005). Religious appeals in closing arguments: Impermissible input or benign banter? Law and Psychology Review, 29, 29-61.
- Miller, M. K., & Bornstein, B. H. (2006). The use of religion in death penalty sentencing trials. Law and Human Behavior, 30, 675-684.
- Miller, M. K., & Hayward, R. D. (2007, June). Religious characteristics and the death penalty [Electronic version]. Law and Human Behavior. Retrieved from http://link.springer.com/article/10.1007%2Fs10979-007-9090-z
- Simson, G. J., & Garvey, S. P. (2001). Knockin’ on heaven’s door: Rethinking the role of religion in death penalty cases. Cornell Law Review, 86, 1090-1130.
- United States v. DeJesus, 347 F.3d 500 (3rd Cir. 2003).
- Young, R. L. (1992). Religious orientation, race and support for the death penalty. Journal for the Scientific Study of Religion, 31, 76-88.