Hovey v. County, 28 Cal. 3d 1 (Cal. 1980)

All references hereinafter to sections are to the Penal Code, unless otherwise indicated.

Former section 190.2, subdivisions (c)(3)(ii) and (c)(3)(iv). Petitioner is accused of having committed the offenses on March 18, 1978. Therefore, he is being tried under the capital punishment laws enacted by the Legislature ih 1977. (Stats. 1977, ch. 316.) The enactment in 1978 of Proposition 7 does not affect in any way the conclusions reached herein.

United States Constitution, 6th and 14th Amendments; California Constitution, article I, sections 7, 15, and 16.

As will be discussed {post, at pp. 8-10), the exclusionary practice which petitioner challenges is based upon Penal Code section 1074, subdivision 8, as construed by judicial decision (see, e.g., People v. Riser (1956) 47 Cal.2d 566, 575-576 [305 P.2d 1]). Petitioner’s pretrial motion also involved a challenge to the in-court procedures used *8to identify those prospective jurors whose views on capital punishment justify their exclusion from the trial. This issue is discussed in part VII of this opinion. (Post, at pp. 69-81.)

The present petitioner was not a party to the charges filed in the Moore brothers’ case.

The pretrial petition is proper. (See Ganz v. Justice Court (1969) 273 Cal.App.2d 612, 617-618 [78 Cal.Rptr. 348]; see also Rubio v. Superior Court (1979) 24 Cal.3d 93, 97 [154 Cal.Rptr. 734, 593 P.2d 595] (lead opn. of Mosk, J.).)

Section 1074 provides in relevant part: “A challenge for implied bias may be taken for all or any of the following causes, and for no other:

See former section 190, Statutes 1927, chapter 889, section 1, page 1952. In 1957 the Legislature replaced this unitary proceeding with a bifurcated system. (Stats. 1957, ch. 1968, § 2, p. 3509.)

A precise application of the literal words of section 1074, subdivision 8, would, of course, give petitioner the relief he requests and thus would render moot the constitutional challenge to the statute as interpreted in Riser, Gilbert, and Smith. However, ever since the Legislature enacted the procedure for bifurcated death penalty trials, it has also provided that “the same jury” which convicted the defendant of first degree murder “shall” determine the penalty to be applied, “unless, for good cause shown, the court discharges that jury in which case a new jury shall be drawn.... ” (Former § 190.1, Stats. 1957, ch. 1968, § 2, p. 3510; see now § 190.4, subd. (c).) This legislative “preference for one jury qualified to act throughout the entire case” (People v. Gilbert, supra, 63 Cal.2d at p. 712) would seem to be inconsistent with a literal reading of section 1074, subdivision 8, and thus supports the judicial gloss placed on that section by Riser and its progeny.

People v. Hoyt (1942) 20 Cal.2d 306, 318 [125 P.2d 29]; see also People v. Nicolaus (1967) 65 Cal.2d 866, 882 [56 Cal.Rptr. 635, 423 P.2d 787].

People v. Duncan (1960) 53 Cal.2d 803, 816 [3 Cal.Rptr. 351, 350 P.2d 103].

Former Illinois Revised Statutes (1959) chapter 38, section 743, quoted in Witherspoon v. Illinois, supra, 391 U.S. at page 512 [20 L.Ed.2d at page 779].

391 U.S. at page 518 [20 L.Ed.2d at page 783].

391 U.S. at page 522 [20 L.Ed.2d at page 785]. footnote omitted.

391 U.S. at page 520 [20 L.Ed.2d at page 783].

391 U.S. at page 521 [20 L.Ed.2d at page 784].

The precise constitutional basis for this holding is not entirely certain. At one point, the court stated that Witherspoon’s jury “fell woefully short of that impartiality to *11which the petitioner was entitled under the Sixth and Fourteenth Amendments. See Glasser v. United States, 315 U.S. 60, 84-86; Irvin v. Dowd, 366 U.S. 717, 722-723; Turner v. Louisiana, 379 U.S. 466, 471-473.” (391 U.S. at p. 518 [20 L.Ed.2d at p. 783].) While this statement might appear to indicate that the “impartial jury” requirements of the Sixth Amendment were being applied to state court proceedings, this interpretation does not withstand scrutiny. Witherspoon was decided only two weeks after the Supreme Court had announced for the first time that the Sixth Amendment right to a jury trial was binding on the states. (Duncan v. Louisiana (1968) 391 U.S. 145 [20 L.Ed.2d 491, 88 S.Ct. 1444].) Two weeks later, the court announced that Duncan applied prospectively, thereby precluding its application to state trials, such as Witherspoon’s, which had preceded Duncan. (DeStefano v. Woods (1968) 392 U.S 631 [20 L.Ed.2d 1308, 88 S.Ct. 2093].) It would appear that the constitutional principles being applied were those of due process, as seen through the filter of Sixth Amendment values. This interpretation is supported by the court’s language that Witherspoon’s death sentence “would deprive him of his life without due process of law.” (391 U.S. at p. 523 [20 L.Ed.2d at p. 786].) It is further supported by the references to the court’s prior decisions in Irvin and Turner. These two cases were decided at a time when states were not bound to provide trial by jury in criminal cases. Nevertheless, the court held that once the state “purported to accord” such a trial, the “nature” of the jury trial provided must conform to “Fourteenth Amendment commands.” (Turner v. Louisiana, supra, 379 U.S. at p. 471 [13 L.Ed.2d at p. 428].) Among these commands was the right to ‘“a fair trial by a panel of impartial, “indifferent” jurors.’” (Ibid., quoting from Irvin v. Dowd, supra, 366 U.S. at p. 722 [6 L.Ed.2d at p. 755].) Some of the language in the Witherspoon opinion—e.g., the reference to the jury’s role of “express [ing] the conscience of the community” in determining Witherspoon’s punishment (391 U.S. at p. 519 [20 L.Ed.2d at p. 783])—suggests that “representative cross section” principles were applied. However, as will be more fully discussed below, it is doubtful that the Witherspoon decision was based on a purely cross sectional analysis. (Cf., post, fns. 38 and 45.)

The court suggested that a juror, who believed that capital punishment should never be inflicted and who was irrevocably committed to its abolition, could not be removed for cause if he “could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the law of the State.” (Id., at p. 514, fn. 7 [20 L.Ed.2d at p. 781]; see also id., at p. 515, fn. 9 [20 L.Ed.2d at p. 781]; Boulden v. Holman (1969) 394 U.S. 478, 483-484 [22 L.Ed.2d 433, 438-439, 89 S.Ct. 1138]; Maxwell v. Bishop (1970) 398 U.S. 262, 265 [26 L.Ed. 2d 221, 224, 90 S.Ct. 1578].)

On appeal, Witherspoon cited to the Supreme Court a survey by W. C. Wilson, an unpublished survey by Fay Goldberg (now Girsh), and a “preliminary, unpublished summary of the results” of a study by Hans Zeisel. (Id., at p. 517, fn. 10 [20 L.Ed.2d at p. 782].) The Wilson survey and the final versions of the Girsh and Zeisel studies were presented to the court in the present case. (Post, at pp. 27-33.) Drs. Girsh and Zeisel also personally testified.

One of the dissenting justices in Witherspoon stated he too “would not wholly foreclose the possibility of a showing that certain restrictions ón jury membership imposed because of jury participation in penalty determination produce a jury which is not constitutionally constituted for the purpose of determining guilt.” (391 U.S. at p. 541, fn. 1 [20 L.Ed.2d at p. 795] (dis. opn. of White, J.).)

Footnote 18 then continues: “If he were to succeed in that effort, the question would then arise whether the State’s interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant’s interest in a completely fair determination of guilt or innocence—given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment. That problem is not presented here, however, and we intimate no view as to its proper resolution.”

The issue was briefly addressed in Bumpers v. North Carolina (1968) 391 U.S. 543 [20 L.Ed.2d 797, 88 S.Ct. 1788], which was a companion case to and decided on the same day as Witherspoon.

See also Duren v. Missouri (1979) 439 U.S. 357 [58 L.Ed.2d 579, 99 S.Ct. 664].

While the right to a jury drawn from a representative cross section of the community has roots extending at least as far back as 1880 (see Strauder v. West Virginia (1880) 100 U.S. 303, 308 [25 L.Ed. 664, 665-666]), no single constitutional provision has been held to embody it. (Cf. Peters v. Kiff (1972) 407 U.S. 493, 498-500 [33 L.Ed.2d 83, 91-92, 92 S.Ct. 2163]; People v. Wheeler (1978) 22 Cal.3d 258, 270, fn. 8 [148 Cal.Rptr. 890, 583 P.2d 748] and accompanying text.)

Unlike Witherspoon, where the court imposed on the accused the burden of establishing that a “death-qualified” jury was not constitutionally neutral, the court seemed to require in Taylor that the state demonstrate the constitutionality of an all-male jury. (419 U.S. at p. 537 [42 L.Ed.2d at p. 702].) In view of the fact that some of the attributes which women bring to jury service were likened to qualities “unknown and perhaps unknowable” (id., at p. 532, fn. 12 [42 L.Ed.2d at p. 699]), the burden placed on the state in Taylor appears an impossibility.

The high court in Taylor did believe that women were “distinct” from men, that “‘the subtle interplay of influence one on the other is among the imponderables,’” and that “‘a flavor, a distinct quality is lost if either sex is excluded.’” (419 U.S. at pp. 531-532 [42 L.Ed.2d at p. 699], quoting from Ballard v. United States (1946) 329 U.S. 187, 193-194 [91 L.Ed. 181, 185-186, 67 S.Ct. 261].)

Williams v. Florida (1970) 399 U.S. 78 [26 L.Ed.2d 446, 90 S.Ct. 1893] [conviction of a noncapital felony offense by a unanimous six-person jury does not violate Sixth Amendment]; Johnson v. Louisiana (1972) 406 U.S. 356 [32 L.Ed.2d 152, 92 S.Ct. 1620] [conviction of a noncapital felony offense by a 9-3 vote of a jury does not violate due process]; Apodaca v. Oregon (1972) 406 U.S. 404 [32 L.Ed.2d 184, 92 S.Ct. 1628] [conviction of a noncapital felony offense by a 10-2 vote of a jury in state court does not violate Sixth and Fourteenth Amendments]; Burch v. Louisiana (1979) 441 U.S. 130 [60 L.Ed.2d 96, 99 S.Ct. 1623] [conviction of a misdemeanor by a non-unanimous six-person jury violates Sixth Amendment]. Cf., Colgrove v. Battin (1973) 413 U.S. 149 [37 L.Ed.2d 522, 93 S.Ct. 2448] [verdict by six-person jury in federal civil trial does not violate Seventh Amendment].

If the requisite showing of impairment is made, the court next considers “whether any state interest counterbalances and justifies the disruption so as to preserve [the] constitutionality” of the procedure in question. (Id., at p. 231 [55 L.Ed.2d at p. 241].)

See also Williams v. Florida, supra, 399 U.S. at pages 101-102 [26 L.Ed.2d at pages 460-461]; Apodaca v. Oregon, supra, 406 U.S. at page 411, footnote 5 [32 L.Ed.2d at page 191] (plur. opn.) [32 L.Ed.2d at p. 191]; Colgrove v. Battin, supra, 413 U.S. at pages 158-160 [37 L.Ed.2d at pages 529-531]; Burch v. Louisiana, supra, 441 U.S. at page 138 [60 L.Ed.2d at page 103] [striking down conviction based on nonunanimous verdict of six-person jury on the basis of “much the same reasons” as in Ballew].

Duncan v. Louisiana, supra, 391 U.S. at page 156 [20 L.Ed.2d at page 500].

Colgrove v. Battin, supra, 413 U.S. at page 157 [37 L.Ed.2d at page 529].

See also Burch v. Louisiana, supra, 441 U.S. at page 135, footnote 7 [60 L.Ed.2d at page 102] and accompanying text.

It has been suggested that Justice Blackmun’s opinion announcing the judgment of the court did not obtain the concurrence of a majority of the court because it was cosigned only by Justice Stevens. Although Justices Brennan, Stewart, and Marshall concurred in a separate opinion, they did specifically “join Mr. Justice Blackmun’s opinion insofar as it holds that the Sixth and Fourteenth Amendments require juries in criminal trials to contain more than five persons.” (435 U.S. at p. 246 [55 L.Ed.2d at p. 250].) These three concurring justices wrote separately in order to express their views on a wholly unrelated issue which Justice Blackmun’s opinion did not reach, i.e., whether the statute under which Ballew was prosecuted was “overbroad and therefore facially unconstitutional.” (Ibid. [55 L.Ed.2d at p. 251].) If the concurring justices wanted to concur only in the judgment announced by Justice Blackmun, as the Attorney General suggests, surely they would have used words explicitly so stating. They would not have written that they “join Mr. Justice Blackmun’s opinion....”

As a shorthand reference to this group, this opinion uses the term “automatic life imprisonment” group. The members of this group would automatically vote to impose life imprisonment in every capital trial. As used in this opinion, the phrase “death-qualified” is a general term referring to any capital case jury from which prospective jurors have been excluded for cause because of their attitudes toward the death penalty. Since the Witherspoon decision substantially limited many jurisdictions’ exclusions for cause of jurors opposed to capital punishment, the precise composition of a “death-qualified” jury will depend upon the year and jurisdiction in which it has been selected. A jury which has been “death-qualified” in conformity with Witherspoon standards is denominated a “Witherspoon-qualified” jury. (Cf., post, fn. 70.) In California and in at least a few other jurisdictions, a “death-qualified” jury is composed of a somewhat smaller pool of persons than is a “Witherspoon-qm.Wñed''’ jury. (Cf., post, fns. 48, 71, and pp. 63-69.) In referring to a jury that has been “death-qualified” under this state’s law, the phrase “California death-qualified” jury will be used.

This second group will be referred to as the “guilt phase nullifiers.”

This group, which petitioner seeks to have included in the jury pool for the guilt phase of a capital trial, is a subgroup of the “automatic life imprisonment” class. (Cf., ante, fn. 34.) Its members will be referred to as the “guilt phase indudables.”

Witherspoon v. Illinois, supra, 391 U.S. at pages 517 and 520, footnote 18 [20 L.Ed.2d at pages 782, 784]. The respondent court in the present proceeding held that an accused has the burden of establishing his contentions by “clear and convincing proof.” There is no indication in the record as to why the court selected this particular burden of proof. No relevant case law mentions it. To the contrary, the Supreme Court in Ballew v. Georgia, supra, 435 U.S. at page 239 [55 L.Ed.2d at page 246], applied a “substantial doubt” standard. That standard was cited with approval by the court in Burch v. Louisiana, supra, which held that the procedures challenged in that case were unconstitutional because they presented a “threat” to the preservation of the guarantees inherent in the right to a jury trial. (441 U.S. at pp. 137-138 [60 L.Ed.2d at p. 103].) While Ballew and Burch were decided under a constitutional analysis distinct from Witherspoon's, these cases deal fundamentally with the same basic topic—the scope of the constitutional right to a trial by an impartial tribunal. It is highly unlikely that the Supreme Court would require different burdens of proof under each analysis. Moreover, the Witherspoon decision was based, at least in part, on the due process clauses of the Constitution (cf. ante, pp. 10-11, fn. 17). The high court has long held that due process is violated by circumstances that create the “risk” or “likelihood” of bias or unfairness. (Peters v. Kiff, supra, 407 U.S. at pp. 502-503 [33 L.Ed.2d at p. 93] (lead opn. of Marshall, J.); Turney v. Ohio (1927) 273 U.S. 510, 532 [71 L.Ed. 749, 758, 47 S.Ct. 437, 50 A.L.R. 1243].) Therefore, petitioner’s burden of proof in the present proceeding is to establish a “substantial doubt” as to whether a “California death-qualified” jury is neutral with respect to guilt.

Some courts have raised doubts as to whether the Supreme Court would today require an accused to establish that the jury is “less than neutral with respect to guilt,” as Witherspoon apparently requires. (See, e.g., Grigsby v. Mabry, supra, 483 F.Supp. at pp. 1379-1385.) Portions of the Witherspoon decision can be read as relying on a “representative cross section” type of analysis (391 U.S. at pp. 519-521 [20 L.Ed.2d at pp. 783-784]). However, the cross section cases subsequent to Witherspoon have clearly *18implied that “neutrality” and “guilt proneness” are not relevant considerations under a pure cross section approach. (Taylor v. Louisiana, supra, 419 U.S. 522; Duren v. Missouri, supra, 439 U.S. 357.) The defendant did not show in Taylor or Duren that an all-male jury was “less than neutral with respect to guilt.” Rather, the court reversed in each case “simply [on the basis of] the requirement that the jury be selected from a panel representative of the community.” (See Grigsby v. Mabry, supra, 483 F.Supp. at p. 1380.) The impact of Taylor and Duren on the holding in Witherspoon is open to some dispute. It would appear that the Witherspoon decision was based, not upon the cross section requirement, but upon Fourteenth Amendment due process principles and Sixth Amendment concerns. (See 391 U.S. at pp. 518, 523 [20 L.Ed.2d at pp. 782-783, 785-786]; cf. ante, fn. 17.) While the Witherspoon analysis does involve significant cross section concerns (as does the Ballew approach), it would appear that the purely cross sectional cases such as Taylor and Duren represent a third line of constitutional analysis that is analytically separate from those of Witherspoon and Ballew. (Cf. post, fn. 45.) Petitioner has specifically declined to invoke the Taylor approach in the present case. Consequently, today’s decision does not reach the validity of any argument based on a pure cross section analysis.

Ballew v. Georgia, supra, 435 U.S. at page 239 [50 L.Ed.2d at page 246]; see also Burch v. Louisiana, supra, 441 U.S. at page 137 [60 L.Ed.2d at page 103]. Cf. ante, footnote 37.

This contention is not dependent upon how the Witherspoon and Ballew issues are resolved. Regardless of this court’s decision on these issues, it is necessary to determine the outlines of a fair procedure for identifying and excluding ineligible jurors. Petitioner concedes there must be at least some “death qualification” of the jury, even if his Witherspoon and/or Ballew contentions are sustained, since he does not challenge the exclusion of the “guilt phase nullifiers” from the guilt phase nor the exclusion of the “automatic life imprisonment” group from the penalty phase.

The Witherspoon issue is sometimes discussed as if the question were whether those jurors who currently are eligible to serve in capital cases (i.e., who are “death-qualified”) are likely to be so biased against defendants and so partial in favor of the prosecution that they should themselves be excused for cause. That is not in fact what petitioner argues nor what his evidence is intended to establish. Rather, he seeks to prove that a jury drawn from a pool composed only of jurors “death-qualified” under current standards will be unbalanced, i.e., not “neutral.” He contends that the process of death-qualifying a jury tends to eliminate from the pool of fair and impartial jurors that portion of the spectrum of viewpoints or experience which is most likely to be favorable to him at the trial on guilt or innocence. The Fifth Circuit stumbled and missed the real issue in Spinkellink v. Wainwright (1978) 578 F.2d 582, certiorari denied, 440 U.S. 976 [59 L.Ed.2d 796, 99 S.Ct. 1548], rehearing denied 441 U.S. 937 [60 L.Ed.2d 667, 99 S.Ct. 2064]. That court perceived the issue to be whether “generally speaking, persons not opposed to capital punishment are so bent in their hostility to criminals as to be incapable of rendering impartial verdicts on the law and the evidence in a capital case.” (Id., at p. 595.) That is not the contention advanced here.

391 U.S. at page 518 [20 L.Ed.2d at page 783].

Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 227 [90 L.Ed. 1181, 1188, 66 S.Ct. 984, 166 A.L.R. 1412] (dis. opn. of Frankfurter, J.); Taylor v. Louisiana, supra, 419 U.S. at page 530 [42 L.Ed.2d at page 698].

391 U.S. at page 520, footnote 18 and accompanying text [20 L.Ed.2d at page 784].

The concept of a neutral jury is intimately related to the constitutional doctrine regarding a representative cross section of the community. (See, e.g., Taylor v. Louisiana, supra, 419 U.S. 522; Duren v. Missouri, supra, 439 U.S. 357.) Unless Taylor and Duren have considerably modified the Witherspoon approach (a proposition which this court doubts, cf. ante, fn. 38), it would appear that the two doctrines are different analytically. Witherspoon can be squared with the holdings in Taylor and Duren. The overriding constitutional principle in all these cases is that a jury must be drawn from a pool that fairly represents the community. However, if persons are excluded from jury service, analysis of the propriety of the exclusion will depend upon whether the persons left out comprise a constitutionally cognizable class, as defined in Duren, supra, 439 U.S. at page 364 [58 L.Ed.2d at pages 586-587], If they do—as in the cases at least of traditional minorities such as blacks, persons of Mexican descent, and women—then the court will apply the Taylor-Duren analysis, which effectively presumes that the exclusion resulted in a nonneutral jury. If no cognizable class is involved, then the individual challenging the exclusion bears a burden of demonstrating—by empirical proof or otherwise—that the resulting jury is probably not neutral and that this nonneutrality operates to his detriment. As previously noted {ante, fn. 38), petitioner has declined to raise the issue of cognizable class and thus has assumed the burden of demonstrating that a “death-qualified” jury is likely to be nonneutral.

See Code of Civil Procedure sections 198 through 202.5.

This group has been previously denominated the “automatic life imprisonment” group. (Cf. ante, p. 16, fn. 34.)

This group will be referred to as the “automatic death penalty” group. Prior decisions in this state have strongly suggested that members of this group must *21be excused if challenged for cause at a capital trial. (People v. Hughes (1961) 57 Cal.2d 89, 94-95 [17 Cal.Rptr. 617, 367 P.2d 33]; see also People v. Gilbert, supra, 63 Cal.2d at p. 712. Cf., e.g., Stroud v. United States (1919) 251 U.S. 15, 20-21 [64 L.Ed. 103, 111, 40 S.Ct. 50], mem. opn. on denial of petn. for rehg. 251 U.S. 380, 381-382 [64 L.Ed. 317, 40 S.Ct. 176]; see also Spinkellink v. Wainwright, supra, 578 F.2d at p. 594.)

The jury pool did contain members of the “indifferent” group and the “favor death penalty” group. It is not known for certain whether Illinois, like California, excused for cause persons in the “automatic death penalty” group. However, there is some suggestion in Witherspoon that a state’s exclusion of the “automatic life imprisonment” group might violate due process if the state did not similarly exclude the “automatic death penalty” group. (391 U.S. at pp. 521-522, fn. 20 [20 L.Ed.2d at pp. 784-785], citing Crawford v. Bounds (4th Cir. 1968) 395 F.2d 297, 303-304 (alternative holding).)

3 91 U.S. at page 520 [20 L.Ed.2d at page 784].

Id., at page 519 [20 L.Ed.2d at page 783]. The court upheld the state’s decision to exclude for cause the “automatic life imprisonment” group. (Id., at p. 522, fn. 21 [20 L.Ed.2d at p. 785].) This, too, removed from the jury pool some community viewpoints. Nevertheless, the court impliedly found that this exclusion was proper because these jurors could not be fair and impartial. Such jurors would “automatically vote against the imposition of capital punishment no matter what the trial might reveal." (Id., at p. 516, fn. 9 [20 L.Ed.2d at p. 781], italics added.) The Constitution does not compel a state to accept jurors unfavorable to it if they will not render a verdict on the evidence and the law.

*9 Wigmore, Evidence (3d ed. 1940) section 2497, page 317; see People v. Brigham, supra, 25* Cal.3d at page 292 et seq. (conc. opn. of Mosk, J.).

Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity (1979) 92 Harv. L.Rev. 1187, 1197; People v. Brigham, supra, 25 Cal.3d at page 313 (conc. opn. of Mosk, J.). Cf., Kalven & Zeisel, The American Jury (1966) chapter 14, page 182 et seq.

For present purposes it is assumed that a constitutionally “neutral” jury is one which is drawn from the pool of persons eligible to serve in a noncapital criminal trial. An individual’s attitude toward capital punishment is irrelevant to his or her eligibility for jury service in a noncapital case. Thus, a neutral jury pool will normally include members of each of the five groups on the spectrum of capital punishment attitudes. A “death-qualified” jury is drawn from a subpopulation of this neutral jury pool. Under present law, certain persons are ineligible for a “death-qualified” jury because of their attitudes toward the death penalty. However, many jurors who are unable to be fair and impartial at the penalty phase would be capable of giving a fair hearing as to issues of guilt or innocence. Therefore, it follows that when a “death-qualified” jury pool js used to select jurors for the guilt phase of a trial, prospective jurors are excluded who could be fair and impartial at that phase. Under Witherspoon, the use of a “death-qualified” jury pool to select a guilt phase jury would be unconstitutional if juries so selected would tend to return more verdicts favorable to the prosecution than would juries selected from a “neutral” jury pool.

Many of the reasons underlying the constitutional requirement of neutrality are also concerns in the “jury purpose and functioning” analysis of Ballew v. Georgia, supra, 435 U.S. 223. To this extent, then, Witherspoon and Ballew overlap.

Kalven and Zeisel found that in about 90 percent of the cases where the jurors disagree on the first ballot, the jury will eventually reach a verdict consistent with the position of the first ballot majority. (The American Jury, supra, p. 488.) They also found that even where the jury vote is six-to-six on the first ballot, a unanimous verdict is nevertheless normally achieved. {Ibid.)

Petitioner does not claim that each excluded juror will vote in favor of the accused and each “death-qualified” juror in favor of the prosecution. The differences alleged are those between overall groups, not specific individuals. Within each group there will be a wide distribution of behavior, attitudes, and viewpoints, and there will be considerable overlap between the groups. Thus, even if petitioner can establish that a “death-qualified” jury is not neutral, it will nevertheless be impossible to specify in which individual trial the exclusion of the “guilt phase indudables” will prejudice the accused. However, it can be confidently asserted that, over time, some persons accused of capital crimes will be convicted of offenses—and to a higher degree—who would not be so convicted if the jury were more representative of the populace.

Nearly all the research in this case involves the comparison of various groups of persons. In evaluating the results of such comparisons, it is important to know whether any differences which may occur are reflections of true differences between the groups or whether those differences might be attributable simply to chance occurrences, i.e., to the statistical fact that comparisons of groups randomly selected from larger populations may reveal differences that would not in fact appear if the entirety of their respective parent populations were compared. Standard mathematical procedures have been developed to evaluate the probability that such differences are due to chance. The most commonly used procedure—and the one used throughout the hearing below—is the “x2 test.” The x2 test generates probabilities—or “p” values—indicating the likelihood or probability that the differences observed are due to chance. The lower the “p” value, the less likely it is that the differences are due to chance and the more likely that they are real. A “p” value of .08 means that there is an 8 percent probability that the differences are due to chance and a 92 percent probability that there are real differences between the groups. Normally in the social sciences, a “p” value of .05 is said to be “statistically significant.” Values between .05 and .10 are said to be “marginally significant,” and a “p” value of .01 is considered “highly significant.” A “p” value above .10 is generally said to be “not significant.” A finding that a “p” value exceeds .10 does not necessarily indicate that the observed differences are in fact spurious. The x2 test is dependent, inter alia, upon the size of the sample groups being compared. True differences between groups may be reported as “not significant” under the x2 test simply because the sample sizes are too small. More*27over, a poorly controlled experiment may “mask” true differences between groups if the research design did not carefully isolate and account for all the independent variables that might affect the results.

Zeisel, Some Data on Juror Attitudes Toward Capital Punishment (1968) (hereinafter, Zeisel).

The data for the Zeisel study was gathered more than a decade before Wither-spoon held that mere “conscientious scruples” against the imposition of capital punishment were insufficient to uphold a challenge for cause. Thus, the question Zeisel posed to his subjects regarding their views on capital punishment did not precisely correspond to the Witherspoon criteria. (But see, post, fns. 72 and 79.)

Zeisel did not include in his analysis those situations where the jury was unanimous on the first ballot, either for acquittal or conviction. In those cases, differences in juror personalities were overwhelmed by the strength of the evidence. (Cf., ante, p. 25.)

In one category (10-to-2 for acquittal), jurors without conscientious scruples against capital punishment voted for acquittal more often and conviction less often than did jurors with such scruples. In another category (i.e., 6-to-6 first ballot splits), jurors without conscientious scruples against capital punishment voted for conviction slightly less often (37 percent to 38 percent) than did jurors with such scruples. They also voted for acquittal less often (33 percent to 46 percent). The explanation for this apparent inconsistency seems to be that in this category, jurors without conscientious scruples voted “undecided” more often than did jurors with scruples (30 percent to 16 percent).

This court cited Dr. Zeisel’s study in People v. Sirhan (1972) 7 Cal.3d 710, 747-749 [102 Cal.Rptr. 385, 497 P.2d 1121]. There, the defendant moved prior to his trial to hold an evidentiary hearing on the question of the exclusion of “scrupled” jurors. Defendant indicated he wished to call Dr. Zeisel as a witness. As his offer of proof, defendant stated Dr. Zeisel would testify concerning the study he made which resulted in the article now before this court. The trial court denied the request. On appeal this court found no error in the ruling. The court reasoned that the data to be offered by Zeisel at the hearing “was the same data that was analyzed in his preliminary manuscript, which was before the Supreme Court in Witherspoon.” (Id., at p. 749.) It is difficult to give significant weight to this reasoning. In Witherspoon, the Supreme Court had before it only a “preliminary, unpublished summary of the results of [his] study” (391 U.S. at p. 517, fn. 10 [20 L.Ed.2d at p. 782]), not the data nor the analysis that underlay his conclusions, nor indeed his final conclusions themselves. Dr. Zeisel did testify at the hearing below and he fully agreed that the Supreme Court had been justified in not giving weight to what fragments of his study were before it. However, the leap from the fragmentary nature of the “preliminary summary” to a conclusion that the final study itself was unpersuasive is a nonsequitur.

Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law (1970) 5 Harv.Civ. Rights-Civ.Lib.L.Rev. 53 (hereinafter, Goldberg). This study was undertaken in 1966 and 1967 but not published in final form until 1970. However, the Supreme Court had before it in Witherspoon an unpublished manuscript based on the 1966-1967 data. (391 U.S. at p. 517, fn. 10 [20 L.Ed.2d at p. *31782].) Apparently, this unpublished material consisted of “sections of the unpublished findings and a summary of the study....” (Goldberg, supra, at p. 57.)

The primary weaknesses of the Goldberg study are its use of sparse written case descriptions and the lack of jury instructions. It can also be criticized for using college students as subjects. However, as will be seen, the differences observed in Goldberg do not disappear as the studies become more realistic or as the subjects are changed.

Wilson, Belief in Capital Punishment and Jury Performance (unpub. manuscript) (hereinafter, Wilson). Dr. Wilson did not testify at the hearing below. Apparently, all that is known of the methodology of his study is what is stated in the 14-page study itself.

Jurow, New Data on the Effect of a "Death Qualified" Jury on the Guilt Determination Process (1971) 84 Harv.L.Rev. 567 (hereinafter, Jurow).

Nevertheless, 32 percent had no college education and 29 percent had family incomes under $10,000.

A more complete summary of both cases can be found in appendix G of Jurow (84 Harv.L.Rev. at pp. 607-611).

Jurow called this five-part spectrum a “Capital Punishment Attitude Questionnaire” or “CPAQ.” There were two parts to the CPAQ, part (A) and part (B). It is only part (B) that is involved in the present discussion. Response 1 on the CPAQ(B) spectrum corresponds to the “automatic life imprisonment” group; response 2 to the “oppose death penalty” group; response 3 to the “indifferent” group; response 4 to the “favor death penalty” group; and response 5 to the “automatic death penalty” group. Responses *2-to-S* are ‘‘''Witherspoon-qualified” jurors.

The propriety of this comparison is the “crux” of the Attorney General’s attack on petitioner’s evidence. (Cf., post, at pp. 63-69.) Briefly stated, it is argued that the relevant comparison is not between the “automatic life imprisonment” group and the “ Witherspoon-quaWfied” group. Rather, the “automatic death penalty” group, which is excluded for cause at a capital trial {ante, fn. 48), must be subtracted from the “Withe/\S7?0o/z-qualified” group. The Attorney General further claims that none of petitioner’s studies have done this in a scientifically adequate manner. Thus, petitioner’s evidence proves, at most, the wrong proposition.

Despite this change in wording, Jurow obtained results consistent with those reported by the pre- Witherspoon studies. This suggests that the exact wording of the capital punishment question is not so critical to the validity of the results, and should give us some confidence that the findings of the pre-Witherspoon studies are applicable in the post- Witherspoon world.

Heretofore, this court has been “not willing to accept [Jurow’s conclusions] as decisive” of the Witherspoon issue. (People v. Murphy (1972) 8 Cal.3d 349, 368 [105 Cal.Rptr. 138, 503 P.2d 594]; see also, People v. Rhinehart (1973) 9 Cal.3d 139, 155 [107 Cal.Rptr. 34, 507 P.2d 642].) This position represents the sound view that one study by itself can rarely justify altering constitutional practice. Nevertheless, even the main prosecution witness at the evidentiary hearing below stated that “Professor Jurow did a decent attempt at improving the research in that field up to that time.” Since Jurow, there have been several more studies done, and it seems wholly appropriate to consider Jurow along with the other studies in resolving the question now before the court.

Louis Harris & Associates, Study No. 2016 (1971), reported in part in White, The Constitutional Invalidity of Convictions Imposed by Death-Qualified Juries (1973) 58 Cornell L. Rev. 1176 at page 1178, footnote 12, and pages 1185-1186. (Hereinafter, Harris 1971.)

Use of a stratified sample enables the researcher to generalize from the relative proportions of groups within the study to the proportion of those groups in the population as a whole.

Ellsworth et al., Juror Attitudes and Conviction Proneness: The Relationship between Attitudes towards the Death Penalty and Predisposition to Convict (1979, prepub. draft) (hereinafter, the Ellsworth Conviction-Proneness Study).

None of the 288 was a “guilt phase nullifier,” since Professor Ellsworth had excluded from the study all persons who identified themselves as having doubts against capital punishment that would prevent them from being fair and impartial on the issue of guilt.

After indicating their personal decisions on guilt, most of the jurors were, grouped into juries of 12 and instructed to try to reach a unanimous verdict. The deliberations *40were halted after one hour; no jury had reached a verdict. The jurors were again asked for their personal verdicts at that time. The differences between the groups were still quite pronounced. ELLSWORTH POST-DELIBERATION FOLLOW-UP DATA Juror Voting Behavior, Comparison of “ WitherspoonQualified” and “Guilt Phase Includable” _Jurors on Post-Deliberation Ballot_ Verdict “Guilt Phase Includable” Jurors “WitherspoonQualified” Jurors First Degree Murder Second Degree Murder Manslaughter Acquittal 3.4% (1) 13.8% (4) 48.3% (14) 34.5% (10) 100% (29) 1.0% (2) 17.3% (34) 68.0% (134) 13.7% (27) 100% (197)

Obtaining an overall significance level for these six studies requires an inference that the results of the pre- Witherspoon studies (where jurors’ voting behavior was differentiated on the basis of whether they had “conscientious scruples” against the death penalty) can be combined with the results of the post- Witherspoon studies (where the jurors have been differentiated on the basis of the stricter Witherspoon principles). This inference appears to be a sound one. In general, “while the absolute response level may differ for.. .two questions [that are distinct ‘in form but.. .go to the same substance and have therefore a common core’], the relative differences between population subgroups, or the relationship to other attitudes remain as a rule invariant to the form of questioning.” (Zeisel, supra, at p. 13, fn. 16; citation omitted, original italics.) Comparison of the results of the studies using the pre-Witherspoon and post-Wither-spoon questions suggests that this general rule is operating in the present context.

There appears to be one study in which the authors did come to a conclusion opposite to that of the seven studies heretofore discussed. (Osser & Bernstein, The Death-Oriented Jury Shall Live (1968) 1 U. San Fernando Val.L.Rev. 253.) In this study, the law student authors looked at conviction rates in Los Angeles County Superior Court over a six-month period in 1967, when there was a death penalty law in effect in the state. It found that juries “convicted” in “first degree murder” cases less often than did juries in burglary and robbery cases. This study was criticized by both defense and prosecution experts. Dr. Zeisel called the study “incompetent” and of “no probative value whatsoever” because its authors *42failed to control for the variable of the weight of the evidence. In addition, the authors apparently made no attempt to determine how many of the juries in murder cases were in fact death qualified. They did not indicate how they determined which murder prosecutions were for “first degree” murder (at that time, the charging information did not need to specify whether the murder alleged was of the first or second degree). They did not indicate whether they classified convictions for necessarily included offenses as “convictions” or as “acquittals” under their scheme. As one other court has noted, “[t]oo many other causative factors are obviously operating in the situations compared” to entitle this study to any weight. (Grigsby v. Mabry, supra, 483 F.Supp. at p. 1388.) This court agrees.

It is difficult to know what Dr. Shure meant when he used the phrase “at the level of attitudes.” The Ellsworth Conviction-Proneness Study measured behavior, not attitudes. Perhaps Dr. Shure was confusing this study with the Ellsworth Attitude Survey, which is discussed below.

Only two of the seven questions are currently known. One is, “If I were a member of a jury, I could never vote ‘not guilty’ for a man whose defense was insanity.” The other is, “The plea of ‘not guilty by reason of insanity’ is a loophole that allows many criminals to escape punishment.” (Wilson, supra, at p. 3.) One methodological problem with the Wilson survey is that all “agree”-responses tended to indicate a dislike for the insanity defense and all “disagree”-responses a favoring of the defense. A survey respondent noticing this uniform pattern may tend simply to continue with the trend of his earlier answers rather than focusing on the content of the statements confronting him. This is known in the literature as the problem of “response set.”

Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen (1970) 42 U. Colo. L.Rev. 1.

“1) If the police have arrested an individual and the district attorney has brought him to trial, there is good reason to believe that the man on trial is guilty. “2) If the person on trial does not testify at his trial, there is good reason to believe that he is concealing guilt. “3) Concerning the high level of violent crime in ghetto areas, this level of violent crime could be reduced if the courts would convict alleged law-breakers more often. “4) The courts are far too technical in protecting the so-called constitutional rights of those involved in criminal activity. “5) The plea of insanity is a loophole allowing too many guilty men to go free.”

More “ Witherspoon-qy&Wfied” subjects than “automatic life imprisonment” subjects agreed that “Negroes tend to breed crime more than white people” (41 percent to 31 percent), that “many Negroes and other minority groups just want a handout and do not want to work” (74 percent to 63 percent), and that black militant groups are “a major cause” in the breakdown of law and order (68 percent to 48 percent).

Of eight questions asked concerning judges in the criminal trials, the two groups differed to a statistically significant degree on only two: “Judges are usually more favorable to the prosecution than they are to the defense” and “Most judges would rather sentence a convicted man to a long prison term than put him on probation.” A plurality of both groups disagreed with these statements; but the “automatic life imprisonment” group was less likely to disagree than the “Witherspoon-qualified” group (about 43 percent to 54 percent). This difference was statistically significant.

Thus, the “ Witherspoon-<\VLa\ñe.á" subjects were more likely than the “automatic life imprisonment” subjects to select the prosecutor as “honest and straightforward," “genuinely interested in presenting all the facts,” “more concerned about the best interests of society,” and “more interested in a fair trial than in winning.” Conversely, the “ Witherspoon-quaWfed" subjects were more likely to select defense counsel as the attorney “ready to make deals with the other side,” “likely to use emotional rather than factual arguments,” and “better skilled at playing tricks in the courtroom than in seeking justice.” For the “automatic life imprisonment” group, the gap between prosecutor and defense counsel was narrower by an average of 13 percent than it was for the “ MV/tAerspoon-qualified” group. These differences in group attitudes were all significant, generally at the .01 level.

These were the first three situations presented to the subjects. The remaining six were:

The groups gave equal proportions of “innocent” responses to situation 8. On situation 9, the “ Witherspoon-cpiaMieá" group gave a slightly higher percentage of “innocent” (and “not innocent”) responses. (This apparent inconsistency is due to the fact that the “Witherspoon-qualified” group was less likely to respond “not sure” than was the “automatic life imprisonment” group.)

Indeed, the differences on seven of the situations (i.e., situations 1-7) were significant at the .01 level or lower. On situation 9, there were no net differences between the groups.

Bronson, The Exclusion of Scrupled Jurors in Capital Cases: The California Evidence on Conviction Proneness and Representativeness (unpub. discussion paper).

There was still a problem with “response set." (Cf.. ante, at p. 43, fn. 82.)

They were: “If the facts in a trial are not clear, then jurors should believe the prosecuting attorney more often than the defense attorney, since defense attorneys are only interested in protecting their clients at all costs” and “During a riot the government should have absolute power to jail suspicious persons without trial or bail.”

Bronson tested what he called “the intuitively obvious proposition” that the jurors in the “strongly opposed” category were also those whom Witherspoon would allow to be excluded as “automatic life imprisonment” jurors. In 1971 Bronson did a follow-up study of jurors in Butte County and asked their views on the death penalty. Of those who responded that they were “opposed” or “strongly opposed” to it, he asked an “automatic life imprisonment” question based on Witherspoon. He found that of the 40 persons “strongly opposed” to capital punishment, 37 (or 93 percent) said they would vote automatically against the death penalty. Two subjects said they were not sure and one person answered “no.” He thought this was “strong empirical evidence” to support his initial hypothesis. (Bronson-California, supra, at pp. 5-7.)

The new question was: “It is better that ten guilty men go free than one innocent man be convicted.”

Bronson attributed these latter results to poorly conceived questions.

Ellsworth & Fitzgerald, Due Process vs. Crime Control: The Impact of Death Qualification on Jury Attitudes (1979, prepublication draft).

Of the 717 subjects remaining in the survey, 17.2 percent were “guilt phase includable” and 82.8 percent were “Witherspoon-tyiaWñtd." (Ellsworth Attitude Survey, supra, p. 5.)

There were no significant differences in the two groups’ responses to the proposition “A person would not be brought to trial unless he or she were guilty of a crime.” Large majorities of both groups (73.6 percent and 67.6 percent) disagreed, with the “guilt phase indudables” expressing the slightly greater disagreement. However, there were statistically significant differences (p < .003) in the pattern of responses to the statement “All laws should be strictly enforced, no matter what the results.” A majority of the “ Witherspoon-qualified” subjects (57.1 percent) agreed with the statement, but most of the “guilt phase includable” subjects (53.7 percent) disagreed.

“Each respondent was scored on a scale ranging from 3 to 36, where a score of 36 represented the largest possible number of pro-prosecution responses to the altitudinal statements. On the three statements with two response choices, each response was given a score of 1 or 2, with the score of 2 assigned to the pro-prosecution response. On the ten statements with four response choices, each response was given a score of 0, 1, 2 or 3, with the score of 3 assigned to the strongest possible pro-prosecution response to each statement. The index... is the sum of the scores for all thirteen altitudinal statements.”

For example, if a juror strongly disagreed with the statement “It is better for society to let some guilty people go free than to risk convicting an innocent person,” it would appear that he or she would worry less about an erroneous guilty verdict than would a juror who strongly agrees with that statement. Such a lower level of concern would likely be linked to a lower threshold of reasonable doubt, i.e., it would probably take somewhat less evidence to obtain a guilty verdict from a “strong disagree” juror than from a “strong agree” juror.

As this court noted in People v. Wheeler, supra, 22 Cal.3d at pages 276-277, footnote 17, blacks may be more inclined to acquit than whites because of their ‘“differing attitudes toward the administration of justice and the nature of criminal offenses’” such as “‘sympathy for the economic or social circumstances of the defendant, a feeling that criminal sanctions are frequently too harshly applied, or simply an understandable suspicion of the operations of government.’” (Quoting from Note (1977) 86 Yale L.J. 1715, 1733, fn. 77.)

The table below, which was adapted from the written instructions given to the subjects, shows the possible “harsh” and “lenient” errors. How to Fill In the Table The table below contains 16 boxes that correspond to 16 possible occurrences. In each box put a number indicating how much regret you would feel if your jury found the verdict listed to the left of the box but the defendant is later proven to be guilty of the verdict above the box. For example, in box number 7 put a number (0-100) indicating how much regret you would feel if your jury found the defendant guilty of second degree murder but it is later proven the defendant was only guilty of manslaughter. The defendant is later proven to be:

Ellsworth et al., The Effect of Capital Punishment Attitudes on Juror Perceptions of Witness Credibility (1979, prepub. draft) page 1 (hereinafter, the Ellsworth Witness-Credibility Study).

Most of the subjects in this study were female (70 percent), fairly well-educated (33 percent had completed four or more years of college), and white (there were no blacks, one Chicano, and one Native American). About 30 percent had previously served on an actual jury. There were more Republicans (47 percent) than Democrats (39 percent) or Independents (14 percent).

No jury had more than four “guilt phase includable” jurors.

The Supreme Court has relied on similar controlled studies in other cases in addition to Ballew, See, e.g., Williams v. Florida, supra, 399 U.S. at pages 101-102 [26 L.Ed.2d at pages 460-461]; Colgrove v. Battin, supra, 413 U.S. at pages 158-160 [37 L.Ed.2d at pages 529-531]. Indeed, Witherspoon itself clearly invited such research.

Zeisel and others appear to have assumed that the first ballot occurs prior to any jury deliberation. That assumption has not been proven. (Cf. CALJIC No. 17.41.) However, Ellsworth’s finding that differences between the “guilt phase indudables” and “ Witherspoon-cpxaffiie&" jurors remain after an hour’s deliberation suggests that a juror’s first ballot vote is closely tied to his or her predeliberation views of the case.

A simple example illustrates the point. If a researcher wants to determine whether grapefruits are larger (or heavier or yellower or tarter or have any other characteristic in greater proportions) than lemons, he need only gather a reasonable number of each fruit, measure them, and compare the results for grapefruits with those for lemons. From this comparison, he can confidently say that grapefruits in general are larger (heavier, less yellow, etc.) than lemons. However, he cannot say that grapefruits are more numerous than lemons. Only if he wanted to test this latter hypothesis would he have to design a technique to obtain each fruit in proportion to its population in the real world.

The Witherspoon decision did not directly address whether the Constitution requires the exclusion of those who would automatically vote for the death penalty in *64every case. (But see the discussion of dictum in Witherspoon at ante, fn. 49.) It was generally an implicit assumption common to all of petitioner’s post-Witherspoon studies that the “automatic death penalty” group was “Witherspoon-qualified.” It is unnecessary to pursue the issue further, since the exclusion of this group is required by statute in this state. (People v. Hughes, supra, 57 Cal.2d at pp. 94-95; People v. Gilbert, supra, 63 Cal.2d at p. 712.)

Jurow found that about 2 percent of his 211 subjects fell into the “automatic death penalty” category. As will be seen, Ellsworth believed that none of the “strongly favored” subjects in her conviction-proneness study was in this class. It was readily admitted by the defense witnesses below that these findings did not afford a reliable basis for generalizing to the percentage of such jurors in the entire population, since neither of these studies was based on a random sample of the population. Although not based on hard data, the opinion of experts who testified on the issue was that the percentage of “automatic death penalty” jurors in the population was very low. However, one of the studies admitted at the hearing but rarely mentioned suggests the percentage may be considerably higher. (Smith, A Trend Analysis of Attitudes Toward Capital Punishment, 1936-1974 (1975) pp. 4-5, in Studies of Social Change since 1948 (Davis edit. 1976) report 127B.)

The issue has been muddled considerably by the parties’ dispute over a seemingly related but ultimately irrelevant side issue. In order to suggest that “automatic death penalty” jurors exist in significant numbers, the Attorney General has lodged the reporter’s transcript of the voir dire in the Moore brothers’ trial. The transcript purportedly shows that in that case—which involved more than 100 felony charges against 2 defendants—12 of 86 prospective venirepersons were excused for cause because they indicated they would automatically vote for the death penalty. However, as petitioner correctly observes, some if not all of the 12 excused venirepersons seemed to express the belief that if they found the defendants in that case guilty of all of the multifarious charges alleged, they would vote to impose the death penalty, regardless of any evidence presented in mitigation at the penalty phase. While such a fixed opinion does authorize removal of a juror for cause (§ 1073, subd. Second), it does not indicate that the juror would vote to impose the death penalty in every case where it is legally available (i.e., it does not per se translate into membership in the “automatic death penalty” class). The number of venirepersons who hold views akin to those of the jurors in the Moore brothers’ trial will obviously fluctuate greatly from trial to trial, depending upon the nature of the charges. Their relative number in the jury pool of one exceptional trial does not aid in fixing the size of the more constant “automatic death penalty” class in the population as a whole. Nor does it aid petitioner, since the existence of these “case-by-case excludables” does not establish that the “automatic death penalty” group is small.

It is curious that the United States Supreme Court chose to respond to Texas’ argument about the evenhandedness of the Texas statute by speculating as to the relative sizes of the groups excluded. Texas’ contention was unmeritorious on its face, regardless of the relative sizes of those groups. Witherspoon established that a constitutionally neutral jury is one drawn from a pool which includes (in appropriate proportion) all segments of the community of fair and impartial adults. (Cf., ante, at pp. 19-21.) A jury from which a segment of that community has been excluded (or is underrepresented) does not become constitutionally neutral merely because an opposing segment is also excluded. The concept of constitutional neutrality contemplates jury diversity, and the reasons for jury diversity include more than simply counterbalancing opposing viewpoints. (Cf., ante, at pp. 23-25.) Thus, there appears to have been no reason for the Adams court to resort to speculation as to the relative sizes of the “eye for an eye” and “scrupled” groups. Texas’ argument was unsound on a more fundamental level.

This occurred approximately three to four months after the subjects had participated in the videotape study. The subjects who had indicated they simply “favored” the death penalty were not recontacted, since they had already answered a question indicating they would vote for life imprisonment in at least some cases.

The jury pool in a noncapital case consists not only of “California death-qualified” and “guilt phase includable” jurors but also of “automatic death penalty” jurors. (Cf., ante, fn. 54.)

A simplified example may make this point clearer. Assume that the voting population of a hypothetical community consists entirely of Republicans, Independents, and Democrats and that a potential candidate in that community wishes to determine *68whether Independents would tend to vote for him less often than the voting population as a whole. If the candidate compared the voting tendencies of Independents merely with those of Democrats and discovered that Democrats would vote in his favor more often, he would not have a reliable answer to his question. This is true because he would not know whether the voting tendencies of Republicans in the population as a whole would operate to wipe out the difference discovered when Independents are compared to Democrats alone.

If petitioner’s claims are correct, then the present death-qualification procedures are likely to render a jury “less than neutral” in the way it addresses the issues of guilt and punishment by diminishing the diversity of viewpoints and attitudes represented on the jury. In turn, this reduction of diversity will make the jury less accurate in its fact-finding and less reliable in its application of community standards.

People v. Hughes, supra, 57 Cal.2d at pages 95-96.

People v. Wein (1958) 50 Cal.2d 383, 394 [326 P.2d 457].

There is authority permitting an in camera voir dire of individual jurors in an appropriate case. (People v. Rutkowsky (1975) 53 Cal.App.3d 1069, 1073-1074 [126 Cal.Rptr. 104].)

Studies in an area of social psychology called attribution research have identified another mechanism which suggests why the death-qualification process might influence *72a jury’s determination of guilt or innocence. This research has demonstrated that imagining the occurrence of a possible event increases a person’s belief that the event will come to pass. An imagining process also occurs in the death-qualifying voir dire. People are asked to consider what they would do if the trial were to proceed to the penalty phase. These venirepersons would accordingly be more likely to expect that the penalty phase will occur. Since the occurrence of the penalty phase is contingent on conviction and the finding of special circumstances, these venirepersons might also expect these intermediate steps to occur.

At the time Witherspoon was decided, the State of Illinois made the death penalty ‘“an optional form of punishment which [the jury remains] free to select or reject as it [sees] fit.’” (Id., at p. 519, fn. 15 [20 L.Ed.2d at p. 783], citation omitted, brackets in original.) Such unguided and unchecked discretion was subsequently held unconstitutional in Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726]: “Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” (Gregg v. Georgia (1976) 428 U.S. 153, 189 [49 L.Ed.2d 859, 883, 96 S.Ct. 2909], plurality opn.) In the wake of Furman and Gregg, new statutory provisions dealing with the death penalty have been enacted. The constitutionality of these enactments is not at issue in the present proceeding. Whether or not the statutory scheme is constitutionally sufficient, it cannot be gainsaid that a capital jury in this state exercises considerable discretion in identifying and weighing the circumstances in aggravation and mitigation which it is directed by statute to consider. Even under the guidance of these statutory standards, “a juror’s general views about capital punishment [will] play an inevitable role...” and in the interaction of diverse views of individual jurors, the jury will still be called upon to “express the conscience of the community on the ultimate question of life or death.” (Witherspoon v. Illinois, supra, 391 U.S. at p. 519 [20 L.Ed.2d at p. 783], fn. omitted.)

It should be noted that insofar as the venirepersons observe the judge dismissing prospective jurors who would automatically vote for the death penalty, the remaining jurors might infer a more symmetrical disapproval on the part of the law, offsetting the prejudicial operation of this particular psychological process.

For example, people suffering from acrophobia may be desensitized toward their fear by repeatedly being taken on elevator rides to high places.

Haney, The Biasing Effects of the Death Qualification Process (1979 prepub. draft).

The researchers had not anticipated the behavior of a third venireperson who volunteered during the death-qualifying portion of the voir dire that he had difficulties with the death penalty but who finally said that he could consider imposing it.

The videotape shown to the experimental group was intended to approximate a typical voir dire as it would presently be conducted in a capital case.

The question was: “Is anyone so strongly opposed to the death penalty that in a case in which the defendant might be sentenced to death if the jury found him guilty you could not be a fair and impartial juror and could not obey your sworn duty to decide the defendant’s guilt or innocence according to the law and the evidence?”

Except as otherwise indicated, all of the differences between the responses of the control group and the experimental group which are noted in this opinion were statistically significant.

A selection process which makes jurors more inclined at the outset to believe the accused guilty and to expect his conviction, would also be expected to increase the likelihood that the jurors will in fact find him guilty. The creation at the voir dire proceedings of such a perceptual set will, in Haney’s words, “significantly influence the way in which people receive, interpret and make decisions upon information that they receive subsequent to the formation of those attitudes, opinions, beliefs and expectations.”

This effect may be attributable to the desensitization which was predicted to take place during the process of death-qualification. (Cf., ante, at pp. 74-75.)

There was a lesser difference between the two groups’ assessments of the prosecutor’s support for capital punishment. Both groups believed defense counsel opposed the death penalty, and the small difference in their assessments was not statistically significant.

As noted earlier (ante, fn. 123), the exclusion for cause of persons in the “automatic death penalty” category may tend to counteract these tendencies, by suggesting that the law and the judge also disapprove of certain attitudes in favor of the death penalty.

Sequestered voir dire may even lead to other benefits. Since they will be questioned outside the presence of the other members of the panel, jurors will be insulated from the influences which the voir dire of their fellow venirepersons may exert. Jurors may also be more forthright and revealing in their responses.

See, e.g., In re Podesto (1976) 15 Cal.3d 921, 938 [127 Cal.Rptr. 97, 544 P.2d 1297]; People v. Cahan (1955) 44 Cal.2d 434, 442 [282 P.2d 905, 50 A.L.R.2d 513]. See also Reynolds v. Superior Court (1974) 12 Cal.3d 834, 845-846 [117 Cal.Rptr. 437, 528 P.2d 45].

This court does not here prescribe any particular form in which to frame questions trial counsel or the court may ask about attitudes toward the death penalty. However, they are cautioned to avoid any questions which may suggest that a particular attitude toward the death penalty is “disfavored.” Also, when questions are posed concerning opposition to capital punishment, trial counsel and the court would be well-advised to strive for brevity and to phrase the questions “in the terms Witherspoon so unmistak*81ably suggests.” (People v. Williams (1969) 71 Cal.2d 614, 633-634 [79 Cal.Rptr. 65, 456 P.2d 633].)

The rule of sequestration announced today does not require a sequestered voir dire when venirepersons in capital cases are interrogated about those topics routinely discussed in selecting a jury for any criminal case. For example, the following questions may be asked without sequestering the prospective jurors: Do you know the judge, the lawyers, the defendant, the witnesses, or any of the prospective jurors in this case? Have you served on a jury before, and if so, in what kind of case? Have you or your close friends or relatives ever been employed by a law enforcement agency? Or been the victim of a crime, or a witness to a crime, or testified in a criminal case? When pertinent, questions may also be asked concerning the exposure of prospective jurors to pretrial publicity, and their attitude towards proposed defenses (e.g., insanity, diminished capacity, self-defense, or alibi), potentially controversial circumstances of the case (e.g., the race of the participants, the use of alcohol or drugs, or the presence of sexual activity), or important rules of law bearing on the trial (e.g., the defendant’s right not to testify, presumption of innocence, truth beyond a reasonable doubt, or jury unanimity). However, if any of these questions in a specific case are relevant to the death-qualification of the panel or may tend to identify those prospective jurors whose views on capital punishment render them ineligible, then those particular questions should be answered individually and in sequestration. It is the duty of trial counsel to alert the court in advance of voir dire as to which of those general topics are likely to call forth answers bearing on the death-qualification of the jury.