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Originally Posted by KSig RC
The way this is implemented varies wildly from state to state (and even judge to judge) - often, though, "not sure" isn't strong enough, you have to actually be unable or unwilling to assign the penalty (if for no other reason than to prevent 'rehabilitation' by the judge or opposing counsel).
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Oh definitely on the state to state thing, and even in a state depending on who is running the case itself, who is on trial, where the alleged crime took place and the venue of the trial. San Quentin was only a ferry ride or a bridge crossing away so it was a bit more in our thoughts due to executions and protests in San Francisco than it would be for people in Modoc County. My understanding (lawyer adjacent) was also people who were against it or weren't sure could cause jury issues with a potential for a mistrial and excluding those jurors (by the lawyers or the judge) cuts down on that problem with capital cases.
In Idaho it probably wouldn't matter how I felt as we aren't actively executing people. We have the death penalty and one person has been executed for about 35 years. Over all only 27 people have been executed since Idaho courts started in 1864, almost 150 years ago, the majority of those 27 were by hanging, if not all but the lethal injection in 1994. We only got rid of firing squad as a method of execution two years ago, but it is an option if injection wouldn't work. Idaho only has three crimes for capital punishment, but we have jury instructions for cannibalism, but have never had a case. Wild West indeed.