Avoiding The Pitfall, In A Non-Capital Trial, Of Informing The Jury That The Penalty Will Not Be Death

(December 1999)

    In a non-capital murder trial the jury should not be concerned about the defendant's sentence or punishment. (See, e.g., CALJIC (California) 17.24 [jury not to consider penalty]; see also Shannon v. U.S. (94) 512 US 573 [129 LEd2d 459; 114 SCt 2419].)

    However, in murder cases, especially when special circumstances are alleged, some jurors may wonder whether the case involves the death penalty. This issue often becomes a concern at voir dire where the jurors may raise the issue of penalty. Normally, the prosecution and the court will want to inform the jury that the case does not involve the death penalty. From the prosecution's standpoint, juror knowledge that the case does not involve the death penalty may make a conviction easier to obtain. From the court's point of view, informing the jury that the case does not involve the death penalty will reduce the number of jurors seeking dismissal from jury service and increase the number of potential jurors available to try the case. (See, e.g., State v. Townsend (WA 1999) 979 P2d 453)

    However, both of these approaches violate the well settled rule that jurors should not consider punishment or sentence. (See Shannon v. U.S, supra; see also People v. Baca (CA 1996) 48 CA4th 1703 [56 CR2d 445]; People v. Nichols (CA 1997) 54 CA4th 21 [62 CR2d 433].)

    Accordingly, defense counsel may wish to oppose any general instruction of the jurors that the case does not involve the death penalty.

    Alternatively, if the jury will be informed that the case does not involve the death penalty, the defense should have the right to inform the jury that it does involve the penalty of life without possibility of parole (in the case of a special circumstance situation). (See Simmons v. South Carolina (94) 512 US 154 [129 LEd2d 133; 114 SCt 2187] [state, which has raised specter of defendant's future dangerousness, violated defendant's due process rights by refusing to instruct jury that, as alternative to death sentence, sentence of life imprisonment carried with it no possibility of parole]; People v. Smithey (CA 1999) 20 C4th 936, 1008 [86 CR2d 243] ["[T]he prosecutor in the present case urged the jury to return a verdict of death, in part because of the potential that defendant would be dangerous in prison or to society if he escaped. Therefore, under Simmons, defendant was entitled to advise the jury that he was ineligible for parole"].) Moreover, a one-sided admonition that "this is not a death case" would violate the well-settled rule and due process principle that instructions must be balanced and not favor one party over the other. 

PRACTICE NOTE: To avoid broaching the subject of penalty in front of all the jurors during voir dire, a pre-voir dire questionnaire may be utilized. Any jurors who question whether the case involves the death penalty can then be voir dired in chambers to avoid tainting the rest of the jurors.

PRACTICE AID: The sample motion and points and authorities below, written by Michael N. Burt of the San Francisco Public Defender’s Office, was successfully used in a non-capital special circumstance trial. In response to this motion the DA was precluded from informing the jurors that the case did not involve the death penalty. Also, by use of a pre-voir dire questionnaire, any jurors who had questions about the applicability of the death penalty were voir dired out of the presence of the other jurors.

   SUPERIOR COURT OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.

JOHN DOE and ROBERT ROE,

Defendants.

__________________________________/

TO TERENCE HALLINAN, DISTRICT ATTORNEY OF THE CITY AND COUNTY OF SAN FRANCISCO, AND TO THE ABOVE-ENTITLED COURT:

    PLEASE TAKE NOTICE that on the 17th day of August, 1999 at 9:00 a.m., or as soon thereafter as the matter may be heard in Department 24 of the above-entitled court, defendant JOHN DOE, through counsel, will and hereby does move the Court for an order that the jury not be informed of the consequences of a finding of special circumstances, or, alternatively, that the jury be informed that although this is not a death penalty case, the defendants nevertheless face a sentence of life imprisonment without the possibility of parole.

    This motion is based upon this Notice and the attached Memorandum of Points and Authorities; the files and records of this case, and any evidence or argument to be presented at the hearing on this motion.

DATED: August 17, 1999

                                                                                                    Respectfully submitted,

                                                                                                    _________________________
                                                                                                    MICHAEL N. BURT
                                                                                                    Deputy Public Defender
                                                                                                    Attorney for JOHN DOE

    The United States Supreme Court explained in Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) that:

    It is well established that when a jury has no sentencing function, it should be admonished to reach its verdict without regard to what sentence might be imposed. The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury.... Information regarding the consequences of a verdict is therefore irrelevant to the jury's task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their fact finding responsibilities, and creates a strong possibility of confusion.

    Attempts to circumvent this rationale have uniformly met with disfavor in California. For instance, in People v. Baca, (1996) 48 Cal. App. 4th 1703, the defendant argued that he had an absolute right to have the jury made aware of the harsh sentence which the court would be required to impose under the Three Strikes law if he were convicted, and to have the jury acquit him if they felt that the sentence was too harsh, regardless of the strength of the evidence of his guilt. The only information the trial judge had imparted on this issue was a statement that "This is a three strikes case, ladies and gentlemen. Mr. Baca wants to be totally open with you and there are issues of prior convictions and it's what we call a three strikes case. You're going to have to decide all issues in the case." Id at 1706. "And, most significantly, CALJIC No. 17.42 told the jury not to discuss or consider penalty or punishment." Id. Citing Shannon, the Court of Appeal, Second District found nothing improper in this instructional scheme. Like Shannon, the court emphasized that the "rule that the trier of fact must not consider penalty or punishment in arriving at a decision on guilt or innocence is fundamental." Id at 1708

    Again, in People v. Nichols, (1997) 54 Cal. App. 4th 21 the defendant claimed that the trial court had erred when it refused to inform the jury that his was a three strikes case in order to encourage them to exercise their power of "jury nullification." Early in the trial, the court cautioned defense counsel against mentioning the potential punishment appellant was facing (25 years to life) or that this was a three strikes case. Counsel heeded this warning. However, later during trial, the jury sent a note to the court asking, "Is the defendant part of the three strikes and you're out?" The court responded: "You have given us a note. Sometimes we can answer them and sometimes it's not the appropriate thing to do. If you don't get an answer, you're not supposed to speculate what the answer might have been or make guesses. I do want to remind you again that in your deliberation, you're not to discuss or consider the subject of penalty or punishment. That subject must not, in any way, affect your verdict. You do have to live with the information that we give you folks here in this room." Id. at 24

The Court of Appeal, First District found no error in the trial court's response and rejected the contention that the court should have informed the jury of the possible sentence in a Three Strikes case:

    Appellant claims the trial court erred by not informing the jury this was a three strikes case. We disagree.

    First, to the extent the court informed the jury that the subject of penalty or punishment must not enter into their deliberations, the admonition was unquestionably correct. (CALJIC No. 17.42.) Without this admonishment, "a jury may permit their consideration of guilt to be deflected by a dread of seeing the accused suffer the statutory punishment....Since the trial court was not required to instruct on the jury's power of nullification, we see no reason in law or logic why the court would be required to provide the jury with otherwise irrelevant information--such as the likely punishment--simply to encourage the jury to exercise that power." (Id. at 24-25.)

It is clear in light of this authority that neither side in this case is entitled to have the jury informed that this is not a death penalty case, or, alternatively, that this is a case in which the penalty is life imprisonment without the possibility of parole. The court should therefore confine any remarks concerning punishment to the admonition set forth in CALJIC No. 17.42 or language similar to that approved in Nichols.

    From the standpoint of the People, the defense can see why leaving the jury in the dark about the possibility of the death penalty may be an unattractive option, even though it is fully required by current law. However, even if the People could convince the court that there is some legal authority for informing the jury that this is not a death penalty case, it would be fundamentally unfair and a violation of due process and the Sixth Amendment right to a fair and impartial jury to selectively mention an aspect of punishment favorable to the People's interests and deny mention of another aspect of punishment favorable to the defense's interests. See, Simmons v. South Carolina, (1994) 512 U. S. 154 (state, which had raised specter of defendant's future dangerousness, violated defendant's due process rights by refusing to instruct jury that, as alternative to death sentence, sentence of life imprisonment carried with it no possibility of parole); People v. Smithey, (1999) 20 Cal. 4th 936, 1008 ("The prosecutor in the present case urged the jury to return a verdict of death, in part because of the potential that defendant would be dangerous in prison or to society if he escaped. Therefore, under Simmons, defendant was entitled to advise the jury that he was ineligible for parole.")

    The defense fears that a one-sided admonition that "this is not a death penalty case" would prejudicially encourage the jury to downplay the significance of a finding of special circumstance. In order to prevent this result, it is the defense's alternative position that if the jury is to be told anything about sentence, it should be told the whole truth and not a half- truth which benefits only the prosecution.

    For all of the foregoing reasons, the court should not inform the jury of the consequences of a finding of special circumstances. The court should confine any remarks concerning punishment to the admonition set forth in CALJIC No. 17.42 or language similar to that approved in Nichols. Alternatively, the court should inform the jury that although this is not a death penalty case, the defendants nevertheless face a punishment of life imprisonment without the possibility of parole.

DATED: August 17, 1999

                                                                                                Respectfully submitted,

                                                                                                _________________________
                                                                                                MICHAEL N. BURT
                                                                                                Deputy Public Defender
                                                                                                Attorney for JOHN DOE

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