Federal Judicial Center -- 2004
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        Section I-A  What Makes Capital Cases Different

        A    What Makes Capital Cases Different

Capital cases differ from more routine criminal cases in a number of ways. First, the possibility of a death sentence affects every phase of the litigation proceedings. These cases require early judicial management and substantial pretrial planning because they may involve the most severe form of punishment that society can inflict on its members— death. The process by which the prosecution determines whether it will seek the death penalty is itself time-consuming and demands considerable effort of both the prosecution and the defense.

Second, these cases "require knowledge of the extensive and complex body of law governing capital punishment and the intricacies of federal criminal practice and procedure." Spencer Committee Report at 27. Federal death-penalty prosecutions are often complex criminal prosecutions even aside from the nature of the possible sentence. Statutes and case law unique to capital cases govern everything from appointment and compensation of counsel to jury-selection procedures.

Third, capital cases will most likely consist of two different, but related, proceedings: the guilt phase (trial) and the penalty phase (sentencing), both of which are normally held before a jury. Thus, the role of the jury is different in these types of cases. Not only are jurors expected to render a verdict on guilt or innocence, but in the event a defendant is found guilty, they must determine whether aggravating and mitigating factors are present, weigh each set of factors and ultimately decide whether to recommend a death sentence. In addition, having one jury sit for both phases increases the possibility that jurors will be lost owing to illness, family circumstances, or financial hardship.

The possibility of a two-phase trial also affects preparation of a capital case. Counsel will have to develop a strategy for the guilt phase that takes into account a possible penalty phase, since it is likely that a court will proceed with the penalty phase immediately after a finding of guilt by the jury. Thus, while preparing for and trying the guilt phase counsel will also be planning his or her sentencing-hearing strategy, including which experts will be called. A criminal defense attorney commenting on this unique aspect of capital cases noted that even though these two phases are technically separate, they are inextricably entwined:

It is axiomatic that lawyers who will be seeking mercy at the penalty phase of a trial must be wary of the portrait of their client that they paint during the guilt/innocence phase. Frequently, there is tension between the strategic goals in the two phases: The most promising guilt phase defense—for example, alibi—can present the most problematic penalty phase situation if it fails. Having found that the defendant was lying about his alibi at the guilt phase, why should a juror believe, or even care about, his tales of child abuse at the sentencing phase?

James M. Doyle, The Lawyers’ Art: "Representation" in Capital Cases, 8 Yale J.L. & Human. 417, 423 (1996).

Finally, because there are high stakes involved in capital cases and the deathpenalty statutes are fairly new, judges can expect more motions, more legal challenges, and generally more work. These cases are different from other criminal cases because of the nature of the evidence and information that must be developed, particularly for the penalty phase. The majority of judges we interviewed estimated that the number of pretrial motions filed in their capital cases was two to four times the number generally filed in non-capital cases. As more capital cases are tried under each of the statutes, the amount of litigation concerning the statutes themselves can be expected to diminish to some extent, but the amount of information that must be developed for a potential penalty phase will most likely remain unchanged.