Federal Judicial Center -- 2004
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        F      How the Guilt Phase Differs in Death-Penalty Trials
        F-1  Anxiety of Participants
        F-2  Motions and Objections
        F-3  Defense Strategy

Resource Guide for Managing Capital Cases

We asked judges to describe how, if at all, the guilt phase of their death-penalty cases differed from that of other serious criminal cases. Although one or two said the trial was very similar to others (aside from the jury-selection process), most pointed out ways in which the death-penalty trial was different even at the guilt phase, such as the anxiety level of participants, the number of motions and objections, and the defense strategy.

F-1    Anxiety of Participants

Several judges mentioned that the anxiety level of virtually all the participants—judge, jury, attorneys, court personnel, and others—was noticeably higher in their death penalty cases than in other cases. This led in some instances to a higher degree of acrimony between the attorneys presenting the case. One judge who rarely holds sidebar conferences said he did so with relative frequency during his death-penalty trial in an attempt to cool the tempers of the attorneys.

F-2    Motions and Objections

A number of judges noted that their death-penalty trials contained many more motions and objections than one would expect from a more routine criminal trial. As one judge said, the attorneys raised "every conceivable objection."

F-3    Defense Strategy

A noted capital defense attorney with whom we spoke pointed out that attorneys often view a capital case as a "penalty-phase case" and try the guilt phase of the case accordingly. During the guilt phase, a defense attorney does not want to make an argument that will be inconsistent with what he or she will argue at the penalty phase. For example, denying guilt outright in the guilt phase might be a strategic mistake if during the penalty phase the defendant wants to argue that certain factors (e.g., a deprived childhood, a mental illness) led him or her to commit the crime. Several judges noted that such strategic decisions had apparently been made by attorneys in their death-penalty cases.

Similarly, one judge pointed out that the attorneys in his death-penalty case clearly focused on the murder charges (which carried a potential death penalty) and spent much less time defending the charges to which the death penalty did not apply. Another judge noted that the presiding judge must pay special attention to ensuring that the government presents evidence to support specific guilt findings on each count of an indictment.