Federal Judicial Center -- 2004
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        Section IV    Trial of Capital Cases: Penalty Phase

If a defendant is convicted at the guilt stage of a crime carrying a potential death penalty, a separate hearing must be held to determine whether the defendant will be put to death. Under both of the federal death-penalty statutes, this hearing is normally held before the jury that determined the defendant’s guilt. No presentence report is prepared. 18 USC 3593(c); 21 USC 848(j).

Each statute sets forth certain mental-state factors and certain aggravating factors that must be proven by the government before the jury can consider imposing the death penalty. If these factors are found to exist, the jury then weighs proven aggravating factors against mitigating factors proven by the defendant to determine whether a sentence of death is justified. Different burdens of proof govern the consideration of aggravating and mitigating factors.

Sentencing hearings in death-penalty cases frequently involve extensive testimony about the defendant’s life history, including childhood abuse or neglect, drug or alcohol problems, and mental illnesses or impairments. Admission of evidence is not governed by the Federal Rules of Evidence, although the trial judge is to exclude any evidence for which the danger of unfair prejudice, confusion of the issues, or misleading the jury outweighs its probative value (18 USC 3591–3598) or substantially outweighs it (21 USC 848(e)).

Both the Anti-Drug Abuse Act and the Federal Death Penalty Act require that the jury (or the court, if the hearing is not before a jury) return special findings regarding the mental-state factors considered and any aggravating factors considered. Most judges whose materials we collected also provided the jury with forms for the jury to report its findings regarding mitigating factors.