Federal Judicial Center -- 2004
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        B      Conduct of the Penalty Phase
        B-1  Evidentiary Standard Governing Penalty-phase Proceedings
        B-2  Government Proof of Aggravating Factors
        B-3  Case Law Regarding Aggravating Factors
        B-4  Defense Proof of Mitigating Factors
        B-5  Issues Regarding Mitigating Factors
        B-6  Order of argument

B    Conduct of the Penalty Phase

The penalty-phase hearing in a capital case is unique with respect to the presentation of witnesses and other evidence. Such hearings are not governed by the Federal Rules of Evidence, and therefore the types of witnesses, and the issues on which they testify, can be quite wide-ranging. The Federal Death Penalty Act also allows victim-impact statements or testimony to be presented during a penalty-phase hearing.

The cases we reviewed frequently involved penalty-phase testimony from family members and friends of the defendant, who testified primarily to tell about good deeds the defendant had done and the beneficial effect the defendant had had on others, such as his or her children, and to ask the jury to spare the defendant a death sentence. In addition, expert and lay testimony was often presented regarding the defendant’s disadvantaged childhood, the defendant’s capacity to conform to prison life, and other circumstances thought to support findings of mitigating factors. The government presented evidence about the defendant’s criminal history and other impeaching evidence or aggravating factors.

B-1    Evidentiary Standard Governing Penalty-phase Proceedings

Title 21 USC 848(j) provides that at the sentencing hearing, information may be presented that relates to any mitigating factors or any aggravating factors for which notice has been provided. The Federal Death Penalty Act is worded more broadly, providing that information may be presented at a penalty hearing "as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered." 18 USC 3593(c).

Both statutes provide that information may be presented regardless of its admissibility under rules governing admission of evidence at criminal trials, but each sets forth circumstances under which evidence is to be excluded. Section 848 provides that information may be excluded if its probative value is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." In section 3593, the wording is similar, but the word "substantially" is omitted—suggesting that information is easier to exclude under that statute.

In some of the cases we reviewed, defendants objected to the fact that the government’s evidence was not subject to the Federal Rules of Evidence, claiming that this relaxed evidentiary standard for the government was unconstitutional. In response, the government pointed out that much of the evidence it would rely on at sentencing was information that had been presented during the guilt phase, when the evidence was subject to the federal rules, and that Supreme Court precedent generally favored providing the jury with as much information as possible.

In another case we reviewed, the court had the government file, under seal, a death-penalty proffer of evidence setting forth the factors it intended to prove at sentencing and the evidence it would offer in support of those factors. Information offered at a penalty-phase hearing may, at the trial judge’s discretion, include the trial transcript and exhibits.

B-2    Government Proof of Aggravating Factors

The government may attempt to prove only statutory aggravating factors or both statutory and nonstatutory aggravating factors which it has provided notice of to the defendant. Under the Federal Death Penalty Act, these factors may include victim-impact information. The burden of proving any aggravating factor is on the government and is not satisfied unless the factor is proved beyond a reasonable doubt to a unanimous jury.

The statutes differ slightly in their statutory aggravating factors, but these factors generally include the following:

• The defendant has a previous conviction for causing a death.

• The defendant has previous violent felony or drug convictions.

• The defendant, in the course of committing the crime, knowingly created a grave risk of death to additional people.

• The defendant arranged or committed the offense for pecuniary gain.

• The offense involved substantial planning and premeditation.

• The victim was vulnerable because of age or other factors.

• The offense was committed in an especially heinous, cruel, and depraved manner, in that it involved torture or serious physical abuse to the victim.

The death-penalty statutes do not provide much guidance as to what the government may offer as nonstatutory aggravating factors, except to say that they must be "relevant." Supreme Court case law further provides that nonstatutory aggravating factors must be related to the "character of the defendant or the circumstances of the crime." Barclay v. Florida, 463 U.S. 939, 967 (1983). In cases we reviewed, nonstatutory aggravating factors offered by the government included the following:

• The defendant had committed multiple murders.

• The defendant had a substantial criminal history.

• In committing the crime, the defendant seriously wounded others.

• The defendant was a member of a conspiracy.

• The defendant poses a threat of future dangerousness to others.

• A deadly weapon was used in the crime.

• The defendant showed a lack of remorse.

• The defendant has a low potential for rehabilitation.

B-3    Case Law Regarding Aggravating Factors

Certain issues regarding the government’s aggravating factors have been challenged and ruled on in published case law. The most common challenges we observed related to "double-counting" of aggravating factors, use of nonconvicted conduct as an aggravating factor, and use of victim-impact evidence.

a. Double-counting of aggravating factors. In United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), one of the cases we reviewed in which a defendant was sentenced to death, the court of appeals remanded the case for resentencing because the district court allowed the government to submit for the jury’s consideration a statutory aggravating factor and a nonstatutory aggravating factor that were duplicative. The statutory aggravating factor was that the defendant "intentionally engaged in conduct intending that the victim be killed . . . which resulted in the death of the victim" (Id. at 1111), and the nonstatutory aggravating factor was that the defendant "committed the offense as to which he is charged in the indictment" (Id. at 1111). The court of appeals ruled that "[s]uch double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally." 76 F.3d at 1111, cert. denied, 520 U.S. 1213, 117 S. Ct. 1699, 137 L. Ed. 2d 825 (1997). [Footnote 37]

The issue of duplicative aggravating factors arose in two of the other cases we reviewed as well. In both cases, the district court ruled prior to the sentencing hearing that the government could not submit as nonstatutory aggravating factors both that the defendant had a low potential for rehabilitation and that the defendant would pose a continuing threat or would be dangerous in the future. The judges reasoned that posing a future threat was correlated with having a low potential for rehabilitation, and thus submitting both of these factors would be duplicative. United States v. Nguyen, 928 F. Supp. 1525, 1542 (D. Kan. 1996); United States v. Davis, 912 F. Supp. 938 (E.D. La. 1996).

b. Use of nonconvicted conduct as an aggravating factor. In some cases, the government has submitted as an aggravating factor proof of prior crimes allegedly committed by the defendant that did not result in conviction. In one case we reviewed, the government tried to submit as a statutory aggravating factor previous murders to which the defendant had pleaded guilty. The judge determined that the fact that the statutory aggravating factor included the phrase "has been convicted" meant that a judgment of conviction was required in order to use this factor, and a guilty plea was not sufficient. The court pointed out, however, that the government could use the earlier murders as a nonstatutory aggravating factor.

In another case we reviewed, the defendant moved to prohibit mention of any misconduct not alleged in the indictment or resulting in conviction, on the ground that its probative value would be far outweighed by its conjectural and prejudicial nature. The government responded that there was no per se rule that such information is more prejudicial than probative, and that the defendant would have ample opportunity to rebut this information. The court agreed with the government.

c. Use of victim-impact evidence. As discussed previously, under the Federal Death Penalty Act, aggravating factors may include factors concerning the effect of the offense on the victim and the victim’s family, and may include oral testimony, a victim-impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim’s family, and any other relevant information. In several of the cases we reviewed, defendants moved to preclude the introduction of victim-impact evidence.

In one case, the defendant filed several motions to exclude victim-impact evidence. The court disagreed with the defendant’s arguments that introduction of victim impact evidence was fundamentally unfair, and that it should be excluded because it would be cumulative, redundant, and oppressive. The court also denied a motion to require pretrial judicial review of all proposed victim-impact evidence. It did grant, however, a motion to preclude introduction of victim-impact evidence that related to the victim’s family members’ characterizations of and opinions about the crime, the defendant, or the appropriate sentence.

In another case, the government pointed out that although the Supreme Court in Payne v. Tennessee, 501 U.S. 808 (1991), allowed the use of victim-impact evidence in death-penalty hearings, it was not clear from the decision whether such evidence would be limited to rebuttal of the defendant’s mitigating factors or could be used as a nonstatutory aggravating factor.

In one of the section 848 cases we reviewed, the government proposed to introduce victim-impact evidence as a nonstatutory aggravating factor. The defense moved to prohibit the government from introducing such evidence, arguing among other things that the statutory scheme did not allow it. After considering the broad range of mitigating factors that the defendant is allowed to present in a death-penalty hearing, the court denied the defendant’s motion, but added that it could not at the time of its ruling make a determination as to whether it would be fair for such information to be presented. The case did not go to a penalty hearing.

In United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998), the court allowed thirty eight witnesses to testify during the penalty phase of the trial as to the impact on them of the Oklahoma City bombing. In response to the defendant’s argument that the testimony of most of these witnesses injected a "constitutionally intolerable" level of emotion into the proceeding, the Tenth Circuit found that the evidence was properly admitted, because "[t]he devastating effects that the death of the victims had on their families and loved ones is ‘certainly part and parcel of the circumstances’ of the crime properly presented to the jury at the penalty phase of the trial." Id. at 1219 (quoting Bonin v. Vasquez, 807 F. Supp. 589, 613 (C.D. Cal. 1992), aff’d, 59 F.3d 815 (9th Cir. 1995)).

B-4    Defense Proof of Mitigating Factors

The defendant may attempt to prove any mitigating factor and is not required by statute to give notice of mitigating factors. In addition, each statute lists mitigating factors that "shall" be considered by the jury if applicable. These include the following:

• The defendant had impaired capacity.

• The defendant was under duress.

• The defendant’s role was minor.

• Equally culpable defendants will not be punished by death.

• The defendant has no prior criminal record.

• The defendant is severely mentally or emotionally disturbed.

• The victim consented to the criminal conduct.

• The defendant could not reasonably have foreseen that death or risk of death would result from the criminal action (§ 848 only).

• The defendant is youthful (§ 848 only).

• Other factors in the defendant’s background or character mitigate against imposition of the death sentence. 18 USC 3592(a).

Other mitigating factors offered in cases we reviewed include the following:

• The defendant was subjected to physical, sexual, or emotional abuse or neglect as a child.

• The defendant would adapt well to prison life.

• The defendant has a good chance of rehabilitation.

• The defendant had been gainfully employed in the past and could continue to work in prison.

• The defendant has children.

• The defendant has maintained positive relationships with friends and family duringprior periods of incarceration.

• The defendant has brain dysfunction or a low IQ.

One judge we interviewed described the mitigation phase of the trial as "extremely emotional," and said that "tears were flowing," including those of jurors.

The burden of proving any mitigating factor is on the defendant, and the factor must be proved by a preponderance of the evidence. Unanimity of the jury is not required, however, and any juror may treat as proven a mitigating factor that he or she believes has been established by a preponderance of the evidence.

B-5    Issues Regarding Mitigating Factors

a. Can race, ethnicity, or similar characteristics be cited as mitigating factors? Under each of the federal death-penalty statutes, jurors are required to certify that, in arriving at their sentencing decision, they did not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim, and that their recommendation about the appropriate sentence would have been the same regardless of these characteristics of the defendant or of any victim.

In some of the cases we reviewed, the defendants argued that this provision impermissibly prohibited them from arguing that lifelong discrimination based on one of these characteristics should be considered a mitigating factor. The judges to whom this argument was presented generally pointed out that this provision in the statutes was there only to prevent these characteristics from being used in a discriminatory way and that they could be used as mitigating factors. [Footnote 38] One judge added the phrase "other than as a potential mitigating factor" to the form that required the jurors to certify that they had not considered such factors in their penalty deliberations.

b. Can the alternative sentence of life imprisonment without parole be argued as a mitigating factor? Some defendants in the cases we reviewed wanted to argue to the jury, as a mitigating factor, that if the jury did not recommend a death sentence, they would be sentenced by the judge to life in prison without parole. [Footnote 39] Several judges pointed out that such an argument requires that the judge predict what he or she will decide after the report and hearing. Judges have handled this issue in different ways.

In United States v. Flores, 63 F.2d 1342 (5th Cir. 1995), the defendant had requested an instruction that if the jury were to decide against a death sentence, the judge’s only option would be to sentence him to life imprisonment, because the base offense level under the federal Sentencing Guidelines for section 848 offenses warrants a sentence of life imprisonment. Instead, the court instructed the jury that life without parole was a possible sentence, but that other sentences could conceivably be imposed. The Fifth Circuit upheld this instruction, reasoning that, because the Sentencing Guidelines allow a district judge to adjust a sentence downward, sentences other than life imprisonment were possible. [Footnote 40]

In contrast, one judge instructed the jury that if it did not recommend a death sentence, she would impose a sentence of life in prison without parole. She had decided, based on the nature of the crime, that she was highly likely to impose a life sentence, and she thought the jury should be aware of this relevant information.

Finally, another judge, who also decided it was likely that he would impose a life sentence, instructed the jury that in the absence of a death sentence, there was a strong probability that the defendant would be sentenced to life in prison without any possibility of parole.

B-6    Order of Argument

Both death-penalty statutes prescribe the order of argument, and the order of argument under both is the same. The government opens the argument, the defendant replies, and the government is given a chance to rebut. Both sides are to be permitted to rebut any information received at the hearing, and "shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any of the aggravating or mitigating factors, and as to the appropriateness in that case of imposing a sentence of death." 21 USC 848(j); 18 USC 3593(c).

FOOTNOTES:

37     See also United States v. Glover, 43 F. Supp. 2d 1217, 1222 (D. Kan. 1999) (finding that the government’s second statutory aggravating factor, that "the defendant knowingly created a grave risk of death to more than one person," was duplicative of and cumulative with its first statutory aggravating factor, that "the defendant attempted to kill more than one person"; the government had to elect one of the two enumerated factors.)

38     See, e.g., United States v. Nguyen, 928 F. Supp. 1525, 1547 (D. Kan. 1996).

39     Note that this argument primarily applies to cases brought under 21 USC 848, because the jury in cases brought under the Federal Death Penalty Act may choose to recommend death, life imprisonment, or (when authorized by statute) a lesser sentence.

40    See also United States v. Hammer, 25 F. Supp. 2d 518, 523 (M.D. Pa. 1998) (denying defendant’s request to have the jury instructed that if it was unable to reach a unanimous verdict, the court would automatically impose a sentence of life in prison).