Federal Judicial Center -- 2004
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        D  Special-Findings and Decision Forms

Under section 848, the jury must return special findings identifying any mental-state factor and any statutory aggravating factors it has found to exist. If the jury has found requisite mental-state and aggravating factors, it "may" return findings as to the nonstatutory aggravating factors it has found. The Federal Death Penalty Act, in contrast, requires that findings be returned regarding any aggravating factors which the jury has found and which the government has provided notice of.

Neither statute requires that the jury return findings regarding the mitigating factors it or any of its members has found. However, most of the special-findings forms we reviewed listed the mitigating factors proposed by the defendants and provided an opportunity for the jury to indicate how many of its members had found each mitigating factor. A few of the forms, rather than asking how many members found each factor, merely had a "yes/no" option for whether one or more members had found each factor. One judge instructed the jury that it was "required" to record its findings regarding mitigating factors on the special-findings form. Another judge instructed the jury that, for each mitigating factor, "you have the option to indicate whether or not any of you have found the existence of that mitigating factor." Most of the other judges did not specifically address this issue in their instructions, but did provide space on the form for findings regarding mitigating factors. One of the judges we interviewed suggested that it be left to the defense to determine whether the mitigating factors should be included on the special-findings form. The Benchbook for U.S. District Court Judges (Federal Judicial Center, 4th ed. 1996) recommends that the trial judge require that the jury record its findings regarding mitigating factors.

Finally, after the jury has made any findings with respect to aggravating and mitigating factors, and weighed them against each other, it returns a decision regarding whether the defendant should be sentenced to death.

This multistage process requires that the special-findings form be divided into sections. Several examples of these forms can be found in the appendices. First, the jury considers whether a required mental-state factor is present. If the factor is not present, the jury’s deliberations are over, and it does not need to use the rest of the specialfindings form. If the factor is present, the jury considers whether other aggravating factors are present. Again, if other required aggravating factors are not found, the deliberations are over. If, on the other hand, the required factors are found, the jury goes on to consider other aggravating and mitigating factors, and, finally, to determine whether to vote that a death sentence be imposed.

Because the jury’s decision-making process is quite complicated, the wording of the special-findings forms can be very important. In United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993), the defendant argued that the district court had "coerced" a death verdict, because the phrasing on the verdict form read "We the jury unanimously vote to recommend, and do unanimously recommend that ___ a sentence of death be imposed/ ___ a sentence of death not be imposed upon the defendant . . . ." Id. at 1088. By their wording, the statutes require unanimity only to impose a death sentence, and the defendant argued that the wording of this verdict form could lead the jury to believe it had to be unanimous for either recommendation. The Eleventh Circuit rejected the defendant’s argument. Id. at 1089. Most of the materials we reviewed, however, were worded so as to instruct the jury that unanimity is required only for a verdict of death.

In Jones v. United States, 527 U.S. 373 (1999), the Supreme Court upheld an instruction in which jurors were told that, after considering and weighing aggravating and mitigating factors, they "by unanimous vote, shall recommend whether the defendant should be sentenced to death, sentenced to life imprisonment without possibility of parole, or sentenced to some other lesser sentence." Id. at 385. The Court rejected the defendant’s argument that such instructions would lead the jury to believe that if it failed to recommend unanimously a sentence of death or life imprisonment, the court would impose a sentence less than life imprisonment.