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301.4 Death Penalty: Mitigation

    301.4.1 Mitigation: General Principles

    301.4.1.1 Death Penalty: The Jury Must Consider All Mitigating Evidence
    301.4.1.2 Mitigation Can Emanate From The Offense Or The Offender
    301.4.1.3 Death Penalty: Defining Mitigation For The Jury
    301.4.1.4 Death Penalty: Improper Mitigating Evidence
    301.4.1.5 Unanimity Not Required For Consideration Of Mitigation
    301.4.1.6 Death: Constitution Requires Admission Of Relevant Mitigation Even If Not Admissible Under Traditional Rules Of Evidence
    301.4.1.7 Death Penalty: Jury Must Be Allowed To Give Full Effect To Mitigating Circumstances
    301.4.1.8 Death Penalty: Prosecutor Misconduct Which Forecloses Juror Consideration Of Mitigation

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PRACTICE NOTE: The sentencer must consider "as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."  (Lockett v. Ohio (1978) 438 US 586, 604 [98 SCt 2954; 57 LEd2d 973]; see also Weeks v. Angelone (2000) 528 US 225 [120 SCt 727, 732; 145 LEd2d 727] ["the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence ..."]; Buchanan v. Angelone (1998) 522 US 269, 276 [118 SCt 757; 139 LEd2d 702] [same].) This includes the defendant's mental impairment and background. (Penry v. Lynaugh (1989) 492 US 302, 320 [109 SCt 2934; 106 LEd2d 256]; see also Eddings v. Oklahoma (1982) 455 US 104, 114-17 [102 SCt 869; 71 LEd2d 1]; 8th & 14th Amendments.)

    "It follows as night the day that although the jury determines the appropriate weight to be given to the mitigating evidence, the jury 'may not give it no weight by excluding such evidence from their considerations.'" (McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 837 [citation to Eddings v. Oklahoma (1982) 455 US 104, 115 [102 SCt 869; 71 LEd2d 1]].) Where the jury misunderstands its obligation to consider relevant mitigating evidence, "[t]he risk created by this legal derailment [is] that [the jury] would impose the death penalty 'in spite of factors which...[might] call for a less severe penalty.'" (McDowell, 130 F3d at 838 [citation to Lockett v. Ohio (1978) 438 US 586, 605 [98 SCt 2954; 57 LEd2d 973]].) "The Supreme Court has identified this risk as one 'unacceptable and incompatible with the commands of the 8th and 14th Amendments.' [Citation.]" (Ibid.)

    In the post-Furman era, the Supreme Court established that the 8th Amendment prohibition against cruel and unusual punishment requires the individualized consideration of mitigating circumstances in determining a sentence of death. In Lockett v. Ohio, supra, 438 US at 608 and later in Eddings v. Oklahoma, supra, 455 US at 117, the Court ruled that the sentencer must consider all relevant mitigating evidence in a capital case. In Skipper v. South Carolina (1986) 476 US 1, 4 [106 SCt 1669; 90 LEd2d 1] the Court, quoting Eddings, stated that the sentencer may "not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Thus, the capital sentencer must consider both statutory and nonstatutory mitigating evidence. In Penry v. Lynaugh, supra, 492 US at 228, the Court held that the trial judge must instruct the jury that it may consider evidence presented by the defendant of nonstatutory mitigating factors. In Delo v. Lashley (1993) 507 US 272, 276-79 [113 SCt 1222; 122 LEd2d 620] the Court clarified its precedent on mitigating jury instructions holding that such instructions are constitutionally required only when supported by evidence.

    See also NCJIC Death Penalty Macro 309.13.11.

See Capital Punishment Handbook [1.13.2.3a. Failure To Present Mitigating Evidence At Sentencing: General Principles And Authorities].

See also Capital Punishment Handbook [4.4.3a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.2a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.8.1a. Consideration Of All Relevant Mitigating Circumstances: General Principles And Authorities].

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    See NCJIC 301.4.1.1 [The Jury Must Consider All Mitigating Evidence]. 

See Capital Punishment Handbook [1.13.2.3a. Failure To Present Mitigating Evidence At Sentencing: General Principles And Authorities].

See also Capital Punishment Handbook [4.4.3a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.2a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.8.1a. Consideration Of All Relevant Mitigating Circumstances: General Principles And Authorities].

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    See NCJIC 301.5.4 [Mitigation And Aggravation Must Be Defined]. 

    See NCJIC 303.5.2 [Modification Of "Catch-All" Mitigation Instruction To Pinpoint Defense Theories].

See also Capital Punishment Handbook [4.4.3a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.2a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.8.1a. Consideration Of All Relevant Mitigating Circumstances: General Principles And Authorities].

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    301.4.1.4    Death Penalty: Improper Mitigating Evidence

PRACTICE NOTE: See Capital Punishment Handbook [4.8.3. Improper Mitigating Evidence].

See also Capital Punishment Handbook [4.4.3a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.2a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.8.1a. Consideration Of All Relevant Mitigating Circumstances: General Principles And Authorities].

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    See NCJIC 303.4.7 [Death Penalty: Unanimity Not A Requirement For Consideration Of Mitigating Evidence].

See also Capital Punishment Handbook [4.4.3a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.2a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.8.1a. Consideration Of All Relevant Mitigating Circumstances: General Principles And Authorities].

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PRACTICE NOTE: Traditional rules of admissibility for purposes of guilt trials should not be used to exclude evidence relevant to mitigation at the penalty trial. (See Green v. Georgia (1979) 442 US 95, 97 [99 SCt 2150; 60 LEd2d 738]; see also Gregg v. Georgia (1976) 428 US 153, 204 [96 SCt 2909; 49 LEd2d 859]; People v. Harris (CA 1984) 36 C3d 36, 68-70 [201 CR 782]; State v. Davis (NJ 1984) 477 A2d 308, 314; but see People v. Stanley (CA 1995) 10 C4th 764, 838-40 [42 CR2d 543] [only "reliable" evidence may be admitted at penalty trial].) 

    See also NCJIC 300.1.5 ["Super Due Process" -- Domestic Rules Of Evidence May Not Be Invoked To Preclude A Criminal Defendant From Establishing A Denial Of A Fair Trial].

See Capital Punishment Handbook [1.13.2.3a. Failure To Present Mitigating Evidence At Sentencing: General Principles And Authorities].

See also Capital Punishment Handbook [4.4.3a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.2a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.8.1a. Consideration Of All Relevant Mitigating Circumstances: General Principles And Authorities].