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301.8 Death Penalty: Miscellaneous Constitutional Principles

    301.8.1 Death Penalty: Sentencing Proceeding: Applicability Of Due Process
    301.8.2 Death Penalty: Sentencer May Not Rely On Undisclosed Information
    301.8.3 Death Penalty: Sentencing Proceeding: Right To Confrontation
    301.8.4 Death Penalty: Defendant Has Due Process Right To Assistance Of Expert
    301.8.5 Death Penalty: Duty Of Counsel To Request Appointment Of Mental Health Expert In Death Penalty Case
    301.8.6 Death Penalty: Defendant’s Right To Capital Sentencing Instructions That The Jury Understands
    301.8.7 Death Penalty: Prosecutorial Misconduct During Summation Or Argument To Jury
    301.8.8 Whether Judge May Make The Sentencing Decision In A Death Penalty Trial
    301.8.9 Public Favor Of Capital Punishment Must Not Impair Defendant’s Constitutional Right To A Fair Trial

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VOLUME 17 - CHAPTER 301

See Capital Punishment Handbook [4.1 General Due Process Concerns].

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    301.8.2    Death Penalty: Sentencer May Not Rely On Undisclosed Information

PRACTICE NOTE: In Gardner v. Florida (1977) 430 US 349, 357-58 [97 SCt 1197; 51 LEd2d 393], the Supreme Court held that a death sentence based in part on a confidential presentence report given to the trial judge but not to the defense was unconstitutional because it was based on information which the defendant had no opportunity to deny or explain. Thus, under Gardner and its progeny, a capital defendant must be permitted to see and respond to any evidence or argument on which the death sentence might be based. (See also Simmons v. South Carolina (1994) 512 US 154, 168 [114 SCt 2187; 129 LEd2d 133] [to extent that jury’s potential belief that defendant was parole eligible may have affected its deliberations, defendant would be sentenced to death on basis of information which he or she had no opportunity to deny or explain].)

See Capital Punishment Handbook [4.1a. General Due Process Concerns: General Principles And Authorities].

See Capital Punishment Handbook [4.1.1 Rights Regarding Evidence Presented At Sentencing].

See Capital Punishment Handbook [4.1.4 Right To Confront and Cross-Examine Witnesses].

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VOLUME 17 - CHAPTER 301

PRACTICE NOTE: When the state intends to introduce psychiatric evidence on future dangerousness, the defendant has a due process right under Ake v. Oklahoma (1985) 470 US 68, 83 [105 SCt 1087; 84 LEd2d 53] to access to psychiatric assistance in the preparation of his or her defense.

See Capital Punishment Handbook [2.5a. Psychiatric And Other Expert Assistance: General Principles And Authorities].

See also generally, NCJIC 305.5.8 [Expert Testimony/Scientific Evidence].

PRACTICE NOTE: In Boyde v. California (1990) 494 US 370, 380 [110 SCt 1190; 108 LEd2d 316] the Supreme Court held that the standard of reviewing a claim that a sentencing instruction is ambiguous is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Hence, juror comprehension of the sentencing instruction is a federal constitutional guarantee.

    However, empirical studies suggest that jurors do misunderstand crucial sentencing principles. (See NCJIC 5.1.3 [Jurors Are Prone To Misunderstand Jury Instructions].)

See also generally, NCJIC 305.5.2 [Empirical Research]

PRACTICE NOTE: See Capital Punishment Handbook [4.4 Prosecutorial Misconduct]; see also NCJIC 272.4 [Prosecutor Misconduct During Summation/Closing Argument].