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303.1 Death Penalty: Determination Of Sentence -- General Principles

    303.1.1 Death Penalty Trial: Introduction
    303.1.2 Death Penalty Investigation Strategies
    303.1.3 Death Penalty: Death Is Different
    303.1.4 Juries Should Assume That Death Sentence Will Be Carried Out
    303.1.5 Juror Misunderstanding Of Instructions In Death Cases Has Been Demonstrated
    303.1.6 Death Penalty: Greater Obligation Of Counsel To Investigate 

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    See generally FORECITE National™ 303.2.3 [Death Penalty: Whether Jury Should Be Reinstructed With Guilt Phase Instructions At The Penalty Trial].

    See generally FORECITE National™ 303.2.4 [Death Penalty: Jury To Disregard Specified Evidence From The Guilt Trial].

    See generally FORECITE National™ 303.2.9 [Death Penalty: Consideration Of Limited-Purpose Evidence For Mitigation At Penalty Trial].

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Russell Stetler "Working With Victim’s Survivors in Death Penalty Cases," The Champion (NACDL, 6/99) pp. 42-47 [article focuses on effort to level the playing field by honestly confronting the anger and pain of surviving family members of victims of capital crimes -- you often have a key role in determining whether the client lives or dies].

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    303.1.3    Death Penalty: Death Is Different

    See FORECITE National™ 301.6.1 [Death Is Different].

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RATIONALE: Unless the jury is required to assume that any sentence it imposes will be carried out the reliability of the sentencing decision will be compromised.

POINTS AND AUTHORITIES: If the jury believes that a sentence of death will not be carried out this could improperly reduce the jurors' sense of responsibility for the sentence in violation of the 8th Amendment. (See Caldwell v. Mississippi (1985) 472 US 320, 328-34 [105 SCt 2633; 86 LEd2d 231]; see also People v. Kipp (CA 1998) 18 C4th 349, 377-78 [75 CR2d 716] [jury should be told to assume that whatever penalty it selects will be carried out if requested by counsel or if there is reason to believe the jury has some concerns or misunderstandings in this regard].)

CAVEAT: This instruction -- which is essentially a cautionary/limiting instruction -- "may unnecessarily raise questions in the jurors' minds." (People v. Kipp (CA 1998) 18 C4th 349, 378 [75 CR2d 716].) Hence, the ultimate decision as to whether or not to so instruct the jury should be made by the defendant. (See FORECITE National™ 4.3.2 [Cautionary And Limiting Instructions: Requests And Objections].) If trial counsel determines that such an instruction is strategically unwise, obviously counsel should not request the instruction and object if it is proposed. Conversely, if the instruction is given over objection or without a request by the defense, an issue as to its propriety may be a potential question on appeal.

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.7].

See Capital Punishment Handbook [4.5.6a. Diminishing Jury Sense Of Responsibility: General Principles And Authorities].

    You must assume that any sentence you return will be carried out.

[Source: State v. Southerland (SC 1994) 447 SE2d 862, 868.]

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PRACTICE NOTE: Empirical studies establish that a substantial majority (almost 25%) of death-qualified jurors erroneously believe that life without parole will allow the parole or judicial system to release the defendant in less than 10 years due to overcrowding and other factors and over 75% disbelieve the literal language of life without parole. (See California Attorneys For Criminal Justice FORUM (1994) Vol. 21, No. 2, pp. 42-45; see also Haney, Santag and Costanzo, "Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death," 50 Journal of Social Sciences No. 2 (Summer 1994) ["Four of five death juries cited as one of their reasons for returning a death verdict, the belief that a sentence of life without parole did not really mean that the defendant would never be released from prison ...."]; Simmons v. South Carolina (1994) 512 US 154, 159 [114 SCt 2187; 129 LEd2d 133].) Moreover, a juror's belief as to the meaning of the sentences is the single most important reason for voting for a particular verdict. (California Attorneys For Criminal Justice FORUM, Vol. 21 at p. 45.)

    In a study of ten separate California juries, the following findings were made: (1) Consideration of mitigating evidence -- "[F]ully 8 out of the 10 California juries included persons who dismissed mitigating evidence because it did not directly lessen the defendant's responsibility for the crime itself"; (2) Comprehension of Legal Crimes and Legal Terms -- "Of the 30 California jurors interviewed, only 13 showed reasonably accurate comprehension of the concepts of aggravating and mitigating." (See Haney, Sontag and Costanzo, "Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death," 50 Journal of Social Sciences No. 2 (Summer 1994) [This study, along with several other death penalty articles, is available through: Subscription Dept., Plenum Publishing Corporation, 233 Spring Street, New York, NY 10013. Orders can also be faxed to the Subscription Dept. at (212) 807-1047. Single issues are $49.50 each].)

    See also FORECITE National™ 5.1.6 [Empirical Challenge To Confusing Jury Instruction Language].

    See also FORECITE National™ 5.1.1 [Making Jury Instructions Understandable: General Principles].

    See also FORECITE National™ 5.1.3 [Jurors Are Prone To Misunderstand Jury Instructions].

    See also FORECITE National™ 5.1.4 [Increasing Juror Comprehension: Include General Concept First And Then Break Down Components].

    See also FORECITE National™ Chapter 285.

RESEARCH NOTES:

Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus, 85 Cornell L. Rev. 627 (2000):

(http://www4.law.cornell.edu/working-papers/open/garvey/weeks.html)

See generally, FORECITE National™ 305.5.2 [Empirical Research].

    See FORECITE National™ 301.6.5 [Death Penalty: Greater Obligation Of Counsel To Investigate].