THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303
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303.15 Death Penalty: Informing Jury As To Consequences Of Failure To Reach A Verdict As To Penalty

    303.15.1 Death Penalty: Consequences Of Failure To Agree At Penalty: Jury Should Be Informed That Guilt Phase Verdicts Will Not Be Affected

    THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303

RATIONALE: Without an explanatory instruction the jury may erroneously assume that a failure to agree as to penalty will also require a guilt retrial. This may coerce the jury since it will not want its guilt verdicts to be overturned. Such coercion undermines the reliability of a death sentence.

POINTS AND AUTHORITIES: Instruction may be necessary to avoid speculation by the jury that if they do not reach a verdict as to penalty, the defendant would receive a new trial on both guilt and penalty, thus raising the possibility that the defendant could be acquitted and set free. (People v. McIntosh (NY 1998) 682 NYS2d 791, 793 [deadlock instruction statute, requiring jury charge on sentence defendant would receive if jury were unable to agree on sentence in capital murder trial was designed to prevent unacceptable speculation about consequences of a nonunanimous verdict]; but see Rich v. Calderon (9thCir. 1999)170 F3d 1236, 1240.) Such an instruction may "quell juror fears that an acquittal will permit defendant to avoid custody." (McIntosh, 682 NYS2d at 794.) It will "'prevent unacceptable speculation about the consequences of a non-unanimous verdict,' a critical concern in jury deliberation." (Ibid.; see also State v. Hunt (NJ 1989) 558 A2d 1259, 1285; State v. Ramseur (NJ 1987) 524 A2d 188, 284.)

    In Jones v. U.S. (1999) 527 US 373, 381 [119 SCt 2090; 144 LEd2d 370] the U.S. Supreme Court in a five-to-four decision held that the 8th Amendment does not require a jury to be instructed as to the consequences of a deadlocked jury for purposes of the Federal Death Penalty Statute (18 USC 1201(a)(2)). The court agreed with the Supreme Court of Virginia, which rejected a similar instruction in Justus v. Commonwealth (VA 1980) 266 SE2d 87, 92 because this type of instruction "would [be] an open invitation for the jury to avoid its responsibility and to disagree."

    "Petitioner's argument -- which depends on the premise that the instructions and decision forms led the jury to believe that it did not have to recommend unanimously a lesser sentence -- falls short of satisfying even the first requirement of the plain-error doctrine, for we cannot see that any error occurred." (Jones, 527 US at 389-90.)

    However, Jones did not resolve the question of whether the jury should be informed that the guilt and death eligibility verdicts will not be affected even if they do not reach a verdict as to penalty. This concern was not at issue in Jones which involved the issue of whether the jury properly understood that it was required to attempt to reach a unanimous verdict as to a lesser sentence if it could not reach a verdict as to the greater sentence.

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.5].

PRACTICE NOTE: Even if an instruction on the consequences of deadlock is initially refused it may be more appropriate after learning that the jury is deadlocked.

    If you fail to reach a verdict as to penalty this will not affect the verdict you have already returned at the guilt trial. This means that even if you do not reach an agreement as to sentence, the only possible options for the case will be life without possibility of parole or death.

[Source: NCJIC.]

    If you cannot agree on a penalty, you will be discharged, and the court will conduct further proceedings as to the appropriate penalty. The minimum penalty that may be imposed upon such proceedings is life without possibility of parole.

[Source: NCJIC.]