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303.2 Death Penalty: Determination Of Sentence -- Procedural And Evidentiary Issues

    303.2.1 Death Penalty: Admonition To Refrain From Considering Penalty During Guilt Phase
    303.2.2 Death Penalty: Jury Must Not Consider Penalty Between Guilt And Penalty Phase Trials
    303.2.3 Death Penalty: Whether Jury Should Be Reinstructed With Guilt Phase Instructions At The Penalty Trial
    303.2.4 Death Penalty: Jury To Disregard Specified Evidence From The Guilt Trial
    303.2.5 Death Penalty: Counsel's Duty To Seek Life Even Against Defendant's Wishes
    303.2.6 Death Penalty: Admission Of Evidence Regarding Prior Death Sentence Does Not Violate 8th Amendment
    303.2.7 Death Penalty: Applicability Of Accomplice Instructions To Penalty Phase
    303.2.8 Death Penalty Mitigation: Relaxed Standards Regarding Admission Of Evidence
    303.2.9 Death Penalty: Consideration Of Limited-Purpose Evidence For Mitigation At Penalty Trial
    303.2.10 Death Penalty: Limitation On Bad Character Evidence Presented At Guilt Phase -- Applicability To Penalty Phase
    303.2.11 Death Penalty: Cautionary/Limiting Instructions When Expert's Beliefs About The Death Penalty Are Elicited
    303.2.12 Federal Constitution Violated By Omission Of Instruction Required By Death Penalty Statute
    303.2.13 Death Penalty: Mental Health Defenses – Sealing Examination Results That Will Only Be Used In Penalty Phase Until Penalty Phase

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    303.2.1    Death Penalty: Admonition To Refrain From Considering Penalty During Guilt Phase

RATIONALE: There is empirical evidence that many jurors reach a personal decision concerning punishment before the sentencing stage of the trial, or before hearing the evidence, arguments and instructions concerning the appropriate punishment.

    Moreover, ordinarily the jurors will have been extensively voir dired about their role in deciding both guilt and penalty. Thus, without further instruction, the jurors could reasonably assume that consideration of penalty during the trial is permissible if not required.

    Accordingly, it may be appropriate to modify the standard preliminary instructions to admonish the jury against considering or forming opinions as to penalty during the guilt phase.

POINTS AND AUTHORITIES: "Interviews with 916 capital jurors in eleven states reveal[ed] ... that many jurors reached a personal decision concerning punishment before the sentencing stage of the trial, before hearing the evidence or arguments concerning the appropriate punishment, and before the judge's instructions for making the sentencing decision. Moreover, most of the jurors, who indicated a stand on punishment at the guilt stage of the trial said they were 'absolutely convinced' of their early stands on punishment and adhered to them throughout the course of the trial."  [Emphasis added.] ("Foreclosed Impartiality in Capital Sentencing: Jurors' Predispositions, Guilt-Trial Experience and Premature Decision Making," William J. Bowers, Marla Sandys and Benjamin D. Steiner, 83 Cornell L.Rev. 1476, 1477 (Sept. 1998).)

    Accordingly, due to the unique nature of the capital process which often requires jurors to consider guilt and punishment, and given the fact the jurors are necessarily informed about this on voir dire, counsel may wish to consider requesting modification of the standard instructions to further admonish the jury against considering or forming opinions as to penalty during the guilt trial.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; Death Penalty Macro 13.8].

USE NOTE: Standard pattern instructions on the duty to refrain from considering penalties are often inadequate because they are usually given at the end of the guilt trial and relate to the guilt trial deliberations. (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.42 [Jury Must Not Consider Penalty–Non-Capital Case] (West, 6th Ed. 1996) ["In your deliberations do not discuss or consider [punishment]"].)

USE NOTE: To avoid leaving the jurors confused as to whether and how to report potential improprieties admonitions regarding extraneous influences and jury conduct should be given prior to trial and before commencement of deliberations. (See NCJIC 26.1.2 [Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions].)

PROCEDURAL NOTE: Occasionally the court may receive a report of potential juror misconduct during trial. Counsel should be alert to the implications of this misconduct as to both guilt and penalty. If the misconduct involves the premature formation of an opinion as to penalty, there is a danger that the other jurors could be affected. Therefore a procedure for individual, sequestered inquiry into the jurors' state of mind would be preferable. Should the court not allow such a procedure, consideration will have to be given as to whether to request a general instruction to limit the potential prejudice although the effectiveness of such an instructions would be problematic. (See NCJIC 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].)

    See also NCJIC 303.2.2 [Death Penalty: Jury Must Not Consider Penalty Between Guilt And Penalty Phase Trials].

CAVEAT: Use of this suggested instruction should be considered carefully in light of the fact that it may imply the defendant's guilt.

RESEARCH NOTES:

See generally, NCJIC 305.5.2 [Empirical Research].

    You were told during voir dire about the possibility that you may also deliberate as to penalty in this case. However, that will not occur, if at all, until a later proceeding. Until I advise you otherwise, you must not give any thought to penalty whatsoever.

[Source: NCJIC.]

    Throughout this stage of the case you are not to discuss or even consider the subject of the penalty or punishment which might be imposed on the defendant if convicted.

    If you convict the defendant of murder, you will consider and decide the matter of penalty or punishment in a separate proceeding under further instructions of the court. If you convict the defendant of any lesser offense, the matter of penalty or punishment will be decided by the court.

[Cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-17-3 [Jury-Not To Consider Penalty At Stage Of Trial In Capital Case When Penalty Not In Issue] (State Bar of South Dakota, 2000).]

    At no time during this trial are you permitted to consider, discuss, or even think about the question of what punishment the defendant should receive if [he] [she] is convicted.

    You must not assume that by giving this instruction I am expressing any opinion as to whether the defendant is guilty or not guilty. The purpose of this instruction is simply to remind you that your sole duty and concern at this time is to decide if the prosecution has proven the defendant guilty beyond a reasonable doubt.

[Source: NCJIC.]

   At no time during this trial are you permitted to consider, discuss, or even think about the question of what punishment the defendant should receive if [he] [she] is convicted. You must not give any thought whatsoever to penalty.

    You must not assume that by giving this instruction I am expressing any opinion as to whether the defendant is guilty of not guilty. The purpose of this instruction is simply to remind you that your sole duty and concern at this time is to decide if the prosecution has proven the defendant guilty beyond a reasonable doubt.

[Source: NCJIC.]

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RATIONALE: In a bifurcated capital case where the jury first decides guilt and then penalty there is a danger that the jurors will begin to form opinions as to penalty in the hiatus between the guilt verdict and commencement of the penalty deliberations. Hence, a special cautionary instruction may be appropriate.

POINTS AND AUTHORITIES: The unique bifurcated nature of a capital trial presents an especially dangerous potential for the jurors to speculate and form preconceived opinions about the penalty trial. Since the jurors have already found the defendant guilty of special circumstance murder, they may already be leaning toward death in violation of basic federal constitutional notions of fairness and due process. (5th, 6th and 14th Amendments; see also People v. Holt (CA 1997) 15 C4th 619, 684 [63 CR2d 782] [neither party has burden of proof at penalty phase].) "Interviews with 916 capital jurors in eleven states reveal[ed] ... that many jurors reached a personal decision concerning punishment before the sentencing stage of the trial, before hearing the evidence or arguments concerning the appropriate punishment, and before the judge's instructions for making the sentencing decision. Moreover, most of the jurors, who indicated a stand on punishment at the guilt stage of the trial said they were 'absolutely convinced' of their early stands on punishment and adhered to them throughout the course of the trial."  [Emphasis added.] ("Foreclosed Impartiality in Capital Sentencing: Jurors' Predispositions, Guilt-Trial Experience and Premature Decision Making," William J. Bowers, Marla Sandys and Benjamin D. Steiner, 83 Cornell L.Rev. 1476, 1477 (Sept. 1998).)

    Moreover, since jurors in capital cases usually are voir dired about their role in deciding both guilt and penalty, without further instruction the jurors could reasonably assume that consideration of penalty during the trial is permissible if not required.

    Accordingly, a special cautionary instruction should be given precluding consideration of penalty between phases of the trial. (See People v. Turner (CA 1990) 50 C3d 668, 701-02 [268 CR 706].)

    Bias or prejudice as to penalty would implicate the 8th Amendment including the requirement that the verdict be a "reasoned moral response to the defendant's background character and crime." (Buchanan v. Angelone (1998) 522 US 269, 279 [118 SCt 757; 139 LEd2d 702] (J. Breyer Dissenting).)  It would also violate the 8th Amendment requirement that the sentencing determination be reliable. (See NCJIC 301.6.3 [Death Penalty: Sentencing Decision Must Be Reliable].)

    See also NCJIC 303.2.1 [Death Penalty: Admonition To Refrain From Considering Penalty During Guilt Phase].

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.8].

    You are instructed that you are still jurors in this case and have not been discharged. Shortly, we will commence the penalty phase of the trial during which additional evidence may be presented, additional jury instructions will be given and further argument of counsel will be presented. In the meantime, do not discuss the case with anyone or permit anyone to discuss the case with you. Do not read anything about the case. Do not think about or form any opinions about the upcoming penalty trial. It is your sworn obligation to withhold any judgment and decline to form any opinion or give any thought whatsoever as to penalty until after you have heard the penalty evidence, instructions and argument and you have begun penalty deliberations.

[Source: NCJIC.]

   303.2.3    Death Penalty: Whether Jury Should Be Reinstructed With Guilt Phase Instructions At The Penalty Trial

RATIONALE: In jurisdictions using separate guilt and penalty phases in which the jury considers the guilt phase evidence at the penalty phase, the jury may be confused as to whether or not the guilt phase instructions apply at the penalty trial.

POINTS AND AUTHORITIES: In California, the standard pattern instruction (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.84.1 [Duty Of Jury–Penalty Proceeding] (West, 6th Ed. 1996)) provides for reinstruction upon all applicable guilt phase instructions.

    However, in some cases it may be distracting and confusing to the jury to reinstruct upon the multiplicity of guilt phase instructions. The sheer volume of guilt phase instructions may distract the jury from the few penalty instructions which are crucial to a reliable determination as to penalty. Hence, the 8th Amendment may be implicated by over-instruction upon marginally relevant guilt phase issues -- especially over the objection of the defense.

    Moreover, as the California Supreme Court recognized in People v. Saunders (CA 1995) 11 C4th 475, 561 [46 CR2d 751], a reasonable jury would correctly assume that the generic guilt phase instructions continue to apply at the penalty trial. (See also People v. Hawthorne (CA 1992) 4 C4th 43, 73-74 [14 CR2d 133] [it is not prejudicial error for the trial court to fail to reiterate the guilt phase instructions which apply to the penalty phase]; People v. Wharton (CA 1991) 53 C3d 522, 600 [280 CR 631] [same]; but see Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1320 ["... we cannot assume that the jury would carry the definition of torture over from the guilt instruction and apply it in its deliberations on the torture murder special circumstance"].)

    In sum, if requested by the defense, the court should omit or limit reinstruction on guilt instructions and simply reincorporate them by reference to the extent necessary.

    See also NCJIC 303.9.4 [Prior Conviction In Death Penalty Trial: Limiting Instruction Required Sua Sponte].

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.9].

CAVEAT: If the guilt phase instructions are simply incorporated by reference for the penalty phase care should be taken to identify guilt phase instructions which may be incorrect or misleading for penalty purposes. For example, the standard guilt phase instructions to not consider sympathy would be improper at the penalty trial since sympathy for the defendant may be a mitigating factor. Hence, an instruction advising the jury as to the applicability of the guilt phase instructions should inform the jury as to any specific penalty instructions which take precedence over the guilt phase instructions. (Cf. People v. Cummings (CA 1993) 4 C4th 1233, 1336 [18 CR2d 796].)

    You will now be instructed as to all of the law that applies to the penalty phase of this trial.  Disregard all other instructions given to you in other phases of this trial.

    Do not give any added emphasis or consideration to instructions which were also given at the guilt phase of the trial.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.84.1 [Duty Of Jury–Penalty Proceeding] (West, 6th Ed. 1996).]

    In addition to the penalty phase instructions I about to read, you must also consider all of the guilt phase instructions which have previously been given, unless expressly instructed otherwise.

    You must consider all the instructions as a whole and not give any greater or lesser consideration to an instruction simply because it was give at one of the other phases of the trial.

[Source: NCJIC.]

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RATIONALE: Without special instruction the jury may not know or remember that certain guilt phase evidence must not be considered at the penalty trial.

POINTS AND AUTHORITIES: When evidence has been presented at the guilt trial which is irrelevant to the penalty determination, the court should instruct the jury, upon request, as to what specific irrelevant evidence it should ignore. (See People v. Medina (CA 1995) 11 C4th 694, 770-71 [47 CR2d 165].)

    See also NCJIC 26.1.1 [Whether Limited Evidence Should Be Specified].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 7.4; Death Penalty Macro 13.5].

    The following evidence, which was admitted into evidence at the guilt trial, may not be considered by you for any purposes at the penalty trial: _________________________________.

[Source: NCJIC.]

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PRACTICE NOTE:  Although the defendant instructed counsel to offer no evidence in mitigation and asked the court for a death sentence, petitioner's "wishes alone cannot support or justify his death penalty; his sentence must be in accordance with constitutionally-sufficient standards of state law." (Langford v. Day (9th Cir. 1997) 110 F3d 1380, 1391; see also Silva v. Woodford (9th Cir. 2002) 279 F3d 825, 838-41 [defendant's instruction not to call particular witnesses at penalty phase did not excuse counsel's failure to investigate and present potentially compelling evidence]; Johnson v. Singletary (11th Cir. 1998) 162 F3d 630, 641 ["It is well-established in our circuit that counsel has a continuing responsibility to represent and advise a non-cooperative client, particularly when counsel knows or has reason to know that his client is mentally unstable."].)  

    A lawyer who abandons investigation into mitigating evidence in a capital case at the direction of his client must at least have adequately informed his client of the potential consequences of that decision and must be assured that his client has made an informed and knowing judgment.  (Silva v. Woodford (9th Cir. 2002) 279 F3d 825.)  The Ninth Circuit characterizes the guidelines set forth in the ABA Standards for Criminal Justice 4-4.1, cmt. at 4-55 (2d ed. 1980) as suggesting "that a lawyer's duty to investigate is virtually absolute, regardless of a client's expressed wishes."  

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PRACTICE NOTE: See Romano v. Oklahoma (1994) 512 US 1, 9-14 [114 SCt 2004; 129 LEd2d 1].

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PRACTICE NOTE: Any special rules regarding accomplice testimony should apply at the penalty phase as well as the guilt phase of a capital trial. (See People v. Williams (CA 1997) 16 C4th 153, 275-76 [66 CR2d 123].) For example, when the prosecution seeks to introduce evidence of the defendant's unadjudicated prior offenses, the jury may need to be instructed at the penalty phase that accomplice testimony must be corroborated. (Ibid.) However, the corroboration requirement does not extend to cases where the jury has already found the defendant guilty of the aggravated prior crime. (Ibid.)

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    See NCJIC 301.6.3 [Death Penalty: Sentencing Decision Must Be Reliable].

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RATIONALE: When evidence offered for a limited purpose at the guilt trial is admissible to mitigate the sentence a special instruction may be necessary so the jury understands it may consider the evidence in mitigation.

POINTS AND AUTHORITIES: When evidence is offered at the guilt phase for a limited purpose, the jury is generally instructed upon that limited purpose and its consideration of that evidence is limited by such instruction. (See generally NCJIC 26.1 [Limited Purpose Evidence: General Rules].) However, evidence which is limited at the guilt trial may be considered as evidence of mitigation assuming the reliability of the evidence is sufficiently established. (See People v. Stanley (CA 1995) 10 C4th 764, 839 [42 CR2d 543]; see also Green v. Georgia (1979) 442 US 95, 97 [99 SCt 2150; 60 LEd2d 738].) In such cases, the jury should be expressly instructed that the evidence may be considered for mitigating purposes as required by the 8th Amendment of the federal constitution.

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.11].

SAMPLE INSTRUCTION:

    The following evidence was admitted for the limited purpose of __________ at the guilt trial: __________. At the penalty trial, your consideration of such evidence is not so limited. You may consider such evidence as mitigating evidence for the purpose of your penalty determination.

[Source: NCJIC.]

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    303.2.10    Death Penalty: Limitation On Bad Character Evidence Presented At Guilt Phase -- Applicability To Penalty Phase

RATIONALE: Without a limiting instruction the jury may improperly consider bad character evidence admitted at the guilt trial as aggravating evidence at the penalty trial.

POINTS AND AUTHORITIES: Bad character evidence which is presented at the guilt phase to prove the defendant guilty of the charged murder may not be considered by the jury as evidence of bad character at the penalty phase if use of such evidence is not a statutorily authorized aggravating factor. (See NCJIC 301.3.2 [Death Penalty: Jury Consideration Of Nonstatutory Aggravation].) Hence, upon request, the jury should be given a limiting instruction regarding this evidence. (See People v. Champion (CA 1995) 9 C4th 879, 946-47 [39 CR2d 547].)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.10].

    You must not consider in aggravation the following evidence which was admitted to prove the defendant's guilt: ______________(insert applicable evidence).

    This evidence was admitted solely for the purpose of proving the defendant's guilt. In determining penalty you must only consider the specific aggravating factors, upon which you have been instructed.

[Source: NCJIC.]

CAVEAT: If lingering or residual doubt is a penalty phase theory, this instruction may need to be modified or omitted so the jury understands that guilt is an issue at the penalty trial.

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RATIONALE: To impeach an expert, the expert's beliefs about the death penalty may be elicited. In such a case, the defense should have the right to a limiting instruction on this matter if requested.

POINTS AND AUTHORITIES: People v. Mickle (CA 1991) 54 C3d 140, 196 [284 CR 511] holds that it is permissible to elicit a partisan expert's philosophical views on capital punishment in general which might disclose some bias bearing on his or her credibility as a witness. When such evidence is elicited, Mickle authorizes a limiting instruction such as the sample below given in Mickle.

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

CAVEAT: The tactic of eliciting such opinions should be closely scrutinized.

RESEARCH NOTES:

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

    __________________ (insert name of expert) testified regarding [his] [her] views on the death penalty in general. This testimony was not offered for the purpose of determining whether or not the death penalty is appropriate in this case. Rather, it was offered and may be considered by you only for the limited purpose of determining what, if any, bias the witness has for or against the death penalty, and the extent to which such bias . . . bears on your evaluation of the credibility of the witness.

    The question of which penalty to impose is a matter for your determination, and you may not take into account any opinion expressed by any expert witness as to which penalty should be imposed.

[Source: Adapted from People v. Mickle (CA 1991) 54 C3d 140 [284 CR 511].]

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PRACTICE NOTE:  Even if the failure to give a statutorily required instruction at a death penalty sentencing trial, the failure may implicate the Due Process Clause of the federal constitution.  For example, in Carter v. Bowersox (8th Cir. 2001) 265 F3d 705, the federal court found plain error when the trial court omitted a key sentencing instruction. The court based the finding of plain error on the fact that the Missouri law provides a "four-step sentencing scheme," but the trial court instructed the jury only on three of those steps, omitting the second step, under which the jury would have been told that "if it failed to make a unanimous finding that the death penalty was warranted by evidence in aggravation to punishment, it was required to return a life sentence."

    Although the federal court agreed that the instructional error was merely a violation of state law, the court nonetheless held that the petitioner’s 14^th Amendment due process rights were implicated "because the trial judge deviated from Missouri’s sentencing procedure."  (265 F3d at 712; see also Hicks v. U.S. (1980) 447 US 343 [100 SCt 2227; 65 LEd2d 175]; NCJIC 300.3.2 [Constitutional Claims: Due Process Violation For Arbitrary Denial Of State Created Right].)

    Similarly, People v. Marshall (CA 1996) 13 C4th 799, 850-51 [55 CR2d 347] held that the failure to instruct on an element of a special circumstance (death qualifier) is a violation of state law which implicates the defendant's federal due process rights under the Hicks doctrine.

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PRACTICE NOTE: Jenkins v. State (GA 1995) 458 SE2d 477 held that a defendant who wishes to present a mental health defense must waive his privilege against self incrimination and cooperate with a state mental health examination.

    However, this rule would violate the accused’s privilege against self-incrimination if applied to a defendant who indicates that he will present mental health evidence only at the penalty phase of a capital trial. (See State v. Johnson (Ga. 2003) 576 SE2d 831.) "In formulating the rule that a defendant in a case in which the State is seeking the death penalty must either cooperate in an evaluation by a mental health expert whose report will be given to the State or forfeit the right to present expert mental health testimony at trial, we have balanced the truth-seeking function of the courts, the defendant’s constitutionally-protected privilege against self-incrimination, and the State’s interest in having the ability to respond to the defendant’s expert mental health testimony with expert testimony. [Citation.] Under the rule, the defendant’s privilege against self-incrimination is involved because the rule requires the defendant who wishes to present expert mental health evidence, in effect, to waive his right against self-incrimination and cooperate with an expert whose report will be given to the State to use against the defendant. Requiring the defendant’s cooperation with the State’s agent/expert is justified because the State is then able to respond to the defendant’s expert mental health testimony, and the presentation of fraudulent mental health defenses is precluded. (State v. Johnson, 2003 Ga. LEXIS 12, at *3-4; see also Nance v. State (2000) 526 SE2d 560; Lynd v. State (GA 1992) 414 SE2d 5.)

    "We have taken pains to ensure that the extent to which a defendant must waive his constitutionally-protected right to remain silent is no greater than is necessary to serve the purpose mandating the waiver: ‘to permit the State to formulate a response or a rebuttal to the testimony of the defendant’s mental health expert.’ [Citation.] In an effort to minimize the impact of the defendant’s waiver of his constitutional right, we have limited the use to which the State may put the results of the court-ordered evaluation. We have stressed that the results are to be used by the State to respond to the expert mental health testimony presented by the defendant, and that it is error to use in the guilt/innocence phase information gathered [*5] by the mental health expert during court-ordered evaluation for the sentencing phase." (State v. Johnson, (2003 Ga. LEXIS 12, at *3-4; see also Nance v. State, supra, 272 Ga. at 219-220; Abernathy v. State (1995) 462 SE2d 615 [the State may offer expert mental health testimony "strictly in rebuttal of the expert mental health evidence offered in mitigation by the defense[;]" since court-ordered mental health evaluation is necessary for the State to prepare its evidence to rebut the testimony of the defendant’s mental health expert, no court-ordered evaluation is necessary if the defendant states he will not offer mental health evidence through expert testimony; a trial court order on the use of court-ordered mental health evaluation is deficient if it does not limit the use of the evaluation to the rebuttal of the defendant’s expert, as opposed to lay, testimony].)

    In State v. Johnson, the trial court sealed the results of the court-ordered mental health evaluation of the defendant until the conclusion of the guilt/innocence phase in an effort to limit the use of information gathered by the prosecution’s mental health expert in anticipation of the defendant’s announced intent to present expert  mental health testimony in the sentencing phase of the trial. (See also Commonwealth v. Sartin (PA 2000) 751 A2d 1140, 1143-1144 [results of State’s mental health expert’s examination of defendant sealed until guilt/innocence phase concluded and defendant announces he will call his expert in the sentencing phase]; State v. Reid (TN 1998) 981 SW2d 166, 173 [results of State’s mental health expert’s examination of defendant sealed from prosecutors until the conclusion of the guilt/innocence phase and defendant confirms his intent to call his expert in the sentencing phase]; Lagrone v. State (TX 1997) 942 SW2d 602, 610-613 [report of evaluation by State’s expert sealed until defendant’s expert testifies].) Several federal district courts also have ordered the results of the government’s mental health examination of the defendant sealed until the completion of the guilt/innocence phase and the defendant’s announcement that his expert will be called in the sentencing phase. (See U.S. v. Minerd (W.D. Pa. 2002) 197 FSupp 2d 272; U.S. v. Edelin (D.D.C. 2001) 134 FSupp 2d 45, 55- 56; U. S. v. Beckford (E.D. Va. 1997) 962 FSupp 748, 761; U.S. v. Haworth (D.N.M. 1996) 942 FSupp. 1406, 1408-1409; U.S. v. Vest (W.D. Mo. 1995) 905 FSupp 651, 654; see also U.S. v. Allen (8th Cir. 2001) 247 F3d 741, 773-774 [court declined to find a per se constitutional basis for sealing the report of the government’s mental health expert].)

    The Johnson court also rejected the prosecution’s argument that sealing the examination results until the penalty phase unfairly constrained the prosecution’s ability to prepare for the sentencing proceedings.