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303.3 Death Penalty: Sentencing Deliberation Issues

    303.3.1 Death Penalty: Factors For Consideration At Penalty Trial
    303.3.2 Death Penalty: Individual Juror Determination Of Aggravation And Mitigation
    303.3.3 Death Penalty: Failure To Label Factors As Mitigating Or Aggravating
    303.3.4 Death Penalty: Jury May Not Consider Deterrence Or Monetary Cost
    303.3.5 Error to Instruct Jury That Death Penalty Is Mandatory If Aggravating Circumstances Found
    303.3.6 Death Penalty: Prohibition Against Consideration Of Race, Religion, National Origin Or Gender Of Either Victim Or Defendant
    303.3.7 Death Penalty: Jury May Return Verdict Of Life Even If Aggravation Outweighs Mitigation
    303.3.8 Death Penalty: Duty to Deliberate At Penalty Proceeding
    303.3.9 Death Penalty: Jury Does Not Have Duty To Reach A Verdict
    303.3.10 Death Penalty: Jurors Must Not Place Themselves "In The Shoes" Of The Victim Or Defendant
    303.3.11 Death Penalty: Jury Should Not Be Informed About Defendant’s Right To Appeal
    303.3.12 Death Penalty: Jury Not To Simply Count Aggravating And Mitigating Factors
    303.3.13 Death Penalty: Right To Instruction That Death Is The Greater Penalty
    303.3.14 Death Penalty: Individualized Consideration For Accomplice
    303.3.15 Death Penalty: Improper To Require Rejection Of Death Before Consideration Of Life Verdict
    303.3.16 Death Penalty: Jurors Must Disregard Alleged But Unproven Aggravating Factor
    303.3.17 Responding To Jury Inquiries In Capital Cases

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    See generally NCJIC 303.7 [Death Penalty: Specific Mitigating Factors].

    See generally NCJIC 303.8 [Death Penalty: Aggravation: Miscellaneous Issues].

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RATIONALE: Due to the unique nature of the penalty deliberations the jurors may improperly conclude sentencing is a group decision and there is no need for each juror to individually decide the penalty issues.

POINTS AND AUTHORITIES: The instructions must "unmistakably [tell] the jury that each member must individually decide each question involved in the penalty decision." [Original emphasis.] (People v. Breaux (CA 1991) 1 C4th 281, 315 [3 CR2d 81]; see also McKoy v. North Carolina (1990) 494 US 433, 439 [110 SCt 1227; 108 LEd2d 369].)

    Therefore, at a minimum the defendant has a right to an instruction that each juror must individually decide each question involved in the penalty decision.  (See generally Caldwell v. Mississippi (1985) 472 US 320, 328-34 [105 SCt 2633; 86 LEd2d 231] [reliability of verdict undermined when juror's sense of personal responsibility is compromised].)

    See also NCJIC 273.8.1 [Jury Unanimity Required As To Essential Facts].

    See also NCJIC 301.2.6 [Jury Must Accept Responsibility For Sentencing Decision].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.2; Death Penalty Macro 13.6; 13.7].

CAVEAT: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. (See CAVEAT, NCJIC 303.5 [Death Penalty: List Of Mitigating Factors Not Exclusive].)

    The prosecution and the defendant are entitled to the individual opinion of each juror. You must individually decide each question involved in the penalty decision.

[Source: NCJIC.]

    Next you must consider the whether any mitigating circumstances have been shown to exist. A mitigating circumstance is a fact which does not excuse the crime but which, in fairness and in mercy, you should consider as a reason to impose a sentence of life imprisonment without the possibility of parole, probation or suspension of sentence rather than death. John Client does not have to prove the existence of mitigating circumstances beyond a reasonable doubt. Rather, you should find a mitigating circumstance to exist if there is any evidence in support of it. Furthermore, you, as individual jurors, must consider mitigating circumstances. Therefore, even if all other eleven jurors find that a certain mitigating circumstance does not exist, if you believe it does exist, you must find that mitigating circumstance, and weigh it in your further deliberations.

[Source: Louisiana Indigent Defense Death Penalty Manual, Sample Penalty Instructions Section II.]

    Finally, each individual juror must decide whether death or life in prison is the appropriate punishment for this crime and for John Client. Even if there are aggravating factors that overcome mitigating factors, or even if there are no mitigating circumstances at all, the law permits the jury to impose a sentence of life imprisonment without the possibility of parole, probation or suspension of sentence out of mercy or a determination that life in prison is sufficient punishment under the circumstances. Only if you, the jurors, unanimously agree BEYOND A REASONABLE DOUBT that death is the appropriate punishment, and that you should not exercise mercy, may you impose the sentence of death.

    You should indicate your findings on the jury verdict form which you will have with you in the jury deliberation room.

[Source: Louisiana Indigent Defense Death Penalty Manual, Sample Penalty Instructions Part 3(a) Central Sentencing Instruction Section IV.]

    John Client does not have to prove the existence of mitigating circumstances beyond a reasonable doubt. Rather, you must find a mitigating circumstance to exist if you find any evidence to support it.

    Furthermore, you, as individual jurors, must consider mitigating circumstances. Therefore, even if all other eleven jurors find that a certain mitigating circumstance does not exist, if you believe it does exist, you must find that mitigating circumstance, and consider it in your further deliberations.

[Source: Louisiana Indigent Defense Death Penalty Manual, Sample Penalty Instructions, Part 3(b), Instruction 4 [Individual Decision On Mitigation.]

    Before you may consider imposing the death sentence, each one of you must be convinced beyond a reasonable doubt that the totality of the aggravating circumstances overcome the totality of the mitigating circumstances. If each one of you are not convinced beyond a reasonable doubt that the aggravating circumstances overcome the mitigating circumstances, you must return a verdict of life imprisonment without the possibility of parole, probation or suspension of sentence.

[Source: Louisiana Indigent Defense Death Penalty Manual, Sample Penalty Instructions, Part 3(b), Instruction 5 [Individual Decision On Weighing].]

    The Court instructs the jury that it must be emphasized that the procedure you must follow is not a mere counting process of a certain number of aggravating circumstances versus the number of mitigating circumstances, rather, each individual juror must apply a reasoned moral judgment as to whether this case calls for life imprisonment without the possibility of parole, probation or suspension of sentence or whether death is the only appropriate punishment.

[Source: Louisiana Indigent Defense Death Penalty Manual, Sample Penalty Instructions, Part 3(b), Instruction 6 [Individual Moral Judgment].]

    Each individual juror must decide for himself or herself whether death or life in prison is the appropriate punishment for John Client. Only if each and every juror finds beyond a reasonable doubt that death is the only appropriate punishment may you impose the sentence of death.

[Source: Louisiana Indigent Defense Death Penalty Manual, Sample Penalty Instructions, Part 3(b), Instruction 7 [Individual Final Decision].]

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PRACTICE NOTE: People v. Wader (CA 1993) 5 C4th 610, 657-58 [20 CR2d 788] held that it was error not designate the California capital sentencing factors as aggravating or mitigating . (But see People v. Williams (CA 1997) 16 C4th 153, 273 [66 CR2d 123] [because it was not reasonably likely that defendant's penalty jury misunderstood the trial court's instructions they were not erroneous under the 8th Amendment].)

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    303.3.4    Death Penalty: Jury May Not Consider Deterrence Or Monetary Cost

    See NCJIC 303.13 [Jury Must Not Consider Deterrence].

See Capital Punishment Handbook [4.4.4 a. Deterrence: General Principles And Authorities].

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    See NCJIC 301.5.5 [Life Verdict Permissible Even If Aggravating Factor Is Found].

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RATIONALE: Consideration of factors such as race, religion or gender in imposing a sentence of death would violate equal protection principles as well as the 8th Amendment proscription against arbitrary and unreliable imposition of the death penalty. Therefore, because these factors may influence the jury, either consciously or subconsciously, direct instruction on the matter may be appropriate.

POINTS AND AUTHORITIES: Arbitrary or unreliable imposition of the death penalty is forbidden by the federal constitution. (See Gregg v. Georgia (1976) 428 US 153, 193-205 [96 SCt 2909; 49 LEd2d 859]; see also NCJIC 301.2.1 [Death Sentence Must Not Be Discriminatory, Arbitrary Or Capricious]; NCJIC 301.6.3 [Death Penalty: Sentencing Decision Must Be Reliable].) It follows, a fortiori, that imposition of the death penalty based on arbitrary factors such as the race, religion or gender of the defendant and/or the victim violates the federal constitution. (See McCleskey v. Kemp (1987) 481 US 279, 292-94 [107 SCt 1756; 95 LEd2d 262]; see also Williams v. Currie (M.D.N.C. 2000) 103 FSupp2d 858, 861-69 [in noncapital case male defendant’s equal protection rights violated where he received a significantly harsher total sentence than his similarly situated female co-defendant for no other reason than gender].)

    Nevertheless, empirical studies suggest that the race of the victim and/or the defendant may influence the sentencing verdict in a capital case. Viewed objectively, there is little doubt that race may have an impact on the jury's sentencing decision. The highest percentage of death sentences come in cases where the victim is white and the defendant is a minority. (See McCleskey v. Kemp, 481 US at 285.)

    Hence, a cautionary/limiting instruction in this regard may be appropriate.

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

PRACTICE NOTE: Under the federal death penalty statute each juror is also required to sign a certificate that the verdict was not influenced by the "race, color, religious beliefs, national origin or sex of the defendant or of any victim. ..." (18 USC 3593(f).)

RESEARCH NOTES:

See generally, NCJIC 305.5.2 [Empirical Research].

    Consider all the evidence introduced at the sentencing hearing impartially and without bias or prejudice.  Do not consider the race, religion, national original, or gender of either the victim or the defendant in reaching your sentencing decision.

[Cf. MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 7:00 [Death Penalty] ¶ 3 (Micpel, 1999).]

    In considering whether or not to recommend a sentence of death, you shall not consider the race, color, religious beliefs, national origin, or sex of the Defendant or the victim, and you should not recommend a sentence of death unless you conclude that you would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the Defendant, or the victim, may be. The verdict form will contain a certification to this effect which each of you must sign.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Offenses 76.4 [Controlled Substances (Death Penalty - Supplemental Instructions) Substantive Instruction] (1997).]

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RATIONALE: Without an explanatory instruction the jury may not understand that it can return a verdict of life even if it finds that aggravation outweighs mitigation.

POINTS AND AUTHORITIES: In weighing jurisdiction, it is generally understood that a statutory scheme would violate the 8th Amendment if the jury is required to return a verdict of death after finding that aggravation outweighs mitigation. (See e.g., People v. Jackson (CA 1996) 13 C4th 1164, 1123 [56 CR2d 49] [instructions "as a whole conveyed that the weighing process is 'merely a metaphor for the jurors' personal determination that death is the appropriate penalty under all the circumstances'"]; see also U.S. v. Haynes (W.D. Tenn. 2003) 265 FSupp2d 914; McGregor v. State (OK 1994) 885 P2d 1366, 1384 [ "A life sentence may be given notwithstanding a jury finding of aggravating circumstances which outweigh mitigating circumstances, but an instruction on this point is not required"].)

    Hence, even though the cases have not required an explanatory instruction on this point, the efficacy of such an instruction has been recognized. For example, the Oklahoma Committee recommended such an instruction while stating:

    "The ... instruction [Sample # 1, below] was recommended by the Committee on Uniform Criminal Jury Instructions for Oklahoma even though the case law did not require such an instruction."

(OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-80 [Death Penalty-Weighing Aggravating/Mitigating Circumstances] Committee Comments (Oklahoma Center for Criminal Justice, 2nd ed. 1996).)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.12].

See Capital Punishment Handbook [4.9.1a. Weighing Or Nonweighing By Sentencing Body: General Principles And Authorities].

    Even if you find that the aggravating circumstance(s) outweigh(s) the mitigating circumstance(s), you may impose a sentence of imprisonment for life with the possibility of parole or imprisonment for life without the possibility of parole.

[Source: OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-80 [Death Penalty-Weighing Aggravating/Mitigating Circumstances] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

    Each individual juror shall decide whether death or life in prison is the appropriate punishment for this crime and for John Client. Even if aggravating factors outweigh mitigating factors, the law permits the jury to impose a sentence of life imprisonment without the possibility of parole, probation or suspension of sentence out of mercy or a determination that life imprisonment without the possibility of parole, probation or suspension of sentence is sufficient punishment under the circumstances.

    Mark only one of the following:

    [ ]     We unanimously find beyond a reasonable doubt that death by lethal injection is the appropriate sentence to be passed upon John Client in this case and hereby sentence him to death.

    [ ]     We unanimously find that John Client should be sentenced to life imprisonment without the possibility of parole, probation or suspension of sentence.

    [ ]     We are unable to agree unanimously on punishment.

[Source: Louisiana Indigent Defense Death Penalty Manual, 3(b)-verdict form.]

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    See generally NCJIC Chapter 278 [Duty to Deliberate].

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RATIONALE: The instructions should not imply that the jury must reach a verdict. This would impermissibly coerce the jurors and increase the chances of an unreliable verdict in violation of the defendant's federal constitutional rights.

POINTS AND AUTHORITIES: It is improper to give the jury the impression that it must reach a verdict. (See NCJIC 286.2.3 [Deadlock: Instructions Should Inform Jury That A Verdict Need Not Be Reached].)

    See also NCJIC 303.15.1 [Death Penalty: Consequences Of Failure To Agree At Penalty: Jury Should Be Informed That Guilt Phase Verdicts Will Not Be Affected].

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro13.5].

    It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 7.1 [Duty To Deliberate] ¶ 5 (2000).]

    As jurors, you must deliberate and discuss the case with one another.  Your deliberations and discussions should be conducted in an effort to reach a unanimous verdict if you can do so.  However, you must not change your honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict.

[Cf. WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 1.04 [Jurors’ Duty To Consult With One Another] (West, 2nd ed. 1994).]

    It is your responsibility to consider all the evidence fairly and impartially, to follow the instructions I give, and -- at the end of the trial -- to do your best to reach a unanimous verdict.

[Source: HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 1.01 [Preliminary Instructions Before Trial] ¶ 8 (TRCC 1999).]

    Both the prosecution and the Defendant have a right to expect that you will consider all of the evidence, follow the law, exercise your discretion conscientiously, and reach a just verdict, if you can do so without compromising your honestly held individual opinions about the evidence.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.84.1 [Duty Of Jury–Penalty Proceeding]; CALJIC 17.40 [Individual Opinion Required–Duty To Deliberate] (West, 6th Ed. 1996).]

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PRACTICE NOTE: A challenge to the instruction set forth below was rejected in People v. Roybal (CA 1998) 19 C4th 481, 530 [79 CR2d 487]. The Supreme Court held that the trial court did not err in so instructing the jury because it directed the jurors not to substitute emotion for rational judgment:

    "Another thing you cannot do is place yourself in the shoes of the victim or of the defendant...If you were to place yourself in the shoes of the victim or the shoes of the defendant in deciding this case, then you might just say, ...if someone killed me, that guy...deserves the death penalty. But that is not your job. Your job is a weighing process that I'll get to and I've already told you about. You can't do that. By the same token, if you place yourself in the shoes of the defendant the death penalty would never, or at least arguably, would never, ever be imposed by a jury, because the jurors, or at least one of the twelve, would at least say...I wouldn't like to be killed. So that is not a factor that you can put into the equation...." (Roybal, 19 C4th at 530.)

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RATIONALE: The jurors sense of personal responsibility may be lessened if it considers that the conviction may be appealed. Therefore, the jury should not be instructed regarding appeal unless it specifically inquires.

POINTS AND AUTHORITIES: Jury instructions and argument about appeal are improper because they lessen the jury’s sense of responsibility for the decision to impose capital punishment. (See Caldwell v. Mississippi (1985) 472 US 320, 331 [105 SCt 2633; 86 LEd2d 231]; State v. Clark (LA 1986) 492 So2d 862, 870.) The defendant’s 8th and 14th Amendment rights to a fair sentencing hearing, due process and reliable determination of penalty are compromised by reference to appeal which conveys the message that the jury’s "awesome responsibility" with regard to sentencing is lessened by the fact that their decision is not the "final one." (See State v. Deboue (LA 1989) 552 So2d 355, 365.)

    However, when the jury inquires about the defendant’s right to appeal, a specific response, which admonishes the jury not to be influenced by the defendant's right to appeal, may be appropriate.

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.7; 13.10].

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

SAMPLE INSTRUCTION:

    The fact that the defendant has a right to an automatic appeal in this kind of case should in no way influence your deliberation or your vote in this case.

[Source: State v. Deboue (LA 1989) 552 So2d 355, 364.]

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RATIONALE: Without an explanatory instruction the jurors may tend to simply count the aggravating and mitigating circumstances rather than fairly considering and weighing them.

POINTS AND AUTHORITIES: In jurisdictions which require the jury to weight the factors, the aggravating and mitigating factors are often specifically enumerated. (See People v. Sanders (CA 1995) 11 C4th 475, 557 [46 CR2d 751]; CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.88 [Penalty Trial–Concluding Instruction] ¶ 4 (West, 6th Ed. 1996).) In such jurisdictions the risk of juror misunderstanding may be reduced by expressly instructing the jurors that they are to weigh the factors, not simply count the numbers on each side.

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.12].

See Capital Punishment Handbook [4.9.1a. Weighing Or Nonweighing By Sentencing Body: General Principles And Authorities].

    The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to all factors you are permitted to consider.

[See People v. Cummings (CA 1993) 4 C4th 1233, 1327 [18 CR2d 796]; People v. Edlebacker (CA 1989) 47 C3d 983, 1036 [254 CR 586]; cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.88, [Penalty Trial – Concluding Instruction] ¶ 4, sent. 1 & 2 (West, 6th Ed. 1996).]

    In considering, taking into account, and being guided by the aggravating and mitigating circumstances, you must not decide the evidence of such circumstances by the simple process of counting the number of circumstances on each side. The particular weight of such opposing circumstances is not determined by the relative number but by their relative convincing force on the ultimate question of punishment.

[Source: People v. Cummings (CA 1993) 4 C4th 1233, 1327 [18 CR2d 796].]

    In weighing the aggravating and mitigating factors, you are not to merely count numbers on either side. You are instructed rather to weight and consider the factors. One mitigating circumstance may be sufficient to support a decision that death is not the appropriate punishment in this case. The weight you give to any factor is for you individually to decide.

[Source: People v. Howard (CA 1988) 44 C3d 375, 435 [243 CR 842]; see also People v. Grant (CA 1988) 45 C3d 829, 857-58 n 5 [248 CR 444] ["since our decision in Brown such an instruction has been proper"]; People v. Edlebacker (CA 1989) 47 C3d 983, 1036 [254 CR 586] [this instruction was "properly worded"].]

    In weighing the aggravating and mitigating factors, you are not merely to count numbers on either side. You are instructed, rather, to weigh and consider the factors.

[Source: NCJIC.]

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PRACTICE NOTE: The California Supreme Court in People v. Ochoa (CA 1998) 19 C4th 353, 478 [79 CR2d 408] assumed that death is the worst punishment "as a matter of law." However, the court also cited People v. Bloom (CA 1989) 48 C3d 1194, 1223 [259 CR 669] ["a jury might well conclude that death was 'too good' for the defendant and that life imprisonment with no hope of parole would be the more severe and more appropriate punishment"]. This observation militates in favor of specifically instructing the jury that death is the greater punishment. Otherwise, the jury may use the precise reasoning which Bloom identified, to turn the entire death penalty trial on its head and impose death because it is viewed by the jury as the less severe punishment.

STRATEGY NOTE: Before using this tactic careful consideration should be given to the balance of the evidence. It would probably be most suitable where there is strong mitigating evidence coupled with evidence or argument regarding the severity of imprisonment.

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RATIONALE: At the penalty phase of a capital trial the appropriate sentence must be based on an individualized determination as to each codefendant. Therefore, special instruction may be necessary so the jury does not improperly use the guilt phase rules of vicarious liability in making the sentencing decision.

POINTS AND AUTHORITIES: When guilt is predicated upon vicarious liability, the jury is normally instructed under the standard pattern instructions that a person who aids and abets the perpetrator of the crime is "equally guilty" of the crime committed by the perpetrator. (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 3.00 [Principals–Defined] (West, 6th Ed. 1996).) A similar instruction is given with regard to a conspirator who participates in the conspiracy but does not personally commit the target offense. (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 6.11 [Conspiracy–Joint Responsibility] (West, 6th Ed. 1996).) However, these principles of vicarious liability are inapplicable to the penalty determination which must be based upon the individual culpability and characteristics of the defendant. It is "well established" that the 8th and 14th Amendments require "individualized sentencing determinations in death penalty cases." (Stringer v. Black (1992) 503 US 222, 230 [112 SCt 1130; 117 LEd2d 367]; Clemons v. Mississippi (1990) 494 US 738, 752 [110 SCt 1441; 108 LEd2d 725].) The 8th and 14th Amendments allow a sentence of death to be imposed only upon a defendant "shown to be culpable due to his own actions, intentions, and expectations, not those of his cohorts." (Green v. State (TX 1984) 682 SW2d 271, 287 [applying Enmund v. Florida (1982) 458 US 782 [102 SCt 3368; 73 LEd2d 1140]]; see also Tison v. Arizona (1987) 481 US 137, 155-58 [107 SCt 1676; 95 LEd2d 127]; Martinez v. State (TX 1994) 899 SW2d 655, 657.) Hence, the fact that the defendant played a lesser role in the offense should be given mitigating consideration and any aggravating facts which relate to the accomplice and not the defendant should not be used as aggravating evidence against the defendant.

    The standard pattern instructions may not adequately convey this requirement. For example, CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.85(j) [Penalty Trial–Factors For Consideration...(see (j) Quoted Above)] (West, 6th Ed. 1996) uses the following language: "You shall consider, take into account and be guided by the following factors, if applicable ... (j) whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor."

    This instruction is inadequate because it is specifically limited to situations where the defendant's participation in the commission of the offense was "relatively minor." This unnecessarily limits the jury's consideration of the extent to which the defendant actually participated in the offense. For example, the defendant may have actually participated in a robbery in which the codefendant was the triggerman. Under these circumstances, the jury might not consider that the defendant's participation was "relatively minor" and, therefore, under the standard instruction, would not give mitigating effect to the fact that the accomplice was the triggerman.

    Hence, when appropriate, the pattern instruction should be modified to inform the jury to consider all aspects of the relative participation of the defendant and the accomplice in order to reliably correlate the appropriate sentence to the defendant's actual participation and to assure that a reliable, individualized sentence is imposed in accord with the 8th Amendment of the federal constitution.

    When such instruction is a formulation of a defense theory at the penalty trial it should be given under settled trial practice principles and the federal constitution. (See NCJIC 250.1 [Grounds For Instruction On Defense Theory].)

    See also NCJIC 303.7.3.3 [Lingering Doubt As To Extent Or Degree Of Defendant's Guilt].

    See also NCJIC 303.4.1 [Death Penalty: Reliable Mitigating Evidence Not Admissible In Guilt Trial May Be Admissible At The Penalty Phase].

    See also NCJIC 303.6 [Death Penalty: Consideration Of Defendant’s Individual Role].

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.6].

CAVEAT: This type of instruction may not be appropriate when the defense seeks to have the jury consider leniency received by the accomplice as a mitigating factor. (See NCJIC 303.5 [Death Penalty: List Of Mitigating Factors Not Exclusive].)

    At the guilt phase, you were told that _________________ (insert vicarious liability theory, e.g., an accomplice is liable for the natural and probable consequences of the crime that was facilitated) [those who directly and actively commit the crime and those who aid and abet the crime are equally guilty]; [a conspirator is liable for the natural and probable consequences of any act of a coconspirator to further the object of the conspiracy]. These principles of [accomplice liability] [and] [conspiracy] are not applicable to the determination of which sentence shall be imposed upon defendant __________. Your sentencing determination must be based entirely upon the individual culpability and characteristics of defendant __________ as set forth in these penalty phase instructions.

[Source: NCJIC.]

    The fact that the defendant was [an accomplice] [a coconspirator] who did not personally commit [the killing] [all of the elements of the charged offenses] may be a mitigating factor weighing against a verdict of death. [The fact that the defendant was not the actual killer may be considered as a mitigating factor.]

[Source: NCJIC.]

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PRACTICE NOTE: In State v. Brooks (OH 1996) 661 NE2d 1030, 1040 the jury was instructed that it must unanimously determine the death penalty is inappropriate before moving on to consider a life sentence. The Ohio Supreme Court held the instruction to be contrary to state law, which does not limit when a jury may contemplate a life sentence. It was also held to be inconsistent with the rationale of cases which allow jurors to consider lesser included offenses without first acquitting the defendant of the greater charge. (See NCJIC 275.4 [Lesser Included Offenses: Deliberation And Verdict: The Acquittal First Rule].)

    Moreover, on the constitutional level, the instruction violated the 8th Amendment’s prohibition of cruel and unusual punishment by preventing one or more of the jurors from giving due consideration to factors calling for a penalty less severe than death. (See Mills v. Maryland (1988) 486 US 367, 378-384 [108 SCt 1860; 100 LE2d 384].)

    Similarly, Kubat v. Thieret (7th Cir. 1989) 867 F2d 351, 372 reasoned that under Mills the reliability of a verdict is undermined if the jury instruction leaves even one juror to believe that his or her vote could not affect the ultimate result. Hence, "a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors. Jurors from this point forward should be so instructed." (Brooks, 661 at 1042.)

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AUTHORITY: State v. Nelson (NJ 2002) 803 A2d 1; Sattazahn v. Pennsylvania (2003) 537 U.S. 101 [123 SCt 732; 154 LEd2d 588].

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VOLUME 17 - CHAPTER 303    

    See NCJIC Chapter 285.

RESEARCH NOTES: "Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases," by Stephen P. Garvey, Sheri Lynn Johnson and Paul Marcus (January 2002):

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