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303.4 Death Penalty: Mitigation – Miscellaneous Issues

    303.4.1 Death Penalty: Reliable Mitigating Evidence Not Admissible In Guilt Trial May Be Admissible At The Penalty Phase
    303.4.2 Death Penalty: Single Mitigating Circumstance Sufficient For Life Verdict
    303.4.3 Death Penalty: Use of the Term "Totality" Improperly Implies That One Mitigating Factor May Not Outweigh All Factors In Aggravation
    303.4.4 Death Penalty: Scope Of Mitigation -- No Mitigation Necessary To Reject Death
    303.4.5 Death Penalty: Mitigation Includes Post-Arrest Factors
    303.4.6 Death Penalty: Felony Murder -- Individualized Consideration Of Defendant’s Participation And Culpability
    303.4.7 Death Penalty: Unanimity Not A Requirement For Consideration Of Mitigating Evidence
    303.4.8 Death Penalty: Absence Of Mitigation Is Not Aggravation
    303.4.9 Death Penalty: Jury's Consideration Of Mitigating Evidence May Be Guided

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PRACTICE NOTE: Relying on established United States Supreme Court decisions interpreting the 8th Amendment, Rupe v. Wood (9th Cir. 1996) 93 F3d 1434, 1439 held that relaxed standards govern evidentiary rulings in the penalty phase. Therefore, notwithstanding state law to the contrary, all arguably reliable mitigating evidence offered by the defendant (e.g., polygraph testimony by a qualified examiner under proper conditions) should be admitted if relevant to mitigation in a death penalty trial. (See also Imwinkelried & Garland, Exculpatory Evidence (Lexis, 2nd ed. 1996) § 5-4, pp. 149-52 [application of the accused's constitutional right to specific logical relevance rulings during the sentencing phase]; Id. at § 6-5 (b)(2) pp. 170-175 [application of the accused's constitutional right to present evidence and testimony based on a scientific technique: [polygraph]].)

    Where evidence is presented at a capital sentencing proceeding that may support a statutory mitigating circumstance, the trial court has no discretion on whether to submit the circumstance to the jury. (State v. Fletcher (NC 1998) 500 SE2d 668, 687 [the court erred in failing to instruct jury regarding mental or emotional disturbance as mitigating factor].)

    See also NCJIC 301.6 [Death Penalty: Greater Reliability Is Required].

    See also NCJIC 300.1.5 ["Super Due Process" -- Domestic Rules Of Evidence May Not Be Invoked To Preclude A Criminal Defendant From Establishing A Denial Of A Fair Trial].

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RATIONALE: In jurisdictions where the penalty decision requires weighing of the aggravating and mitigating circumstances, there is a danger that the jury will compare the relative number of each. Therefore, it may be appropriate to expressly instruct the jury so they don't simply add up the aggravating and mitigating factors.

POINTS AND AUTHORITIES: People v. Sanders (CA 1995) 11 C4th 475, 557 [46 CR2d 751] held that an instruction such as the sample below "significantly reduced the risk of juror misapprehension [by] expressly [telling] the jury that ...a single factor could outweigh all other factors."

    However, People v. Jones (CA 1998) 17 C4th 279, 314 [70 CR2d 793] held that an instruction that "one mitigating circumstance may be sufficient to support a decision that death is not the proper penalty" was duplicative and, therefore, properly rejected. This conclusion was based on the fact that the court instructed the jury to "return a verdict of life imprisonment without possibility of parole if it found that the aggravating factors did not substantially outweigh the mitigating factors, if it outweighed them at all." The court failed to explain, however, how the concept of a single mitigating factor justifying a verdict of life is encompassed within the language of the general instruction which was given.

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

CAVEAT: The jury should not be given the impression that it is necessary to find any mitigating factors at all. (See NCJIC 303.4.4 [Death Penalty: Scope Of Mitigation -- No Mitigation Necessary To Reject Death].)

STRATEGY NOTE: If this instructional request is rejected, at a minimum, counsel should be permitted to explain during argument that there is no specific instruction on this point because it is considered to be included in the general weighing instruction. (See NCJIC 272.3.3 [Jury May Consider Summation/Closing Argument Of Counsel As To Meaning Of Instructions If Not Inconsistent With The Judge’s Instructions].)

    See also NCJIC 303.3.7 [Death Penalty: Jury May Return Verdict Of Life Even If Aggravation Outweighs Mitigation].

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

    You must weigh the aggravating and mitigating circumstances rather than simply add them up.

    Thus, even if there is only a single mitigating factors, or none at all, you may still return a verdict of life without the possibility of parole. [If the aggravating circumstances are not sufficiently substantial.]

[Source: NCJIC.]

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PRACTICE NOTE: CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.88 [Penalty Trial - Concluding Instruction] (West, 6th Ed. 1996) instructs the jury that it must consider "the totality of the aggravating circumstances with the totality of the mitigating circumstances." This instruction is misleading because one mitigating factor is sufficient to outweigh all others. (People v. Hayes (CA 1990) 52 C3d 577, 642 [276 CR 874].)

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RATIONALE: Because mandatory death sentences are forbidden by the constitution, the instructions should explain that the jury always has the discretion to return a verdict of life, even if it finds no mitigating circumstances.

POINTS AND AUTHORITIES: In jurisdictions where the jury weighs the aggravating and mitigating factors, the jury should not be required to find a given number of mitigating factors or any at all, as a prerequisite to returning a life sentence. (See People v. Duncan (CA 1991) 53 C3d 955, 978-79 [281 CR 273]; see also People v. Nicolaus (CA 1991) 54 C3d 551, 590-91 [286 CR 628]; Romine v. State (GA 1983) 305 SE2d 93, 99; Davis v. State (GA 1978) 247 SE2d 45, 50.) Instruction upon this principle is necessary to assure that the jury does not improperly impose the burden on the defendant to present affirmative evidence in mitigation to overcome the existence of the special circumstance and any other aggravating factors. (See Duncan, 53 C3d at 978-79.)

    Without a specific instruction on this principle, there is a danger that the jury will not understand from the standard pattern instructions that it may return a verdict of life even if no mitigation exists. For example, the entire focus of the CALJIC instructions (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC (West, 6th Ed. 1996)) are upon a weighing and comparison of the aggravating circumstances with the mitigating circumstances. Without additional instruction, the jurors would likely conclude that if there is no mitigation then the existence of any aggravation at all would warrant imposition of death. This would defeat the purpose of the weighing process and violate the 8th Amendment by making death mandatory when no mitigation is found. (See generally Sumner v. Shuman (1987) 483 US 66, 74-75 [107 SCt 2716; 97 LEd2d 56]; Woodson v. North Carolina (1976) 428 US 280, 304 [96 SCt 2978; 49 LEd2d 944] [mandatory death penalty violates the 8th Amendment].)

    The typical language of the "catch-all" mitigation instruction is not sufficient to convey this principle. First, most catch-all instructions do not include the concept set forth in the sample instruction. Such instructions merely inform the jury as to other matters which it may consider to be mitigating. (People v. Jones (CA 1998) 17 C4th 279, 314 [70 CR2d 793].) The sample instruction, on the other hand, informs the jury that it may return a verdict of life even if there is no mitigating evidence at all. Because no other standard instruction informs the jury of this rule, the sample instruction is necessary.

    Second, the defendant has a federal constitutional right to have the jury instructed on his or her theory of the case. (See NCJIC 250.1.1 [Litigant’s Right To Instruction On Theory Of Case].) This rule should be equally, if not more, applicable when that theory of the case relates to the defendant's attempt to persuade the jury to return a verdict of life rather than death. (See Beck v. Alabama (1980) 447 US 625, 625-47 [100 SCt 2382; 65 LEd2d 392] [8th Amendment requires heightened reliability and scrutiny]; see also NCJIC 301.6 [Death Penalty: Greater Reliability Is Required].) Therefore, the defendant should be permitted to clarify and pinpoint legal principles upon which the theory of the defense is founded when those principles, even though arguably included within a more general instruction, are not specifically stated to the jury in the instructions.

    See also NCJIC 303.3.5 [Error To Instruct Jury That Death Penalty Is Mandatory If Aggravating Circumstances Found].

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

STRATEGY NOTE: If the instruction is refused because it is covered by other more general instructions (see e.g., People v. Jones (CA 1998) 17 C4th 279, 314 [70 CR2d 793]), counsel should consider informing the jury during argument that this rule of law is included in the general instructions. (See NCJIC 272.3.3 [Jury May Consider Summation/Closing Argument Of Counsel As To Meaning Of Instructions If Not Inconsistent With The Judge’s Instructions].)

CAVEAT: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. (See NCJIC 303.3.1 [Death Penalty: Factors For Consideration At Penalty Trial].)

FEDERALIZATION: By promoting a reliable, nonarbitrary, and individualized sentencing determination, this instruction protects the defendant's federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (1992) 504 US 527, 533-38 [112 SCt 2114; 119 LEd2d 326]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Clemons v. Mississippi (1990) 494 US 738,753-54 [110 SCt 1441; 108 LEd2d 725]; McCleskey v. Kemp (1987) 481 US 279, 307-08 [107 SCt 1756; 95 LEd2d 262].)

See Capital Punishment Handbook [4.8.2.1a. Minimal Participation In Crime: Authorities].

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

    You may set the penalty to be imposed at life imprisonment.

    It is not required, and it is not necessary, that you find any extenuating or mitigating fact or circumstance in order for you to return a verdict setting the penalty to be imposed at life imprisonment. Whether or not you find any extenuating or mitigating facts or circumstances, you are authorized to fix the penalty in this case at life imprisonment.

    If you find from the evidence, beyond a reasonable doubt, the existence in this case of one or more statutory aggravating circumstances as given you in charge by the court, then you would be authorized to recommend the imposition of a sentence of life imprisonment without parole, or a sentence of death, but you would not be required to do so.

    If you should find from the evidence in this case, beyond a reasonable doubt, the existence of one or more statutory aggravating circumstances as given you in charge by the court, you would also be authorized to sentence the defendant to life imprisonment.

    You may fix the penalty at life imprisonment, if you see fit to do so, for any reason satisfactory to you, or without any reason.

[Source: GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES (B) 13(d) [Death Penalty Charge: May Fix Penalty At Life Imprisonment For Any Reason] p. 88 (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000); see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-22-6 [Capitol Punishment - Jury May Fix Penalty at Life Imprisonment for Any Person] (State Bar of South Dakota, 2000).]

    You need not find any extenuating or mitigating fact or circumstance in order for you to return a verdict of life imprisonment. Whether or not you find any extenuating or mitigating facts or circumstances, you are authorized to fix the penalty in this case at life imprisonment.

[See GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES (B) 13(d) [Death Penalty Charge: May Fix Penalty At Life Imprisonment For Any Reason] ¶ 2, p. 88 (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).]

    A juror may decide, even in the absence of mitigating evidence, that the aggravating evidence is not comparatively substantial enough to warrant death.

[Source: Adapted from People v. Duncan (CA 1991) 53 C3d 955, 978-79 [281 CR 273].]

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PRACTICE NOTE: See Skipper v. South Carolina (1986) 476 US 1, 7 [106 SCt 1669; 90 LEd2d 1]; Pickens v. State (AR 1987) 730 SW2d 230, 223.

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    303.4.6    Death Penalty: Felony Murder -- Individualized Consideration Of Defendant’s Participation And Culpability

RATIONALE: Without special instruction the jurors may be influenced by the other participants instead of limiting their consideration to the individual participation and culpability of the defendant.

POINTS AND AUTHORITIES: The 8th Amendment of the federal constitution requires that the sentencing decision be individualized. (See NCJIC 303.6 [Death Penalty: Consideration Of Defendant’s Individual Role].)

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

    In deciding whether a person found guilty of murder in the first degree shall be punished by death, [or life imprisonment] you must give individualized consideration to the defendant’s degree of participation and focus on the defendant’s individual culpability in the killing.

[See Williamson v. State (OK 1991) 812 P2d 384, 402; cf. OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-71 [Death Penalty Proceedings - Felony Murder] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

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RATIONALE: Without an explanatory instruction the jurors may improperly assume that a mitigating circumstance cannot be found unless all jurors unanimously agree as to that factor.

POINTS AND AUTHORITIES: It is settled that a requirement of unanimity improperly limits consideration of mitigating evidence in violation of the 8th Amendment of the federal constitution. (See McKoy v. North Carolina (1990) 494 US 433, 442-43 [110 SCt 1227; 108 LEd2d 369]; see also Mills v. Maryland (1988) 486 US 367, 383 [108 SCt 1860; 100 LEd2d 384]; State v. Nelson (NJ 2002) 803 A2d 1.) Moreover, such an instruction is needed to promote reliability in death penalty cases. (See Clark v. Tansy (NM 1994) 882 P2d 527, 530-31; see also Henry v. Horn (ED Penn. 2002) 218 FSupp2d 671, 688-690 [instructions created a reasonable likelihood that the jury could have understood the instructions to require a unanimity finding as to mitigating factors]; but see People v. Breaux (CA 1991) 1 C4th 281, 314 [3 CR2d 81] [no error in refusing defense request for an instruction explaining that unanimity is not a requisite for consideration of mitigating evidence].)

NOTE:  The death sentence of Mumia Abu-Jamal (Abu-Jamal v. Horn (E.D. Pa. 2001) 2001 U.S. Dist. LEXIS 20812 was reversed in federal district court based on McKoy v. North Carolina (1990) 494 US 433 [110 SCt 1227; 108 LEd2d 369] and Mills v. Maryland (1988) 486 US 367, 384 [108 SCt 1860; 100 LEd2d 384].

    See also NCJIC 303.3.2 [Death Penalty: Individual Juror Determination Of Aggravation And Mitigation].

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

    Unanimous agreement of jurors concerning mitigating circumstances is not required.

[Source: OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-78 [Death Penalty-Determination, Mitigating Circumstances] (1997 Supp.) (Oklahoma Center for Criminal Justice, 2nd ed. 1996); adopted by the Oklahoma Committee on Uniform Criminal Jury Instructions despite case law concluding that even without such an instruction the jury could not reasonably interpret the instructions to require unanimity regarding mitigating circumstances. (See McGregor v. State (OK 1994) 885 P2d 1366, 1384; Brison v. State (OK 1994) 876 P2d 240, 262).]

    An individual juror may consider something as a mitigating factor even if none of the other jurors consider that factor to be mitigating. There is no need for the jurors to unanimously agree on the presence of a mitigating factor before considering it.

[Source: NCJIC.]

    Mitigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame. The determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case.

    While all twelve jurors must unanimously agree that the State has established beyond a reasonable doubt the existence of at least one aggravating circumstance prior to consideration of the death penalty, unanimous agreement of jurors concerning mitigating circumstances is not required. In addition, mitigating circumstances do not have to be proved beyond a reasonable doubt in order for you to consider them.

[Source: OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-78 [Death Penalty Proceedings -- Jury's Determination Of Mitigating Circumstances] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

    To the extent possible, you should attempt to reach an agreement on the question of whether a particular mitigating factor does or does not exist. However, the law does not require unanimity with respect to the finding of mitigating factors. Therefore, each juror must individually determine whether or not each mitigating factor exists and each juror must individually decide whether any aggravating factor or aggravating factors unanimously found outweigh beyond a reasonable doubt the mitigating factor or mitigating factors that the juror has found to be present.

[Source: State v. Nelson, 2002 N.J. LEXIS 1089 (2002); Mills v. Maryland (1988) 486 US 367, 383 [108 SCt 1860; 100 LEd2d 384].]

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RATIONALE: The jury may be confused and/or misled if obviously inapplicable aggravating or mitigating factors are listed in the instructions.

POINTS AND AUTHORITIES: The inclusion of inapplicable factors in the list of aggravating and mitigating factors violates the defendant's federal constitutional right to a reliable and fair sentencing process under the 8th and 14th Amendments. (Miller v. State (AR 1980) 605 SW2d 430, 438; see also Penry v. Lynaugh (1989) 492 US 302, 319-28 [109 SCt 2934; 106 LEd2d 256]; Eddings v. Oklahoma (1982) 455 US 104, 112-16 [102 SCt 869; 71 LEd2d 1].) Moreover, apart from the constitutional issues, it has been recognized that deletion of irrelevant factors is "preferable." (See NCJIC 303.4.8 [Death Penalty: Absence Of Mitigation Is Not Aggravation].)

    Should the inapplicable factors be included in the instruction over this objection, the defense should request a clarifying instruction such as Sample Instruction # 1, below. Such an instruction is correct in light of 8th Amendment jurisprudence which requires the jury to consider factors which are relevant and based on reason. (See NCJIC 301.4.1.1 [Death Penalty: The Jury Must Consider All Mitigating Evidence]; see also People v. Bonin (CA 1988) 46 C3d 659, 699 [250 CR 687]; People v. Melton (CA 1988) 44 C3d 713, 769 [244 CR 867].)

    By promoting a reliable, nonarbitrary, and individualized sentencing determination and by protecting against jury consideration of matters which are constitutionally irrelevant, constitutionally protected, arbitrary, or discriminatory, this instruction protects the defendant's federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Dawson v. Delaware (1992) 503 US 159, 160-69 [112 SCt 1093; 117 LEd2d 309]; Sochor v. Florida (1992) 504 US 527, 529-38 [112 SCt 2114; 119 LEd2d 326]; Clemons v. Mississippi (1990) 494 US 738, 753 [110 SCt 1441; 108 LEd2d 725]; Penry v. Lynaugh (1989) 492 US 302, 318 [109 SCt 2934; 106 LEd2d 256]; McCleskey v. Kemp (1987) 481 US 279, 299-317 [107 SCt 1756; 95 LEd2d 262].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 13].

CAVEAT: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. (See NCJIC 303.3.1 [Death Penalty: Factors For Consideration At Penalty Trial].)

    Only those factors which are applicable on the evidence adduced at trial are to be taken into account in the penalty determination. All factors may not be relevant and a factor which is not relevant to the evidence in a particular case should be disregarded. The absence of a statutory mitigating factor does not constitute an aggravating factor.

[Source: NCJIC.]

    The fact that you are given a list of aggravating or mitigating circumstances should not cause you to infer that the court believes that any of the circumstances do or do not exist. The law requires that the jury be given such a list in every case. Whether any aggravating or mitigating circumstances exist is a fact for you to determine based upon the evidence presented.

[Source: Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 7.03E [Instructions for Capital Case Sentencing Hearings-Closing Instruction] (West, 1994).]

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PRACTICE NOTE: "Although Lockett and Eddings prevent a State from placing relevant mitigating evidence 'beyond the effective reach of the sentencer' (Graham v. Collins (1993) 506 US 461, 475 [113 SCt 892; 122 LEd2d 260]), those cases and others in that decisional line do not bar a state from guiding the sentencer's consideration of mitigating evidence." (Johnson v. Texas (1993) 509 US 350, 362 [113 SCt 2658; 125 LEd2d 290].)