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VOLUME 17 - CHAPTER 303
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303.5 Death Penalty: List Of Mitigating Factors Not Exclusive

    303.5.1 Death Penalty: List Of Mitigating Factors Not Exclusive -- General Principles
    303.5.2 Jury Must Be Permitted to Consider Nonstatutory Mitigation
    303.5.3 Modification Of “Catch-All” Mitigation Instruction To Pinpoint Defense Theories
    303.5.4 Death Penalty: Checklist Of Potential Specific Mitigating Factors Included In Catch-All Mitigation Instruction
    303.5.5 Death Penalty: Prospects For Rehabilitation As Mitigating Factor

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RATIONALE: Without special instruction the jurors may improperly assume that they may only consider the specifically enumerated factors.

POINTS AND AUTHORITIES: The 8th Amendment requires that the jury consider any relevant mitigating factor. (See Lockett v. Ohio (1978) 438 US 586, 604 [98 SCt 2954; 57 LEd2d 973]; see also NCJIC 301.4.1.1 [Death Penalty: The Jury Must Consider All Mitigating Evidence].) Hence, it has been recognized that when the jury is given a list of potentially mitigating factors, it is appropriate to instruct the jury that the specified factors are only examples. (See e.g., People v. Wharton (CA 1991) 53 C3d 522, 600, fn 23 [280 CR 631]; see also People v. Noguera (CA 1992) 4 C4th 599, 647 [15 CR2d 400].)

    Such an instruction implements the defendant's 8th and 14th Amendment guarantees to due process, equal protection and against cruel and unusual punishment by informing the jury that mitigation is not limited to the enumerated factors but includes any mitigating information that may convince it to impose a sentence less than death. (Blystone v. Pennsylvania (1990) 494 US 299, 308 [110 SCt 1078; 108 LEd2d 255]; McCleskey v. Kemp (1987) 481 US 279, 305-06 [107 SCt 1756; 95 LEd2d 262].) It also correctly informs the jury that mercy, sympathy and sentiment are relevant in giving weight to the mitigating factors. (See People v. Easley (CA 1983) 34 C3d 858, 874-80 [196 CR 309].) It further informs the jury that it need not be unanimous as to mitigation per the 8th Amendment. (Mills v. Maryland (1988) 486 US 367, 377-383 [108 SCt 1860; 100 LEd2d 384].)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.6; 13.11].

NOTES: In its original form the second sentence of paragraph 3 required a finding of "substantial evidence" for the jury to consider a mitigating factor. (Ibid.) In rejecting the defendant's claim on appeal that the "substantial evidence" language implicated the 8th Amendment the court found that the challenged instruction generally favored the defendant and was consistent with 8th Amendment guarantees. The court concluded that nothing in the instruction prevented the jury "from considering a mitigating circumstance no matter how strong or weak the evidence is." (Id. at 601.) Hence, the "substantial evidence" language has been replaced with this language from the Wharton decision.

    In light of the requirement that each juror individually consider the existence and weight of mitigation (see NCJIC 301.4.1.1 [Death Penalty: The Jury Must Consider All Mitigating Evidence], NCJIC has modified the form of the Wharton instruction to refer to the individual juror rather than the jury as a whole. This form corresponds to the form of CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.87 [Penalty Trial–Other Criminal Activity–Proof Beyond A Reasonable Doubt] (1989 Rev.) (West, 6th Ed. 1996) which explains the burden of proof and requirement of individual juror determination as to other crimes aggravation. (See also NCJIC 303.9 [Death Penalty: Unadjudicated Prior Crimes As Aggravation].)

    "And/or" was added to the mercy-sympathy language of the Wharton instruction for sake of clarity.

CAVEAT: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. In a study of ten separate California juries, the following findings were made: 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." Comprehension of Legal Crimes -- 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].)

    The mitigating circumstances that I have read for your consideration are given merely as examples of some of the factors that a juror may take into account as reasons for deciding not to impose a death sentence in this case. A juror should pay careful attention to each of those factors. Any one of them may be sufficient, standing alone, to support a decision that death is not the appropriate punishment in this case. But a juror should not limit his or her consideration of mitigating circumstances to these specific factors.

    A juror may also consider any other circumstances relating to the case or to the defendant as shown by the evidence as reasons for not imposing the death penalty.

    A mitigating circumstance does not have to be proved beyond a reasonable doubt. A juror may find that a mitigating circumstance exists if there is any evidence to support it no matter how weak the evidence is. [¶] Any mitigating circumstance may outweigh all the aggravating factors.*

    A juror is permitted to use mercy, sympathy and/or sentiment in deciding what weight to give each mitigating factor.

* It is not necessary for the jury to find any mitigating factors at all to return a life verdict. (See NCJIC 303.4.4 [Death Penalty: Scope Of Mitigation -- No Mitigation Necessary To Reject Death].)

[Source: Adapted from People v. Wharton (CA 1991) 53 C3d 522, 600 [280 CR 631].]

    The mitigating factors enumerated in the instructions are only examples of mitigating factors that you should consider in assessing the penalty. You should pay careful attention to the factors in mitigation but you are not required to limit your consideration of mitigating circumstances to these factors. You may consider other circumstances as reasons for not imposing the death penalty.

[Source: People v. Noguera (CA 1992) 4 C4th 599, 647 [15 CR2d 400].]

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RATIONALE: Without an explanatory instruction the jury may improperly assume that it can only consider mitigating factors which are specifically enumerated in the instruction.

POINTS AND AUTHORITIES: The 8th Amendment requires that the jury be permitted to consider any relevant mitigating factor, whether or not it is included in the statutory factors. (See NCJIC 301.4.1.1 [Death Penalty: The Jury Must Consider All Mitigating Evidence]; see also Payton v. Woodford (9th Cir. 2002) 299 F3d 815; Stone v. Dugger (11th Cir. 1988) 837 F2d 1477, 1478; see also Ruffin v. Dugger (11th Cir. 1988) 848 F2d 1512, 1518-19]; OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-79, use note [Death Penalty-Circumstances Which May Be Mitigating] 1997 Supp. (Oklahoma Center for Criminal Justice, 2nd ed. 1996) ["This list is intended to be illustrative, rather than exclusive, and the trial court should instruct the jury on any other mitigating circumstances for which evidence has been introduced"].)

    See also NCJIC 303.5.2 [Modification Of "Catch-All" Mitigation Instruction To Pinpoint Defense Theories].

    See also NCJIC 303.7.1 [Death Penalty: Miscellaneous Mitigating Factors].

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.6; 13.11].

    The mitigating circumstances that I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death sentence in this case. You should pay careful attention to each of those factors. Any one of them may be sufficient, standing alone, to support a decision that death is not the appropriate punishment in this case. But you should not limit your consideration of mitigating circumstances to these specific factors.

    You may also consider any other circumstances relating to the case or to the defendant as shown by the evidence as reasons for not imposing the death penalty.

    A mitigating circumstance does not have to be proved beyond a reasonable doubt to exist. You must find that a mitigating circumstance exists if there is any substantial evidence to support it.

    Any mitigating circumstance presented to you may outweigh all the aggravating factors. You are permitted to use mercy, sympathy, or sentiment in deciding what weight to give each mitigating factor.

[Source: People v. Wharton (CA 1991) 53 C3d 522, 600, n 23 [280 CR 631; 809 P2d 290] ]instruction approved].]

VOLUME 17 - CHAPTER 303

RATIONALE: Without specific instruction on the defense theories of mitigation, the jury may not consider valid mitigating evidence.

POINTS AND AUTHORITIES: This instruction is necessary for a reliable, nonarbitrary, individualized, reasoned and moral sentencing determination and is thus required by the due process, equal protection, and cruel and unusual punishment provisions of the California and United States Constitutions. (5th, 8th and 14th Amendments.) (See e.g., Dawson v. Delaware (1992) 503 US 159, 160-169 [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]; Caldwell v. Mississippi (1985) 472 US 320, 338 [105 SCt 2633; 86 LEd2d 231]; see also NCJIC, Death Penalty Practice Guide (DPPG), Section II and authorities cited therein.) Also, because the instruction is required by state law failure to give it would violate the Due Process Clause of the federal constitution (14th Amendment) by arbitrarily denying the defendant a state created right. (See e.g., Hicks v. Oklahoma (1980) 447 US 343, 346 [100 SCt 2227; 65 LEd2d 175].)

    In a jurisdiction where the jury is given a "catch-all" mitigating factor, it is often assumed that the jury will understand this factor to encompass nonstatutory defense theories of mitigation. (See e.g., OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-79 [Death Penalty Proceedings - circumstances Which May be Mitigating] use note, p. 171 (Oklahoma Center for Criminal Justice, 2nd ed. 1996) ["This list is intended to be illustrative, rather than exclusive, and the trial court should instruct the jury on any other mitigating circumstances for which evidence has been introduced"].)

    However, this view is contrary to the settled rule that a litigant has a right to a specific defense theory instruction.

    "A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case." (Soule v. General Motors Corp. (CA 1994) 8 C4th 548, 572 [34 CR2d 607] [emphasis added; citations omitted]; see also NCJIC 250.1 [Grounds For Instruction On Defense Theory].)

    State v. Biegenwald (NJ 1991) 594 A2d 172, 195-197 applied this rule directly to capital trials, holding that 8th Amendment reliability principles required that case-specific nonstatutory mitigating factors proposed by the defense which have some support in the evidence must be specifically listed in the judge’s charge to the jury. Merely including the text of that state’s general catch-all instruction is inadequate.

    Empirical research continues to undercut the earlier cases (e.g., Boyde v. California (1990) 494 US 370, 381-382 [110 SCt 1190; 108 LEd2d 316]; People v. Kaurish (1990) 52 C3d 648, 705 [276 CR 788]) holding that some version of the catch-all mitigating instruction is sufficient to guide the jury and obviates the need for any additional instructions concerning mitigating factors. This research has demonstrated literally fatal misunderstanding by a large proportion of jurors of basic constitutional concepts underlying capital sentencing. Professor Haney found the "expanded" factor (k) instruction to be the least accurately understood of California’s 11 sentencing factors, with 36 percent of his respondents erroneously concluding that it is an aggravating, not a mitigating, factor. (Haney & Lynch, Comprehending Life and Death Matters: A Preliminary Study of California’s Capital Penalty Instructions (1994) 18 Law & Human Behavior 411, 423-424, 428-429.) A study of actual California jurors who had served in capital cases found:

    "Many of the jurors who were interviewed simply dismissed mitigating evidence that had been presented during the penalty phase because they did not believe it ‘fit in’ with the sentencing formula that they had been given by the judge, or because they did not understand that it was supposed to be considered mitigating....

    "Other jurors recognized mitigating evidence as such but then rejected or limited its significance by imposing additional conditions on the concept that would make it difficult to ever influence a capital verdict. Thus, fully 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.... In addition, 6 of the California juries in the study rejected mitigating evidence because it did not completely account for the defendant’s actions." (Haney et al., Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death (1994) 50 (no. 2) J. of Social Issues 149, 167-168 [emphasis in original].)

    Insofar as these studies indicate that the lack of understanding of factor (k) is attributable to a profound lack of understanding of what "mitigation" means (Haney & Lynch, supra, 18 Law & Human Behavior at pp. 420-422), the constitutional harm is even more pronounced. (See also State v. Bey (1988) 548 A2d 887, 910-911 [instructions on mitigating factors which merely restate the statutory text of the mitigating factors are inadequate because they do not explain the nature of the mitigating inference sought to be drawn].)

    The systematic study of actual capital-case jurors in many states being conducted by the Capital Jury Project is demonstrating virtually without exception a serious lack of understanding on the part of these jurors of many of the concepts which are at the core of the 8th Amendment restrictions on the death penalty. (See generally Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings (1995) 70 Ind. L.J. 1043, 1077-1102; Haney, Taking Capital Jurors Seriously (1995) 70 Ind. L.J. 1223.) The nature of these misunderstandings is such that they virtually always skew the process in favor of death. (See Luginbuhl & Howe, Discretion in Capital Sentencing Instructions: Guided or Misguided? (1995) 70 Ind. L.J. 1161, 1176-1177; Haney & Lynch, supra, 18 Law & Human Behavior at pp. 428.) These issues concern fundamental principles of law, not "technical hairsplitting." (See Boyde v. California, supra, 494 US at p. 381.) One study summed up, "if the final penalty decision is death, there is a high probability [i.e., not just a "reasonable likelihood"] that this final penalty verdict is partially a product of the faulty interpretation of the law." (Luginbuhl & Howe, supra, 70 Ind. L.J. at p. 1180.) The empirical data demonstrate that "common sense understanding" of these principles is sufficiently likely to be wrong that it cannot be relied upon consistently with the 8th Amendment’s requirement of heightened reliability in capital sentencing.

    The Jury Project’s reliance on the experience of actual jurors in death penalty trials obviates any objections to research using mock juries and hypothetical cases. (See also Lockhart v. McCree (1986) 476 US 162, 171 [106 SCt 1758; 90 LE2d 137].) Critique is without significance, however, even with respect to other research:

    "Because we studied individual rather than collective interpretations of these instructions, we could not address the issue of whether the lack of juror comprehension would likely be corrected in the course of penalty phase deliberation. However, several things seem to us to minimize this possibility. Nothing in the California instruction requires capital juries to reach consensus about the meaning of the instructions themselves, and there are no verdict forms that require them to agree on the factors that led them to their verdict. Moreover, the prevalence of misunderstanding that characterized both the overall definitions [of "aggravation" and "mitigation"] and the template of factors [(a) through (k)] in the California instruction suggests that even the collective intelligence of most capital juries is likely to be highly compromised on these issues. Indeed, based on our data, the likelihood of a capital defendant’s life or death verdict being decided by a jury in which at least one member is completely inaccurate in his or her definition of aggravation or mitigation, and incorrect as to at least two specific factors that form the capital sentencing template in California (19% of our sample) is greater than 2 to 1. This compares to less than a 1 in 2 likelihood of such a jury containing a juror who is legally correct on both terms and completely accurate as to the sentencing template (.04% of our sample). In addition, Ellsworth’s (1989) research on the general issue of whether ‘twelve heads are better than one’ in improving jury comprehension of instructions indicated that while some errors of instructional interpretation are corrected in deliberation, about an equal number of correct interpretations are relinquished in favor of incorrect ones. Finally, interview data collected by Haney, Sontag, and Costanzo (1994) indicated that a number of basic instructional misconceptions were still held by actual capital jurors in California, long after they had deliberated and rendered their verdicts." (Haney & Lynch, supra, 18 Law & Human Behavior at p. 425, fn. 14.)

    There is now "converging proof that the same kinds of misunderstandings occur in both experimental and real capital jury decision-making. Whether they are given these instructions in the quiet of the laboratory or the intense experience of the capital trial, whether they hear them from a researcher or a judge, and whether they report their understandings immediately or much later, people show serious comprehension problems." (Hans, How Juries Decide Death: The Contribution of the Capital Jury Project (1995) 70 Ind. L.J. 1233, 1239.)

    Accordingly, when the defendant relies on a specific theory of nonstatutory mitigation that theory should be added.

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

See Capital Punishment Handbook [4.8.2.2a.Youth/Family History: Authorities].

See also Capital Punishment Handbook [4.8.2.8a."Catch All": Authorities].

See generally, NCJIC 305.5.2 [Empirical Research].

    Consider any circumstance which mitigates the gravity of the crime even though it is not a legal excuse for the crime.  Mitigating factors include any sympathetic, compassionate, merciful, or other aspect of the defendant's background character, or record or social, psychological or medical history that provides a basis for a sentence less than death, whether or not related to the offense for which he is on trial.  Disregard any jury instruction given to you in the guilt phase of this trial which conflicts with this principle.

    These aspects of the defendant and his background include but are not limited to:

[Add appropriate defense theory of mitigation].*

* See NCJIC 303.5.3 [Death Penalty: Checklist Of Potential Specific Mitigating Factors Included In Catch-All Mitigation Instruction] for sample checklist.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.85(k) [Penalty Trial–Factors For Consideration] (West, 6th Ed. 1996).]

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    303.5.4    Death Penalty: Checklist Of Potential Specific Mitigating Factors Included In Catch-All Mitigation Instruction 

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PRACTICE NOTE: See [NF] Belmontes v. Woodford (9th Cir. 7/15/2003, No. 01-99018) 335 F3d 1024, 2003 U.S. App. LEXIS 14127 [sentence reversed because the jury was not instructed that it must consider the state prisoner's principal mitigation evidence, which tended to show that he would adapt well to prison and would likely become a constructive member of society if incarcerated for life without possibility of parole].

    See also 303.5.4 [Death Penalty: Checklist Of Potential Specific Mitigating Factors Included In Catch-All Mitigation Instruction].