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303.7 Death Penalty: Specific Mitigating Factors

    303.7.1 Death Penalty: Miscellaneous Mitigating Factors

    303.7.1.1 Death Penalty: Courtroom Observations Of Defendant As Basis For Not Imposing Death
    303.7.1.2 Effect Of Death Penalty On The Defendant's Family As Mitigation
    303.7.1.3 Death Penalty: Polygraph As Mitigation
    303.7.1.4 Death Penalty: Leniency Received By Accomplice As Mitigation
    303.7.1.5 Death Penalty: Defendant's Background Is Mitigating Only
    303.7.1.6 Death Penalty: Good Prison Behavior/Potential For Rehabilitation As Mitigation
    303.7.1.7 Death Penalty: Mental Retardation As Mitigation
    303.7.1.8 Death Penalty: Lack Of Significant Prior Criminal
    303.7.1.9 Death Penalty: Coercion As Mitigation
    303.7.1.10 Death Penalty: Good Character As Mitigation
    303.7.1.11 “Catch All” Mitigation Factor

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RATIONALE: Without an explanatory instruction the jury may not understand that its courtroom observations of the defendant can be used as mitigation but not aggravation.

POINTS AND AUTHORITIES: There is an issue as to whether courtroom observations of the defendant should be considered at all. (See NCJIC 18.6.1 [Jury May Not Consider The Defendant's Nontestimonial Appearance Or Demeanor While Not Testifying].) However, in People v. Mayfield (CA 1997) 14 C4th 668, 808 [60 CR2d 1] the California Supreme Court did not contest the contention that the jury may find remorse based on its in-court observations of the defendant. (See also People v. Brown (CA 1985) 40 C3d 512, 540 [220 CR 637] [disapproved on other grounds in California v. Brown (1987) 479 US 538, 543 [107 SCt 837; 93 LEd2d 934] [jury must be free to reject death on basis of any relevant "evidence or observation"].)

    Hence, instruction on this issue may be appropriate. (But see Mayfield, 14 C3d at 808 [courtoom observations are included in the broad "catch-all" mitigation instruction].)

    See also NCJIC 18.6.5 [Consideration Of Defendant's Culture In Evaluating Demeanor At Trial].

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

STRATEGY NOTE: Even if such an instruction is rejected, counsel should be allowed to rely upon such observations during argument. (See NCJIC 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].)

CAVEAT: Sample Instruction # 1 may improperly open the door for the jury to find lack of remorse based on its in-court observations of the defendant. (See NCJIC 303.7.5.5 [Capital Trial: No Consideration Of Non Testimonial Appearance Or Demeanor].) This may be a strategic consideration regarding this issue. Sample Instruction # 2 attempts to deal with the issue but counsel will have to evaluate whether the jurors can follow such an instruction. (See generally NCJIC 297.3.1 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].)

    You may rely on your courtroom observations of the defendant as [mitigating evidence] [a reason, either by itself or with other evidence,] for not imposing a sentence of death.

[Source: NCJIC.]

    However, you must not consider, in any manner, your courtroom observations of the defendant [as aggravating evidence] [as a reason, individually or with other evidence,] to impose a sentence of death.

[Source: NCJIC.]

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PRACTICE NOTE: People v. Ochoa (CA 1998) 19 C4th 353, 456 [79 CR2d 408] concluded that sympathy for a defendant's family is not a matter that a capital jury can consider in mitigation because such evidence does not relate to the defendant's character. On the other hand, the defendant may offer evidence that he or she is loved by family members or others since such evidence constitutes indirect evidence of the defendant's character. (Ibid.) Other testimony by family members as to the impact of an execution on them is also admissible if it illuminates some positive quality of the defendant's background or character.

NOTE: This result may violate the principle enunciated in Wardius which precludes the prosecution being given an unfair advantage over the defendant. (Wardius v. Oregon (1973) 412 US 470, 475, fn 6 [93 SCt 2208; 37 LEd2d 82] ["state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant's ability to secure a fair trial" violate the defendant's due process rights under the 14th Amendment]; see also NCJIC 300.12.1 [Balance Between Prosecution And Defense: Due Process Requires Instructions Which Do Not Unduly Favor The Prosecution].) That is, the prosecution is permitted to have the victim's family testify as to the impact of the death of the victim on them but the defendant cannot present testimony as to the impact of his execution on his family.

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

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    303.7.1.3    Death Penalty: Polygraph As Mitigation

PRACTICE NOTE: Notwithstanding the inadmissibility of polygraph evidence at the guilt trial, the 8th Amendment requires that a defendant be allowed to introduce any relevant mitigating evidence during the penalty phase. (See e.g., NCJIC 303.5.1 [Jury Must Be Permitted To Consider Non Statutory Mitigation]; see also NCJIC 301.4.1.1 [Death Penalty: The Jury Must Consider All Mitigating Evidence].) Hence, even if polygraph evidence is statutorily prohibited, the federal constitution may require that it be admitted if offered as mitigating evidence. (See NCJIC 301.4.1.6 [Death Penalty: Constitution Requires Admission Of Relevant Mitigation Even If Not Admissible Under Traditional Rules Of Evidence].)

See Capital Punishment Handbook [4.8.2.10a. Polygraph Evidence: Authorities].

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RATIONALE: Without special instruction the jury may not understand or consider the defense theory that leniency received by an accomplice is a mitigating factor.

POINTS AND AUTHORITIES: Despite the California Supreme Court's rejection of instruction on accomplice leniency (e.g., People v. Gallego (CA 1990) 52 C3d 115, 201 [276 CR 679]) the United States Supreme Court has suggested that this factor is valid mitigation. In Parker v. Dugger (1991) 498 US 308 [111 SCt 731; 112 LEd2d 812], the United States Supreme Court concluded that there was "no question" the defendant had presented valid nonstatutory mitigating evidence in a case in which the defendant's attorney "emphasized to the jury that none of Parker's accomplices received a death sentence (and the defendant's accomplice), who admitted shooting (the victim), had been allowed to plead guilty to second degree murder." (498 US at 314.) The Court commented: "[Every court to have reviewed the record here has determined that the evidence supported a finding of nonstatutory mitigating circumstances....We agree." (Id. at 316.)

    Accordingly, the 8th and 14th Amendment rights to jury consideration of any valid mitigation requires the above instruction.

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

    You may consider the fact that defendant's accomplice[s] received a more lenient sentence as a mitigating factor.

[Source: NCJIC.]

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RATIONALE: The jury may not understand that they may only consider the enumerated aggravating factors. Therefore, instruction may be appropriate to preclude the jury from improperly considering the defendant's background and character as aggravating evidence.

POINTS AND AUTHORITIES: Evidence of the defendant's background can only be a mitigating factor if the permissible aggravating factors are limited to those listed in the statute. (See NCJIC 301.3.2 [Death Penalty: Jury Consideration Of Nonstatutory Aggravation].) For example, in People v. Hardy (CA 1992) 2 C4th 86, 207 [5 CR2d 796] the California Supreme Court assumed that the failure to limit the jury's consideration of background to mitigation was error, albeit harmless.

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

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

    The permissible aggravating factors are limited to those aggravating factors upon which you have been specifically instructed. Therefore, the evidence which has been presented regarding the defendant's background may only be considered by you as mitigating evidence.

[Source: NCJIC.]

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PRACTICE NOTE: See Capital Punishment Handbook [4.8.2.3 Good Prison Behavior/Potential For Rehabilitation].

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    303.7.1.7    Death Penalty: Mental Retardation As Mitigation

PRACTICE NOTE:  See NCJIC 302.1.3 [Death Penalty: Constitutionality Of Executing The Mentally Retarded].

    See also Capital Punishment Handbook [4.8.2.4 Mental Retardation].

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    303.7.1.8    Death Penalty: Lack Of Significant Prior Criminal Activity/Violence As Mitigation

PRACTICE NOTE: See Capital Punishment Handbook [4.8.2.5 Lack Of Significant Prior Criminal Activity/Violence].

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    303.7.1.9    Death Penalty: Coercion As Mitigation

PRACTICE NOTE: See Capital Punishment Handbook [4.8.2.6 Coercion].

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    303.7.1.10    Death Penalty: Good Character As Mitigation

PRACTICE NOTE: See Capital Punishment Handbook [4.8.2.7 Good Character].

    See also NCJIC 251.4.2 [Good Character Of Defendant As Defense Theory].

    See also NCJIC 303.7.1.5 [Death Penalty: Defendant's Background Is Mitigating Only].

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    303.7.1.11    "Catch All" Mitigation Factor

PRACTICE NOTE: See Capital Punishment Handbook [4.8.2.8 "Catch All"].

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

    See also NCJIC 303.7.3.2 [Strategy When Court Contends That Lingering Doubt Is Included In General "Catch-All" Mitigating Factors].