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VOLUME 17 - CHAPTER 303
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303.7 Death Penalty: Specific Mitigating Factors

    303.7.3 Death Penalty: Lingering Or Residual Doubt As Mitigation

    303.7.3.1 Whether Lingering Doubt Or Residual Doubt As To Guilt Is Mitigation
    303.7.3.2 Strategy When Court Contends That Lingering Doubt Is Included In General "Catch-All" Mitigating Factors
    303.7.3.3 Lingering Doubt As To Extent Or Degree Of Defendant's Guilt
    303.7.3.4 Lingering Doubt Or Residual Doubt: Combining With Other Mitigating Evidence
    303.7.3.5 Lingering Doubt Or Residual Doubt: Multiple Defendants

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RATIONALE: Without an explanatory instruction the jury may not understand that notwithstanding the guilt verdict, lingering or residual guilt may be considered as mitigation at the penalty trial.

POINTS AND AUTHORITIES: The United States Supreme Court has determined that there is no federal constitutional right to have lingering or residual doubt considered as a mitigating factor. (Franklin v. Lynaugh (1988) 487 US 164, 168-176 [108 SCt 2320; 101 LE2d 155]; see also State v McGuire (OH 1997) 686 NE2d 1112, 1122.) However, the Supreme Court noted that Lockhart v. McCree (1986) 476 US 162, 180-182 [106 SCt 1758; 90 LEd 137] stands for the truism that where states are willing to allow defendants to capitalize on "residual doubts," such doubts will inure to the defendant's benefit.

    Nonetheless, the relevance of evidence which goes to creating a residual or lingering doubt concerning whether the defendant committed the crime or the degree of the crime has been widely recognized. (See e.g., State v. Jeffers (AZ 1983) 661 P2d 1105, 1132 [approving use of consideration of sodium amythal "truth serum" evidence at the penalty phase to show that defendant was innocent, although such evidence would not have met admissibility standards at the guilt phase]; People v. Thompson (CA 1988) 45 C3d 86, 134-135 [246 CR 245]; People v. Haskett (CA 1982) 30 C3d 841, 866 [180 CR 640] [accused permitted "to awaken any residual doubt the jurors might have had about his guilt"]; People v. Coleman (CA 1969) 71 C2d 1159, 1168 [80 CR 920] ["Even after he has been found guilty, a defendant is under no obligation to confess, and he has a right to urge his possible innocence to the jury as a factor in mitigation of penalty."]; People v. Terry (CA 1964) 61 C2d 137, 153 [37 CR 605]; Cook v. State (GA 1986) 340 SE2d 843, 860 & n 11 [approving "sentencing-phase argument on 'whimsical doubt'"]; State v. Lee (LA 1987) 524 So2d 1176, rehearing granted (LA 1988) 524 So2d 1190, 1192 [court reverses death sentence and remands on basis of use of improperly admitted confession at sentencing phase; "[e]ven if the jury was certain enough of the defendant's guilt to convict (without hearing the confession), one or more jurors might have retained minor trepidations about the nature of the state's circumstantial evidence . . . [s]uch uncertainty, though not rising to the level of reasonable doubt regarding guilt, might have led such a juror to hold out for a life sentence]; State ex rel. Burnham v. Blackburn (LA 1986) 484 So2d 656, 657 [court reverses life sentence in capital conviction because trial court did not properly instruct jury that they had to find an aggravating circumstance to convict defendant for first degree murder; based on the record, the existence of an aggravator was in doubt because the jury may have had "lingering doubts" about the credibility of the state's only witness as to the aggravator]; State v. Hutton (OH 1990) 559 NE2d 432, 445 ["the issue of guilt or innocence is relevant to sentencing"]; State v. Tyler (OH 1990) 553 NE2d 576, 583 [defendant properly allowed to argue "[b]ut do you honestly feel that I'm guilty?"]; Stout v. State (OK 19895) 693 P2d 617, 628 [the penalty phase "is for additional evidence and in no way excludes from consideration on sentence the matters heard on the issue of guilt or innocence"]; State v. Davis (SC 1991) 411 SE2d 220, 222 [error to stop capital defendant from asserting innocence at the penalty phase]; State v. Teague (TN 1984) 680 SW2d 785, 788 ["parties at capital re-sentencing are entitled to offer evidence relating to circumstances of the crime"]; State v. Hughes (WA 1986) 721 P2d 902, 908 ["'whimsical doubts' . . . might prevent them from voting for the death penalty"]; Johnson v. Thigpen (5th Cir. 1986) 806 F2d 1243, 1251; Smith v. Balkcom (5th Cir. 1981) 660 F2d 573, 580-81; Johnson v. Wainwright (11th Cir. 1986) 806 F2d 1479, 1482-83; Aldrich v. Wainwright (11th Cir. 1985) 777 F2d 630, 639; Smith v. Wainwright (11th Cir. 1984) 741 F2d 1248, 1255; Moon v. State (GA 1988) 375 SE2d 442, 452; Minnick v. State (MS 1988) 551 So2d 77, 94-95; Brown v. Rice (NC 1988) 693 FSupp 381, 397.)

    The California Supreme Court has also noted that the defendant has a right to present evidence of lingering doubt regarding the existence of any of the elements of capital homicide at the penalty phase.  (People v. Farmer (CA 1989) 47 C3d 888, 921, n 5 [254 CR 508].)  Furthermore, in the concurring opinion of Justice Mosk (with Justice Kennard) in People v. Johnson (CA 1992) 3 C4th 1183, 1261 [14 CR2d 702] it was recognized that the trial court is required to expressly instruct on "lingering doubt" when "there is a reasonable likelihood that, in the absence of such an advisement, the jury will labor under a misconception in this regard."

    In sum, "[the fact that jurors have determined guilt beyond a reasonable doubt does not necessarily mean that no juror entertained any doubt whatsoever. There may be no reasonable doubt -- doubt based upon reason -- and yet some genuine doubt exists. It may reflect a mere possibility; it may be but the whimsy of one juror or several. Yet this whimsical doubt -- this absence of absolute certainty -- can be real." (Smith v. Balkcom (5th Cir. 1981) 660 F2d 573, 580-581; emphasis in original.)

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

See Capital Punishment Handbook [4.8.3.2a.Residual Doubt Of Defendant’s Guilt: General Principles And Authorities].

    Although proof of guilt beyond a reasonable doubt has been found, you may demand a greater degree of certainty for imposition of the death penalty. The adjudication of guilt is not infallible, and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not been discovered.

[Source: Penry v. Lynaugh (1989) 492 US 302 [109 SCt 2934, 2942; 106 LEd2d 256]; People v. Thompson (CA 1988) 45 C3d 86, 134 [246 CR 245].]

    The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that at some time in the future, facts may come to light which have not yet been discovered.

[Source: People v. Kaurish (CA 1990) 52 C3d 648, 705 [276 CR 788].]

    It may be considered as a factor in mitigation if you have a lingering doubt as to the guilt of the defendant.

[Source: People v. Morris (CA 1991) 53 C3d 152, 218 [279 CR 720].]

    I stress that the fact that Defendant stands convicted of murder is not a circumstance in aggravation. It does not automatically nor necessarily warrant a sentence of death. In fact, your verdict does not end your responsibility for viewing the facts and evidence surrounding the death of [name of victim]. While you have found beyond a reasonable doubt that Defendant is responsible for his death, you must now ask if you can say beyond even a residual or lingering doubt that Defendant is the person who killed [name of victim].

    Residual doubt differs from reasonable doubt. There may be no reasonable doubt left in your minds. Yet, some genuine doubt may still exist. It may reflect a mere possibility. It may be the mere whimsy of one juror or several. Yet this whimsical doubt--the absence of absolute certainty about who stabbed [name of victim]--can be real. It is that type of doubt that is called residual doubt.

    As a matter of law, unless each and every one of you can say with certainty that you do not possess a residual doubt as to the identity of the victim's killer, then you must consider the existence of such a residual doubt as a mitigating circumstance that warrants a sentence of life in prison rather than death.

[Source: Louisiana Indigent Defense Death Penalty Manual, Part 3(b) Verdict Form [19 - Residual Doubt].]

    Before going further in this case, you must again scrutinize the facts and evidence surrounding the death of [victim's name]. While you have found beyond a reasonable doubt that Defendant is responsible for the death, you must now ask if you can say beyond a residual or lingering doubt that the Defendant is the person who killed [victim's name]. A residual doubt is not the same as a reasonable doubt. There may be no reasonable doubt left in your minds. Yet, some genuine doubt may still exist. It may reflect a mere possibility. It may be the mere whimsy of one juror or several. Yet this lingering doubt--the absence of absolute certainty about who killed [victim's name]--can be real. It is that type of doubt that is called residual doubt.

    Each and every one of you must agree that you are certain beyond a residual doubt that Defendant killed [victim's name] to proceed further in this case. If you are not unanimous about the absence of a residual doubt, deliberations should cease immediately. Your decision must be in writing.

    If, after viewing all the evidence, you agree that there is a residual doubt whether Defendant killed [victim's name], or that not all of you can say beyond a residual doubt that Defendant killed [victim's name], cease deliberations and return the following form:

    We, the jury, are unable to say beyond a residual doubt that Defendant killed [victim's name].

    If, after viewing all the evidence, each of you agrees that there is not a residual doubt that Defendant killed [victim's name], continue with the steps required by these instructions after entering the following finding:

    We, the jury, unanimously agree that there is not a residual doubt that Defendant killed [victim's name].

[Source: Louisiana Indigent Defense Death Penalty Manual, Part 3(b) Verdict Form [12 - Residual Doubt Finding].]

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PRACTICE NOTE: People v. Musselwhite (CA 1998) 17 C4th 1216, 1273 [74 CR2d 212], reaffirmed the California Supreme Court's view that a specific instruction on lingering doubt is not required, even on request, because lingering doubt is encompassed within the catch-all factor "k" language. Factor "k" permits the jury to consider "any lingering doubt with respect to defendant’s guilt." (Id. at 1273.) In Musselwhite the court said: "defendant provides no explanation why the factor (k) -- derived instruction that was given to the jury -- failed to convey the notion of residual doubt in his case." (Ibid.)

    Responses to this position could include the following:

    1.    When lingering doubt is a defense theory, instruction on that theory is appropriate. (See NCJIC 303.7.3.1 [Whether Lingering Doubt Or Residual Doubt As To Guilt Is Mitigation].) Moreover, instruction on a requested defense theory is required by the federal constitution. (Ibid.)

    2.    Evidence could be presented as to the empirical studies which have proven that jurors do not in fact fully understand the currently utilized penalty phase instructions. (See NCJIC 303.1.5 [Juror Misunderstanding Of Instructions In Death Cases Has Been Demonstrated].)

    3.    Where an appellate court has concluded that the lingering doubt factor is included within the catch-all mitigating factor, counsel should be free to rely on the court's position during argument. Thus, counsel might argue: "The ____________ Court has ruled that lingering doubt as to guilt is a mitigating factor which you may consider in deciding which penalty to impose. You have not been specifically instructed upon lingering doubt as a mitigating factor because the court has ruled that it is included in the general mitigation instruction. Therefore, the law requires you to read the general mitigation instruction to include lingering doubt as a potential mitigating factor which you should consider." (See NCJIC 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].) It might also be beneficial to inform the jury that this is why a more specific instruction on this point was refused. Visuals with the crucial language might also be useful. (See also NCJIC 272.6.1 [Preparing Enlargements (Blow-Ups) Of Instructions For Use During Summation/Closing Argument].)

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

See also Capital Punishment Handbook [4.8.3.2a. Residual Doubt Of Defendant’s Guilt: General Principles And Authorities].

See also generally, NCJIC 305.5.2 [Empirical Research].

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RATIONALE: Without an explanatory instruction the jury may not understand that lingering or residual doubt as to the extent or degree of the defendant's involvement may be a mitigating factor.

POINTS AND AUTHORITIES: The defendant's lesser involvement in the crime may make evidence of "residual doubt" admissible and relevant at the penalty phase. (See People v. Terry (CA 1964) 61 C2d 137, 145-46 [37 CR 605] [defendant may call upon doubts concerning whether he or she committed the crime or the degree of the crime].) Indeed, one of the statutory (let alone non-statutory) mitigating circumstances under some statutes is that "the offender was a principal whose participation was relatively minor." (See State v. Sonnier (LA 1981) 402 So2d 650, 656; see also California Penal Code § 190.3(d).) But regardless of whether there is such a specific mitigating factor, evidence should be admitted to prove the client's lesser involvement in the crime as a relevant circumstance of the offense. For example, in Green v. Georgia (1979) 442 US 95, 96 [99 SCt 2150; 60 LEd2d 738] the Supreme Court reversed a capital conviction because the state court refused to admit hearsay evidence at the penalty phase that the co-defendant had confessed to the crime.

    See NCJIC 303.7.3.1 [Whether Lingering Doubt Or Residual Doubt As To Guilt Is Mitigation] for other samples which can be adapted.

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

See Capital Punishment Handbook [4.8.3.2a. Residual Doubt Of Defendant’s Guilt. General Principles And Authorities].

    A juror who voted for conviction at the guilt phase may still have a lingering or residual doubt as to whether the defendant ______________ [insert appropriate element, e.g., was the actual shooter, intended to kill, premeditated and deliberated, etc.]. Such a lingering or residual doubt, although not sufficient to raise a reasonable doubt at the guilt phase, may still be considered as a mitigating factor at the penalty phase. Each individual juror may determine whether any lingering or residual doubt is a mitigating factor and may assign it whatever weight the juror feels is appropriate.

[Source: NCJIC.]

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PRACTICE NOTE: Lingering doubt may not necessarily be inconsistent with other types of mitigation evidence. As the Louisiana Indigent Defense Death Penalty Manual observes: "The first phase should not be inconsistent with the mitigation evidence: Counsel should also be careful to seek a consistent approach in the trial. For example if, at the first phase of the trial, counsel sought to obtain a manslaughter verdict by showing that the crime was a product of a momentary loss of control, this may fit into a penalty phase presentation concerning the client's mental instability. Counsel should not, however, fall into the trap of thinking that a powerful presentation in mitigation is somehow incompatible with a first phase defense that the client did not commit the crime at all. While 'whimsical' or 'residual' doubt can be a very important factor at the penalty phase, it is by no means contradictory to argue that the client did not commit the crime, but is in any event a human being with redeeming virtues." (Louisiana Indigent Defense Death Penalty Manual, II. DEVELOPING AND PRESENTING MITIGATING EVIDENCE, A. The Constitutional Entitlement to Present Anything About the Life and Background of the Defendant as a Mitigating Circumstance.)

See Capital Punishment Handbook [4.8.3.2a. Residual Doubt Of Defendant’s Guilt: General Principles And Authorities].

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STRATEGY NOTE: Lingering or residual doubt is a legitimate and common consideration in a penalty phase. (See NCJIC 303.7.3.1 [Whether Lingering Doubt Or Residual Doubt As To Guilt Is Mitigation].) But in a joint penalty phase, this potential mitigating circumstance of individualized guilt is more likely to be lost, since two defendants may be asking the jury to back off from its original guilt-phase determination. The jury is unlikely to respond to multiple pleas of this sort.

    Hence, this might be an added basis for a pretrial motion to sever.

See Capital Punishment Handbook [4.8.3.2a. Residual Doubt Of Defendant’s Guilt: General Principles And Authorities].