THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303
Go to Volume 17 Table of Contents  -  Go to Chapter 303 Table of Contents

303.7 Death Penalty: Specific Mitigating Factors

    303.7.4 Death Penalty: Lack Of Significant Criminal Record As Mitigation

    303.7.4.1 Absence Of Prior Felony Conviction As Mitigation
    303.7.4.2 Absence Of Violent Criminal Activity As Mitigation
    303.7.4.3 Evidentiary Showing Necessary For Instruction On Lack Of Criminal Record Or Activity
    303.7.4.4 Death Penalty: Defense Theory That Nonviolent Prior Criminal Activity Or Convictions Are Mitigating
    303.7.4.5 Prior Felony Convictions: Instructions Given Must Be Correct

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303

RATIONALE: In jurisdictions where the jury is given a list of factors without identifying whether they are aggravating or mitigating the defense should have the right to have the jury informed that a lack of a record of prior criminal convictions is mitigating.

POINTS AND AUTHORITIES: See NCJIC 303.7.4.2 [Absence Of Violent Criminal Activity As Mitigation].

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

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

    The absence of any felony convictions prior to the crime[s] for which the defendant has been tried in the present proceedings is a mitigating factor.

[Source: NCJIC.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303

RATIONALE: In jurisdictions where the jury is given a list of factors without identifying whether they are aggravating or mitigating the defense should have the right to have the jury informed that a lack of a record of violent criminal activity is mitigating.

POINTS AND AUTHORITIES: The absence of other violent criminal activity and/or prior felony convictions "plainly is mitigating." (People v. Bacigalupo (CA 1991) 1 C4th 103, 145-46 [2 CR 335] (Mosk, J. concurring); see also Lashley v. Armontrout (8th Cir. 1992) 957 F2d 1495, 1501; Aldridge v. Dugger (11th Cir. 1991) 925 F2d 1320, 1330.) Hence, the prosecutor may not fail to acknowledge the absence of these two factors as mitigating, since the "absence of prior violent criminal activity and the absence of prior felony convictions are significant mitigating circumstances in a capital case, where the accused frequently has an extensive criminal past." (People v. Crandell (CA 1988) 46 C3d 833, 884 [251 CR 227].)

    It has been held that the trial court does not err in failing to identify each factor as "mitigating" or "aggravating" because many factors allow each side to advance "its own theory for assessing the same factor in its favor. . . . To require the trial court to attach one label or the other would lead to unproductive, insoluble debates and would unduly hamper a meaningful examination of the full range of relevant considerations." (People v. Cox (CA 1991) 53 C3d 618, 675 [280 CR 692].)

    However, these concerns do not apply to obviously mitigating factors such as lack of prior felony convictions. Hence, there should be no impairment to instruction, upon request, that such factors are mitigating. (See People v. Marshall (CA 1990) 50 C3d 907, 930 [269 CR 269].) "[I]t is error for a court not to give an instruction if that instruction is both correct in law and applicable on the record . . . ." (People v. Benson (CA 1990) 52 C3d 754, 804 [276 CR 827].) And, refusal of a proper defense theory instruction implicates a criminal defendant's federal constitutional rights. (See NCJIC 250.1 [Grounds For Instruction On Defense Theory].)

    Moreover, the 8th Amendment requires that the jury be adequately instructed upon mitigating factors. (See Lockett v. Ohio (1978) 438 US 586, 604-09 [98 SCt 2954; 57 LEd2d 973].)

    For other NCJIC instructions relating to unadjudicated crimes. See NCJIC 303.9 [Death Penalty: Unadjudicated Prior Crimes As Aggravation].

PRACTICE NOTE: See NCJIC 303.7.4.1 [Absence Of Prior Felony Conviction As Mitigation] regarding the evidentiary showing necessary to instruct on lack of prior criminal activity.

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

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

    The absence of any violent criminal activity by the defendant other than the crime[s] for which [he] [she] has been tried in the present proceedings is a mitigating factor.

[Source: NCJIC.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303

PRACTICE NOTE: In Delo v. Lashley (1993) 507 US 272, 274 [113 SCt 1222; 122 LEd2d 620] the court held that the judge had no obligation to instruct on the mitigating circumstance of defendant's lack of significant history of prior criminal activity when the defendant had failed to make any attempt to show that he lacked a criminal past. (But see People v. Marshall (CA 1990) 50 C3d 907, 932 [269 CR 269] ["the better practice for a court to instruct on all the statutory penalty factors, directing the jury to be guided by those that are applicable on the record"].)

NOTE: Even if an evidentiary showing is necessary, only a minimal showing is necessary to justify the instruction, such as the testimony of the defendant's acquaintances or a presentence report. (Delo v. Lashley, 507 US at 277.)

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

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303

PRACTICE NOTE: Even though the defendant's prior violent criminal acts are normally considered to be aggravating, it may also be argued that the prior criminal acts are mitigating if they are a reflection of the poverty, deprivation and lack of available rehabilitation. (See e.g., People v. Roybal (1998) 19 C4th 481, 527 [79 CR2d 487].) Furthermore, there may be mitigating circumstances relating to the particular acts or prior convictions which may reflect favorably on the defendant's character.

    Accordingly, if this is the defense theory, the jury should be instructed in such a way that it understands the potential mitigating relevance of the prior criminal acts and felony convictions. In Roybal, the court concluded that the jury would not have misunderstood the instructions in this regard. However, the Roybal court did not discuss the issue in the context of the right to specific instruction on the defense theory of the case. (See NCJIC 250.1 [Grounds For Instruction On Defense Theory].)

STRATEGY NOTE: If such instruction is refused, the matter may be appropriate for argument to the jury as a legal principle which is included within the more general instructions. (See NCJIC 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].)

See Capital Punishment Handbook [4.7.3.10a. Prior Felony Convictions: Authorities].

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

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303

PRACTICE NOTE: Even though the trial court has no sua sponte duty to instruct upon the elements of other crimes introduced at the penalty phase as aggravating factors, if instructions are given, the court has a duty to instruct correctly. (See People v. Cummings (CA 1993) 4 C4th 1233, 1337 [18 CR2d 796]; see also People v. Montiel (CA 1993) 5 C4th 877, 941 [21 CR2d 705].)

See Capital Punishment Handbook [4.7.3.10a. Prior Felony Convictions: Authorities].

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