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303.7 Death Penalty: Specific Mitigating Factors

    303.7.5 Death Penalty: Remorse As Mitigation

    303.7.5.1 Remorse As Mitigation For Jury To Consider
    303.7.5.2 Remorse As Mitigation: Conflict Between Codefendants When One Relies On Remorse And The Other Doesn't
    303.7.5.3 Remorse As Mitigation: Conflict Between Codefendant's Regarding Right To Testify And Right To Allocution
    303.7.5.4 Death Penalty: Improper To Infer Lack Of Remorse From Failure Of Defendant To Confess
    303.7.5.5 Capital Trial: No Consideration Of Nontestimonial Appearance Or Demeanor

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PRACTICE NOTE: Evidence of remorse on the part of the defendant "may properly be considered in mitigation of the sentence..." (Pope v. State (FL 1983) 441 So2d 1073, 1078; see also People v. Ochoa (CA 1998) 19 C4th 353, 459 [79 CR2d 408] [rejecting argument that instruction is required sua sponte but not contesting that remorse is a mitigating factor].) Hence, where remorse is relied upon as a defense theory, there should be a right to a specific instruction on this theory upon request. (See NCJIC 250.1 [Grounds For Instruction On Defense Theory].)

    See also NCJIC 303.7.5.2 [Remorse As Mitigation: Conflict Between Codefendants When One Relies On Remorse And The Other Doesn't].

STRATEGY NOTE: If such a request is rejected, at a minimum, counsel should be permitted to explain during argument that there is no specific instruction on remorse because it is included in the general factor k instruction. (See NCJIC 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].)

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PRACTICE NOTE: It is settled that a capital defendant must be permitted to offer in mitigation of punishment, and the sentencer must consider, such factors as his post-crime cooperation with law enforcement and his expressed remorse before and during the trial or sentencing proceedings. (See Gregg v. Georgia (1976) 428 US 153, 197 [96 SCt 2909; 49 LEd2d 859] [listing the extent of the defendant's cooperation with law enforcement as an example of a mitigating factor]; cf. Minnick v. Mississippi (1990) 498 US 146, 167 [111 SCt 486; 112 LEd2d 489] (Scalia, J., dissenting) ["A confession is rightly regarded by the [federal] sentencing guidelines as warranting a reduction of sentence, because it 'demonstrates a recognition and affirmative acceptance of personal responsibility for ... criminal conduct' ... which is the beginning of reform"]; see also State v. Pope (FL 1983) 441 So2d 1073, 1078.)

    However, the 5th Amendment right against compelled self-incrimination applies with undiminished force to the penalty phase of a capital case. (Estelle v. Smith (1981) 451 US 454, 462 [101 SCt 1866; 68 LEd2d 359].) Thus any adverse consideration by a sentencing jury of a capital defendant's failure to incriminate himself -- whether by cooperating with the police investigation, confessing to his role in the offenses charged, or expressing remorse either before or after conviction -- would violate that defendant's 5th Amendment rights (Carter v. Kentucky (1981) 450 US 288, 295-305 [101 SCt 1112; 67 LEd2d 241]; Griffin v. California (1965) 380 US 609, 609-15 [85 SCt 1229; 14 LEd2d 106]), and by extension his 8th Amendment rights as well. (Zant v. Stephens (1983) 462 US 862, 883 [103 SCt 2733; 77 LEd2d 235] [suggesting that 8th amendment violated by state's attachment of "aggravating" label to defendant's assertion of constitutional right]; Dawson v. Delaware (1992) 503 US 159, 164 [112 SCt 1093; 117 LEd2d 309] [capital sentencer's consideration, as nonstatutory aggravating factor, of irrelevant evidence concerning defendant's constitutionally-protected association violated due process].)

    This conflict between the 5th and 8th Amendment rights of capital codefendant is particularly difficult to cure because the trial court typically will be unable to foresee it prior to trial or resolve it by instructions. The conflict is unforeseeable prior to trial because a defendant may not be required to decide whether or not to testify until the close of the defense case. (Brooks v. Tennessee (1972) 406 US 605, 610-11 [92 SCt 1891; 32 LEd2d 358].) Indeed, one of the reasons for a bifurcated sentencing proceeding is to permit a defendant to assert his constitutional right to remain silent with respect to his guilt or innocence, and yet to express remorse or contrition for his crime at the sentencing hearing after conviction.

    Just as the Court may not predict before trial how both the presence and the absence of codefendants' remorse, cooperation and voluntary self-incrimination may enter into a joint jury sentencing trial, neither will limiting instructions be an option to safeguard the 5th Amendment rights of the silent codefendants. For the Court cannot tell the jury to disregard the fact that one defendant exercised his 5th Amendment right to remain silent throughout the pretrial, trial and sentencing stages of the proceedings, as required by Carter v. Kentucky, supra; Bruno v. United States (1939) 308 US 287, 292 [60 SCt 198; 84 LEd 257] and 18 USC 1381, without threatening the codefendant's Lockett right to have his waiver of his 5th Amendment rights considered in mitigation of his punishment.

    If a defendant's willingness to waive his rights against self-incrimination is logically relevant to the sentence he should receive, then a codefendant's unwillingness to make a similar waiver is relevant to the question of whether the other defendant is "equally culpable."

NOTE: The capital context and the capital defendant's 8th Amendment right to argue every relevant mitigating circumstance to the jury (see NCJIC 301.4.1.1 [Death Penalty: The Jury Must Consider All Mitigating Evidence]), distinguish these circumstances from the parallel situation in a noncapital case, in which the defendant possesses no special right to argue his codefendant's silence to the (guilt phase) jury. (Compare United States v. McClure (10th Cir. 1984) 734 F2d 484, 491.)

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PRACTICE NOTE: There may be a conflict between the defendants' 5th Amendment rights and their separate right to allocute prior to being sentenced. "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." (Green v. United States (1961) 365 US 301, 304 [81 SCt 653; 5 LEd2d 670] (plurality opinion) (Frankfurter, J.).) Accordingly, a criminal defendant has a constitutional right to personally address the fact finder who will pass sentence on him. (Boardman v. Estelle (9th Cir. 1992) 957 F2d 1523, 1530; see also Ashe v. State (4th Cir. 1978) 586 F2d 334, 336; United States v. Jackson (11th Cir. 1991) 923 F2d 1494, 1496.)

    To the extent that one defendant testifies and the other chooses instead to allocute, there is a distinct danger that one choice will suffer by comparison with the other -- either the defendant who subjects himself to cross-examination will appear the more remorseful (or more truthful) than the one who does not, or the cross-examination of the defendant will be sufficiently damaging that the defendant who allocutes will have the comparative advantage. In either case, a defendant's 5th Amendment right, allocution right and/or 8th Amendment right to individualized consideration will be prejudiced.

    See also NCJIC 18.3.3 [Whether Instructions Against Drawing Inference From Failure To Testify Should Be Given When Defendants Disagree].

STRATEGY NOTE: The above considerations relate to the question of whether to move for a severance and the applicability of limiting instructions if severance is not obtained.

See Capital Punishment Handbook [4.1.2a. Right To Speak: General Principles And Authorities].

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    303.7.5.4    Death Penalty: Improper To Infer Lack Of Remorse From Failure Of Defendant To Confess

PRACTICE NOTE: Inferring a lack of remorse from the failure of the defendant to confess or show remorse violates the defendant’s privilege against self incrimination and due process. (See State v. Call (NC 1998) 508 SE2d 496, 522 [violation of right against self incrimination to comment on defendant’s silence as evidence of lack of remorse]; see also Mitchell v. U.S. (1999) 526 US 314, 330 [119 SCt 1307; 143 LEd2d 424] [recognizing but not resolving this question]; State v. McClure (SC 2000) 537 SE2d 273, 274-76 [improper for prosecutor to argue that the defendant must testify and express remorse to avoid the death penalty].)

    See also NCJIC 303.14.1 [No Adverse Inference As To Penalty From Failure Of Defendant To Testify At Guilt Or Penalty Trial].

    See also NCJIC 303.8.5 [Defense Theory That Defendant's Inability To Express His Or Her Emotions Negate Premeditation And Deliberation].

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    See NCJIC 18.6.2 [Capital Trial: No Consideration Of Nontestimonial Appearance Or Demeanor].