THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 17 - CHAPTER 303
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303.7 Death Penalty: Specific Mitigating Factors

    303.7.9 Sympathy As Mitigation

    303.7.9.1 Scope And Proof Of Mitigation: Sympathy Alone Is Sufficient To Reject Death
    303.7.9.2 Death Penalty: Defendant's Courtroom Demeanor As Basis For Sympathy

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

VOLUME 17 - CHAPTER 303

RATIONALE: Without specific instruction the jury may not understand that its sympathy for the defendant may be the basis for returning a life sentence.

POINTS AND AUTHORITIES: It is beyond dispute that sympathy or compassion is alone sufficient for the jury to reject death and return a verdict of life without parole. (See People v. Lanphear (CA 1984) 36 C3d 163, 167 [203 CR 122]; see also NCJIC 303.4.4 [Death Penalty: Scope Of Mitigation -- No Mitigation Necessary To Reject Death].)

    Accordingly, the below instruction should be given upon request.

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

CAVEAT: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. (See NCJIC 303.4 [Death Penalty: Mitigation – Miscellaneous Issues].)

RESEARCH NOTES:

See Capital Punishment Handbook [4.5.3a. Sympathy And Passion: General Principles And Authorities].

    If the mitigating evidence gives rise to compassion or sympathy for the defendant, the jury may, based upon such sympathy or compassion alone, reject death as a penalty.

[Source: Adapted from People v. Taylor (CA 1990) 52 C3d 719, 746 [276 CR 391].]

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

VOLUME 17 - CHAPTER 303

PRACTICE NOTE: People v. Mayfield (CA 1997) 14 C4th 668, 808 [60 CR2d 1] held that it was not error to reject a defendant's requested instruction that the jury could consider sympathy "raised by your observation of the defendant." The basis for rejecting this instruction was the assumption that the instructions were broad enough to include the jurors' observations of defendant in the courtroom. Hence, 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]; see also People v Gonzalez (CA 1990) 51 C3d 1179, 1226, fn 26 [275 CR 729] [jury may rely on demeanor of defendant as showing lack of remorse].)

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

RESEARCH NOTES:

See Capital Punishment Handbook [4.5.3a. Sympathy And Passion: General Principles And Authorities].