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VOLUME 17 - CHAPTER 303
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303.9 Death Penalty: Unadjudicated Prior Crimes As Aggravation

    303.9.1 Unadjudicated Violent Crimes: Duty To Instruct Upon Available Defenses To Those Crimes
    303.9.2 Unadjudicated Violent Offenses: Applicable Only To Crimes Directed Against A Person
    303.9.3 Unadjudicated Violent Offenses: Duty To Instruct On Elements
    303.9.4 Prior Conviction In Death Penalty Trial: Limiting Instruction Required Sua Sponte

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PRACTICE NOTE: Even if there is no sua sponte duty at the penalty phase to instruct on elements of "other crimes" introduced in aggravation, when such instructions are given, they should be accurate and complete. (See generally NCJIC 3.3.3.1 [Duty To Correct When Requested Instruction Is Incomplete Or Incorrect]; see also NCJIC 295.3.1.4 [Duty To Give Correct Defense Theory Instruction Even If Request Does Not Fully Or Correctly State The Issues]; see also NCJIC 303.9.3 [Unadjudicated Violent Offenses: Duty To Instruct On Elements].) Therefore, any penalty instructions on the elements of aggravating "other crimes" should include instruction on defenses supported by evidence. (See People v. Montiel (CA 1993) 5 C4th 877, 942 [21 CR2d 705] [assuming without deciding that instruction on defenses is required if instruction on elements is given].)

See Capital Punishment Handbook [4.7.3.2a.Unadjudicated Criminal Conduct: General Principles And Authorities].

See also Capital Punishment Handbook [4.7.3.8a.Unadjudicated Criminal Conduct: Authorities].

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PRACTICE NOTE: In California, the "other violent crime" factor (California Penal Code § 190.3(b)) encompasses only those threats of violent injury that are directed against a person or persons. (People v. Kirkpatrick (CA 1994) 7 C4th 988, 1015-16 [30 CR2d 818].)

See Capital Punishment Handbook [4.7.3.2a.Unadjudicated Criminal Conduct: General Principles And Authorities].

See also Capital Punishment Handbook [4.7.3.8a.Unadjudicated Criminal Conduct: Authorities].

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PRACTICE NOTE: In California, instruction on the elements of unadjudicated prior crimes offered in aggravation is normally only required if requested. (See People v. Robertson (CA 1982) 33 C3d 21, 53 [188 CR 77].) This rule is predicated on the assumption that defense counsel should decide as a matter of trial strategy whether full instruction on uncharged offenses would be unduly distracting or prejudicial. (See e.g., People v. Wright (CA 1988) 45 C3d 1126, 1153 [248 CR 600] [singling out a category of evidence for special consideration may cause the jury to give it undue consideration in deliberations].)

    However, in People v. Cain (CA 1995) 10 C4th 1, 72-73 [40 CR2d 481], the court suggested that there may be some circumstances under which "the trial court would have a sua sponte obligation to instruct on elements or defenses" of uncharged violent criminal activity. For example, where the elements are vital to the jury's evaluation of defendant's prior actions, instruction on the elements and/or defenses may be required sua sponte. (Ibid.)

See Capital Punishment Handbook [4.7.3.2a.Unadjudicated Criminal Conduct: General Principles And Authorities].

See also Capital Punishment Handbook [4.7.3.8a.Unadjudicated Criminal Conduct: Authorities].

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VOLUME 17 - CHAPTER 303

PRACTICE NOTE:  The Alabama Supreme Court has held that the trial court has a sua sponte duty in a capital murder case to instruct the jury that evidence of prior convictions admitted for impeachment purposes cannot be considered as substantive evidence of guilt of the crime charged. (Ex Parte Willie Minor (AL 2000) 780 So2d 796, 800.) This is so even if the defense brings out the prior conviction on direct examination for strategic reasons.

    See also NCJIC 303.2.3 [Death Penalty: Whether Jury Should Be Reinstructed With Guilt Phase Instructions At The Penalty Trial].