PG VII(I)(d) Additional Constitutional Grounds For Death Cases
TABLE OF CONTENTS
CG 13 Additional Constitutional Grounds For Death Cases
CG 13.1 Death Qualification Based On Killing By An Accomplice During Another Felony Must Be Narrow
CG 13.2 Death Eligibility Factor Must Not Be Overly Broad or Vague
CG 13.3 Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden
CG 13.4 Heightened Reliability Of Guilt Determination
CG 13.5 Fair And Reliable Sentencing Determination
CG 13.6 Individualized Sentencing
CG 13.7 Jury Must Accept Personal Responsibility For The Sentencing Decision
CG 13.8 Premature Deliberation As To Penalty
CG 13.9 The 8th Amendment Requires That The Jury Understand The Death Penalty Instructions
CG 13.10 Jury Consideration Of Extrinsic Evidence Or Properly Admitted Evidence For An Improper Purpose
CG 13.11 Jury Must Consider Mitigating Evidence
CG 13.12 A Mandatory Death Sentence Is Unconstitutional: The Jury Must Fairly Exercise Discretion
CG 13.13 Improper Aggravation
CG 13.14 Fair And Reliable Sentencing Determination
CG 13.15 No Coercion; No Duty To Decide
CG 13.16 Standard Of Proof Required At Capital Sentencing Trial
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CG 13.1 Death Qualification Based On Killing By An Accomplice During Another Felony Must Be Narrow.
CAVEAT: To properly preserve a federal constitutional claim the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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The death eligibility determination must rationally narrow the class of individuals who are death eligible for valid penological reason[s]. (Spaziano v. Florida (1984) 468 US 447, 460 n7 [104 SCt 3154; 82 LEd2d 340]; see also Tison v. Arizona (1987) 481 US 137, 149 [107 SCt 1676; 95 LEd2d 127].) This principle requires a state to construe death eligibility criteria to provide a “principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not.” (Lewis v. Jeffers (1990) 497 US 764, 775 [110 SCt 3092; 111 LEd2d 606] [quoting Godfrey v. Georgia (1980) 446 US 420, 433 [100 SCt 1759; 64 LEd2d 398]; 8th and 14th Amendments.)
These principles prohibit death eligibility based on felony murder unless the defendant: (1) was a “major participant” in the underlying felony and (2) had a mental state of “reckless disregard to human life.” (Tison, 481 US at 158 and fn 12; see also Enmund v. Florida (1982) 458 US 782, 797-01 [102 SCt 3368; 73 LEd2d 1140] and Cabana v. Bullock (1986) 474 US 376, 385 [106 SCt 689; 88 LEd2d 704].)
CG 13.2 Death Eligibility Factor Must Not Be Overly Broad Or Vague.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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An aggravating factor is invalid under the 8th and 14th Amendments if its description is so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor. (Stringer v. Black (1992) 503 US 222, 228 [112 SCt 1130; 117 LEd2d 367]; Shell v. Mississippi (1990) 498 US 1 [111 SCt 313; 112 LEd2d 1]; Maynard v. Cartwright (1988) 486 US 356, 363 [108 SCt 1853; 100 LEd2d 372]; Godfrey v. Georgia (1980) 446 US 420, 428 [100 SCt 1759; 64 LEd2d 398].) “[I]n the final analysis ‘the constitutional prohibition on arbitrary and capricious capital sentencing determinations is not violated by a capital sentencing “scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute.” ‘ [Citations.]” (People v. Bolin (1998) 18 C4th 297, 342; see also Buchanan v. Angelone (1998) 522 US 269, 276-77 [118 SCt 757; 139 LEd2d 702].)
CG 13.3 Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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The death eligibility determination must rationally narrow the class of individuals who are death eligible for valid penological reason[s]. (Spaziano v. Florida (1984) 468 US 447, 460 n7 [104 SCt 3154; 82 LEd2d 340]; see also Tison v. Arizona (1987) 481 US 137 [107 SCt 1676; 95 LEd2d 127].) This principle requires a state to construe death eligibility criteria to provide a “principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not.” (Lewis v. Jeffers (1990) 497 US 764, 775 [110 SCt 3092; 111 LEd2d 606] [quoting Godfrey v. Georgia (1980) 446 US 420, 433 [100 SCt 1759; 64 LEd2d 398]; 8th and 14th Amendments.)
From these principles it follows that any jury instruction on death eligibility factors or related matters must be must fully, accurately and understandably convey the required information to the jury. (See U.S. v. Gaudin (1995) 515 US 506, 511-13 [115 SCt 2310, 2316; 132 LEd2d 444] [it is Athe jury’s constitutional responsibility … not merely to determine the facts, but to apply the law to those facts]; see also Estelle v. McGuire (1991) 502 US 62, 67-72 [112 SCt 475; 116 LEd2d 385] [due process may be implicated if the jury did not understand the instructions]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839 [when the judge fails in his or her duty to assure the jury’s proper conduct and determination of issues involving “constitutional requirements,” the due process clause of the 14th Amendment is implicated (referring to Estelle v. McGuire)].)
Additionally, Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] and Jones v. U.S. (1999) 526 US 227 [119 SCt 1215; 143 LEd2d 311] make it clear that full constitutional protections under the 5th, 6th and 14th Amendments apply to any factual determination upon which death eligibility is predicated. Under Jones and Apprendi, the determination of death eligibility must be made by the jury because it is “a process of raising the ceiling of the sentencing range available.” (Jones, 119 SCt at 1228; see also Apprendi, 120 SCt at 2363.)
CG 13.4 Heightened Reliability Of Guilt Determination.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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This instruction is required by the 8th and 14th Amendments of the federal constitution which requires heightened reliability in the determination of guilt and death eligibility before a sentence of death may be imposed. (See Beck v. Alabama (1980) 447 US 625, 627-46 [100 SCt 2382; 65 LEd2d 392].)
The fact that capital cases require heightened reliability as to both the guilt and sentencing determinations was reaffirmed by the court in Kyles v. Whitley (1995) 514 US 419, 422 [115 SCt 1555; 131 LEd2d 490] in which the court quoted from Burger v. Kemp (1987) 483 US 776, 785 [107 SCt 3114; 97 LEd2d 638]: “Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.” (See also Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case “both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects” ].) “[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error.” (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)
CG 13.5 Fair And Reliable Sentencing Determination.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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This instruction is required by the 8th and 14th Amendments of the federal constitution because the instruction [is necessary for] promotes a reliable sentencing determination. The federal constitution requires that the sentencing determination be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738].)
When the state seeks death, courts must ensure that every safeguard designed to guarantee “fairness and accuracy” in the “process requisite to the taking of a human life” is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 2595; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)
“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long … Because of this qualitative difference, there is a corresponding difference in the need for reliability …” (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 944]; see also Lankford v. Idaho (1991) 500 US 110, 125-26 [111 SCt 1723; 114 LEd2d 173]; Johnson v. Mississippi (1988) 486 US 578, 584 [108 SCt 1981; 100 LEd2d 575]; Mills v. Maryland (1988) 486 US 367, 377 [108 SCt 1860; 100 LEd2d 384]; Caldwell v. Mississippi (1985) 472 US 320, 329-330 [105 SCt 2633; 86 LEd2d 231]; California v. Ramos (1983) 463 US 992, 998-999 fn 9 [103 SCt 3446; 77 LEd2d 1171].)
As a result, the 8th Amendment requires a “greater degree of accuracy” and reliability. (Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case “both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects”].) “[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error.” (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)
The fact that capital cases require heightened reliability as to both the guilt and sentencing determinations was reaffirmed by the court in Kyles v. Whitley (1995) 514 US 419, 422 [115 SCt 1555; 131 LEd2d 490] in which the court quoted from Burger v. Kemp (1987) 483 US 776, 785 [107 SCt 3114; 97 LEd2d 638]: “Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.”
The sentencing determination must also be fair. (See Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393] [death sentence based in part on a confidential presentence report given to the trial judge but not to the defense was unconstitutional because it was based on information which the defendant had no opportunity to deny or explain]; see also Simmons v. South Carolina (1994) 512 US 154, 168 [114 SCt 2187; 129 LEd2d 133] [to extent that jury’s potential belief that defendant was parole eligible may have affected its deliberations, defendant would be sentenced to death on basis of information which he or she had no opportunity to deny or explain].)
CG 13.6 Individualized Sentencing.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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This instruction is required by the 8th Amendment prohibition against cruel and unusual punishment which requires the individualized consideration of mitigating circumstances in determining a sentence of death.
It is “well established” that the 8th and 14th Amendments requires “individualized sentencing determinations in death penalty cases.” (Stringer v. Black (1992) 503 US 222, 230 [112 SCt 1130; 117 LEd2d 367]; Clemons v. Mississippi (1990) 494 US 738, 753 [110 SCt 1441; 108 LEd2d 725]; Penry v. Lynaugh (1989) 492 US 302, 317 [109 SCt 2934; 106 LEd2d 256]; 8th & 14th Amendments.)
In Lockett v. Ohio (1978) 438 US 586 [98 SCt 2954; 57 LEd2d 973] and later in Eddings v. Oklahoma (1982) 455 US 104 [102 SCt 869; 71 LEd2d 1], the Court ruled that the sentencer must consider all relevant mitigating evidence in a capital case. In Skipper v. South Carolina (1986) 476 US 1, 4 [106 SCt 1669; 90 LEd2d 1] the Court, quoting Eddings, stated that the sentencer may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
CG 13.7 Jury Must Accept Personal Responsibility For The Sentencing Decision.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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This instruction is required by the 8th Amendment of the federal constitution which requires that the jurors accept personal responsibility for their sentencing decision. (See Caldwell v. Mississippi (1985) 472 US 320, 328-34 [105 SCt 2633; 86 LEd2d 231] [reliability of verdict undermined when jury’s sense of personal responsibility is compromised].)
CG 13.8 Premature Deliberation As To Penalty.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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This instruction is required by the 8th and 14th Amendments of the federal constitution because premature deliberation as to penalty fosters unfairness and unreliability by promoting determination of the issues before hearing all the evidence, argument and instructions. (See McDonough Power Equipment, Inc. v. Greenwood (1984) 464 US 548, 552 [104 SCt 845; 78 LEd2d 663]; Winebrenner v. U.S. (8th Cir. 1945) 147 F2d 322, 328.) The federal constitution requires that the sentencing determination be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738].)
When the state seeks death, courts must ensure that every safeguard designed to guarantee “fairness and accuracy” in the “process requisite to the taking of a human life” is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 2595; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)
“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long…Because of this qualitative difference, there is a corresponding difference in the need for reliability…” (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 944]; see also Lankford v. Idaho (1991) 500 US 110, 125-26 [111 SCt 1723; 114 LEd2d 173]; Johnson v. Mississippi (1988) 486 US 578, 584 [108 SCt 1981; 100 LEd2d 575]; Mills v. Maryland (1988) 486 US 367, 377 [108 SCt 1860; 100 LEd2d 384]; Caldwell v. Mississippi (1985) 472 US 320, 329-330 [105 SCt 2633; 86 LEd2d 231]; California v. Ramos (1983) 463 US 992, 998-999 fn 9 [103 SCt 3446; 77 LEd2d 1171].)
As a result, the 8th Amendment requires a “greater degree of accuracy” and reliability. (Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case “both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects” ].) “[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error.” (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)
The instruction is also necessary because the sentencing determination must be fair. (See Gardner v. Florida, supra, 430 US 349 [death sentence based in part on a confidential presentence report given to the trial judge but not to the defense was unconstitutional because it was based on information which the defendant had no opportunity to deny or explain]; see also Simmons v. South Carolina (1994) 512 US 154, 168 [114 SCt 2187; 129 LEd2d 133] [to extent that jury’s potential belief that defendant was parole eligible may have affected its deliberations, defendant would be sentenced to death on basis of information which he or she had no opportunity to deny or explain].)
CG 13.9 The 8th Amendment Requires That The Jury Understand The Death Penalty Instructions.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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The death penalty may not be imposed in a discriminatory, random, arbitrary, or capricious manner. (Stringer v. Black (1992) 503 US 222, 228 [112 SCt 1130; 117 LEd2d 367]; Sochor v. Florida (1992) 504 US 527, 532-36 [112 SCt 2114; 119 LEd2d 326]; McCleskey v. Kemp (1987) 481 US 279, 282 [107 SCt 1756; 95 LEd2d 262]; Gregg v. Georgia (1976) 428 US 153, 204 [96 SCt 2909; 49 LEd2d 859]; 8th & 14th Amendments.)
The constitutionality of any death sentence is grounded on crucial 8th Amendment requirements such as rationally narrowing of death eligible defendants (see e.g., Tison v. Arizona (1987) 481 US 137 [107 SCt 1676; 95 LEd2d 127]; Godfrey v. Georgia (1980) 446 US 420, 433 [100 SCt 1759; 64 LEd2d 398]), individualized consideration of the defendant (see e.g., Stringer v. Black (1992) 503 US 222 [112 SCt 1130; 117 LEd2d 367]; Clemons v. Mississippi (1990) 494 US 738, 753 [110 SCt 1441; 108 LEd2d 725]), guided discretion (see e.g., Gregg v. Georgia, supra, 428 US 153).
If the jury fails to understand and apply these or any other 8th Amendment requirement, as conveyed by the jury instructions, then the death sentence will violate the federal constitution.
CG 13.10 Jury Consideration Of Extrinsic Evidence Or Properly Admitted Evidence For An Improper Purpose.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
*Insert bold text into Points and Authorities:
This instruction is required by the 8th and 14th Amendments of the federal constitution because the instruction [is necessary for] promotes a reliable sentencing determination. The federal constitution requires that the sentencing determination be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738].)
When the state seeks death, courts must ensure that every safeguard designed to guarantee “fairness and accuracy” in the “process requisite to the taking of a human life” is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 367; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)
“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long…Because of this qualitative difference, there is a corresponding difference in the need for reliability…” (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 944]; see also Lankford v. Idaho (1991) 500 US 110, 125-26 [111 SCt 1723; 114 LEd2d 173]; Johnson v. Mississippi (1988) 486 US 578, 584 [108 SCt 1981; 100 LEd2d 575]; Mills v. Maryland (1988) 486 US 367, 377 [108 SCt 1860; 100 LEd2d 384]; Caldwell v. Mississippi (1985) 472 US 320, 329-330 [105 SCt 2633; 86 LEd2d 231]; California v. Ramos (1983) 463 US 992, 998-999 fn 9 [103 SCt 3446; 77 LEd2d 1171].)
As a result, the 8th Amendment requires a “greater degree of accuracy” and reliability. (Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case “both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects” ].) “[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error.” (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)
The fact that capital cases require heightened reliability as to both the guilt and sentencing determinations was reaffirmed by the court in Kyles v. Whitley (1995) 514 US 419, 422 [115 SCt 1555; 131 LEd2d 490] in which the court quoted from Burger v. Kemp (1987) 483 US 776, 785 [107 SCt 3114; 97 LEd2d 638]: “Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.”
The sentencing determination must also be fair. (See Gardner v. Florida (1977) 430 US 349, 357-58 [97 SCt 1197; 51 LEd2d 393] [death sentence based in part on a confidential presentence report given to the trial judge but not to the defense was unconstitutional because it was based on information which the defendant had no opportunity to deny or explain]; see also Simmons v. South Carolina (1994) 512 US 154, 168 [114 SCt 2187; 129 LEd2d 133] [to extent that jury’s potential belief that defendant was parole eligible may have affected its deliberations, defendant would be sentenced to death on basis of information which he or she had no opportunity to deny or explain].)
These principles are violated if the jury considers extraneous evidence which was not properly admitted at trial or consider admitted evidence for an improper purpose. (See FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose].)
CG 13.11 Jury Must Consider Mitigating Evidence.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c) for a partial list of potential non-capital specific constitutional grounds.)
*Insert bold text into Points and Authorities:
This instruction is required by the Eighth and Fourteenth Amendments to the United States Constitution which require the jurors to consider all relevant mitigating evidence.
The sentencer must consider “as a mitigating factor, any aspect of the defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Lockett v. Ohio (1978) 438 US 586, 604 [98 SCt 2954; 57 LEd2d 973]; see also Kansas v. Marsh (2006) 548 US 163 [165 LEd2d 429; 126 SCt 2516, 2526] [“Consonant with the individualized sentencing requirement, a Kansas jury is permitted to consider any evidence relating to any evidence relating to any mitigating circumstance in determining the appropriate sentence for a capital defendant, so long as that evidence is relevant [citation]”]; Weeks v. Angelone (2000) 528 US 225 [120 SCt 727, 732; 145 LEd2d 727] [“the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence …”]; Buchanan v. Angelone (1998) 522 US 269, 276 [118 SCt 757; 139 LEd2d 702] [same]; 8th & 14th Amendments.) This includes the defendant’s mental impairment and background. (Penry v. Lynaugh (1989) 492 US 302, 320 [109 SCt 2934; 106 LEd2d 256]; see also Eddings v. Oklahoma (1982) 455 US 104, 114-17 [102 SCt 869; 71 LEd2d 1].)
“It follows as night the day that although the jury determines the appropriate weight to be given to the mitigating evidence, the jury ‘may not give it no weight by excluding such evidence from their considerations.'” (McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 837 [citation to Eddings v. Oklahoma (1982) 455 US 104, 115 [102 SCt 869; 71 LEd2d 1]].) Where the jury misunderstands its obligation to consider relevant mitigating evidence, “[t]he risk created by this legal derailment [is] that [the jury] would impose the death penalty ‘in spite of factors which…[might] call for a less severe penalty.'” (McDowell, 130 F3d at 838 [citation to Lockett v. Ohio (1978) 438 US 586, 605 [98 SCt 2954; 57 LEd2d 973]].) “The Supreme Court has identified this risk as one ‘unacceptable and incompatible with the commands of the 8th and 14th Amendments.’ [Citation.]” (Ibid.)
CG 13.12 A Mandatory Death Sentence Is Unconstitutional: The Jury Must Fairly Exercise Discretion.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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This instruction is required by the 8th and 14th Amendments of the federal constitution which preclude mandatory death sentences.
In general, a system for imposing the death penalty must focus on the circumstances of the crime and the character of the individual defendant and must provide “specific and detailed guidance” to the sentencing body. (See Jurek v. Texas (1976) 428 US 262, 268-276 [96 SCt 2950; 49 LEd2d 929] [upholding Texas statute limiting capital homicides to intentional and knowing murders committed in five specified situations, and creating sentencing procedure that requires jury in penalty phase of bifurcated trial to answer three questions affirmatively in order to sentence death, and also providing for expedited review by state court]; Proffitt v. Florida (1976) 428 US 242, 251 [96 SCt 2960; 49 LEd2d 913] [upholding Florida statute requiring sentencing judge, after bifurcated trial and advisory jury verdict, to weigh aggravating and mitigating circumstances when determining death sentence and set forth these findings in writing, and also providing for automatic review by state supreme court of all death sentences]; Gregg v. Georgia (1976) 428 US 153, 193-206 [96 SCt 2909; 49 LEd2d 859] [upholding Georgia statute requiring sentencing judge or jury, in bifurcated trial, to find at least one of ten statutory aggravating circumstances beyond a reasonable doubt when sentencing death, to consider any additional mitigating or aggravating evidence, and to specify aggravating circumstance(s) found, and also providing for direct review by state supreme court of appropriateness of all death sentences].)
CG 13.13 Improper Aggravation.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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This instruction is required by the 8th and 14th Amendments of the federal constitution which preclude consideration of invalid aggravating factors. (See Espinosa v. Florida (1992) 505 US 1079, 1080-83 [112 SCt 2926; 120 LEd2d 854]; Clemons v. Mississippi (1990) 494 US 738, 752 [110 SCt 1441; 108 LEd2d 725].) The 8th Amendment requires “close appellate scrutiny of the import and effect of invalid aggravating factors …” (Stringer v. Black (1992) 503 US 222, 230 [112 SCt 1130; 117 LEd2d 367].) “Employing an invalid aggravating factor in the weighing process ‘creates the possibility … of randomness,’ [citation] by placing a ‘thumb [on] death’ s side of the scale’ [citation] thus ‘creat[ing] the risk [of] treat[ing] the defendant as more deserving of the death penalty’ [citation].” (Sochor v. Florida (1992) 504 US 527, 532 [112 SCt 2114; 119 LEd2d 326].)
CG 13.14 Fair And Reliable Sentencing Determination.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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This instruction is required by the 8th and 14th Amendments of the federal constitution because the instruction is necessary for a reliable sentencing determination. The federal constitution requires that the sentencing determination be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738].) When the state seeks death, courts must ensure that every safeguard designed to guarantee “fairness and accuracy” in the “process requisite to the taking of a human life” is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 2595; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)
Unless the jurors fully and accurately understand the sentencing options, the penalty verdict cannot be fair and reliable. ( See Simmons v. South Carolina (1994) 512 US 154, 168 [114 SCt 2187; 129 LEd2d 133]; see also Shafer v. South Carolina (2001) 532 US 36 [149 LEd2d 178; 121 SCt 1263]; Hamilton v. Vasquez (9th Cir. 1994) 17 F3d 1149, 1160-62 [conviction reversed when confusing commutation instruction given over objection by defense counsel]; McLain v. Calderon (9th Cir. 1998) 134 F3d 1383); California v. Ramos (1983) 463 US 992 [77 LEd2d 1171; 103 SCt 3446]; Coleman v. Calderon (9th Cir. 1998) 150 F3d 1105 [a commutation instruction is unconstitutional when it is inaccurate]; Coleman v. Calderon (9th Cir. 2000) 210 F3d 1047, 1051 [trial court’s jury instruction regarding the governor’s power to commute sentences was misleading and constitutionally infirm, and had a “substantial injurious effect” on the jury’s verdict, warranting reversal of the penalty phase]; but see People v. Prieto (2003) 30 C4th 226 [Shafer is inapposite because California jurors are told life sentence is without parole]; People v. Ashmus (1991) 54 C3d 932, 995; People v. Roybal (1998) 19 C4th 481, 524 [trial court correctly refused instruction that defendant “will never be released on parole … [and that the jury must] assume … defendant will not be released from prison ever”]; Ramdass v. Angelone (2000) 530 US 156 [147 LEd2d 125; 120 SCt 2113, 2119] [defendant not entitled to jury instruction on parole ineligibility as required by Simmons v. South Carolina (1994) 512 US 154 [129 LEd2d 133; 114 SCt 2187], because the defendant’s third conviction, which would have made him ineligible for parole, was not formally entered into the record by the trial judge until after the capital case ended].)
Additionally, this instruction request is should be granted because the Due Process Clause of the federal constitution (14th Amendment) and the 8th Amendment require that capital sentencing proceedings be fair. (See Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393] [death sentence based in part on a confidential presentence report given to the trial judge but not to the defense was unconstitutional because it was based on information which the defendant had no opportunity to deny or explain]; see also Simmons v. South Carolina (1994) 512 US 154, 168 [114 SCt 2187; 129 LEd2d 133] [to extent that jury’s potential belief that defendant was parole eligible may have affected its deliberations, defendant would be sentenced to death on basis of information which he or she had no opportunity to deny or explain].) Jury misunderstanding about the nature deprives the defendant of due process by denying the defendant notice of, and a fair opportunity to explain or deny the matters upon which the death sentence is, in whole or part, predicated. (Ibid.)
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
CG 13.15 No Coercion; No Duty To Decide.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
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This instruction is required by the 8th and 14th Amendments of the federal constitution because the instruction is necessary for a reliable sentencing determination. The federal constitution requires that the sentencing determination be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738].) When the state seeks death, courts must ensure that every safeguard designed to guarantee “fairness and accuracy” in the “process requisite to the taking of a human life” is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 2595; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)
“Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” (Smith v. Phillips (1982) 455 US 209, 217 [71 LEd2d 78; 102 SCt 940] italics added.) At the penalty phase, as well as the guilt phase of a capital trial, the jury “must stand impartial and indifferent”; its “verdict must be based upon the evidence developed at the trial,” and may not be influenced by any other external consideration. (Morgan v. Illinois (1992) 504 US 719, 727 [119 LEd2d 492; 112 SCt 2222].)
Unless this instructional request is granted, the instruction will abridge the defendant’s rights under the above constitutional provisions by unduly coercing the jurors into reaching a verdict. When a trial court instructs a jury it “is essential in almost all cases to remind jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party.” (U.S. v. Mason (9th Cir. 1981) 658 F2d 1263, 1268; see also Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 748-51 [inquiry held not to be coercive where court on four occasions reminded the jurors not to surrender their sincerely held beliefs under pressure from the majority]; U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337 [“one of the most important parts of the Allen charge”]; Smalls v. Batista (2nd Cir. 1999) 191 F3d 272, 279 [“lack of any cautionary language which would discourage jurors from surrendering their own conscientiously held beliefs was a ‘fatal flaw'”]; Sartin v. State (OK 1981) 637 P2d 897, 898; see also FORECITE CG 7.8 [Right To Individual Juror Determination].)
Instructions which imply that the jurors must reach a penalty verdict are unconstitutionally coercive and violate the 8th Amendment and the Due Process Clause of the federal constitution by denying the a fair sentencing trial. (See e.g., Wharton v. People (1939) 104 Colo 260 [90 P2d 615] [death sentence reversed where majority pressured holdout juror to vote for death]; cf., People v. Mc Neal (79) 90 CA3d 830, 838-39 [evidence that juror may be under “duress” from outside influences requires inquiry by trial court]; see also e.g., Weaver v. Thompson (9th Cir. 1999) 197 F3d 359 [where, after four hours of deliberation following a full day of trial, the jury asked whether it must reach a verdict in all counts and the bailiff responded “yes,” and where the jury returned a guilty verdict on all counts five minutes after the bailiff responded, the bailiff’s comment amounted to a coercive Allen charge and violated Weaver’s due process rights]; Smalls v. Batista, 191 F3d 272 [supplemental charge to jury divided 11 to 1 was unconstitutionally coercive because it “both (1) obligated the jurors to convince one another that one view was superior to another, and (2) failed to remind those jurors not to relinquish their own conscientiously held beliefs”].) The trial court must exercise its power, without coercion of the jury, to avoid displacing the jury’s independent judgment in favor of consideration of compromise and expediency. (People v. Sheldon (1989) 48 C3d 935; People v. Proctor (1992) 4 C4th 499, 539.
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
CG 13.16 Standard Of Proof Required At Capital Sentencing Trial.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. Counsel should also research and consider constitutional grounds which are not specific to Capital Cases including, but not limited to those in FORECITE CG 1-12 (PG VII(I)(b).
(See FORECITE CG Table of Contents [(PG VII(I)(c)] for a partial list of potential non-capital specific constitutional grounds.)
*Insert bold text into Points and Authorities:
This instruction is required by the 8th and 14th Amendments of the federal constitution because the instruction is necessary for a reliable sentencing determination. The federal constitution requires that the sentencing determination be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738].) When the state seeks death, courts must ensure that every safeguard designed to guarantee “fairness and accuracy” in the “process requisite to the taking of a human life” is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 2595; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)
The California Supreme Court has consistently stated that “[u]nlike the guilt determination, ‘the sentencing function is inherently moral and normative, not factual’ [citation] and, hence, not susceptible to a burden of proof quantification.” (People v. Hawthorne (1992) 4 C4th 43, 79; see also People v. Jenkins (2000) 22 C4th 900, 1053.) Accordingly, “‘neither the prosecution nor the defense has the burden of proof’ during the penalty phase. [Citation.]” (People v. Welch (1999) 20 C4th 701, 767.)
However, “[j]urors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law.” (Carter v. Kentucky (1981) 450 US 288, 302 [67 LEd2d 241; 101 SCt 1112].) Moreover, “a trial court must instruct sua sponte on those general principles of law which are ‘closely and openly connected with the facts before the court, and which are necessary for a jury’s understanding of the case.'” (People v. Crawford (1982) 131 CA3d 591, 596, citation omitted; People v. Sedeno (1974) 10 C3d 703, 715.) This duty of the judge specifically includes instructing on the burden of proof. (EC 502.)
The burden of proof in any case is one of the most fundamental concepts in our system of justice, and any error in articulating it is automatically reversible error. (Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182].) The reason is obvious: Without an instruction on the burden of proof, jurors may not use the correct standard, and each may instead apply the standard he or she believes appropriate in any given case thus producing a constitutionally unreliable sentencing verdict in violation of the above cited federal constitutional principles.
Moreover, denial of this instructional request would result in the denial of the defendant’s state created right under California law, including EC 500-502, to a jury verdict based on the legally applicable burden of proof. Hence, the instructional request is required by the Due Process Clause of the federal constitution. (Hicks v. Oklahoma (1980) 447 US 343, 346 [65 LEd2d 175; 100 SCt 2227]; see also People v. Sutton (1993) 19 CA4th 795, 804; Hernandez v. Ylst (9th Cir. 1991) 930 F2d 714, 716.)
