SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 763.13 Death Penalty: Factors to Consider—Remorse
TABLE OF CONTENTS
F 763.13 Death Penalty: Factors to Consider—Remorse
F 763.13 Inst 1 (a & b) Remorse Is Mitigation; Lack Of Remorse Is Not Aggravation
F 763.13 Inst 2 Jury May Not Consider Non-Testifying Defendant’s Courtroom Appearance, Conduct Or Demeanor To Find Lack Of Remorse In Capital Trial
F 763.13 Inst 3 Defendant’s Failure To Confess Or Denial Of Guilt Is Not Lack Of Remorse Or Aggravation
F 763.13 Death Penalty: Factors—Notes
F 763.13 Note 1 Remorse May Be Considered Under Factor K
F 763.13 Note 2 Whether Fifth Amendment Precludes Finding Lack Of Remorse Based On Defendant’s Failure To Testify
Return to Series 700 Table of Contents.
F 763.13 Inst 1 (a & b) Remorse Is Mitigation; Lack Of Remorse Is Not Aggravation
*Add to CC 763:
Alternative a:
The defendant’s expression or feelings of remorse about the crimes is something you may consider as mitigation but not aggravation.
Alternative b:
While remorse is a factor you may consider in mitigation, you may not consider the defendant’s failure to express remorse as a factor in aggravation.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instruction On Remorse—“[R]emorse, which by definition can only be experienced after a crime’s commission, is something commonly thought to lessen or excuse a defendant’s culpability.” (Brown v. Payton (2005) 544 US 133 [161 LEd2d 334; 125 SCt 1432, 1439].) In People v. Ochoa (1998) 19 C4th 353, 459, the court found no sua sponte obligation to instruct the jury to consider the defendant’s remorse in mitigation. In so doing, the court concluded that the jury would consider remorse under the general language of PC 190.3(k). However, the Supreme Court did not contest the fundamental fact that remorse is a mitigating factor which the jury may consider, and therefore, the defendant should have the right to so instruct the jury upon request.
Lack Of Remorse Normally May Not Be Considered In Aggravation—Remorse is always a mitigating factor, while lack of remorse may only be considered as aggravation when it is manifested or expressed during or immediately following the commission of a capital crime. (See People v. Schmeck (2005) 37 C4th 240, 300 [favorably quoting the above instructional language].)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.11 [Jury Must Consider Mitigating Evidence]
FORECITE CG 13.13 [Improper Aggravation]
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 FORECITE F 200.5 Inst 2 [counsel’s argument that a specific rule is included in a general instruction].)
F 763.13 Inst 2 Jury May Not Consider Non-Testifying Defendant’s Courtroom Appearance, Conduct Or Demeanor To Find Lack Of Remorse In Capital Trial
*Add to CC 763:
You are admonished to disregard the defendant’s appearance, demeanor and conduct in the courtroom. You must not consider it [to conclude that the defendant lacks remorse or] for any purpose.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—Generally, the defendant’s non-testimonial demeanor should not be considered by the jurors. (See FORECITE F 104.1 Inst 7.) However, it has not been specifically decided whether the defendant’s non-testimonial demeanor may be considered in finding a lack of remorse. The California Supreme Court has never held that the jury could consider a non-testifying defendant’s courtroom demeanor in determining the appropriateness of the death penalty. In People v. Gonzalez (1990) 51 C3d 1179, 1226 fn 26, the court suggested occasions when observations of the defendant’s demeanor could be considered by the jury even if not reflected in the formal record. However, in Gonzalez, supra, at 1202, People v. Adcox (1988) 47 C3d 207, 229, and People v. Williams (1988) 44 C3d 883, 901, the defendants testified. Moreover, the United States Supreme Court has declined to address the issue. (See Mitchell v. U.S. (1999) 526 US 314 [143 LEd2d 424; 119 SCt 1307] [prosecution retains burden of proving facts relevant to the crime at sentencing and may not rely on adverse inference from defendant’s failure to testify at guilt phase; question of whether silence bears on determination of lack of remorse left undecided].)
Nonetheless, there will likely be a natural tendency for the jury to rely on its observations of a non-testifying defendant in a capital trial to find lack of remorse. It has been empirically recognized that “The defendant’s demeanor during trial … influences jurors’ beliefs about remorse.” (“But Was He Sorry? The Role of Remorse In Capital Sentencing,” Theodore Eisenberg, Steven P. Garvey, Martin T. Wells, 83 Cornell L. Rev. 1599, 1600 (Sept. 1998).) Accordingly, it may be appropriate to instruct the jury on this issue.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 1.1 [Privilege Against Self Incrimination: Reliance On Silence]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
FORECITE CG 13.13 [Improper Aggravation]
CAVEAT: Of course, the decision whether to request such an instruction requires careful evaluation as to whether it will unduly emphasize the factor sought to be limited. (See “CAVEAT” to FORECITE F 337 Inst 7.) Consideration should also be given to the impact of the cautionary instruction on the potential constitutional challenge on appeal. Whether requested or not, counsel should consider emphasizing the inadequacy of a limiting instruction due to the danger it will highlight the prejudice.
STRATEGY NOTE: There may be hidden factors (e.g., defendant’s cultural characteristics, medications taken during trial, etc.) which may impact his demeanor and conduct at trial. For example, such factors may lead the jury to falsely conclude that the defendant’s stoicism shows a lack of remorse. (See FORECITE F 104 Note 1.)
CALJIC NOTE: See FORECITE F 2.60c.
F 763.13 Inst 3 Defendant’s Failure To Confess Or Denial Of Guilt Is Not Lack Of Remorse Or Aggravation
*Add to CC 763:
The fact that the defendant [failed to confess to the police] [denied guilt at the guilt trial] is not a factor in aggravation or a proper basis for deciding whether or not the defendant has remorse.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—Neither the defendant’s failure to confess nor his or her denial of guilt may be relied on as aggravation or to conclude that the defendant did not have remorse. (People v. Kennedy (2005) 36 C4th 595, 635-36; People v. Fierro (1991) 1 C4th 175, 244; People v. Coleman (1969) 71 C2d 1159, 1169.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
CAVEAT: Of course, the decision whether to request such an instruction requires careful evaluation as to whether it will unduly emphasize the factor sought to be limited. (See “CAVEAT” to FORECITE F 337 Inst 7.) Consideration should also be given to the impact of the cautionary instruction on the potential constitutional challenge on appeal. Whether requested or not, counsel should consider emphasizing the inadequacy of a limiting instruction due to the danger it will highlight the prejudice.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 1.1 [Privilege Against Self Incrimination: Reliance On Silence]
FORECITE CG 1.12 [Compulsory Process: Generally]
FORECITE CG 1.13 [Confrontation: Generally]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 763.13 Death Penalty: Factors—Notes
F 763.13 Note 1 Remorse May Be Considered Under Factor K
See FORECITE F 763.13 Inst 1.
F 763.13 Note 2 Whether Fifth Amendment Precludes Finding Lack Of Remorse Based On Defendant’s Failure To Testify
See FORECITE F 761.2 Inst 13; see also FORECITE F 763.13 Inst 2.
