F 8.83.2

Jury Not To Consider Penalty:

Modification When Witness Testifies Pursuant To Bargain With Prosecution

*To be added at end of CJ 8.83.2 when appropriate:

However, you are not precluded from considering the potential penalty facing any prosecution witnesses who had [charges pending] [were on probation] at the time of their testimony.

Points and Authorities

CJ 8.83.2a is overly broad in a case where the potential penalty facing a prosecution witness may bear on that witness’ credibility. Accordingly, CJ 8.83.2a should be supplemented, upon request and when appropriate, to assure that the jury will fully consider the charges pending against the witness when evaluating the witness’ credibility. (This issue was recognized but not resolved in People v. Pitts (90) 223 CA3d 606, 880-81 [273 CR 757]; see also People v. Jones (2003) 30 C4th 1084, 1114; FORECITE F 2.20a and FORECITE F 3.20a regarding specific instruction upon immunized witnesses and jailhouse informants and FORECITE F 17.42a.)

Improper or inadequate instruction upon witness credibility implicates the defendant’s state (Art. I § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

F 8.83.2b

Jury Must Not Consider Penalty Between Guilt And Penalty Phase Trials

*Add to CJ 8.83.2:

You are instructed that you are still jurors in this case and have not been discharged. Shortly, we will commence the penalty phase of the trial during which additional evidence may be presented, additional jury instructions will be given and further argument of counsel will be presented. In the meantime, do not discuss the case with anyone or permit anyone to discuss the case with you. Do not read anything about the case. Do not think about or form any opinions about the upcoming penalty trial. It is your sworn obligation to withhold any judgment and decline to form any opinion or give any thought whatsoever as to penalty until after you have heard the penalty evidence, instructions and argument and you have begun penalty deliberations.

[If any juror has, at this time, prematurely considered, discussed or formed an opinion regarding what penalty should be imposed, or if any juror knows of another juror who had done so, the juror should notify the bailiff, preferably by a written note addressed to me.]

Points & Authorities

The unique bifurcated nature of a capital trial presents an especially dangerous potential for the jurors to speculate and form preconceived opinions about the penalty trial. Since the jurors have already found the defendant guilty of special circumstance murder, they may already be leaning toward death in violation of basic federal constitutional notions of fairness and due process. (5th, 6th and 14th Amendments; see also People v. Holt (97) 15 C4th 619, 684 [63 CR2d 782] [neither party has burden of proof at penalty phase].) Accordingly, a special cautionary instruction should be given precluding consideration of penalty between phases of the trial. (See People v. Turner (90) 50 C3d 668, 701-02 [268 CR 706].) Moreover, bias or prejudice as to penalty would also implicate the 8th Amendment including the requirement that the verdict be a “reasoned moral response to the defendant’s background character and crime.” (Buchanan v. Angelone (98) 522 US 269 [139 LEd2d 702, 712; 118 SCt 757.) It would also violate the 8th Amendment requirement that the sentencing determination be reliable. (See FORECITE DP II [[Checklist Of Selected 6th/8th/14th Amendment Principles] # 4.)

STRATEGY NOTE: Counsel will have to evaluate the risk that a “hold-out” juror may be dismissed if, in response to a juror complaint, the majority accuses the juror of nullification (voting to acquit notwithstanding the instructions). (See FORECITE F 17.40 n3 and 17.41.1 n2.)

F 8.83.2c

Capital Case Preinstruction:

Jury Must Not Consider Penalty During Guilt Phase

*Replace CJ 8.83.2 with the following for use as preinstruction:

At no time during this trial are you permitted to consider, discuss, or even think about the question of what punishment the defendant should receive if [he] [she] is convicted.

[Should it become necessary for you to form an opinion as to penalty, that will be done at a later time and then only when I authorize you to do so. In other words, if and when it is necessary for you to consider penalty you will be told to do so. Until such time, you must not give any thought whatsoever to penalty.]

At no time during this trial are you permitted to consider, discuss, or even think about the question of what punishment the defendant should receive if [he] [she] is convicted. You must not give any thought whatsoever to penalty.

Points and Authorities

There is empirical support for the conclusion that many jurors reach a personal decision concerning punishment before the sentencing stage of the trial, before hearing the evidence or arguments concerning the appropriate punishment, and before the judge’s instructions for making the sentencing decision. (See e.g., People v. Carter (2003) 30 C4th 1166, 1218 [defense alleged that a juror prejudged the determination of penalty during guilt trial].) “Interviews with 916 capital jurors in eleven states reveal[ed] … that many jurors reached a personal decision concerning punishment before the sentencing stage of the trial, before hearing the evidence or arguments concerning the appropriate punishment, and before the judge’s instructions for making the sentencing decision. Moreover, most of the jurors, who indicated a stand on punishment at the guilt stage of the trial said they were ‘absolutely convinced’ of their early stands on punishment and adhered to them throughout the course of the trial.” [Emphasis added.] (“Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-Trial Experience and Premature Decision Making,” William J. Bowers, Marla Sandys and Benjamin D. Steiner, 83 Cornell L.Rev. 1476, 1477 (Sept. 1998).

Moreover, ordinarily the jurors will have been extensively voir dired about their role in deciding both guilt and penalty. Thus, without further instruction, the jurors could reasonably assume that consideration of penalty during the trial is permissible if not required.

Accordingly, due to the unique nature of the capital process which often requires jurors to consider guilt and punishment, and given the fact the jurors are necessarily informed about this on voir dire, counsel may wish to consider requesting modification of the standard instructions to further admonish the jury against considering or forming opinions as to penalty during the guilt trial. (Cf., People v. Stitely (2005) 35 C4th 514 [trial court told jurors to ignore guilt phase argument of prosecutor regarding possible penalty trial].) CJ 8.83.2 is inadequate in the regard because it relates only to deliberations. The above instruction is intended to be given pre-trial.

CAVEAT: Use of the above instruction should be considered carefully in light of the fact that it may imply the defendant’s guilt.

PROCEDURAL NOTE: Because of the danger that other jurors could be infected by a premature decision by other jurors, a procedure for individual, sequestered inquiry into the juror’s state of mind would be preferable. However, should the court not allow such a procedure, consideration will have to be given as to whether to request a general instruction in this regard.