Return to CALJIC Part 5-8 – Contents
F 8.85(k) n1 Reliable Mitigating Evidence Is Admissible At Penalty Phase.
Relying on established United States Supreme Court decisions interpreting the 8th Amendment, Rupe v. Wood (9th Cir. 1996) 93 F3d 1434 held that relaxed standards govern evidentiary rulings in the penalty phase and, therefore, notwithstanding state law to the contrary, all arguably reliable mitigating evidence offered by the defendant (e.g., polygraph testimony by a qualified examiner under proper conditions) should be admitted if relevant to mitigation of penalty. (See also Imwinkelried and Garland Exculpatory Evidence (2d Ed. 1996) § 5-4 [application of the accused’s constitutional right to specific logical relevance rulings during the sentencing phase]; Id. at § 6-4(b)(2) [application of the accused’s constitutional right to present evidence and testimony based on a scientific technique: [polygraph]].)
F 8.85(k) n2 Defendant’s Courtroom Demeanor As Basis For Sympathy.
People v. Mayfield (97) 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 expanded PC 190.3(k) instructions are 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 FORECITE F 1.00l; see also FORECITE PG I(F) CAVEAT III; People v. Brown (85) 40 C3d 512, 540 [220 CR 637] [disapproved on other grounds in California v. Brown (87) 479 US 538 [93 LEd2d 934; 107 SCt 837] [jury must be free to reject death on basis of any relevant “evidence or observation”].) But see FORECITE F 2.60b and F 2.60c [discussion of whether such observations constitute extrinsic evidence].
STRATEGY NOTE: Re: Impact of Medication, Culture, Etc. on Defendant’s Appearance, Demeanor and Conduct At Trial, see FORECITE F 2.60 n4.
F 8.85(k) n3 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 (98) 19 C4th 353, 459 [79 CR2d 408] 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.
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 1.00l [counsel’s argument that a specific rule is included in a general instruction].)
F 8.85(k) n4 Death Penalty: Denial Of Guilt Does Not Demonstrate Absence Of Remorse.
People v. Padilla (95) 11 C4th 891 [47 CR2d 426] held that the prosecutor impermissibly argued that the defendant’s denial of guilt for the murder demonstrated an absence of remorse.
F 8.85(k) n5 Cultural Defense Issues.
(See FORECITE F 4.031 n1.)
RESEARCH NOTE: Cultural Defense of False Stereotype? What Happens When Latina Defendants Collide With the Federal Sentencing Guidelines, K.L. Holmquist, 12 Berkely Women’s L.J. 45-72, 1997.
F 8.85(k) n6 Fetal Alcohol Syndrome (FAS) As Mitigating Factor.
(See FORECITE F 4.032 n1.)
F 8.85(k) n7 Low I.Q. Scores And Special Education Classes As Mitigation.
Low IQ scores and participation in special education classes as relevant mitigation evidence. (See (2004) 543 US 37 [160 LEd2d 303, 310-11; 125 SCt 400, 405]; Tennard v. Dretke (2004) 542 US 274 [159 LEd2d 384; 124 SCt. 2562, 2568-69]; Wiggins v. Smith (2003) 539 US 510, 535 [156 LEd2d 471;123 SCt 2527].)
F 8.85(k) Inst 1
Defendant’s Background Is Mitigating Only
The permissible aggravating factors are limited to those aggravating factors upon which you have been specifically instructed. Therefore, the evidence which has been presented regarding the defendant’s background may only be considered by you as mitigating evidence.
Points and Authorities
Evidence of the defendant’s background can only be a mitigating factor because the permissible aggravating factors are limited to those listed in section 190.3. (People v. Hardy (92) 2 C4th 86, 207 [5 CR2d 796].) In Hardy, it appears that no limiting instruction on the use of background evidence was requested. Nevertheless, the Supreme Court assumed that the failure to limit the jury’s consideration of background to mitigation was error albeit harmless. Accordingly, such an instruction should be given in every case where evidence of the defendant’s background has been presented.
By promoting a reliable, non-arbitrary, and individualized sentencing determination and by protecting against jury consideration of matters which are constitutionally irrelevant, constitutionally protected, arbitrary, or discriminatory, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Dawson v. Delaware (92) 503 U.S. 159 [117 LEd2d 309; 112 SCt 1093]; Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
PG 8.85(k) Inst 2
Format for Instruction That Specific Mitigating Evidence Is Included in Factor K Or Other General Instructions.
*Add to CJ 8.85(k):
If supported by the evidence, it is proper to consider _________(insert specific mitigating factor, eg., lingering doubt of the defendant’s guilt) when determining the appropriate penalty. You are further instructed that such evidence is to be included within the meaning of factor (__), ___________________ (e.g., k, or any other circumstances which extenuate the gravity of the crime).
Points and Authorities
An instruction using this format for victim impact evidence was approved in People v. Harris (2005) 37 C4th 310, 358. Even though victim impact is considered to be included in the more general Factor(a) instruction, the Supreme Court held that the prosecution had the right to inform the jurors of that fact. (Ibid. [“The instruction given properly informed the jury of the law….”].) The same reasoning should be applied to a defense request to inform the jury that a specific mitigating factors such as lingering doubt, is included in a more general instruction. (See Wardius v. Oregon (73) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; see also FORECITE F 1.00l.)
