Death Penalty: Sympathy for Defendant’s Family — Instruction and Argument
June 21st, 2022

CC 763 includes the following optional clarifications regarding the jurors’ consideration of sympathy for the defendant’s family in a death penalty case.

[Although you may consider sympathy or compassion for the defendant,
you may not let sympathy for the defendant’s family influence your
decision. [However, you may consider evidence about the impact the
defendant’s execution would have on (his/her) family if that evidence
demonstrates some positive quality of the defendant’s background or

The CC Bench Notes re: Instructional Duty explains the use of these optional instructions as follows:

On request, give the bracketed sentence that begins with “You may not let sympathy for the defendant’s family.” (People v. Ochoa (1998) 19 Cal.4th 353, 456 [79Cal.Rptr.2d 408, 966 P.2d 442].) On request, give the bracketed sentence that begins with “However, you may consider evidence about the impact the defendant’s
execution.” (Ibid.)

These optional instructions and the supporting Bench Note are erroneous.

Ochoa did not hold that the instructions proposed by CC are correct. The Court merely concluded that there was no federal constitutional violation because neither the jury instructions nor the prosecutor’s argument — to which defense counsel did not object — prevented the jury from considering evidence relevant to Ochoa’s character or the circumstances of the offense charged. (Id. at 506.)

First, the court noted that the jury heard evidence of the emotional impact of a possible death sentence on Ochoa’s family. Id. at 505–06.) Further, the court examined the other instructions the trial court gave regarding what constituted a “mitigating factor,” noting that those instructions “did not forbid him to argue to the jurors to take sympathy for his family into account.” Id. at 504. Specifically, the court observed that the trial court instructed the jury that it could consider “unlimited” mitigating factors and explained that the “[m]itigating factors provided in the instructions [were] merely examples of some of the factors” the jury could consider in deciding whether a death sentence was warranted.” (Id.)

Thus, Ochoa does not authorize an affirmative instruction precluding the jurors from considering sympathy for the defendant’ family.

Moreover, since the decision in Ochoa the USSC has approved the ‘family sympathy defense’ as a competent defense penalty strategy.” (Cullen v. Pinholster (2011) 563 U.S. 170, 193-194.) Accordingly, the above quoted CC instruction which precludes consideration of sympathy for the defendant’s family violates the defendant’s state and federal constitutional rights to instruction on a valid defense theory.

“[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988) 485 US 58, 63; see also Keeble v. U.S. (1973) 412 US 205, 208.)

Moreover, “a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor….” (People v. Marshall (CA 1996) 13 C4th 799, 836 [55 CR2d 347]; see also Washington v. Texas (1967) 388 US 14, 19.) A failure to instruct on the defense theory encompassed by the defendant’s evidence undermines the very constitutional rights which allow the evidence to be presented to the jury. (See e.g., U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-58 [rights to trial by jury (6th Amendment) and due process (5th and 14th Amendments) abridged by failure to instruct on defense theory of the case.)

Similarly, under state law:

“A party is entitled upon request to correct, non-argumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.  The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (94) 8 C4th 548, 572; see also People v. Gurule (2002) 28 Cal.4th 557, 660 [“criminal defendant has the right to instructions that pinpoint the theory of the defense case”].)

In other words, absent an appropriate instruction, the right to present evidence is entirely meaningless. (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202; see also Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739-42.) Thus, when the defendant relies on the valid defense theory of sympathy for the defendant’s family it would be erroneous to deny a defense theory of the case instruction and/or to affirmatively instruct the jury — or allow the prosecutor to argue — that it cannot consider this theory.

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