Jury May Not Consider Victim’s Family Desire For Execution Of Defendant At Death Penalty Sentencing Phase
November 30th, 2022

At the penalty phase of a death penalty trial the prosecution may not elicit the views of a victim or victim’s family as to the proper punishment. (Booth v. Maryland (1987) 482 U.S. 496, 508-509.) The high court overruled Booth in part, but it left intact its holding that “the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment.” (Payne v. Tennessee (1991) 501 US 808, fn. 2; see also People v. Henriquez (2017) 4 Cal.4th 1, 40 [ prosecutor may not present evidence of or argue that the victim’s family asks for the death penalty…,”].)

However, even if there is no express testimony from family members expressing a desire that the defendant be executed, in many cases the jurors could easily infer such a desire. And such an inference would be especially reasonable in situations where the family members of the victim are allowed to testify about how they were impacted of the victim’s murder. (See e.g., People v. Edwards (1991) 54 C3d 787, 835-36 [following Payne v. Tennessee, supra, 501 US 808].)

As Edwards recognized, such “victim impact” evidence must not be allowed to give the jurors “the impression that emotion may reign over reason…” or allow “irrelevant information or inflammatory rhetoric [to] divert[] the jury’s attention from its proper role.” (Edwards quoting People v. Haskett (1982) 30 C3d 841, 864.)

On the other hand, emotion need not and, indeed, cannot be entirely excluded from the jury’s moral assessment.” People v. Tran (Aug. 29, 2022, S165998) [pp. 62] [citing and quoting (People v. Dykes (2009) 46 Cal.4th 731, 787.) In such an emotional milieu it is highly likely that the jurors will infer or speculate that the victim’s family wants the defendant executed and, in turn, to rely on the family’s wishes during the sentencing deliberations.

Accordingly, it may be appropriate — especially in cases involving victim-impact testimony from family members — to request a limiting instruction precluding the jurors from speculating about and relying on the desire of the victim’s family that the defendant receive the death penalty.

CAVEAT. Before requesting such an instruction counsel will have to evaluate whether or not such an instruction unnecessarily exacerbates the problem. “Singling out a category of evidence for special consideration may cause the jury to give it undue weight in its deliberations.” (People v. Wright (1988) 45 C3d 1126, 1153.) [See also FORECITE F 100.1 Inst 5.] On the other hand, failure to request a cautionary instruction may waive an important appellate issue. These conflicting considerations should be weighed in each individual case.

Sample Instructions

Add immediately before the last sentence of paragraph 1 of CC 763:

However, you must not infer or speculate about whether any of the victim’s family members [would] want the defendant to be executed. Nor may you consider any such inferences or speculation for any purpose during your deliberations.

See also FORECITE 763.3 Inst 1, Inst 2, Inst 3 re: victim impact instructions generally.



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