Death Penalty - Preliminary Instructions
12.00 HOMICIDE - DEATH PENALTY - SENTENCING
(18 U.S.C. ?? 3591 et seq.) TC \l1 "12.00 HOMICIDE - DEATH PENALTY - SENTENCING
(18 U.S.C. ?? 3591 et seq.)
Instructions 12.01-.03 are to be given at the beginning of the sentencing phase, before the introduction of evidence. They are intended to be a concise overview, so that the jury has a basic understanding of the decisions it will be called upon to make.
Instructions 12.04-.22 are to be given after all evidence has been presented and prior to deliberations.
12.01 INTRODUCTION TO PRELIMINARY INSTRUCTIONS TC \l2 "12.01
INTRODUCTION TO PRELIMINARY INSTRUCTIONS
Members of the jury, you have unanimously found the defendant1 guilty of the offense of as charged in Count [repeat for each offense] of the indictment. You must now consider whether imposition of a sentence of death is justified, or whether the defendant should be sentenced to life imprisonment without the possibility of release2[, or a lesser sentence] for commission of this [these] crime[s].
This decision is left exclusively to you, the jury. If you determine3 that the defendant should be sentenced to death, or to life imprisonment without possibility of release, the court is required to impose that sentence.
Before you may consider whether to impose a sentence of death, you must make each of the following three findings unanimously and beyond a reasonable doubt:
[First, you must find unanimously and beyond a reasonable doubt that defendant was at least 18 years of age at the time of the offense[s]4; and]
[First] [Second], you must find unanimously and beyond a reasonable doubt that defendant
[intentionally killed (name of victim)]
[intentionally inflicted serious bodily injury that resulted in the death of (name of victim)]
[intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and (name of victim) died as a direct result of the act]
[intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and (name of victim) died as a direct result of the act]; and
[Second] [Third], you must find unanimously and beyond a reasonable doubt that the government has proved the existence of at least one statutory aggravating factor. I will define the term "aggravating factors" for you shortly.
If, after fair and impartial consideration of all the evidence in this case, any one of you does not make these [two] [three] findings beyond a reasonable doubt, your deliberations will be over. If you do unanimously make these [two] [three] findings beyond a reasonable doubt, you will then proceed to determine whether you unanimously find that the government has proved the existence of any nonstatutory aggravating factors beyond a reasonable doubt, and whether any of you find that the defendant has proved any mitigating factors by a preponderance of the evidence. You must then engage in a weighing process. If you unanimously find that the aggravating factor or factors, which you all found to exist, sufficiently outweigh any mitigating factor or factors, which any one of you5 found to exist to justify imposition of6 a sentence of death, or, if, in the absence of a mitigating factor or factors, you find that the aggravating factor or factors alone are sufficient to justify imposition of a sentence of death, and that death is therefore the appropriate sentence in this case, the law provides that the defendant must7 be sentenced to death.
If, after weighing the aggravating and mitigating factors, any one of you finds that a sentence of death is not justified, the jury must then determine whether the defendant should be sentenced to life imprisonment without possibility of release, or be given a lesser sentence to be determined by the court.
Again, whether or not the circumstances in this case justify a sentence of death is a decision that is entirely yours. [You must not take anything I may say or do during this phase of the trial as indicating [what I think of the evidence or] what I think your verdict should be.]
Two terms that you have already heard and will hear throughout this phase of the case are "aggravating factors" and "mitigating factors." These factors concern the circumstances of the crime or the personal traits, character or background of the defendant [and the effect of the offense on the victim (and the victim’s family]8.
[The word "aggravate" means "to make worse or more offensive" or "to intensify." The word "mitigate" means "to make less severe" or "to moderate."]9 An aggravating factor[, then,] is a fact or circumstance which would tend to support imposition of the death penalty. A mitigating factor is any aspect of a defendant's character or background, any circumstance of the offense(s), or any other relevant fact or circumstance which might indicate that the defendant
should not be sentenced to death.
In the death penalty statute, a number of aggravating factors are listed. These are called "statutory aggravating factors." As I instructed you earlier, before you may consider imposition of the death penalty, you must find that the government proved at least one of these aggravating factors specifically listed in the death penalty statute, and your finding must be unanimous and beyond a reasonable doubt. [In addition to statutory aggravating factors, there may also be aggravating factors not specifically set out in the death penalty statute. Again, your finding that any non statutory aggravating factor exists must be unanimous and beyond a reasonable doubt.]
The defendant has the burden of proving any mitigating factors. However, there is a different standard of proof as to mitigating factors. You need not be convinced beyond a reasonable doubt about the existence of a mitigating factor; you need only be convinced that it is more likely true than not true in order to find that it exists. A unanimous finding is not required. Any one of you may find the existence of a mitigating factor, regardless of the number of other jurors who may agree.
If you have unanimously found that at least one statutory aggravating factor exists, you then must weigh the aggravating factors you have all found to exist against any mitigating factors you have individually found to exist, to determine the appropriate sentence. Any juror may also weigh a mitigating factor found by another juror, even if he or she did not also find that factor to be mitigating.10 I will give you detailed instructions regarding the weighing of aggravating [and mitigating] factors before you begin your deliberations. However, I instruct you now that you must not simply count the number of aggravating [and mitigating] factors and reach a decision [based on which number is greater]; you must consider the weight and value of each factor.
[The government alleges the following statutory aggravating factors: [list factors] The government also alleges the following nonstatutory aggravating factors: [list factors] The defendant alleges the following mitigating factors: [list factors]]11
Notes on Use
1. These instructions have been prepared in a single-defendant format. Appropriate modifications for proceedings involving multiple defendants would be necessary.
2. In Simmons v. South Carolina, 512 U.S. 154, 156, 114 S. Ct. 2187, 2190 (1994), the Supreme Court held that where a defendant's future dangerousness was at issue and the only
sentencing alternative to the death penalty under state law was life imprisonment without possibility of parole, due process required that the sentencing jury be informed that the defendant was ineligible for parole. The Court reiterated that holding in Shafer v. South Carolina, 532 U.S. 36, 51, 121 S. Ct. 1263, 1273 (2001).
Sections 3593(e) and 3594, Title 18, United States Code, provide that the jury shall make a recommendation regarding whether the defendant should be sentenced to death or life imprisonment without the possibility of release, which would require that they be informed of this option for offenses under sections 3591(b)(1)-(2). The practice in most states is to inform the sentencing jury of life without parole as an alternative to capital punishment. Simmons v. South Carolina, 512 U.S. at 167-68 nn.7-8, 114 S. Ct. at 2195-96.
3. Although the statute uses the word "recommend," the jury's determination is binding; the court MUST impose the sentence the jury "recommends" unless a new trial is ordered. The Committee recommends use of the word "determine," because of concern that use of the word "recommend" might tend to diminish the jury's sense of its ultimate responsibility for determining the sentence. See Caldwell v. Mississippi, 472 U.S. 320 (1985).
4. Courts have consistently held that where a statute requires that a defendant be of a certain age in order to be guilty of an offense, the defendant’s age is an element of the offense and must be proven beyond a reasonable doubt. See, e.g., Watson v. State, 140 N.E.2d 109, 110-11 (Ind. 1957); State v. Thompson, 365 N.W.2d 40, 41-42 (Iowa 1985); Barnett v. State, 488 So. 2d 24 (Ala. Crim. App. 1986); State v. Lauritsen, 261 N.W.2d 755, 756 (Neb. 1978); Lee v. State, 481 S.E.2d 264, 265-66 (Ga. App. 1997); State in the Interest of A.N., A Juvenile, 630 A.2d 1183, 1184 (N.J. Super. 1993); State v. Collins, 620 A.2d 1051, 1053 (N.J. Super. 1993). Therefore, the Committee recommends that the issue be submitted to the jury, unless the defendant agrees to stipulate that he/she was at least 18 years of age at the time of the offense.
5. In Jones v. United States, 527 U.S. 373, 377 (1999), the Supreme Court held that the jury may consider a mitigating factor in its weighing process so long as one juror accepts the factor as mitigating by a preponderance of the evidence.
6. The Committee was concerned that absence of the words "imposition of" rendered the decision before the jury too abstract.
7. In United States v. Allen, 247 F.3d 741, 780 (8th Cir. 2001), judgment vacated and remanded on other grounds, 122 S. Ct. 2653 (2002), the Eighth Circuit held that this instruction and Instruction12.11 (the weighing instruction), which the defendant had attacked as impermissibly mandatory in nature, "accurately explain the jury’s role in sentencing under the FDPA." The court also held that the district court did not abuse its discretion in refusing to give the defendant’s "mercy" instruction, which closely followed the language in the Title 21 statute, to the effect that the jury, "regardless of its findings with respect to aggravating and mitigating factors, is never required to impose a death sentence." It concluded that
Under the FDPA, the jury exercises complete discretion in its determination of
whether the aggravating factors outweigh the mitigating factors. The jury was informed
that whether or not the circumstances justify a sentence of death was a decision left
entirely to them. Mercy is not precluded from entering into the balance of whether the
aggravating circumstances outweigh the mitigating circumstances. The FDPA merely
precludes the jurors from arbitrarily disregarding its unanimous determination that a
sentence of death is justified.
Id. at 781. The Eighth Circuit reaffirmed its holding in Allen in United States v. Ortiz, 315 F.3d 873 (8th Cir. 2002).
8. This phrase should be used with extreme caution. Section 3593(a), Title 18, United States Code, provides that aggravating factors "may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family . . ." Some kinds of "victim impact" evidence are clearly admissible, i.e., evidence which amounts to "circumstances of the crime." See Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597 (1991). Other "personal traits" of the victim are clearly not to be considered as part of the sentencing determination, i.e., race, color, religion, national origin or gender. See 18 U.S.C. ? 3593(f); Zant v. Stephens, 462 U.S. 862, 885 (1983). Some "victim impact" evidence might be mitigating and must be submitted as such under Lockett v. Ohio, 438 U.S. 586, 604-08 (1978).
9. Whether to define the words "aggravate" and "mitigate" is a decision best left to the district court.
10. See Note 1, Instruction 12.09, infra.
11. Whether to list the aggravating and mitigating factors for the jury at the preliminary stage of the sentencing phase is a decision for the district court to make depending on the circumstances of the case before it.
In Ring v. Arizona, 536 U.S. 584, ___, 122 S. Ct. 2428, 2443 (2002), the Supreme Court held that statutory aggravating factors must be found by the jury beyond a reasonable doubt. By implication, those factors, as well as the requisite intent state, must also be alleged in the indictment. Id.; United States v. Cotton, 122 S. Ct. 1781 (2002). Further, section 3593(a) requires the government to give notice of aggravating factors prior to trial or plea of guilty. The government is therefore precluded from offering evidence during the penalty phase of additional statutory aggravating factors which were not alleged in the indictment and of nonstatutory aggravating factors for which notice was not given. However, the statute does not require the defendant to disclose mitigating factors. Therefore, the district court should not limit the defendant in presenting evidence of any mitigating factor. Further, although Rule 16 gives the district court broad discretion to regulate discovery, the Committee takes no position on whether the district court can order the defendant to disclose, prior to the penalty phase hearing, the mitigating factors he or she intends to prove.
12.02 BURDEN OF PROOF TC \l2 "12.02 BURDEN OF PROOF
This instruction is to be given at the beginning of the
sentencing phase, before the introduction of evidence.
As I have just instructed you, the government must meet its burden of proof beyond a reasonable doubt. A "reasonable doubt" is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence1 received in this trial. It is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.
The defendant does not have the burden of disproving the existence of anything the government must prove beyond a reasonable doubt. The burden is wholly upon the government; the law does not require the defendant to produce any evidence at all.
It is the defendant's burden to establish any mitigating factors, by a preponderance of the evidence. To prove something by the preponderance of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which of the evidence is more believable. [If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.]
[The preponderance of the evidence is not necessarily determined by the greater number of witnesses or exhibits presented by the government or the defendant.]
[To prove something by the preponderance of the evidence is a lesser standard of proof than proof beyond a reasonable doubt.]
Notes on Use
1. The Supreme Court has emphasized the importance of providing the jury with all relevant and reliable information, Jurek v. Texas, 428 U.S. 262, 276 (1976); Gregg v. Georgia, 428 U.S. 153, 203-04 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) ("it [is] desirable for the jury to have as much information as possible when it makes the sentencing decision"); accord Payne v. Tennessee, 501 U.S. 808, 820-21, 111 S. Ct. 2597, 2606 (1991) (the prosecutor is free to offer "a wide range of relevant material" in a capital sentencing proceeding). See also 18 U.S.C. ? 3661 (use of information for sentencing) ("No limitation shall be placed on the information concerning the background, character, and conduct of [the defendant]."); accord Fed. R. Crim. P. 32(a).
Probably for this reason, section 3593(c) uses the word "information" rather than
"evidence." It provides that "[i]nformation is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Nevertheless, the Committee recommends use of the word "evidence," to avoid the possibility of juror confusion.
The Eighth Circuit has rejected the contention that the "relaxed" evidentiary standards applicable at the penalty phase of the trial violate a capital defendant’s constitutional rights. United States v. Allen, 247 F.3d 741, 759-60 (8th Cir. 2001), judgment vacated and remanded on other grounds, 122 S. Ct. 2653 (2002). For a discussion of some of the issues that have arisen because of the nonapplicability of the Federal Rules of Evidence in capital sentencing proceedings, see United States v. Beckford, 964 F. Supp. 993 (E.D. Va. 1997); United States v. Fell, 2002 WL 31113946 (D. Vt. Sept. 24, 2002) (holding FDPA unconstitutional because imposition of death penalty based on information not subject to constitutional guarantees of evidentiary admissibility.)
See Instructions 3.11, 6.21.853, supra; Eighth Circuit Manual of Model Civil Jury Instructions, ? 3.04.
12.03 EVIDENCE TC \l2 "12.03 EVIDENCE 1
This instruction is to be given at the beginning of the
sentencing phase, before the introduction of evidence.
In making all the determinations you are required to make in this phase of the trial, you may consider any evidence that was presented during the guilt phase of the trial as well as evidence that is presented at this sentencing phase of the trial.
In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it. [In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence that you believe.]
Notes on Use
1. See Note 1, Instruction 12.02.
See Instructions 1.03-.05, supra.