CRM/LAW C165 Lecture 7: Lecture #7
3 May 2018
School
Department
Course
Professor
Mitigation
• the bifurcated trial
o two or more hearings or trials held on different issues in a case
o Gregg and the companion cases of 1976 established the bifurcated trial in capital
cases
▪ guilt phase
▪ penalty phase
o usually the same jury
o in theory, the jury is supposed to totally separate these phases
o most states’ guidelines for the penalty phase involve a type of guided discretion
called ‘weighing,’ in which the statutes “list aggravating and mitigating
considerations and require jurors to weigh the aggravating against the mitigating
factors in making their punishment decision”
o CA Penal Code 190.3: “the trier of fact [jury]… shall impose a sentence of death if
the trier of fact concludes that the aggravating circumstances outweigh the mitigating
circumstances” (and vice versa)
o generally, jurors are supposed to use their personal judgment about the significance of
mitigation – it is not supposed to be a numerated ‘scale’
• legal context
o a series of post-Furman cases have codified the right of defendants to present
mitigation evidence
▪ Woodson v. North Carolina (1976)
▪ Jurek v. Texas (1976)
• 1. deliberate
• 2. future dangerousness
• 3. unreasonable response to provocation, if any
o mitigation considered in #2
▪ Locket v. Ohio 1978
▪ Eddings v. Oklahoma 1982
• DP mitigation defined
o “mitigation is the legal category into which penalty phase evidence must be placed
before it can be used by jurors in reaching merciful and compassionate decisions that
can spare capital defendants’ lives” – Craig Haney
• Model Penal Code mitigating circumstances
o defendant has no significant history of prior criminal activity
o murder was committed while defendant was under the influence of extreme mental or
emotional disturbance
o victim was participant in defendant’s homicidal conduct or consented the homicidal
act
o murder was committed under circumstances which defendant believed to provide a
moral justification or extenuation for his conduct
o defendant acted under duress or under domination of another person
o mental disease or defect or intoxication at time of murder
o age of murderer
• but also
o mitigation evidence usually involves presentation of defendant’s social history
• how it works
find more resources at oneclass.com
find more resources at oneclass.com
