Completely Unguided Discretion: Admitting Non-Statutory Aggravating and Non-Statutory Mitigating Evidence in Capital Sentencing Trials

Authors

Sharon Turlington, Missouri State Public Defender’s Office

Abstract

[Excerpt] “As an attorney practicing exclusively in the area of death penalty defense at the trial level for the last ten years, my perspective on the problems inherent in the system seems vastly different from that presented in academic research and even in case law. While most of the recent changes in death penalty law have focused on the right of the defendant to have sentencing enhancing elements of an offense proven to a jury beyond a reasonable doubt, much of the evidence presented in an actual death penalty jury trial is non-statutory aggravation and non-statutory mitigation. Generally, non-statutory aggravating evidence shows the impact of the crime on the victim’s family or involves prior bad acts of the defendant. Non-statutory mitigating evidence involves the defendant’s background, good character, and ability to adjust to a jail setting or anything about his involvement in the crime, which is mitigating. These types of evidence are admitted at the discretion of the trial judge, often without any instructional guidance for the jury. Little attention has been given to why it is constitutionally acceptable for the sentencing phase of a capital trial to be an evidentiary free-for-all and to whether this is an unconstitutional exercise of state power.”

Repository Citation

Sharon Turlington, Completely Unguided Discretion: Admitting Non-Statutory Aggravating and Non-Statutory Mitigating Evidence in Capital Sentencing Trials, 6 Pierce L. Rev. 469 (2008), available at http://scholars.unh.edu/unh_lr/vol6/iss3/7