Penalty Phase Research Articles

Cases and Biographies: An Essay on Routinization and the Nature of Comparison

▪ Abstract Routines, protocols, and organization charts focus attention, structure cognition, and shape decision making. Participants in organizations, legal systems, and markets compare cases, deciding which protocol governs the treatment of each case in a stream. But situations vary in the extent to which thought and action are effectively governed by routines and standard operating procedures. In less structured or more chaotic situations, biography is an alternative form of analysis that shapes cognition and helps people make sense of otherwise uninterpretable events. Biography and narrative do their work by constructing the causal unity of objects over time rather than by constructing causation from a comparison across similar cases. Using examples such as critically ill infants, animals, heirlooms, the penalty phase of capital trials, juvenile justice, the lower criminal courts, religious relics, and cloth, the paper compares case and biographical analysis in organizations, legal settings, and markets, asking how these different ways of thinking come about and what follows from them.

On Credible Monetary Policy and Private Government Information

Credible and optimal monetary policies are considered in environments in which the government observes a signal that is correlated with the state of the economy. When the signal is public information it is optimal for monetary policy to be conditioned upon it. The extent to which such conditioning should occur when the signal is the private information of the government depends upon the government's incentives to misrepresent information. It is shown that in some cases the Ramsey policy is incentive compatible, in others it is not. In the latter cases, policy must be constrained to be incentive compatible. This may result in “penalty phases” along the equilibrium path following apparent “mistakes” by the policy maker; it may result in the optimal monetary policy making no use of the signal. Journal of Economic Literature Classification Numbers: C73, E52, E58.

Due process and the death penalty: The role of prosecutorial misconduct in closing argument in capital trials.

Prosecutorial misconduct in closing argument during the penalty phase of capital trials can be defined as “any disparaging or prejudicial statements calculated to influence the jury to consider improper factors in determining life in prison or the death penalty” (Gaskill, 1991, p. 13). Improper statements made by the prosecutor during closing argument may jeopardize a defendant's right to a fair trial. While acknowledging such statements as misconduct, courts sometimes permit them on the theory that the presence of improper statements in closing argument would not change the juries' verdicts and therefore are not fundamentally unfair (Chapman v. California, 1967). The present study examined whether improper statements made by the prosecutor in closing argument during the penalty phase of a capital trial would result in more death penalty recommendations. Three hundred and twenty jury-eligible individuals viewed a videotape based on the penalty phase of an actual capital trial (Brooks v. State, 1977). Individuals exposed to improper statements made by the prosecutor in closing argument recommended the death penalty significantly more often than those not exposed to the statements.

Victim Impact Testimony in New Jersey Capital Cases: A Case Study in Criminal Justice Policy Development

This is a case study in the development of a statutory policy concerning victims' rights in the death penalty phase of capital trials in New Jersey. It employs the case method in the analysis of criminal justice policy development. It initially examines the historic roots of policy development as a field of study and then examines the factors leading to a new policy on victim impact testimony. It focuses on the key positions taken by the major stakeholders in the policy debate in the state legislature as well as the subsequent court challenge. Legislative testimony and legal briefs are examined. The study concludes that policy development is a rational process reflecting a careful balancing of political and legal interests.

Victim Impact Evidence in Capital Cases: Does the Victim's Character Matter?1

Victim impact evidence is introduced by the prosecution during the penalty phase of a capital case to describe the character of the victim and the emotional, financial, and physical impact of the victim's murder on survivors. In 1987, the Supreme Court voiced concern that this evidence would permit the capital sentencing decision to turn on jurors' perceptions of the victim's respectability. This study assesses that concern. Mock jurors watched a reenactment of the penalty phase in the case of Booth v. Maryland. We manipulated the respectability of the victim described in the victim impact evidence and found that jurors' judgments of the victims, victims' survivors, and severity of the crime were all affected by this description. We speculate on the way that these moderating variables could, in turn, influence the capital sentencing decision.

The Role of Declarative and Procedural Knowledge in Capital Murder Sentencing1

This paper identifies rational orderliness and moral appropriateness as 2 norms that the United States Constitution requires for sentencing in capital murder trials. The courts convey these norms directly to jurors through jury instructions in the penalty phase of capital murder trials. To follow the instructions, jurors require accurate declarative knowledge (rules of law) and procedural knowledge (processes required to execute the rules) of state and federal sentencing law. Undergraduate mock jurors showed low accuracy for both types of knowledge after reviewing and listening to pattern jury instructions. Participants failed to offset aggravating factors with mitigating circumstances as the Missouri Approved Jury Instructions direct. The less knowledge that participants mastered about mitigation, the more certain they were of invoking the death penalty.

Clarifying life and death matters: An analysis of instructional comprehension and penalty phase closing arguments.

We report the results of two studies designed as follow-ups to our earlier research on the comprehension of capital penalty instructions. In the first study we examine whether a California penalty instruction that was revised by the courts to improve its comprehension by jurors accomplishes this goal. In the second study we content-analyze a sample of attorney closing arguments that were given at the conclusion of actual capital penalty phases to explore whether they are likely to clarify those concepts and procedures that are so poorly comprehended in the judge's instructions. Results indicate that the revised instruction suffers from the same comprehension problems that plagued its predecessor and that attorney arguments appear unlikely to significantly reduce confusion among capital jurors.

Cultural Factors in Criminal Defense Proceedings

Anthropologists' understandings of cultural factors affecting behavior can assist in the development of criminal defenses as a basis for establishing exculpating, extenuating, and mitigating circumstances. While the cultural defense is generally not recognized as a specific defense, cultural factors are admissible within traditional defenses. This article orients anthropologists to their potential contributions in criminal defenses by reviewing the legal context for establishing the relevance of cultural factors, with specific reference to the Model Penal Code. The article also reviews case materials where the author was appointed as an expert witness to illustrate how cultural factors may serve to establish mitigating circumstances during the preliminary, guilt and penalty phases of trials.

Jury Decision Making and the Effect of Victim Impact Statements in the Penalty Phase

Research supports the finding that jurors' decisions are affected by many variables other than the evidence presented during trial. Most of this research has focused on jury decision making during the guilt determining phase of the trial, while very little study has been devoted to the sentencing phase. As victims of crime have demanded more attention in the criminal justice system over the past decade, more cases and research have focused on the “rights” of victims and how they may have an impact on the outcome of a criminal trial. This article examines the research regarding the variables which affect jury decision making during the guilt and penalty phases of a criminal case while emphasizing the need for further research in the area of how victim impact evidence affects the jury's decision.

Comprehensibility of approved jury instructions in capital murder cases.

This research explored the comprehensibility of jury instructions in the penalty phase of murder trials. Data were collected to ascertain whether miscomprehension of jury instructions limits the law's ability to direct juror discretion in a manner consistent with the Eighth Amendment's proscription against cruel and unusual punishment. Citizens willing to impose the death penalty were presented in 2 experiments with 4 sets of instructions (i.e., baseline instructions, instructions used at trial, instructions revised according to Eighth Amendment holdings, and model instructions written in nontechnical language). Results demonstrated high confusion with the trial instructions, little improvement with revised instructions, significant but case-specific improvements with model instructions, and a strong relationship between miscomprehension and willingness to impose death.

Comprehending life and death matters: A preliminary study of California's capital penalty instructions.

Modern capital jurisprudence places special significance on judicial instructions to guide the discretion of the capital jury in reaching a penalty phase decision. Yet, previous social science research has raised doubts about the extent to which judicial instructions are generally understood by jurors and questioned their utility in producing intended effects. The present study measured the comprehension of the capital sentencing instruction employed in California. Data suggest widespread inability to define accurately the central concepts of aggravation and mitigation in use in virtually every state that currently has a death penalty statute, as well as the inability to distinguish properly the sentencing significance of the enumerated factors jurors are directed to use in reaching their life and death verdicts. In addition, an inordinate focus on the circumstances of the crime—to the exclusion of other potentially important factors—was identified, as well as special problems in comprehending the crucial concept of mitigation in constitutionally required ways.

Attorney Persuasion in the Capital Penalty Phase: A Content Analysis of Closing Arguments

Transcribed sentencing phase summations were content analyzed and comparisons were made between prosecution and defense arguments. Arguments were coded to discover the themes emphasized by attorneys in arguing for life imprisonment or the death penalty. Prosecutors portrayed the defendant as a cold, remorseless killer, emphasized the brutal nature of the murder, the suffering experienced by victims, and the moral legitimacy of revenge. Defenders explained the murders in the context of the defendant's personal history, emphasized the severity of life without the possibility of parole, and argued that the death penalty is unjust and morally wrong. Defenders provided richer accounts of the life history of the defendant and prosecutors provided more vivid accounts of the murder. Attorney arguments are discussed in light of research on communication, social cognition, and persuasion.

Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death

Death sentencing is a psychologically complex and legally profound process. Our research explored the experiences of capital jurors who had deliberated to verdict in death penalty sentencing hearings. In‐depth interviews conducted with samples of jurors from two states—California and Oregon—examined the nature and function of capital sentencing instructions, jurors' interpretations of the evidence that was presented during the penalty phase of the trial, their conceptions of the nature of the task before them, and whether the two fundamentally different sentencing frameworks significantly altered the decision‐making process.

Life or death decisions: An analysis of capital jury decision making under the special issues sentencing framework.

The penalty phase deliberation experiences of capital jurors guided by the “special issues” sentencing instructions were investigated. These instructions ask jurors to consider three specific issues to determine whether a defendant should receive a sentence of life imprisonment or the death penalty: whether the crime was committed deliberately; whether there is a probability that the defendant would pose a continuing threat to society; and whether the conduct of the defendant was unreasonable in light of any provocation on the part of the victim. In-depth interviews with 27 jurors explored the organization of the penalty deliberation, the topics discussed, influential factors in the decision-making process, the impact of sentencing instructions, the importance of the possibility of parole, and the stress associated with capital jury service. Jurors relied heavily on sentencing instructions to guide their deliberations and to determine their responsibilities. Future dangerousness and the possibility of parole were critical considerations in deciding between life and death. Although jurors found the capital trial to be stressful, most believed that the life or death decision should be made by jurors. Findings are discussed in light of constitutional concerns about the administration of the death penalty.

Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phases of Capital Trials

Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phases of Capital Trials

Horses of the Night: Harris v. Vasquez

On July 5, 1978 Robert Alton Harris and his brother Daniel set out steal a stranger's automobile so that they could have a getaway car when they robbed San Diego Trust and Savings Bank. In a parking lot directly across from bank two boys sat in a green Ford, eating hamburgers. Robert Harris pulled out a pistol and told boys drive a fire trail near Mirama Lake. Daniel followed in his brother's car. At foot of trail, cars were parked. The boys were forced walk up trail at gunpoint. Part way up, Robert Harris shot one of boys, John Mayeski, aged fifteen, in back. He put a second bullet in his head. The other boy, Michael Baker, aged sixteen, ran and hid in brush. Robert Harris pursued him. He begged for his life. Harris shot him four times. He came back John Mayeski and shot him again in head. The Harrises returned Robert's house. He ate rest of boys' unfinished hamburgers. He laughed at his brother for not having stomach join him in meal. The Harrises then robbed bank and returned Robert's house with proceeds of robbery. A witness followed them house and called police. They were arrested a little after 1:00 in afternoon. At 4:00 p.m. Daniel informed police of murders and at 6:30 p.m. put blame on Robert. At 7:00 Robert confessed. At midnight he was examined by a psychiatrist retained by state, Wait Griswold.I Nine months later Robert Harris went on trial in Superior Court of San Diego County. He was charged with two counts of murder. He retracted his confession. His defense was innocence: He had not shot boys. He was found guilty.2 The jury then entered on the penalty phase. By statute jury was directed take into account and be guided by aggravating and mitigating circumstances referred in this section.13 The circumstances mentioned included whether defendant's ability to conform his conduct

Jury decision making in the capital penalty phase: Legal assumptions, empirical findings, and a research agenda.

There are large bodies of research on the deterrent value of the death penalty and public attitudes towards capital punishment. However, little is known about how jurors decide whether a particular defendant should live or die. This article briefly summarizes the case law that attempts to guide the discretion of jurors in the penalty phase of capital murder trials, reviews empirical research on penalty decision making, suggests a methodological strategy for investigating the penalty phase, and identifies several promising directions for future research. Four broad categories of research are identified: the effects of guiding juror discretion, comparisons of juries that vote for life with those that vote for death, the relationship between guilt and penalty phases, and models of decision making in the penalty phase. Several testable hypotheses are proposed.

Comprehension of judges' instructions in the penalty phase of a capital trial: Focus on mitigating circumstances.

Comprehension of two sets of judges' penalty phase instructions for a capital trial was examined. The 115 subjects, recruited from jury lists, viewed one of two 20-min videotapes, prepared either from the instructions given in a specific North Carolina capital trial several years ago or from the present North Carolina pattern instructions. After viewing the tape, subjects responded to a series of eight questions, which probed their understanding of the legal issues presented in the instructions. Compared to the subjects exposed to the present pattern instructions, those exposed to the instructions from the specific trial displayed significantly inferior understanding of the legal criteria to be used in deciding the existence of mitigating circumstances and for incorporating mitigating circumstances into the final jury recommendation of life imprisonment or the death penalty. The results of the experiment are relevant to appeals beyond the specific appeal that prompted the research, and the methodology is applicable to a range of issues.

The mental illness defense in the capital penalty hearing

AbstractSeveral defense strategies are available to the capital defendant who is arguing for life in the penalty phase, including a mental illness (MI) defense. An MI defense presents psychiatric testimony to the effect that the defendant was mentally disturbed at the time of the offense and, therefore, should not be held completely responsible. The few studies available suggest that an MI defense will be ineffective because (1) death‐qualified jurors do not respond favorably to purely psychological explanations of criminal behavior and (2) an MI defense may erroneously mislead the jury regarding the defendant's unpredictability and dangerousness. Analagous studies of insanity acquittals suggest certain factors that may be associated with a succesful MI defense.

The Impact of Crime Victimization and Fear of Crime on Attitudes Toward Death Penalty Defendants

A 1983 telephone survey of 610 respondents in two Maryland counties found that the general disposition of the respondents toward the criminal justice system was a better predictor of abstract attitudes toward the death penalty than either the respondents' fear of becoming crime victims or whether they had been victims of crime. Yet respondents' fear of crime victimization was a better predictor of their willingness to impose the death penalty or to accept mitigating circumstances during the penalty phase of a capital case than their abstract attitudes toward the criminal justice system. Respondents who were "somewhat" afraid of crime victimization were less likely to support the death penalty than were respondents who were "very" afraid or "not" afraid of victimization. These finding indicate that previous research on the death penalty may have been flawed because the wording of the questions asked was too abstract and unidimensional.