Amendment 8 — Role Of Jury And Consideration Of Evidence

prev | next

Eighth Amendment :

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In response to the Supreme Court’s 1976 decisions on the death penalty,[1](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn1amd8 " Gregg v. Georgia, 428 U.S. 153 (1976) (upholding a statute providing for a bifurcated proceeding separating guilt and sentencing phases, requiring the jury to find at least one of ten statutory aggravating factors before imposing death, and providing for review of death sentences by the Georgia Supreme Court); Proffitt v. Florida, 428 U.S. 242 (1976) (a statute generally similar to Georgia’s, with the exception that the trial judge, rather than the jury, was directed to weigh statutory aggravating factors against statutory mitigating factors); Jurek v. Texas, 428 U.S. 262 (1976) (a statute construed as narrowing the death-eligible class of cases, and lumping mitigating factors into consideration of dangerousness); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976) (both mandating the death penalty for first degree murder). ") most states narrowed sentencing authority discretion to impose the death penalty by enacting statutes spelling out “aggravating” circumstances and requiring that at least one such aggravating circumstance be found before the death penalty is imposed. The Court has required that the standards be relatively precise and instructive so as to minimize the risk of arbitrary and capricious action by the sentencer. Thus, in Godfrey v. Georgia, the Court invalidated a capital sentence based upon a jury finding that the murder was “outrageously or wantonly vile, horrible, and inhuman,” reasoning that “a person of ordinary sensibility could fairly [so] characterize almost every murder.” [2](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn2amd8 " Godfrey v. Georgia, 446 U.S. 420, 428–29 (1980) (plurality opinion). ") Similarly, in Maynard v. Cartwright, the Court held an “especially heinous, atrocious, or cruel” aggravating circumstance to be unconstitutionally vague.[3](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn3amd8 " Maynard v. Cartwright, 486 U.S. 356, 363–64 (1988). But see Tuilaepa v. California, 512 U.S. 967 (1994) (holding that permitting capital juries to consider the circumstances of the crime, the defendant’s prior criminal activity, and the age of the defendant, without further guidance, is not unconstitutionally vague). ") The “especially heinous, cruel, or depraved” standard is cured, however, by a narrowing interpretation requiring a finding of infliction of mental anguish or physical abuse before the victim’s death.[4](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn4amd8 " Walton v. Arizona, 497 U.S. 639 (1990). Accord, Lewis v. Jeffers, 497 U.S. 764 (1990). See also Gregg v. Georgia, 428 U.S. 153, 201 (1976) (upholding full statutory circumstance of “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim” ); Proffitt v. Florida, 428 U.S. 242, 255 (1976) (upholding “especially heinous, atrocious or cruel” aggravating circumstance as interpreted to include only “the conscienceless or pitiless crime which is unnecessarily torturous to the victim” ); Sochor v. Florida, 504 U.S. 527 (1992) (impermissible vagueness of “heinousness” factor cured by narrowing interpretation including strangulation of a conscious victim); Arave v. Creech, 507 U.S. 463 (1993) (consistent application of narrowing construction of phrase “exhibited utter disregard for human life” to require that the defendant be a “cold-blooded, pitiless slayer” cures vagueness); Bell v. Cone, 543 U.S. 447 (2005) (presumption that state supreme court applied a narrowing construction because it had done so numerous times). ")

The proscription against a mandatory death penalty has also received elaboration. The Court invalidated statutes making death the mandatory sentence for persons convicted of first degree murder of a police officer,[5](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn5amd8 " Roberts v. Louisiana, 431 U.S. 633 (1977) (per curiam) (involving a different defendant from the first Roberts v. Louisiana case, 428 U.S. 325 (1976). ") and for prison inmates convicted of murder while serving a life sentence without possibility of parole.[6](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn6amd8 " Sumner v. Shuman, 483 U.S. 66 (1987). ") Flaws related to those attributed to mandatory sentencing statutes were found in a state’s structuring of its capital system to deny the jury the option of convicting on a lesser included offense, when doing so would be justified by the evidence.[7](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn7amd8 " Beck v. Alabama, 447 U.S. 625 (1980). The statute made the guilt determination “depend . . . on the jury’s feelings as to whether or not the defendant deserves the death penalty, without giving the jury any standards to guide its decision on this issue.” Id. at 640. Cf. Hopper v. Evans, 456 U.S. 605 (1982). No such constitutional infirmity is present, however, if failure to instruct on lesser included offenses is due to the defendant’s refusal to waive the statute of limitations for those lesser offenses. Spaziano v. Florida, 468 U.S. 447 (1984). See Hopkins v. Reeves, 524 U.S. 88 (1998) (defendant charged with felony murder did not have right to instruction as to second degree murder or manslaughter, where Nebraska traditionally did not consider these lesser included offenses). See also Schad v. Arizona, 501 U.S. 624 (1991) (first degree murder defendant, who received instruction on lesser included offense of second degree murder, was not entitled to a jury instruction on the lesser included offense of robbery). In Schad the Court also upheld Arizona’s characterization of first degree murder as a single crime encompassing two alternatives, premeditated murder and felony murder, and not requiring jury agreement on which alternative had occurred. ") Because the jury had to choose between conviction or acquittal, the statute created the risk that the jury would convict because it felt the defendant deserved to be punished or acquit because it believed death was too severe for the particular crime, when at that stage the jury should concentrate on determining whether the prosecution had proved defendant’s guilt beyond a reasonable doubt.[8](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn8amd8 " Also impermissible as distorting a jury’s role are prosecutor’s comments or jury instructions that mislead a jury as to its primary responsibility for deciding whether to impose the death penalty. Compare Caldwell v. Mississippi, 472 U.S. 320 (1985) (jury’s responsibility is undermined by court-sanctioned remarks by prosecutor that jury’s decision is not final, but is subject to appellate review) with California v. Ramos, 463 U.S. 992 (1983) (jury responsibility not undermined by instruction that governor has power to reduce sentence of life imprisonment without parole). See also Lowenfield v. Phelps, 484 U.S. 231 (1988) (poll of jury and supplemental jury instruction on obligation to consult and attempt to reach a verdict was not unduly coercive on death sentence issue, even though consequence of failing to reach a verdict was automatic imposition of life sentence without parole); Romano v. Oklahoma, 512 U.S. 1 (1994) (imposition of death penalty after introduction of evidence that defendant had been sentenced to death previously did not diminish the jury’s sense of responsibility so as to violate the Eighth Amendment); Jones v. United States, 527 U.S. 373 (1999) (court’s refusal to instruct the jury on the consequences of deadlock did not violate Eighth Amendment, even though court’s actual instruction was misleading as to range of possible sentences). ")

The overarching principle of Furman v. Georgia[9](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn9amd8 " 408 U.S. 238 (1972). ") and of the Gregg v. Georgia series of cases[10](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn10amd8 " Gregg v. Georgia, 428 U.S. 153 (1976) (upholding a statute providing for a bifurcated proceeding separating guilt and sentencing phases, requiring the jury to find at least one of ten statutory aggravating factors before imposing death, and providing for review of death sentences by the Georgia Supreme Court); Proffitt v. Florida, 428 U.S. 242 (1976) (a statute generally similar to Georgia’s, with the exception that the trial judge, rather than the jury, was directed to weigh statutory aggravating factors against statutory mitigating factors); Jurek v. Texas, 428 U.S. 262 (1976) (a statute construed as narrowing the death-eligible class of cases, and lumping mitigating factors into consideration of dangerousness); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976) (both mandating the death penalty for first degree murder). ") was that the jury should not be “without guidance or direction” in deciding whether a convicted defendant should live or die. The jury’s attention was statutorily “directed to the specific circumstances of the crime . . . and on the characteristics of the person who committed the crime.” [11](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn11amd8 " Gregg v. Georgia, 428 U.S. 153, 197–98 (1976) (plurality). ") As such, discretion was channeled and rationalized. But, in Lockett v. Ohio,[12](https://www.law.cornell.edu/constitution-conan/amendment-8/role-of-jury-and-consideration-of-evidence#fn12amd8 " 438 U.S. 586 (1978). The plurality opinion by Chief Justice Warren Burger was joined by Justices Potter Stewart, Lewis Powell, and John Paul Stevens. Justices Harry Blackmun, Thurgood Marshall, and Byron White concurred in the result on separate and conflicting grounds. Id. at 613, 619, 621. Justice William Rehnquist dissented. Id. at 628. ") a Court plurality determined that a state law was invalid because it prevented the sentencer from giving weight to any mitigating factors other than those specified in the law. In other words, the jury’s discretion was curbed too much. The Lockett Court stated:

[W]e conclude that the Eighth and Fourteenth Amendment s require t