Competent Capital Representation: The Necessity Of Knowing And Heeding What Jurors Tell Us About Mitigation (PDF)

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At the conclusion of the penalty phase—after the evidence is heard, the closing arguments given and the instructions read—the jurors enter the jury room faced with a binary choice: each juror must decide whether the defendant should live or die. Unlike the decision the jurors made during the guilt-or-innocence phase of the proceedings, however, this decision is not, at its core, a determination of fact, for example, did the defendant “do it,” but a moral and normative choice—does he deserve to die? While there are antecedent factual determinations jurors must make, including the existence of a statutory aggravating circumstance, the final decision the jurors must make is not factual in nature. As the courts have noted, this is an “awesome responsibility,” and the jury must make a “reasoned moral” decision whether life imprisonment without the possibility of parole or the death penalty is the appropriate punishment.

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