The Balanced Approach


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Death Penalty - 8th amendment

From the film "Dead Man Walking"

Crimes is being predicted all over the place.  Some say it will be a homicide question, or a hybrid homicide and criminal procedure question, or something totally new such as an 8th amendment or a 6th amendment centered question. I would also suggest that it could be a crossover with Professional Responsibility.  Today, I am providing some basic tips on the death penalty.

8th amendment and the Death Penalty:

1. It's not unconstitutional under the 8th, but there must be a statutory scheme that gives the judge or jury discretion to impose the death sentence – it cannot be automatic after a guilty verdict.  The jury must consider mitigating circumstances of the defendant's life before deciding on the sentence. 

2. If an attorney does not present a mitigation defense during the sentencing phase of the trial, it is ineffective assistance (and violation of professional responsibility rules).  Review the ineffective assistance of counsel. 

3. During jury selection on a death case, if a juror opposes the death penalty, she is dismissed for cause.  Conversely, if the juror says they would automatically sentence to death upon conviction, she can be dismissed for cause also. But if they favor it, or have some hesitation about it, but believe in it and believe they could consider it as a possible sentence, they are eligible.

Amy Parekh