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April 19, 2007


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I always in this instance, as in many civil matters, bifurcation is a good solution. I think it would be a lot to ask the average juror simultaneously to weigh different overlapping facts by two different standards on a jury form at the end of a trial. So, the question of whether he was, say, insane is one of a reasonable doubt standard, but the parallel question of an atrocious upbringing and diminished mental capacity on the sentencing side is one of beyond a reasonable doubt.

I do think, however, juries can handle these questions--as in the common situation of liability/damages bifurcation--if they are properly direted to do so in the course of trial. I also think jurors overall instincts and intelligence is well suited to the question of sentencing. Finally, juries are manipulated enough by the rules of sentence. I think knowing they'd get the "whole story" at sentencing and would have the option of moving a sentence upwards or downwards on the basis of facts not disclosed at trial would make them more comfortable with the evidence restrictions at trial and such a system would do more to respect the jurors' dignity in the process.

In short, I agree with you that the use of reasonable doubt standards for what has historically been undertaken by judges on a preponderance standard is unnecessary and I submit it's a product of the way trials are structured and the various relevant courts' discomfort with giving juries two, simultaneous standards of evidence.

Of course, we know from appellate courts how these caballistic distinctions of intermediate, strict, and other kinds of review and scrutiny are followed by people that should know better, so I would be doubly supportive of efforts not to get jurors simultaneously considering facts with two standards of review.

PS I realize my whole point suffers from the problem of shifting burdens, standards of proof for affirmative defenses, etc., but life's hard and maybe some day all of that will have to be sorted out too.


"Juries should decide all disputed questions of fact that aggravate or mitigate a defendant’s guilt or punishment."

I cannot fathom how this would work in practice. Especially in the more complicated criminal trials, juries have a difficult enough job wading through the evidence and intricate jury instructions and merely marking "guity" or "not guilty" unanimously.

Far too many factors aggravate or mitigate a defendant's punishment. What do you propose? Mandatory special verdict forms in the form of lengthy and intricate questionnaires, each line item requiring unanimous consensus? It's just a recipe for hung juries.

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