Monday, February 15, 2010

Why can't jurors know the potential punishment?

CrimProf Blog has this coverage of an article titled: "Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction." I have recently been blogging and raising issues about the pattern instruction telling the jury not to consider disposition. But I have wondered more and more about this topic (in fact, I previously blogged about it here). The pattern instruction seems fairly one-sided. Jurors know (or should know) what happens if they acquit. Why shouldn't they know what happens if they convict, particularly with the draconian sentencing laws favored by legislatures. I suppose there are some offenses that have such small presumptive sentences (and misdemeanors) that defense practictioners might be worried about too light consideration from jurors, but I think that is the tail wagging the dog. Any thoughts?

Anyway, if you have a case where the client is facing a draconian sentence, be sure to request an instruction telling the jury about that penalty. And you could ask jurors after conviction: "Would it have made any difference in your deliberation process if you knew that my client will now face a minimum sentence of more than 10 years for buying some Sudafed for her boyfriend?" If yes, you could add that to your motion for new trial (not to impeach the verdict, but to show prejudice in failing to give the instruction). Kansas law does not support this idea now, but this is how you attempt to move courts, as suggested by the article.

Just some thoughts.


Chris Williams said...

I have been making offers of proof on this issue on my more serious punishment cases. Thusfar none of the Judges (Wyandotte and Johnson Counties) have agreed to let me admit such evidence. None of the cases have gone up on appeal yet. The downside of it, as I see it, is your presumptive probation cases--I think many Kansas juries will convict if they know the defendant is getting probation. So that's why I have only been doing it on my more serious cases where the underlying conduct isn't that bad, but the punishment is. Obviously if it goes up on appeal and the Appellate courts allow such evidence, we get into the presumptive probation problem I have discussed.

Scott James said...

If they get to know about criminal history too, it's a deal.

Jason said...

If there's a mandatory sentence for a crime instead of the judge deciding it, then sure. But legislatures need to leave these decisions up to the court instead of taking it in their own hands.