24 August 2009

Virginia Jury Sentencing: Elaborations on the Limits of Defense Evidence

You'll recall that a while back I discussed what the Virginia courts had determined to be relevant evidence a defendant can introduce during a non-capital jury sentencing hearing.
"Evidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the noncapital crime"; in doing so it rejected a "life story" and "testimony about [defendant's] employment, [defendant's] family responsibilities."
This came from the Virginia Supreme Court in Shifflett v. Commonwealth and in the last month and a half the Virginia Court of Appeals has elaborated upon this both directly and indirectly.

Harkening back to Shiflett, in Jones Jr v. Commonwealth, the Court further explores the adoption of the same standard for the introduction of evidence in non-capital jury sentencing hearings as allowed in capital hearings. It lists other evidence which has been rejected: (1) sentence of codefendant; (2) impact of incarceration on defendant mental state; (3) defendant's wife's illness and dependence upon him; (4) impact on family; (5) impact on employment; & (6) family history.1 The Court adopts § 19.2-264.4(B) and judges the relevance of the evidence through the purposes of punishment: "deterrence, incapacitation, rehabilitation and retribution." In rejecting the appellant's argument it states the acceptable evidence which can be introduced during jury sentencing: (1) circumstances surrounding the offense; (2) history and background of the offender; (3) circumstances tending to explain the offense; (4) criminal record; (5) mental condition; (6) age of the offender; & (7) any other factor in mitigation of the offense.

Of course, the last factor is open ended. Fortunately, just last week the Court of Appeals addressed this in Wilson v. Commonwealth (a decision discussing the limits on a judges's ability to suspend a sentence under 19.2-303). Discussing § 19.2-264.4 the Court states that the "common thread" of the "facts in mitigation" is that "while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed."

So, a defendant cannot introduce extraneous evidence (family, job, &cetera) or evidence which impacts legal culpability.2 Only factors which weigh on the morality of the defendant's role in the illegal act are allowed.3

1 The Court also cites Pierce v. Commonwealth as finding "testimony that defendant was a "good upstanding citizen" and a "loyal and loving son" relevant", however Pierce had nothing to do with the relevance of that evidence. It found that a defendant can present evidence during a sentencing hearing even if the prosecution has not. Even had it ruled that evidence relevant, Pierce was a Court of Appeals case decided 3 years before the Supreme Court's Shiflett and would seem to have been overruled.

2 There is at least one exception to this. Accomodation lessens legal culpability for drug distribution in Virginia and it is supposed to be argued in the jury sentencing phase.

3 Defense evidence pertaining to the defendant's record is also allowed, per Shiflett. This may relate to the morality of the offender's participation in the offense or may simply be allowed as rebuttal to the prosecution's introduction of defendant's prior record.

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