Fill and Sign the Motion for Process Instructions Form

IN THE CIRCUIT COURT OF ________ COUNTY, __________ NAME OF PLAINTIFF )       ) ) V. ) NO.       ) ) NAME OF DEFENDANT )       ) ) MOTION FOR PROCESS INSTRUCTIONS COMES NOW, ____________________, by counsel, and moves this Court pursu ant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article ____,Sections _______ of the __________ Constitution to instruct the jury prior to voir dire as to how the legal process works, so that jurors will not be so confused with the system. In support of his motion, _____________________ states as follows: 1. Jurors have a hard enough time understanding their function in any trial. See Strawn & Buchanan, Jury Confusion: A Threat to Justice , 59 Judicature 478 (1976). In a capital prose cution the law is far more complex than in any other kind of case, and the stakes much higher. The Eighth Amendment therefore absolutely forbids a situation where "the sentencing jury is unaware of what it may consider in reaching its decision." Chenault v. Stynchcombe , 581 F.2d 444, 448 (5th Cir. 1978). For this reason, the Supreme Court has "mandate[d] that the judge clearly instruct the jury. . . ." Id. (citing Lockett v. Ohio , 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)); accord Balkcom v. Goodwin , 684 F.2d 794, 801- 02 (11th Cir. 1982); Spivey v. Zant , 661 F.2d 464, 469-71 (5th Cir. 1981); Washington v. Watkins , 655 F.2d 1346 (5th Cir. 1981). 2. Therefore, __________________ moves that the jury be in structed prior to the case concerning the nature of their respon sibili ties. As Chief Judge Hugh Lawson of the Oconee Judicial Circuit in Georgia recently noted in the latest of his many capital cases: One of the confounding difficulties I en countered in selecting jurors in the Alday cases was that many people of all age, educa - tion, and experience, levels do not understand many of the questions put to them on voir dire. You talk along with a juror who appears perfectly level headed and understanding and all of a sudden he [or she] says something which makes you realize that he has not really understood the question put to him. In an attempt to deal with this problem I prepared and recited to each juror before he [or she] was questioned a preliminary explana tion of the procedure in a death penalty case. I enclose for you each a copy of that explana tion and I propose to use this explanation, or something similar, in the [instant] case. Obviously, the enclosure will have to be amen ded to fit the facts of the . . . case, but other than these obvious amendments I would like to have your reaction to this ex plana tion. . . . Letter of Hugh Lawson (June 11, 1990). 3. As is illustrated by a brief conversation with any of the jurors from the prior trial of this case, Chief Judge Lawson is quite correct to suggest that jurors have no idea what they are meant to be doing in a capital trial. For these reasons, then, an instruction such as the follow ing should be given: In this case, you are to determine wheth er _____________ , the defen dant, is guilty or not guilty of murder. If, and only if, he is found guilty, you would then be called upon to decide whether he will be sentenced to life imprisonment without the possibility of parole or to death. I need to discuss the possibility of the death penalty at this stage, just to let you know what might lie ahead of us. However, I must stress to you that there is every possi bility that the death penalty will never be an issue in this trial. If selected as a juror, you should not even consider the death penalty until a decision has been reached as to wheth er ________________ is actually guilty of the crimes charged, or not. The trial of this case may take place in two phases, although the second phase may not be necessary. In the first stage, the jury hears evidence and is asked to decide whether _______________ is guilty of the crimes charged. ______________ has no burden to prove any thing. If the State fails to prove him guilty beyond a reasonable doubt, to the sat - isfaction of all twelve jurors, he is enti tled to be acquitted. Only if there is a finding of guilty will there be a second phase of the trial. If it was to take place, at that point, the jurors would decide whether ________________ should be sentenced to life imprison ment without the possibility of parole or to death. At that stage, the jury does not have to be unanimous, and each juror is charged with evaluating the evidence indi vidually, and coming to his or her own decision. The sen tencing decision is made sole ly by the jury, and I am bound by whatever decision you may reach. There are three possi ble verdicts at that stage of the trial: The jury may all agree that death is the appropri ate punish ment; the jury may all agree that life im prisonment is an appro priate pun - ish ment or jury may decide that, be cause indi vidual ju rors dis - agree, it is not possible to reach a verdict to which everyone agrees. A jury is not authorized to impose the death penalty simply because the accused has been found guilty of murder. The death penal ty is authorized only in particularly aggra vated cases, as defined by __________ law, and it may be imposed only after the jury has consid ered factors regarding the crime and the per son on trial. I am going to give you a brief summary of how this process works. At the end of the case, I will give you more de tailed in - struc tions on the law. However, this overview will help you under stand how the process works and why we will be asking you certain ques tions at this time. ________________________ has been indict ed on one char ge of murder. An indictment cannot be con sidered as evidence of guilt. As those of you will know who have ever sat on a grand jury, the indictment is found by a grand jury based solely on the prosecution's evi dence. The accused is not permitted to be present, or to contest the evi dence presented to the grand jury. _____________________ is, and must be, presumed to be inno cent of the charges against him. In some countries, a person accused of a crime must prove that he or she is innocent. This is not how the justice system works in the United States of America. Nobody charged with a crime is ever re quired to prove his or her innocence. The State of __________ bears the burden of proving ____________, or anyone else charged with a crime, guilty be - yond a reason able doubt. If the State does not meet this burden, then the accused is entitled to an acquit tal, and you, as a juror, would be sworn to find him not guilty. In any criminal case, since the accused need not present evidence of any kind, there is no requirement that the accused take the stand in his or her own favor. There are many reasons why the accused might decide, on ad vice of counsel, not to testify. For example, the accused may not be a good public speaker, and may be easily confused by the attorney for the other party. In any event, whatever the reason, you are bound by oath and by the Con - stitution of the United States not to hold the silence of the accused against him or against her. Because the State bears the burden of proof, the State will first present its case against ____________________. He will then be given the opportunity to present evidence, should he so choose. At the end of the evi dence you, as jurors, will be called upon to make the deci sion whether __________________ is guilty of the crimes charges, or whether the State has failed to prove him guilty be yond a reasonable doubt. If you were to find _________________ not guilty, or guilty of some lesser charge than capital murder, your duties would be over. In any case where the death penalty is not an option, I am responsible for imposing sen tence. Only if the jury all agreed that _____________________ was guilty of capital murder would the case prog ress to the second stage. At this point, further evidence might be present ed. Again, because the State of __________ bears the burden of proof, the State would first present the case in favor of the death penal ty. Then ______________ would be given the op portunity to present evidence favoring the imposition of a sentence of life without the possibility of parole. In order for the death penalty to be authorized as a possi ble punishment, the State must first prove to the satisfaction of the jury, beyond a rea sonable doubt, that the accused killed the victim, intend ed to kill the victim, or attempted to kill the victim. If none of these factors is satisfactorily proven, the jury is bound to impose a sentence of life imprisonment without the possibility of parole. Second, the death penalty cannot be im posed unless the State proves, beyond a rea sonable doubt, the existence of one or more aggravat ing cir cum stances. The jury would receive in struc - tions defining any such aggra vating cir cumstances before deliber - ating, but for now you need only to understand that ag gravating circum stances amount to more than the mere intentional and unlaw ful taking of a life. The jury would be authorized to consider the death penalty only if it found one or more of the aggravating circumstances to exist. Even if the jury should find the accused guilty of murder and, in addition, find one or more aggra vating circum stances to exist, the jury would not be required to impose the death penal ty. The jury would be required to con sider any evi dence in mitigation offered on behalf of the person to be sen tenced. Mitigating circumstances are anything about the life and back ground of the person which in fairness and mercy should be consid ered in favor of a sentence of life imprison ment without the possi bility of parole. If any member of the jury should accept any evi dence in mitiga tion then that particular juror is bound to consider that evidence, even if all the other eleven jurors failed to accept the evidence. Mitigating circumstances must be consid ered by each juror individually. That is to say that, while all twelve jurors must agree that a particular aggravating circumstance is present before it may be considered, each juror must consider such evidence in mitiga - tion as he or she feels has been shown. Even if the jury were to find aggravating circumstanc es and no mitigating circumstances, the jury would still have the right to impose the sentence of life imprisonment. The impo si tion of the death penalty is never mandato ry. The jury always has the option of sen tencing the defendant to life impris onment. WHEREFORE, premises considered, ____________ respect ful ly moves that such a process instruc tion be given. Respectfully submitted, _______________________ By:_______________ __________________ CERTIFICATE OF SERVICE I, _____________, attorney for _______________, do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to This the ____ day of _________ ______.