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CHAPTER TEN

CAPITAL JURY INSTRUCTIONS INTRODUCTION TO THE ISSUE In virtually all jurisdictions that authorize capital punishment, jurors in capital cases have the “awesome responsibility” of deciding whether another person will live or die.����F

1 Jurors, prosecutors, defendants, and the general public rely upon state trial judges to present fully and accurately, through jury instructions, the applicable law to be followed in jurors’ decision-making. Jury instructions that are poorly written and conveyed serve only to confuse jurors instead of communicating in an understandable way. It is important that trial judges impress upon jurors the full extent of their responsibility to decide whether the defendant will live or die or to make their advisory recommendation on sentencing. It also is important that courts ensure that jurors do not act on the basis of serious misimpressions, such as a belief that a sentence of “life without parole” does not ensure that the offender will remain in prison for the rest of his/her life. There is a danger that jurors may vote to impose a death sentence because they erroneously believe that the defendant may be released within a few years. It is similarly vital that jurors understand the true meaning of mitigation and their ability to bring mitigating factors to bear in their consideration of capital punishment.

1 Caldwell v. Mississippi, 472 U.S. 320, 341 (1985).

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I. FACTUAL DISCUSSION

A. The Promulgation of Pattern Jury Instructions and Revisions to the Instructions as Requested by the Parties

The Ohio Judicial Conference drafted the Ohio Criminal Jury Instructions, and “updates existing instructions as needed and as required by intervening legal opinions or events” or by newly enacted legislation and updates.����F

2 The Ohio Criminal Jury Instructions “are recommended instructions based primarily upon case law and statutes”����F

3 and are not mandatory. The state and defense are permitted to help the judge tailor the pattern jury instructions or design new instructions by filing a request at the close of evidence, but prior to closing arguments, that the court instruct the jury on the law as the party sets forth in the request.����F

4 Copies of the request must be furnished to all other parties and the court will inform counsel of its proposed action on the jury instruction request prior to the beginning of closing argument.����F

5 The court’s final instructions to the jury must recorded, in written, audio, electronic, or other form, so that the jury may use them during deliberations.����F

6 Throughout the trial, the court may give the jury “cautionary and other instructions of law relating to trial procedure, credibility and weight of the evidence, and the duty and function of the jury and may acquaint the jury generally with the nature of the case.”����F

7 In charging the jury, the court must state “all matters of law necessary for the information of the jury in giving its verdict,”����F

8 although the “court’s instructions to the jury should be addressed to the actual issues in the case as posited by the evidence and the pleadings.”����F

9 Counsel must be afforded an opportunity to object to the court’s failure to give any requested instruction, outside the presence of the jury.����F

10 If either party wishes to appeal the court’s failure to give a requested instruction, the party must have objected to the failure prior to the jury retiring to consider its verdict, stating specifically the grounds for the objection.����F

11

B. Capital Felonies in Ohio and the Applicable Standard Jury Instructions

2 Ohio Judicial Conference, Ohio Jury Instructions Committee, available at http://www.ohiojudges.org/index.cfm?PageID=7F535A81-E1C3-42D4-AA908C43954788A0 (last visited Sept. 13, 2007). 3 State v. Martens, 629 N.E.2d 462, 465 (Ohio Ct. App. 3d Dist. 1993). 4 OHIO R. CRIM. P. 30(A). 5 Id. 6 Id. 7 OHIO R. CRIM. P. 30(B). 8 OHIO REV. CODE § 2945.11 (West 2007). 9 State v. Guster, 421 N.E.2d 157, 160 (Ohio 1981). 10 OHIO R. CRIM. P. 30(A). 11 Id.

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The State of Ohio’s aggravated murder statute states that:

(1) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy.

(2) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, terrorism, or escape.

(3) No person shall purposely cause the death of another who is under thirteen years of age at the time of the commission of the offense.

(4) No person who is under detention as a result of having been found guilty of or having pleaded guilty to a felony or who breaks that detention shall purposely cause the death of another.

(5) No person shall purposely cause the death of a law enforcement officer whom the offender knows or has reasonable cause to know is a law enforcement officer when either of the following applies: (a) The victim, at the time of the commission of the offense, is

engaged in the victim's duties; (b) It is the offender's specific purpose to kill a law enforcement

officer.����F

12 A person is eligible for the death penalty in Ohio only if he/she is found guilty of aggravated murder with at least one “specification.”����F

13 A defendant convicted of aggravated murder is sentenced in accordance with the provisions of section 2929.03 and 2929.04 of the Ohio Rev. Code and Ohio Jury Instruction 503.011, which provides the jury instructions for sentencing a capital defendant.����F

14

C. The Application of Standard Jury Instructions and Case Law Interpretations of the Instructions in Aggravated Murder Cases

1. Preliminary Instructions

After the jury finds the defendant guilty of aggravated murder, including one or more specifications listed at section 2929.04 of the Ohio Rev. Code, the trial court and jury conduct a separate sentencing proceeding to determine the defendant’s sentence.����F

15 If the jury unanimously finds that the aggravating circumstances the defendant was guilty of committing outweigh the mitigating factors in the case, it must recommend that the trial court impose a sentence of death on the defendant.����F

16 If the trial court also finds that that

12 OHIO REV. CODE § 2903.01 (West 2007). 13 OHIO REV. CODE § 2929.03 (West 2007). A death penalty specification is any of the ten aggravating circumstances found at section 2929.04 of the Ohio Revised Code, which must be described in the indictment in order for the State to seek the death penalty. OHIO REV. CODE § 2941.14(B) (2007). 14 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011. 15 OHIO REV. CODE § 2929.03(C)(2)(b)(i)-(ii) (West 2007). 16 OHIO REV. CODE § 2929.03(D)(2) (West 2007).

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the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, it must impose a sentence of death on the defendant.����F

17 At the sentencing phase, the trial court initially will remind the jury that it found the defendant guilty of aggravated murder and of one or more death penalty specifications.����F

18 It will go on to explain that during the sentencing phase, these specifications are aggravating circumstances.����F

19 The jury is then instructed that it will hear additional evidence, testimony, and arguments of counsel.����F

20 In addition, the jury will be told that during the sentencing phase, the defendant “has a constitutional right not to testify or make a statement” and “[t]he fact that the defendant does not testify or make a statement must not be considered for any purpose.”����F

21 The trial court then must set forth the aggravating circumstances (i.e., the death penalty specifications) that the defendant was found guilty of committing during the guilt phase.����F

22 First, the court should state to the jury that “it is not necessary for the State of Ohio to present further evidence to you regarding (this) (these) aggravating circumstance(s);” however, the trial court also must advise that only the aggravating circumstance(s) it found the defendant guilty of committing at the guilt phase as set out in the jury’s verdict form may be considered during the sentencing proceeding.����F

23 Second, the trial court will remind the jury that it found aggravating circumstances present during the guilt phase, and therefore must consider the four following sentencing options during the sentencing phase: (1) Life imprisonment without parole eligibility for twenty-five full years; (2) Life imprisonment without parole eligibility for thirty full years; (3) Life imprisonment without the possibility of parole; or (4) Death.����F

24 The trial court must inform the jury that the aggravating circumstances “will be weighed against the mitigating factors that have been or will be presented.”����F

25 The jury will then be told that mitigating factors are “factors about an individual or an offense that weigh in favor of a decision that a life sentence rather than a death sentence is appropriate.”����F

26

17 OHIO REV. CODE § 2929.03(D)(3) (West 2007). 18 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(1). 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. However, if the offense was committed before July 1, 1996, the jury should be instructed that it may consider only three sentencing options: (1) life imprisonment without parole eligibility for twenty full years; (2) life imprisonment without parole eligibility for thirty full years; or (3) death. OHIO REV. CODE § 2929.03(C)(2) (West 2007) (law effective prior to July 1, 1996). 25 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(1). 26 Id.

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Finally, the jury should be instructed that if it finds that the State of Ohio did not prove beyond a reasonable doubt that the aggravating circumstance(s) outweigh(s) the mitigating factors, it must impose one of the life sentences it deems appropriate.����F

27

2. Aggravating Circumstances in an Aggravated Murder Case a. Standard Jury Instructions Because a jury’s verdict during the guilt phase of a capital trial must name the death penalty specifications that the jury found the defendant guilty of committing, the Ohio Criminal Jury Instructions instruct that the State need not “present further evidence to [the jury] regarding [the] aggravating circumstance(s).”����F

28 However, the trial court also must advise the jury that it may consider only those aggravators that it found the defendant guilty of committing during the guilt phase of the trial and that the aggravated murder itself is not an aggravating circumstance.����F

29 In addition, in the event that two or more aggravating circumstances which the defendant was found guilty of committing are duplicative,����F

30 these aggravators must be merged for sentencing.����F

31 In connection with each count of aggravated murder which the defendant was found guilty of committing, the Ohio Criminal Jury Instructions require the court to list each aggravating circumstance the jury found the defendant guilty of committing in connection with that murder.����F

32 The possible aggravating circumstances, as described to the jury, are as follows: (1) The offense was the assassination of (the president of the United States) (a

person in line of succession to the presidency of the United States) (the [governor] [lieutenant governor] of Ohio) (the [president-elect] [vice president-elect] of the United States) (the [governor-elect] [lieutenant governor-elect] of Ohio), or (a candidate for office);����F

33 (2) The offense was committed for hire;����F

34 (3) The offense was committed for the purpose of escaping (detection)

(apprehension) (trial) (punishment) for another offense committed by the defendant;����F

35

27 Id. 28 Id. 29 Id. “The instruction must inform the jury that the aggravated murder is not itself an aggravating circumstance.” Id. at cmt. 30 Statutory aggravating circumstances are duplicative when multiple aggravators arise out of “the same act or indivisible course of conduct.” State v. Jenkins, 473 N.E.2d 264, 296 (Ohio 1984). 31 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(9), cmt; see also Jenkins, 473 N.E.2d at 296-97. 32 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7), cmt. 33 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(A) (drawn from OHIO REV. CODE § 2929.04(A)(1) (West 2007)). 34 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(B) (drawn from OHIO REV. CODE § 2929.04(A)(2) (West 2007)).

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(4) The offense was committed while the defendant was a prisoner in a detention facility;����F

36 (5) The offense was committed while the defendant was (under detention) (at

large after having broken detention);����F

37 (6) Prior to the commission of this offense the defendant was convicted of

(insert name of alleged offense, an essential element of which was the purposeful killing of or attempt to kill another);����F

38 (7) This offense was part of a course of conduct involving the purposeful

killing of or attempt to kill two or more persons by the defendant;����F

39 (8) The victim of the offense was a law enforcement officer, whom the

defendant had reasonable cause to know or knew to be a law enforcement officer, and (a) The victim, at the time of the commission of the offense,

was engaged in his/her duties; or (b) Tt was the defendant's specific purpose to kill a law

enforcement officer;����F

40 (9) The offense was committed while the defendant was (committing)

(attempting to commit) (fleeing immediately after [committing] [attempting to commit]) the offense of (kidnapping) (rape) (aggravated arson) (aggravated robbery) (aggravated burglary) and the defendant (a) Was the principal offender in the commission of the

aggravated murder; or (b) Committed the aggravated murder with prior calculation

and design;����F

41 (10) The victim of the aggravated murder was a witness to an offense and was

purposely killed to prevent his/her testimony in any criminal proceeding and the aggravated murder was not committed during the (commission) (attempted commission) (flight immediately after the [commission] [attempted commission]) of the offense to which the victim was a witness;����F

42

35 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(C) (drawn from OHIO REV. CODE § 2929.04(A)(3) (West 2007)). 36 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(D) (drawn from OHIO REV. CODE § 2929.04(A)(4) (West 1998)). This instruction applies to offenses committed before December 29, 1998. Id. at cmt. 37 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(E) (drawn from OHIO REV. CODE § 2929.04(A)(4) (West 2007)). This instruction applies to offenses committed on and after December 12, 1998. Id. at cmt. 38 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(F) (drawn from OHIO REV. CODE § 2929.04(A)(5) (West 2007)). 39 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(G) (drawn from OHIO REV. CODE § 2929.04(A)(5) (West 2007)). 40 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(H) (drawn from OHIO REV. CODE § 2929.04(A)(6) (West 2007)). Only the alternative found in the trial phase may be charged to the jury during the sentencing phase. Id. at cmt. 41 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(I) (drawn from OHIO REV. CODE § 2929.04(A)(7) (West 2007)). Only the alternative found in the trial phase may be charged to the jury during the sentencing phase. Id. at cmt. 42 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(J) (drawn from OHIO REV. CODE § 2929.04(A)(8) (West 2007)).

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(11) The victim of the aggravated murder was a witness to an offense and was purposely killed in retaliation for his/her testimony in any criminal proceeding;����F

43 and/or (12) The defendant, in the commission of the offense, purposefully caused the

death of another who was under thirteen years of age at the time of the commission of the offense, and the defendant (a) Was the principal offender in the commission of the

offense; or (b) Committed the offense with prior calculation and design.����F

44 Additionally, section 2929.04(A)(10) of the Ohio Rev. Code includes the following as an aggravating circumstance, which is not described in the Ohio Criminal Jury Instructions:

The offense was committed which the offender was committing, attempting to commit, or fleeing from immediately after committing or attempting to commit terrorism.����F

45 b. Burden of Proof for Aggravating Circumstances The Ohio Supreme Court has held that an appropriate penalty phase instruction on the issue of reasonable doubt “should convey to jurors that they must be firmly convinced that the aggravating circumstance(s) outweigh the mitigating factor(s), if any.”����F

46 To this end, the Ohio Criminal Jury Instructions require the trial court to inform the jury that in order to sentence the defendant to death, the State must prove beyond a reasonable doubt that the aggravating circumstance(s) of which the defendant was found guilty is/are sufficient to outweigh the factors in mitigation.����F

47 The court also must inform the jury that the defendant does not have any burden of proof.����F

48 The Ohio Criminal Jury Instructions explain that reasonable doubt:

is present when, after you have carefully considered and compared all the evidence, you cannot say you are firmly convinced that the aggravating circumstance(s) of which the defendant was found guilty outweigh(s) the mitigating factors. Reasonable doubt is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. Proof beyond a reasonable

43 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(K) (drawn from OHIO REV. CODE § 2929.04(A)(8) (West 2007)). 44 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(7)(L) (drawn from OHIO REV. CODE § 2929.04(A)(9) (West 2007)). This instruction applies only to offenses committed on and after August 8, 1997. Id. at cmt. Only the alternative found in the trial phase may be charged to the jury during the sentencing phase. Id. at cmt. 45 OHIO REV. CODE § 2929.04(A)(10) (West 2007). 46 State v. Goff, 694 N.E.2d 916, 924 (Ohio 1998). 47 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(1), (4). 48 Id.

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doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his or her own affairs.����F

49

c. Unanimity Requirement for Finding Aggravating Circumstances The Ohio Rev. Code requires that the jury unanimously find that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, thus, “[i]n Ohio, a solitary juror may prevent a death penalty recommendation.”����F

50 Relative to this provision of law, the Ohio Criminal Jury Instructions recommend that jurors be instructed that:

You are not required to unanimously find that the State failed to prove that the aggravating circumstance(s) outweigh(s) the mitigating factors before considering one of the life sentence alternatives. You should proceed to consider and choose one of the life sentence alternatives if any one or more of you conclude that the state has failed to prove beyond a reasonable doubt that the aggravating circumstance(s) outweigh(s) the mitigating factors. One juror may prevent a death penalty determination by finding that the aggravating circumstance(s) do not outweigh the mitigating factors. You must be unanimous on one of the life sentence alternatives before you can render that verdict to the court. If you cannot unanimously agree on a specific life sentence, you will then inform the court by written note that you are unable to render a sentencing verdict.����F

51

d. The Need for Aggravating Circumstances to be Set Forth in Writing

The Ohio Rules of Criminal Procedure state that the trial court must reduce its final instructions to the jury “to writing or make an audio, electronic, or other recording of those instructions [and] provide at least one written copy or recording of those instructions to the jury for use during deliberations.”����F

52 In accordance with Ohio law, the sentencing jury may consider only the statutory aggravating factors that it found the defendant guilty of committing at the conclusion of the guilt phase of the trial, thus the trial court’s pattern instruction to consider only those aggravators that it described in its instructions.����F

53

3. Mitigating Circumstances in a First-Degree Murder Case 49 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(1), (5); see also State v. Leonard, 818 N.E.2d 229, 261 (Ohio 2004) (approving Ohio Criminal Jury Instructions on definition of reasonable doubt). 50 State v. Brooks, 661 N.E.2d 1030, 1042 (Ohio 1996). 51 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(15). 52 OHIO R. CRIM. P. 30(A). 53 See OHIO REV. CODE § 2929.03(D)(1), (2) (West 2007); 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(9).

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a. Statutory Mitigating Circumstances The Ohio Criminal Jury Instructions advise the jury that it “will be deciding whether the State of Ohio has proved beyond a reasonable doubt that the aggravating circumstance(s) outweigh(s) the mitigating factors.”����F

54 The instructions further inform the jury that mitigating factors are “factors about an individual or an offense that weigh in favor of a decision that a life sentence rather than a death sentence is appropriate. Mitigating factors are factors that lessen the moral culpability of the defendant or diminish the appropriateness of a death sentence.”����F

55 The Ohio Rev. Code and the Ohio Criminal Jury Instructions require that the jurors “consider all of the mitigating factors presented to you. Mitigating factors include, but are not limited to, the nature and circumstances of the offense, the history, character and background of the defendant,” and (1) Whether the victim of the offense induced or facilitated the

offense;����F

56 (2) Whether it is unlikely that the offense would have been committed,

but for the fact that the defendant was under duress, coercion, or strong provocation;����F

57 (3) Whether, at the time of committing the offense, the defendant,

because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his/her conduct or to conform his/her conduct to the requirements of the law;����F

58 (4) The youth of the defendant;����F

59 (5) The defendant's lack of a significant history of prior criminal

convictions and delinquency adjudications; ����F

60 (6) Since the defendant was not the principal offender, the degree of

the defendant's participation in the offense and the degree of the defendant's participation in the acts that led to the death of the victim;����F

61 (7) Any other factors that weigh in favor of a sentence other than

death. This means you are not limited to the specific mitigating factors that have been described to you. You should consider any

54 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(1). 55 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10). 56 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10)(A) (drawn from OHIO REV. CODE § 2929.04(B)(1) (West 2007)). 57 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10)(B) (drawn from OHIO REV. CODE § 2929.04(B)(2) (West 2007)). 58 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10)(C) (drawn from OHIO REV. CODE § 2929.04(B)(3) (West 2007)). 59 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10)(D) (drawn from OHIO REV. CODE § 2929.04(B)(4) (West 2007)). 60 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10)(E) (drawn from OHIO REV. CODE § 2929.04(B)(5) (West 2007)). 61 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10)(F) (drawn from OHIO REV. CODE § 2929.04(B)(6) (West 2007)).

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other mitigating factors that weigh in favor of a sentence other than death.����F

62

b. Non-Statutory Mitigating Factors The defendant may request in writing that one or more non-statutory mitigating circumstance(s) be included in the charge to the jury.����F

63 Furthermore, the Ohio Rev. Code states that a capital defendant “shall be given great latitude” in the presentation of all statutory mitigating factors.����F

64 Such non-statutory mitigating factors that juries have considered include:

(1) The defendant’s expressions of remorse or sorrow;����F

65 (2) The defendant’s cooperation with law enforcement in its investigation of

the offense and the defendant’s subsequent guilty plea;����F

66 (3) The defendant’s lack of “moral training” that equips most people to obey

the law;����F

67 (4) The defendant’s “terrible, depraved, and damaging” childhood;����F

68 and (5) The love and support of the defendant’s family.����F

69 However, the Ohio Supreme Court has determined that several factors do not constitute mitigating circumstances and the trial jury may not be instructed as such. For example, “residual” or “lingering doubt” has been consistently rejected as a non-statutory mitigating circumstance in Ohio, and trial courts may not instruct on it.����F

70 Additionally, “mercy, like bias, prejudice, and sympathy, is irrelevant to the duty of the jurors,” and an instruction prohibiting such considerations “serves the useful purpose of confining the jury’s imposition of the death sentence by cautioning it against reliance on extraneous emotional factors.”����F

71 The Ohio Criminal Jury Instructions inform jurors that they must make their findings “with intelligence and impartiality, and without bias, sympathy or prejudice.”����F

72 c. Burden of Proof as to Mitigating Circumstances

62 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10)(G) (drawn from OHIO REV. CODE § 2929.04(B)(7) (West 2007)). 63 OHIO R. CRIM. P 30(A); see also 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10), cmt. The Ohio Supreme Court has held that the court should not instruct on mitigating factors that are not specifically raised by the defense. State v. DePew, 528 N.E.2d 542, 557-58 (Ohio 1988), rev’d in part on other grounds, DePew v. Anderson, 311 F.3d 742 (6th Cir. 2002). 64 OHIO REV. CODE § 2929.04(C) (West 2007). 65 State v. Barton, 844 N.E.2d 307, 319 (Ohio 2006). 66 State v. Newton, 840 N.E.2d 593, 617 (Ohio 2006). 67 State v. Williams, 679 N.E.2d 646, 662 (Ohio 1997). 68 State v. Tenace, 847 N.E.2d 386, 403 (Ohio 2006) (Lundberg Stratton, J., concurring). 69 State v. Conway, 842 N.E.2d 996, 1036 (Ohio 2006). 70 See State v. McGuire, 686 N.E.2d 1112, 1122 (Ohio 1997) (citing Franklin v. Lynaugh, 487 U.S. 164, 174 (1988), and holding that the defendant has no right to present evidence of lingering doubt). 71 State v. Lorraine, 613 N.E.2d 212, 216 (Ohio 1993). 72 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(25).

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The Ohio Criminal Jury Instructions and the Ohio Rev. Code require that, in order to sentence the defendant to death, the State of Ohio must prove beyond a reasonable doubt that the aggravating circumstances outweigh any mitigating factors.����F

73 In making this determination, the defendant does not have any burden of proof.����F

74 The Ohio Rev. Code states that “defendant shall have the burden of going forward with the evidence of any factors in mitigation of the imposition of the sentence of death.”����F

75 However, the Ohio Supreme Court has clarified that any instruction to the jury must not place the burden of proving the existence of a mitigating factor by a preponderance of the evidence on the defendant.����F

76

d. Unanimity of Findings as to Mitigating Circumstances The United States Supreme Court has held that a jury instruction should not suggest that the jury must be unanimous in finding that a particular mitigating factor is present before weighing the mitigating factor(s) against the aggravating circumstance(s).����F

77 To this end, the Ohio Criminal Jury Instructions state that “[i]t is not necessary that the members of the jury unanimously agree on the existence of a mitigating factor before that factor can be weighed by any juror against the aggravating circumstance(s).”����F

78

4. Availability and Definitions of the Sentencing Options The Ohio Criminal Jury Instructions explain the circumstances under which the jury may impose a sentence of life imprisonment without parole eligibility for twenty-five full years, life imprisonment without parole eligibility for thirty full years, life imprisonment without the possibility of parole, or death.����F

79 The instructions state that: If all twelve of you find that the State of Ohio proved beyond a reasonable doubt that the aggravating circumstance(s) the defendant was guilty of committing (is) (are) sufficient to outweigh the mitigating factors in this case, then it will be your duty to decide that the sentence of death shall be imposed upon (insert name of defendant).

If you find that the State of Ohio has failed to prove beyond a reasonable doubt that the aggravating circumstance(s) (insert name of defendant) was guilty of committing (is) (are) sufficient to outweigh the mitigating factors

73 OHIO REV. CODE § 2929.03(D)(1), (2) (West 2007); 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(4). 74 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(4). 75 OHIO REV. CODE § 2929.03(D)(1) (West 2007). 76 State v. Lawrence, 541 N.E.2d 451, 455-56 (Ohio 1989). 77 Mills v. Maryland, 486 U.S. 367, 383 (1988). 78 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10). 79 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(1), (3), (10)(G). However, if the offense was committed before July 1, 1996, the jury should be instructed that it may consider only three sentencing options: (1) life imprisonment without parole eligibility for twenty full years; (2) life imprisonment without parole eligibility for thirty full years; or (3) death. See OHIO REV. CODE § 2929.03(C)(2) (West 2007) (law effective prior to July 1, 1996).

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present in this case, then it will be your duty to decide which of the following life sentence alternatives should be imposed: the sentence of life imprisonment with no parole eligibility until twenty-five full years of imprisonment have been served; the sentence of life imprisonment with no parole eligibility until thirty full years of imprisonment have been served; or life imprisonment without the possibility of parole.����F

80 Because the trial court ultimately imposes the sentence on a defendant, the jury’s decision as to whether to impose a death sentence on the defendant is a recommended sentence to the trial court.����F

81 The Ohio Supreme Court has held that it “prefer[s] that no reference be made to the finality of the jury’s sentencing decision at all”����F

82 and in deference to this finding, the Drafting Committee of the Ohio Criminal Jury Instructions has commented that “it is not appropriate for the jury to be advised that their sentencing verdict is a recommendation, that verdict of death is not binding on the court, or that a verdict of death is subject to automatic appeal.”����F

83 In addition, the Ohio Criminal Jury Instructions do not include an instruction that its recommendation of any of the life sentences is binding upon the trial court, nor do the instructions provide to the jury an explanation of “life imprisonment without the possibility of parole,” “life imprisonment,” or “parole.”

5. Additional Instructions after Jury Deliberations Have Begun The United States Supreme Court, in Allen v. United States,����F

84 authorized judges to provide additional instructions to jurors after judges have rendered the main charge to the jury and jury deliberations have begun.����F

85 The Court provides the following instruction, which is known as the Allen charge:

in substance, that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one

80 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(13) (drawn from OHIO REV. CODE § 2929.03(D)(2) (West 2007)). However, if the offense was committed before July 1, 1996, the jury should be instructed that it may consider only three sentencing options: (1) life imprisonment without parole eligibility for twenty full years; (2) life imprisonment without parole eligibility for thirty full years; or (3) death. See OHIO REV. CODE § 2929.03(C)(2) (West 2007) (law effective prior to July 1, 1996). 81 OHIO REV. CODE § 2929.03(D)(2), (3) (West 2007) (emphasis added). 82 State v. Keith, 684 N.E.2d 47, 55 (Ohio 1997). 83 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011, cmt. 84 Allen v. United States, 164 U.S. 492, 501 (1896). 85 Id.

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which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.����F

86 In State v. Howard, the Ohio Supreme Court expressly rejected an Allen instruction to a deadlocked jury during the sentencing phase of a capital trial.����F

87 Howard requires that any supplemental instruction to a jury must urge jurors in the minority and jurors in the majority to reconsider their position, while “emphatically encourag[ing] the jury to reach a decision.”����F

88 To this end, the Ohio Criminal Jury Instructions provide the following supplemental instruction for deadlocked juries, reflecting the suggested instruction in Howard:

In a large number of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of other jurors, each question submitted to you should be examined with proper regard and deference to the opinion of others.

It is desirable that the case be decided. It is your duty to decide the case if you can conscientiously do so. You should listen to one another’s arguments with a disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced that it is erroneous. If there is a disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached. Jurors for any of the verdicts should consider whether their doubt is reasonable, considering that it is not shared by others equally honest who have heard the same evidence and with the same desire to arrive at a verdict, and under the same oath.

Likewise, jurors for any of the verdicts should ask themselves whether they might not reasonably doubt the correctness of the judgment not concurred in by all other jurors.

You shall return a verdict of death if you unanimously, and that means all twelve, find beyond a reasonable doubt that the aggravating circumstance(s) outweigh(s) the mitigating factors. If you do not so find, you shall then begin deliberations on the life sentence options, and if possible, unanimously return a verdict of life imprisonment with parole

86 Id. 87 State v. Howard, 537 N.E.2d 188, 192-93 (Ohio 1989). 88 Id. at 194. In coming to this conclusion, the Howard court refused to adopt the standard proposed by the American Bar Association, found at 3 ABA CRIMINAL JUSTICE STANDARDS: TRIAL BY JURY, Standard 15-4-4, 154-155 (2d. ed. 1986). Id. at 193. However, the court stated that it would not disapprove of a trial court’s use of the ABA standard. Id. at 194.

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eligibility after twenty-five full years, or life imprisonment with parole eligibility after thirty full years, or life imprisonment without the possibility of parole. However, you should not surrender honest convictions in order to be congenial or to reach a verdict solely because of the opinion of other jurors. If it is impossible for you to reach a decision in this case, please report this fact to the court in writing. You will now be excused to resume your deliberations.����F

89 The Ohio Criminal Jury Instructions provide a similar instruction for a deadlocked jury during the guilt phase of a criminal trial.����F

90 Additionally, when a jury cannot agree unanimously on a death sentence, the Ohio Supreme Court requires that the trial court instruct the jury to “move on in their deliberations to a consideration of which life sentence is appropriate.”����F

91 Furthermore, when a jury becomes irreconcilably deadlocked during its sentencing deliberations and is unable to reach unanimous verdict to recommend any sentence authorized by Ohio law, the trial court is required to impose an appropriate life sentence.����F

92 However, the Ohio

89 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(33). 90 4 OHIO CRIMINAL JURY INSTRUCTIONS 415.50(2) states that:

In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of other jurors, each question submitted to you should be examined with proper regard and deference to the opinions of others. It is desirable that the case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or intelligent than this one. Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case, if you can conscientiously do so. You should listen to one another's opinions with a disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached. Jurors for acquittal should consider whether their doubt is reasonable, considering that it is not shared by others, equally honest, who have heard the same evidence, with the same desire to arrive at the truth, and under the same oath. Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all other jurors.

Id. The Ohio Criminal Jury Instructions also contemplate a scenario in which a unanimous jury verdict is impossible in which the trial court should instruct the jury that:

It is conceivable that after a reasonable length of time honest differences of opinion on the evidence may prevent an agreement upon a verdict. When that condition exists you may consider whether further deliberations will serve a useful purpose. If you decide that you cannot agree and that further deliberations will not serve a useful purpose you may ask to be returned to the courtroom and report that fact to the court. If there is a possibility of reaching a verdict you should continue your deliberations.

4 OHIO CRIMINAL JURY INSTRUCTIONS 415.50(3); see also Howard, 537 N.E.2d at 195. 91 State v. Brooks, 661 N.E.2d 1030, 1042 (Ohio 1996). 92 State v. Springer, 586 N.E.2d 96, 100 (Ohio 1998).

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Supreme Court has found that “[n]o exact line can be drawn as to how long a jury must deliberate in the penalty phase before a trial court should instruct the jury to limit itself to the life sentence options or take the case away from the jury” and has stated that “each case must be decided based upon the particular circumstances” of that case.����F

93

6. Form of Instructions The Ohio Rev. Code provides that the final jury charge must be:

reduced to writing by the court if either party requests it before the argument to the jury is commenced. Such charge, or other charge or instruction provided for in this section, when so written and given, shall not be orally qualified, modified, or explained to the jury by the court. Written charges and instructions shall be taken by the jury in their retirement and returned with their verdict into court and remain on file with the papers of the case.����F

94 Furthermore, the Ohio Rules of Criminal Procedure provide that the trial court must reduce its final instructions to the jury “to writing or make an audio, electronic, or other recording of those instructions [and] provide at least one written copy or recording or those instructions to the jury for use during deliberations.”����F

95

C. Use of Victim Impact Evidence in All Capital Sentencing Proceedings

1. Substance and Form of Victim Impact Statement

The Ohio Criminal Jury Instructions do not address victim impact evidence. However, section 2947.051 of the Ohio Rev. Code requires that the court, prior to sentencing, permit a “victim impact statement” in all criminal cases in which the defendant pleads guilty to or is convicted of a felony and “caused, attempted to cause, threatened to cause, or created a risk of physical harm to the victim of the offense.”����F

96 A victim impact statement must:

(1) Identify the victim of the offense; (2) Itemize any economic loss and or physical injury suffered by

the victim as a result of the offense; (3) Identify the seriousness and permanence of the injury; (4) Identify any change in the victim's personal welfare or

familial relationships as a result of the offense and any

93 State v. Mason, 694 N.E.2d 923, 955 (Ohio 1998). In Mason, the Ohio Supreme Court held that it was not error for the trial court to continue to urge the jury to deliberate after the jury deliberated for four and one-half hours and then informed the trial court that is was unable to unanimously decide upon a sentence. Id. 94 OHIO REV. CODE § 2945.10(G) (West 2007). 95 OHIO R. CRIM. P. 30(A). 96 OHIO REV. CODE § 2947.051(A) (West 2007).

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psychological impact experienced by the victim or the victim's family as a result of the offense;

(5) Contain any other information related to the impact of the offense upon the victim that the court requires;����F

97 and (6) If applicable, include any written or oral statement by the victim

regarding the impact of the crime that is given to the person whom the court orders to prepare the victim impact statement.����F

98

2. Admissibility of Victim Impact Statement There are constitutional limitations on the information that may be contained within a victim impact statement. For example, the Ohio Supreme Court has held that “[e]xpressions of opinion by a witness as to the appropriateness of a particular sentence in a capital case violate the defendant’s constitutional right to have the sentencing decision made by the jury and judge.”����F

99 However, even where the trial court impermissibly permitted testimony as to a victim’s belief regarding the appropriate punishment, the Ohio Supreme Court has held that such admission is not grounds for reversal if there is insufficient evidence to show that the sentencing jury (or three-judge panel) relied on the erroneous admission in arriving at a sentence.����F

100

97 OHIO REV. CODE § 2945.051(B) (West 2007). 98 OHIO REV. CODE § 2930.13(A) (West 2007). 99 State v. Huertas, 553 N.E.2d 1058, 1065 (Ohio 1990). 100 See State v. Fautenberry, 650 N.E.2d 878, 882 (1995); State v. Allard, 663 N.E.2d 1277, 1286 (1996).

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II. ANALYSIS

A. Recommendation #1

Each capital punishment jurisdiction should work with attorneys, judges, linguists, social scientists, psychologists, and jurors themselves to evaluate the extent to which jurors understand capital jury instructions, revise the instructions as necessary to ensure that jurors understand applicable law, and monitor the extent to which jurors understand the revised instructions to permit further revision as necessary.

In July 2002, the Chief Justice of the Ohio Supreme Court, Thomas Moyer, created a twenty-five member Task Force on Jury Service to “study and recommend innovative reforms to Ohio’s jury system.”����F

101 The task force implemented pilot projects in courtrooms throughout Ohio to “aid juror comprehension and satisfaction in serving on a jury in Ohio.”����F

102 These projects included using “plain English” in jury instructions and providing jurors with written copies of jury instructions.����F

103 In its final report, the task force recommended several jury procedures be implemented to “improve juror comprehension and satisfaction” and to “enhance the quality of justice.”����F

104 For example, one such recommendation was that “plain English” be used at trial and in jury instructions. The Task Force recommended Ohio Jury Instructions (Ohio’s pattern jury instructions) and other “appropriate instructions” be continuously reviewed and revised to institute the use of “plain English.”����F

105 The task force also recommended that jurors receive written instructions, including preliminary and final instructions.����F

106 It does not appear that either of these recommendations have been implemented. Because the State of Ohio does not appear to have acted on the proposed recommendations, the State of Ohio is only in partial compliance with Recommendation #1.

B. Recommendation #2

Jurors should receive written copies of “court instructions” (referring to the judge’s entire oral charge) to consult while the court is instructing them and while conducting deliberations.

This recommendation is supported by a myriad of studies finding that jurors provided with written court instructions pose fewer questions during deliberations, express less 101 SUPREME COURT OF THE STATE OF OHIO, REPORT AND RECOMMENDATIONS OF THE SUPREME COURT OF OHIO TASK FORCE ON JURY SERVICE [hereinafter REPORT AND RECOMMENDATIONS], available at http://www.sconet.state.oh.us/publications/juryTF/jurytf_proposal.pdf (last visited Sept. 13, 2007). 102 Id. at 8. 103 Id. at 9. 104 Id. at 1. 105 Id. at 11. 106 Id. at 12.

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confusion about the instructions, use less time trying to decipher the meaning of the instructions, and spend less time inappropriately applying the law.����F

107 Written instructions, therefore, result in more efficient and worthwhile deliberations.����F

108 The Ohio Rules of Criminal Procedure provide that the trial court must reduce its final instructions to the jury “to writing or make an audio, electronic, or other recording of those instructions [and] provide at least one written copy or recording of those instructions to the jury for use during deliberations.”����F

109 In addition, the Ohio Rev. Code provides that the final jury charge must be reduced to writing “if either party requests it before the argument to the jury is commenced.”����F

110 If the instructions are put in writing, any jury charge or instruction may not be orally qualified, modified, or explained to the jury by the court and written charges and instructions must be taken by the jury in their retirement, returned with their verdict into court, and remain on file with the papers of the case.����F

111 However, one Ohio Court of Appeals has held that the trial court is not prohibited from answering the jury’s questions if the jury is given written instructions.����F

112 It is unclear whether the jury receives written copies of the instructions while being orally charged by the court. Recognizing that written instructions are not always provided, the Ohio Supreme Court’s Task Force on Jury Service recommended that jurors should be “entitled to be provided a copy of written instructions, including any preliminary instructions and final instructions.”����F

113 While some sort of audio, electronic, written, or other recording of the jury instructions must be made, the State of Ohio is required to reduce jury instructions to writing only when requested by a party to the case. Because written instructions may not always be provided, and because we were unable to determine if jurors receive written instructions to consult while the court instructs the jury, the State of Ohio is only in partial compliance with Recommendation #2.

C. Recommendation #3

107 The Honorable B. Michael Dann, ‘Lessons Learned’ and ‘Speaking Rights’: Creating Educated and Democratic Juries, 68 IND. L.J. 1229, 1259 (1993); Judge Roger M. Young, Using Social Science to Assess the Need for Jury Reform in South Carolina, 52 S.C. L. REV. 135. 177, 178 (2000) (noting that 69.0% of the judges polled thought that juror comprehension would be aided by giving written instructions after the judge charged the jury and most believed that it would aid juror comprehension to have the instructions with them during deliberations). 108 Dann, supra note 107, at 1259; Young, supra note 107, at 162-63. 109 OHIO R. CRIM. P. 30(A). 110 OHIO REV. CODE § 2945.10(G) (West 2007). 111 Id. 112 See State v. Kersey, 706 N.E.2d 818, 822 (Ohio Ct. App. 1st Dist. 1997) (holding that “[a] trial court is not required to reduce its instructions to writing, but even if it does, it is not prohibited from answering a jury’s questions of law during deliberations”). 113 REPORT AND RECOMMENDATIONS, supra note 101, at 1.

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Trial courts should respond meaningfully to jurors' requests for clarification of instructions by explaining the legal concepts at issue and meanings of words that may have different meanings in everyday usage and, where appropriate, by directly answering jurors' questions about applicable law.

Research indicates that capital jurors commonly have difficulty understanding jury instructions.����F

114 Such difficulty can be attributed to a number of factors, including, but not limited to: the length of the instructions, the use of complex legal concepts and unfamiliar words without proper explanation, and insufficient definitions.����F

115 Accordingly, judges should respond meaningfully to jurors’ requests for clarification to not only ensure juror comprehension of the applicable law, but, more importantly, to ensure the jury imposes a just and proper sentence. The Ohio Supreme Court‘s Task Force on Jury Service recognized the importance of responding to jurors’ requests for clarification of instructions and recommended that jurors be “entitled to ask questions about the court’s instructions.”����F

116 Despite this, the Ohio Supreme Court has held that trial courts have the discretion to determine their response to requests for further instruction or clarification of instructions.����F

117 Therefore, the State of Ohio is not in compliance with Recommendation #3.

D. Recommendation #4

Trial courts should instruct jurors clearly on applicable law in the jurisdiction concerning alternative punishments and should, at the defendant's request during the sentencing phase of a capital trial, permit parole officials or other knowledgeable witnesses to testify about parole practices in the state to clarify jurors’ understanding of alternative sentences.

Recommendation #4 is composed of two parts. The first part requires judges to provide clear jury instructions on alternative punishments; the second requires judges to provide

114 Susie Cho, Capital Confusion: The Effect of Jury Instructions on the Decision to Impose Death, 85 J. CRIM. L. & CRIMINOLOGY 532, 549-51 (1994) (discussing juror comprehension, or lack thereof, of jury instructions); Shari Seidman Diamond & Judith N. Levi, Improving Decisions on Death by Revising and Testing Jury Instructions, 79 JUDICATURE 224, 225 (1996); Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV. 1, 12-15 (1993) (focusing on South Carolina capital juries understanding or misunderstanding of jury instructions). 115 James Luginbuhl & Julie Howe, Discretion in Capital Sentencing Instructions: Guided or Misguided?, 70 IND. L.J. 1161, 1169-70 (1995); Peter Meijes Tiersma, Dictionaries and Death: Do Capital Jurors Understand Mitigation?, 1995 UTAH L. REV. 1, 7 (1995) (discussing jurors understanding of the concept of mitigation evidence, including the scope, applicable burden of proof, and the required number of jurors necessary to find the existence of a mitigating factor). 116 REPORT AND RECOMMENDATIONS, supra note 101, at 19. 117 State v. Carter, 651 N.E.2d 965, 974 (Ohio 1995) (holding that a reversal of a conviction based upon the trial court’s response to the jury’s request for clarification may occur only if the trial court abused its discretion).

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instructions and allow the introduction of evidence on parole practices, including witness testimony, upon the defendant’s request. Alternative Sentences The Ohio Criminal Jury Instructions explain the circumstances under which the jury may impose a sentence of life imprisonment without parole eligibility for twenty-five full years, life imprisonment without parole eligibility for thirty full years, life imprisonment without the possibility of parole, or death.����F

118 For offenses committees prior to July 1, 1996, the instructions explain the circumstances under which the jury may impose a sentence of life imprisonment without parole eligibility for twenty full years, life imprisonment without parole eligibility for thirty full years, or death.����F

119 However, Ohio law does not require, nor do the Ohio Criminal Jury Instructions recommend, that the trial court provide to the jury an explanation of “life imprisonment without the possibility of parole,” “life imprisonment,” or “parole.” Parole Practices Regarding the second aspect, we were unable to determine if parole officials or other knowledgeable witnesses are permitted to testify about parole practices to clarify jurors’ understanding of alternative sentences. We were unable to find information that indicated that judges instruct the jury on actual parole practices. Because judges in the State of Ohio are required to instruct the jury on the sentencing options, but are not required to define “life imprisonment,” or “life imprisonment without the possibility of parole,” the State of Ohio is only in partial compliance with Recommendation #4.

E. Recommendation #5

Trial courts should instruct jurors that a juror may return a life sentence, even in the absence of any mitigating factor and even where an aggravating factor has been established beyond a reasonable doubt, if the juror does not believe that the defendant should receive the death penalty.

The State of Ohio does not require an instruction stating that the jury may impose a life sentence if the juror does not believe that the defendant should receive the death penalty, even in the absence of any mitigating factor and even where an aggravating factor has been established beyond a reasonable doubt. A review of Ohio case law also did reveal any instances in which such an instruction was provided to the jury by the trial court. The State of Ohio, therefore, is not in compliance with Recommendation #5.

F. Recommendation #6

118 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(1), (3), (10)(G). 119 See OHIO REV. CODE § 2929.03(C)(2) (West 2007) (law effective prior to July 1, 1996).

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Trial courts should instruct jurors that residual doubt about the defendant's guilt is a mitigating factor. Further, jurisdictions should implement the provision of Model Penal Code Section 210.6(1)(f),����F

120 under which residual doubt concerning the defendant’s guilt would, by law, require a sentence less than death.

The Ohio Supreme Court has held that “residual” or “lingering doubt” is not a mitigating circumstance and trial courts may not instruct on it.����F

121 The State of Ohio, therefore, is not in compliance with Recommendation #6.

G. Recommendation #7

In states where it is applicable, trial courts should make clear in juror instructions that the weighing process for considering aggravating and mitigating factors should not be conducted by determining whether there are a greater number of aggravating factors than mitigating factors.

The State of Ohio requires jurors to weigh whether the aggravating circumstances outweigh the mitigating factor(s) beyond a reasonable doubt in order to sentence the defendant to death.����F

122 The Ohio Criminal Jury Instructions advise that any mitigating factor, standing alone, is sufficient to support a sentence of life imprisonment if the aggravating factor(s) is/are not sufficient to outweigh the mitigating factor beyond a

120 Section 210.6(1) of the Model Penal Code states as follows:

(1) Death Sentence Excluded. When a defendant is found guilty of murder, the

Court shall impose sentence for a felony of the first degree [rather than death] if it is satisfied that: (a) none of the aggravating circumstances enumerated in Subsection (3) of

this Section was established by the evidence at the trial or will be established if further proceedings are initiated under Subsection (2) of this Section; or

(b) substantial mitigating circumstances, established by the evidence at the trial, call for leniency; or

(c) the defendant, with the consent of the prosecuting attorney and the approval of the Court, pleaded guilty to murder as a felony of the first degree; or

(d) the defendant was under 18 years of age at the time of the commission of the crime; or

(e) the defendant's physical or mental condition calls for leniency; or (f) although the evidence suffices to sustain the verdict, it does not

foreclose all doubt respecting the defendant's guilt. See MODEL PENAL CODE § 210.6(1); see also James R. Acker & Charles S. Lanier, In Fairness and Mercy: Statutory Mitigating Factors in Capital Punishment Laws, 30 CRIM. L. BULL. 299, 311-13 (1994) (discussing the mitigating factors included in the Model Penal Code and the statutory factors under modern death penalty laws). 121 See State v. McGuire, 686 N.E.2d 1112, 1122 (Ohio 1997) (citing Franklin v. Lynaugh, 487 U.S. 164, 173-74 (1988), and holding that the defendant has no right to present evidence of lingering doubt). 122 OHIO REV. CODE § 2929.04(B) (West 2007); see also 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(12).

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reasonable doubt.����F

123 Furthermore, the instructions inform jurors that “[i]t is the quality of the evidence regarding aggravating circumstance(s) and mitigating factors that must be given primary consideration by you. The quality of the evidence may or may not be the same as the quantity of the evidence; that is, the number of witnesses or exhibits presented in this case.”����F

124 While this instruction could serve to inform jurors that it is not to weigh the number of aggravators against the number of mitigators to determine if the defendant should be sentenced to death, the instructions do not explicitly state that the jury should not count the aggravators against the mitigators in determining whether the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. Therefore, the State of Ohio is not in compliance with Recommendation #7.

123 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10). 124 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(12).