Instructions to the Jury & Swearing of Bailiffs

Penalty Phase

December 9, 2004

Judge Delucchi: All right, since it's early, I'm going to instruct you now. Okay? These jury instructions will take maybe 15 minutes. And then, like I told you before, you will get this book. We'll give it to the foreperson. You will have this in the jury room for your review. If you want to look anything up in here, it's here, and it's a lot of things in the guilt phase, as you can see. Okay?

All right. The defendant in this case has been found guilty of murder in the first degree. The allegation that the murder was committed under a special circumstance has been specially found to be true.

It is the law of this state that the penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the State Prison for life without possibility of parole in any case in which the special circumstances alleged in this case has been specifically found to be true.

I instruct you that life in prison without the possibility of parole means exactly what it says, that the defendant will be imprisoned in the state prison for the rest of his life.

You are further instructed that the death penalty means exactly what it says, that the defendant will be executed. For you to conclude otherwise would be for you to rely on conjecture and speculation. That would be a violation of your oath as trial jurors.

Under the laws of this state you must now determine which of these penalties shall be imposed on the defendant.

In deciding whether death or life in prison without the possibility of parole is the appropriate sentence, you may not consider for any reason whatsoever the deterrent or non-deterrent effect of the death penalty, or the monetary cost to the state of execution or maintaining a prisoner for life.

You will now be instructed on all of the law that applies to the penalty phase of this trial. You must determine what the facts are from the evidence received during the entire trial, unless you are instructed otherwise. You must accept and follow the law that I state to you. Disregard all other instructions given to you in other phases of this trial.

You must neither be influenced by bias or prejudice against the defendant, nor swayed by public opinion or public feelings. Both the people and the defendant have a right to expect that you will conscientiously consider all of the evidence, follow the law, exercise your discretion conscientiously and reach a just verdict.

If any rule, direction, or idea is repeated or stated in different ways in these instructions, no emphasis is intended, and you must not draw any inference because of its repetition. Do not single out any particular sentence or any individual point of instructions as a whole and each in the light of all the others.

The order in which the instructions are given has no particular significance as to their relative importance.

Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence, or who may appear to have some knowledge of these events.

Neither side is required to produce all objects or documents mentioned or suggested by the evidence.

A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw my inference from the fact that a defendant does not testify. Further, you must neither discuss this matter, nor permit it to enter in your deliberations in any way.

Several of the jurors have taken notes throughout the trial. You will be permitted to take these notes to the jury room during your deliberations. I caution you, however, that your notes are not a substitute for the record and are not entitled to any greater weight than the recollection or the impression of any juror as to what the testimony may have been or what conclusions should be arrived at. You should limit the use of your notes to refresh your recollection of the testimony.

If there is any question about the testimony among you, you are permitted to have that portion of the record reread to you.

In addition, each of you are to the keep your own notes with you at all times, and not to leave them in the jury room during recesses in your deliberation.

Every person who testifies under oath or affirmation is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness.

In determining the believability of a witness, you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including, but not limited to, any of the following:

The extent of the opportunity or ability of the witness to see or hear, or otherwise become aware of any matter about which the witness testified;

The ability of the witness to remember or to communicate any matter about which the witness has testified;

The character and quality of that testimony;

The demeanor and manner of the witness while testifying;

The existence or nonexistence of any bias, interest, or other motive;

The existence or nonexistence of any fact testified to by the witness;

And the attitude of the witness toward this action or toward the giving of testimony.

Statements made by the attorneys during the trial are not evidence. If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer. Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken by the Court. Treat it as though you had never heard of it.

You must decide all questions of fact in this case from the evidence received in this trial and not from my other source. You must not independently investigate the facts or the law, or consider or discuss facts as to which there is no evidence. This means, for example, that you must not, on your own, visit the scene, conduct experiments, or consult reference works or persons for additional information.

You must not discuss this case with any other person, including, but not limited to, spouses, spiritual leaders or advisers, or therapists, except a fellow juror during deliberations when all twelve of you are together in the jury room, and then only as after the case is submitted to you for your decision, and only when all twelve jurors are present in the jury room.

You should give the testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact testified to by one witness, which you believe, is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends.

Every person who testifies under oath is -- I think this is in there twice.

Now we're going to get this into the penalty part, factors for consideration.

In determining which penalty is to be imposed, you shall consider all of the evidence which has been received during any part of the trial of this case, except as you may hereafter be instructed. You shall consider, take into account, and be guided by the following factors if applicable:

(a), the circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.

(b), the presence or absence of criminal activity by the defendant other than the crimes for which the defendant has been tried in the present proceedings, which involved the use or attempted use of force or violence, or the express or implied threat to use force or violence.

(c), the presence or absence of any prior felony conviction other than the crimes for which the defendant has been tried in the present proceedings.

(d), whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(e), whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

(f), whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation of his conduct.

(g), whether or not the defendant acted under extreme duress, or under the substantial domination of another person.

(h), whether or not, at the time of the offense, the capacity of the defendant to appreciate the criminality of his conduct, or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication.

(i), the age of the defendant at the time of the crime.

(j), whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.

And then Factor (k), any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, and any sympathetic or other aspects of the defendant's character or record that the defendant offers as a basis for a lesser sentence less than death, whether or not related to the offense for which he is on trial.

You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle.

You may also consider any lingering or residual doubt as to the defendant's guilt or intent as a factor in mitigation.

Lingering or residual doubt is defined as a state of mind between reasonable doubt and beyond all possible doubt. You may not relitigate or reconsider matters involved in the guilt phase, but you may consider it as a factor in mitigation.

Sympathy for a defendant's family is not a matter that a capital jury can consider in mitigation. However, family members may offer testimony of the impact of an execution on them if, by so doing, they illuminate some positive quality of the defendant's background or character which is offered as a basis for a sentence less than death.

The People and the defendant are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors.

Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision.

Do not decide any issue in this case by the flip of a coin or by any other chance determination.

The attitude and conduct of jurors at all times are very important. It is rarely helpful for a juror at the beginning of the deliberations to express an emphatic opinion on the case, or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be aroused, and one may hesitate to change a position even if shown it is wrong. Remember that you are not partisans or advocates in this matter. You are impartial judges of the facts.

The instructions which I'm now giving to you will be made available in written form for your deliberation. They must not be he did he faced in any way.

Do not disclose to anyone outside the jury, not even to me or any members of my staff, either orally or in writing, how you may be divided numerically in your balloting as to any issue unless I specifically direct otherwise.

As information the alternate jurors, you are still bound by the admonition that you are not to converse among yourselves or with anyone else on any subject connected with the trial, or to form or express any opinion on it until the case is submitted to you, which means until such time as you are substituted in for one of the twelve jurors now deliberating on the case. This also means that you are not to decide how you would vote if you were deliberating with the other jurors.

I have not intended by anything I have said or done, or by any question that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness.

If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusions.

During deliberations, any question or request you may have should be addressed to the Court on a form that will be provided.

If there is any disagreement as to the actual testimony, you have the right, if you choose, to request a readback by the reporter. You may request a partial or total readback, but any readback should be a fair presentation of that evidence. If a readback of testimony is requested, the reporter will delete objections, rulings, and sidebar conferences so that you will hear only the evidence that was actually presented.

Please understand that counsel must first be contacted, and it may take time to provide a response or readback. Continue deliberating until you are called back into the courtroom.

In this case there are only two possible verdict forms. These possible verdicts are set forth in the forms of verdict which you will receive. Only one of the possible verdicts may be returned by you. If you all have agreed upon one verdict, the corresponding form is the only verdict form to be signed. The other forms are to be left unsigned.

Now, this is a simple choice. You have two choices The forms of the verdict read as follows. And I don't mean to infer how you should find by the opened in which I read them to you. Just the way I pulled them out of the folder.

Here is the form of the verdict. The People of the State of California versus Scott Lee Peterson. Penalty verdict. We the jury in the above entitled cause fix the penalty at life imprisonment without the possibility of parole. Date -- signature, date for the foreperson.

Second form of the verdict says, we the jury in the above entitled cause fix the penalty at death. Dated and signed by the foreperson. That's it. One of those two forms.

It is now your duty to determine which of the two penalties, death or imprisonment in the state prison for life without possibility of parole, shall be imposed on the defendant.

After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.

An aggravating factor is any fact, condition or event attending the commission of the crime which increases its severity or enormity, or adds to its injurious consequences which is above and beyond the elements of the crime itself.

A mitigating circumstance is any fact, condition, or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty.

The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weight to any of them. You are free to attach whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider.

In weighing the various circumstances you determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.

And, remember, we covered that during the Hovey voir dire. I went over that with you.

You shall now retire to deliberate on the penalty. The foreperson previously selected may preside over your deliberations, or you may choose a new foreperson. In order to make a determination as to the penalty, all twelve jurors must agree. It has to be a unanimous verdict on the penalty.

Any verdict that you reached plus be dated and signed by your foreperson on a form that will be provided, and then you shall return with it to this courtroom.

You want to swear the bailiffs?

CLERK: Raise your right hand. Do you and each of you solemnly swear that you will keep the jurors in some quiet and convenient place, you shall not speak to them or allow them to be spoken to unless ordered to do so by the Court, or to ask them if they have reached a verdict; that you will return them into the courtroom when they have reached a verdict or when ordered so by the Court, so help you God?