Select Page

Capital Punishment
St. Johns University School of Law
Cooley, Craig M.

1 Amendments

Tuesday, November 30, 2010

7:08 PM

1. Amendments

1. 4th:

i. Unreasonable Search and Seize

1. State actor only

2. Reasonable expectation of privacy

a. Trash cans on sidewalk vs stuff inside house

3. Warrant must be:

a. Made with Probable cause

b. Supported by oath or affirmation

c. Particularly describing place or persons or things to be searched/seized

2. 5th

i. Death Penalty

1. ‘capital’

2. Life or limb

3. Deprived of life without due process

ii. Jury

1. grand jury for capital crimes

a. Except military

b. Except militia in actual service in time of war/public danger

iii. Double Jeopardy

1. cant be retried for same offense

a. If sentenced to life, appeals, retried and sentenced to death, is that ok?

iv. Self incrimination clause

1. Miranda rights

a. State shrinke valuation, used in court, but do you have right to miranda rights?

2. Don’t have to take stand

v. Due Process

1. Fairness

a. Does something seem innately unfair? Due process clause should take care of it

i. State shrink v. personal shrink? Are you allowed to your own?

3. 6th

i. Speedy + Public Trial

1. Speedy doesn’t matter, not always good, D needs time to prepare

2. Public trial, almost always

ii. Impartial jury

1. what does impartial mean?

iii. Fair cross section

1. Jury pull indicative of area good enough? Or does jury have to be?

2. Lockhard v. McCree

a. Can you remove all people opposed to death penalty? Isnt that removing a section of community meant to be protected?

iv. Notice

1. D must be put on notice of charges before trial

a. D must be notified of what aggravators state intends to prove

i. (state must establish 1 aggravator at sentencing hearnig before DP

v. Right to Confront

1. RtC anyone putting up evidence against you

a. Cross examine all witnesses’ testimony, if something someone said is admitted, the person must be there to crossexamine

i. Drug analysists/psychs have to come in to be cross-examined

vi. Compulsory Process Clause

1. Court will compel someone to act as your witness

vii. Right to Counsel

1. Does atty have a duty to provide effective representation?

a. All criminal prosecution?

i. What about in direct appeal or discretionary appeal after conviction?

ii. What about state post-conviction?

iii. Strickland v. Washington

2 Seminal Cases

Tuesday, November 30, 2010

7:08 PM

1. Seminal Cases

1. 8th

i. No excessive bail nor excessive fines!!!

ii. Cruel and unusual Punishment

1. Does it deal with process or only punishment?

2. 14th

i. Due process amendment

1. Incorporates bill of rights into states

a. Due process is about fundamental fairness

2. Does 8th talk about process?

Pre Furman

· Mcgautha – 14th amendment

i. Standardless jury discretion

ii. Unitary capital punishment

1. Originally no sentencing hearing and no benefit to it at all.

2. Unitary trial problem: This is the case despite the problem of being forced to either remain silent on issue of sentencing to preserve right to remain silent on ssue of guilt

a. State not required to provide D w/ opportunity to speak to jury on issue of punishment free from any adverse consequences on issue of guilt

iii. Constitution does not require bifurcated trials!!


Issue: does the imposition and carrying out of the death penalty constitute cruel and unusual punishment in violation of 8th and 14th? –> YES

· Penal laws must be evenhanded, nonselective, nonarbitrary

· Judges must apply the laws evenhandedly

Rule: DP is enacted with such great infrequency, even for the most atrocious crimes and there is no meaningful basis for distingu

basis to distinguish b/w who lives and who dies because no guided discretion

§ Aggravators are the distinguisher, but they come in later

Rule: The process by which jury determines who lives and who dies is unconstitutional

· Can we distinguish Mcgautha and furman?

· 8th amendment argument can be made out if jury was guided inappropriately or narrowing argument

· But if you cut through it all, its about due process


· Guided discretion In way juries are instructed

· Narrowing in way states draw and craft aggravating factors

· If either are inadequate, then arbitrary and capricious

· Narrowing

· No arbitrary/capricious death sentences

· Dissent

· McGautha?

§ D’s claim about process

§ Legislative decision

· Is the 8th amendment simply about punishment of death

Post Furman

· Mandatory DP sentences

· Woodson – Roberts

· Bifurcated Dp statutes

· Gregg

· ANY penalty must also be in accord with the dignity of man, which is the basic concept underlying the 8th amendment

· Majority of states did this

· Guilt hearing

· Sentencing hearing


· DP is constitutional per se

· 8th amendment analysis (below)

· Know this shit, Text, history/commonlaw/current statutes/jury decisions/independent analysis

Aggravators: at least 1 had to be proved beyond a reasonable doubt, otherwise jury doesn’t get to next level (weighing aggravating vs mitigating

· Felony murder

· For purpose of receiving $

· Outrageously and wantly vile, inhumane