5.7 Jury Instructions and Verdict Forms

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

5.7 JURY INSTRUCTIONS AND VERDICT FORMS

The model jury instruction for penalty trials follows the language of subsection (C) of section 19.2-264.4. It advises the jury that a death verdict must be predicated on proof beyond a reasonable doubt of the vileness factor or the future dangerousness factor. The instruction does not mention the statutory mitigating factors, although the jury is advised to consider "any evidence presented of circumstances which do not justify or excuse the offense but which in fairness or mercy may extenuate or reduce the degree of moral culpability and punishment." ²⁰⁴ Likewise, the jury verdict form contained in former subsection (D) of section 19.2-264.4 ²⁰⁵ contains the phrases "after having considered the evidence in mitigation of the offense" in the death sentence forms, and "having considered all of the evidence in aggravation and mitigation of such offense" in the life sentence form. The jury must be unanimous in imposing the death penalty, but the verdict form need not indicate which of the two aggravating factors the jury found. ²⁰⁶

The Supreme Court of Virginia has affirmed the sufficiency of the model instructions and the statutory verdict form against claims that they fail to give sufficient mention or explanation to mitigation and its function,

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that they create a presumption that death is the appropriate sentence, and that the basis of the jury's verdict is not made sufficiently apparent. ²⁰⁷ The United States Supreme Court has rejected claims that the jury must be instructed to find a certain kind or number of factors and to weigh those factors against mitigating factors. ²⁰⁸ A defendant is not entitled to an instruction that the jury may sentence the defendant to life imprisonment even if they have not reached "a unanimous decision as to the existence of any particular fact in mitigation." ²⁰⁹

While the jury must be unanimous in finding the vileness factor, the jury need not be unanimous as to whether the vileness consisted of torture, depravity of mind, or aggravated battery. "Depravity of mind, aggravated battery, and torture are not discrete elements of vileness that would require separate proof but rather are 'several possible sets of underlying facts [that] make up [the] particular element.'" Therefore it was not error to deny defendant's request for a jury instruction and a verdict form that required unanimity on one or more vileness elements. ²¹⁰ Without mentioning Apprendi v. New Jersey, ²¹¹ the court treated vileness as the "element" that must be found by a unanimous jury, while depravity of mind, aggravated battery, and torture are underlying facts that need not be found unanimously. By way of example, the court stated that "the jury must unanimously find force as an element of the crime of robbery, but whether the force is created by the use of a gun or a knife is not an element of the crime and therefore does not require jury unanimity."

It is worth noting that section 19.2-263.2 of the Virginia Code provides that a proposed instruction that is an accurate statement of the law is not to be refused solely because it does not conform to the model instructions. Thus, counsel may propose instructions that address specific aspects of mitigation. ²¹²

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Counsel also should consider proposing jury verdict forms that adequately inform jurors that they have the absolute discretion to fix punishment at life imprisonment even if they find one or both of the statutory aggravating factors to be present. ²¹³

In Buchanan v. Angelone, ²¹⁴ the United States Supreme Court upheld the Virginia instructions and...