Death Penalty Article

I am a lawyer who has worked in death penalty defense at the direct appeal and postconviction/habeas corpus level. It would take some research to answer this question with perfect accuracy and concreteness. However, my short answer is no, this is not the standard in most jurisdictions.

In all jurisdictions that apply the death penalty, the jury during the penalty phase is presented with a list of aggravating circumstances which they may consider in deciding whether death penalty is appropriate, and a list of mitigating circumstances which they are to weigh against aggravating circumstances. The mitigating circumstance list will include a catchall provision that says "Any other factor which indicates that a sentence lower than death is appropriate" and the jury will be instructed that the list of mitigating circumstances is not exhaustive. However, the exact composition of the list of aggravating and mitigating circumstances varies from state to state (many parameters and restrictions have been established by the jurisprudence of the U.S. Supreme Court, and many jurisdictions copy each other, especially when the formulation used in one place is upheld by the higher courts). The jury is then instructed that before it imposes a sentence of death, it must find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt.

Some jurisdictions instruct the sentencing juries that one of the mitigating circumstances they should consider is lingering doubt about the guilt of the defendant. This is considered controversial, probably because it implies lack of confidence in the guilt decision that has already been reached by the jury. I believe that a minority of jurisdictions give this instruction. By no means is the instruction explained or justified in the terms used by David in his article. I have always believed that the doubt referred to in the phrase "lingering doubt" refers to the reasonable doubt standard, and not the shadow of a doubt standard proposed by David. Then the question becomes, are you sure you should have voted guilty in the first place (presumably they are), not the question that David proposes that the jury should be asked.

Jurors do hear the phrases like "beyond a shadow of a doubt," etc. Virtually every prosecutor I have gone up against in a criminal trial spends a portion of the voir dire telling the jury that this is NOT the standard they will be asked to apply, and asking jurors who insist on applying a "beyond a shadow of a doubt" standard to identify themselves so that they can be removed from the venire. In one of the death penalty cases I worked on, the Judge's instruction to the jury about reasoanble doubt included the following paragraph:

The phrase reasonable doubt is self-explanatory and efforts to define it do not always clarify the term but it may help you some to say that doubt which would justify an acquittal must be an actual and substantial doubt, and not a mere possible doubt. A reasonable doubt is not a mere guess or surmise and it is not a forced or captious doubt. If, after considering all of the evidence in the case, you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt, and it would be your duty to convict the defendant. The reasonable doubt which entitles an accused to an acquittal is not a mere fanciful, vague, conjectural, or speculative doubt, but a reasonably substantial doubt, arising from the evidence and remaining after a careful consideration of the testimony, such as reasonable, fair-minded, and conscientious men and women would enter under all the circumstances.

This is certainly not a "beyond a shadow of a doubt" standard, and I believe it even sells short the "beyond a reasonable doubt" standard. However, it is standard charging language in the state of Alabama.