statement is made, the defendant should be instructed by
the court outside the presence of the jury, about the
limited nature of the right. State v. Zola, 112 N.J. 384,
431-32 (1988), cert. denied, 489 U.S. 10 (1989); State v.
DiFrisco II, 137 N.J. at 478. A defendant can exercise this
allocution right to ask for the death penalty. The same
procedures established in Zola should be followed and
the court “might” suggest to the jurors that only their
opinion, and not defendant’s, about the appropriate
penalty controls. State v. Hightower I, 120 N.J. at 414-
- The jury should be instructed that a defendant’s
allocution should be considered insofar as it impacts on
one or more mitigating factor. State v. DiFrisco II, 137
N.J. at 479-80.
If a defendant improperly exceeds the scope of the
allocution right, the trial court may strike the improper
portion of the statement and issue a curative instruction.
State v. Loftin I, 146 N.J. at 360-63.
A jury need not accept as a mitigating factor any
statutory factor on which defendant presented proof and
which the State has failed to disprove. Whether a
mitigating factor exists is a qualitative judgment. State v.
Zola, 112 N.J. at 438. Moreover, the State has no burden
to disprove the defendant’s mitigating factors. State v.
Cooper I, 151 N.J. at 395-96.
Therefore, a jury should not be instructed that it must
find a statutory mitigating factor for which there is
reliable evidence. State v. Harris, 141 N.J. at 567. The
Court has indicated, however, that with regard to certain
objective mitigating factors, such as “no significant
history of criminal activity,” which are undisputed, it
might be appropriate to instruct the jury to consider the
mitigating factor. Id. at 566.
The total exclusion of penalty phase evidence to
support a mitigating factor should occur only in
circumstances in which the trial court is convinced that
the admission of the evidence, in conjunction with the
effects of cross-examination, rebuttal and curative
instructions, would frustrate rather than advance
society’s interest in a fair trial. State v. Pitts, 116 N.J. at
635.
If a mitigating factor is not submitted to the jury, a
defendant must show that the mitigating factor is one
that the jury reasonably could have deemed to have
mitigating value, that there was sufficient evidence of the
existence of the factor and that, considering the case as a
whole, exclusion of the factor resulted in prejudice to
defendant. State v. Martini I, 131 N.J. at 299.A defendant cannot prevent the presentation of
mitigating evidence on his or her behalf at the penalty
phase. The trial court must explore methods of handling
the situation that are sensitive to the attorney-client
relationship. State v. Koedatich I, 112 N.J. at 331.IV. JURY DELIBERATION ISSUES
For the death penalty to be imposed, all aggravating
factor(s) must outweigh all mitigating factor(s) beyond a
reasonable doubt. State v. Bey II, 112 N.J. at 158-59.
Each juror must independently determine the existence
of a mitigating factor and then individually decide
whether aggravating factor(s) outweigh the mitigating
factor(s) beyond a reasonable doubt. Id. at 161.The court should expressly instruct the jury that the
decision on punishment is not merely a counting of
aggravating and mitigating factors. Rather, the jury’s
verdict must constitute a belief that the death penalty was
a fitting and appropriate punishment. Id. at 164.The verdict sheet should explicitly ask the jury
whether any of the listed aggravating factors or
combinations of aggravating factors outweigh the
mitigating factors. This type of verdict sheet “allows for
more effective and efficient appellate review” and would
allow the court to assess whether errors with regard to the
aggravating factor(s) requires reversal of a death sentence.
State v. Cooper I, 151 N.J. at 444-45 n.4 (Handler, J.,
dissenting).A trial judge must adequately explain mitigating
factors in the context of the whole charge and make sure
that the jury does not misunderstand the function of
these factors. State v. Bey II, 112 N.J. at 169-70. A proper
instruction on mitigating factors will assure that the jury
does not misunderstand the proper use of feelings of
sympathy and mercy and will make unnecessary an
instruction on sympathy. Id. at 172.Instructing the jury that it should attempt to reach
unanimity with regard to the existence or not of
mitigating factors is not error so long as the jury is aware,
from the court’s instructions and also the verdict sheet,
that unanimity is not required. State v. Cooper I, 151 N.J.
at 399; State v. Loftin I, 146 N.J. at 376.When the court receives a note from the jury about
possible deadlock, it should inquire whether delibera-