Encyclopedia of Psychology and Law

even the most eloquent presentation of mitigation evi-

dence can be insufficient to counteract the effects of

intrinsic juror biases, impairments in understanding the

concept of aggravating and mitigating factors, and mis-

interpretation of instructions to the jury regarding how

to weigh the evidence presented to them.

Bridget M. Doane and Karen L. Salekin

See also Aggravating and Mitigating Circumstances in

Capital Trials, Effects on Jurors; Death Penalty; Expert

Psychological Testimony, Forms of; Mental Illness and the

Death Penalty; Mental Retardation and the Death Penalty

Further Readings

Connell, M. A. (2003). A psychobiographical approach to

the evaluation for sentence mitigation. Journal of

Psychiatry and Law, 31,319–354.

Fabian, J. M. (2003). Death penalty mitigation and the role

of the forensic psychologist. Law and Psychology Review,

27,73–120.

Furman v. Georgia, 408 U.S. 238 (1972).

Lockett v. Ohio, 438 U.S. 586 (1978).

Miller, J. (2003). The defense team in capital cases. Hofstra

Law Review, 31,1117–1141.

Ring v. Arizona, 536 U.S. 584 (2002).

Salekin, K. L. (2006). The importance of risk factors, protective

factors, and the construct of resilience. In M. Costanzo,

D. Krauss, & K. Pezdek (Eds.),Expert psychological

testimony for the courts. Thousand Oaks, CA: Sage.

Schroeder, J., Guin, C. C., Pogue, R., & Bordelon, D. (2006).

Mitigating circumstances in death penalty decisions:

Using evidence-based research to inform social work

practice in capital trials. Social Work, 51,355–364.

Wiggins v. Smith, 539 U.S. 510 (2003).

AGGRAVATING ANDMITIGATING

CIRCUMSTANCES INCAPITALTRIALS,

EFFECTS ONJURORS

Aggravating factorsare elements of the crime or the

defendant’s prior criminal record that not only make

the defendant eligible for the death penalty but also

serve to make the defendant more likely to receive the

death penalty. Mitigating factorsare elements of the

crime or the defendant’s character and background

that could make the defendant less likely to receive

the death penalty. Statutes across the United States list

many aggravating and mitigating factors that could be

presented at trial. The existing research in psychology

and law shows that jurors are sensitive to some factors

but not to others. Experimental research has compared

hypothetical cases in which various aggravating and

mitigating factors are either present or absent. Other

research, especially the Capital Jury Project, has sur-

veyed or interviewed jurors who served in a death

penalty case about what factors they considered impor-

tant when making their decision.

Aggravating Factors

Jurors are more likely to sentence to death defendants

who have committed a heinous, brutal, or cruel murder.

Such crimes include those involving a single victim

who suffers a lot of pain before death and also crimes

with multiple victims. The brutality of a murder trig-

gers jurors’ desire for retribution, or punishing someone

for the harm that he or she has caused. Several lines of

research show that jurors treat more severe crimes more

harshly when assigning punishment in general, not just

in death penalty cases. Jurors may not understand what

the words heinous or atrocious mean, or they may

believe that all murders are heinous. Thus, courts must

instruct jurors that this aggravating factor is limited in

some way, so that they are supposed to apply it only

in cases involving torture, very serious physical abuse,

or extreme depravity. However, even without such

extreme case facts, jurors will sentence a defendant

to death more often if the crime is more severe and

causes more harm. Usually, in death penalty trials, a

separate listed factor is included for murders with

multiple victims, because heinousness is a specific

legal term measuring how much suffering occurred

before the victim’s death.

Jurors also consider the future dangerousness of

a defendant—whether he or she is likely to commit

another serious crime. In some states, jurors are specif-

ically asked to decide whether the defendant is likely

to re-offend, but even when not asked, jurors often

bring this issue up during deliberations. The more the

jurors fear that the defendant could re-offend, or even

be released on parole, the more likely they are to sen-

tence the defendant to death. Similarly, if the defendant

has a prior criminal record that includes violent crimes,

he or she will be seen as more dangerous, and jurors are

more likely to sentence that defendant to death than

defendants with no prior record.

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