What themes drive a juror's decision to vote for life or death in a capital case? For a judge advocate assigned to a capital case, the answer to that question should serve as the foundation for her case development. If she builds a case based on what attorneys traditionally think is aggravating and mitigating, she might build the wrong case. What is important is what jurors actually think, and then constructing arguments to match those belief patterns. Fortunately, modem research provides insight on what influences jurors to vote for life or for death. Jurors tend to focus on three aggravating themes: fear, loathing, and lack of remorse.' Jurors also tend to find a few mitigating themes persuasive: residual doubt, shared culpability, reduced culpability, family testimony, and remorse.
This article will cover these themes in aggravation and mitigation and will discuss the underlying juror beliefs that drive those themes. Throughout, the article will explore how counsel on both sides of a capital case can use these findings to improve their trial practice but will pay special attention to how admission defenses address these themes. Finally, the article will conclude by looking at how some of the lessons learned from the CJP research can be applied to noncapital cases.
Eric R. Carpenter,
An Overview of the Capital Jury Project for Military Practitioners: Aggravation, Mitigation, and Admission Defenses
, 2011 Army Law 16
Available at: http://ecollections.law.fiu.edu/faculty_publications/46