In states that permit the death penalty, there are often two separate phases of the trial—the guilt phase and the penalty phase.  Murder is the only crime for which someone may be sentenced to death.  A murder that is eligible for the death penalty is called a capital murder. Often, there must be certain “special circumstances” that make a particular murder eligible for the death penalty.

The first part of a capital trial is the guilt phase.  In the guilt phase, the jury (or judge) determines whether the defendant is guilty of the charged crimes.  The only question the jury may consider is whether the evidence proves beyond a reasonable doubt that the defendant committed the charged crimes.  The jury is not permitted to consider the possible sentence in the guilt phase.

If the defendant is found guilty of a crime that leaves him eligible for the death penalty, then there is a penalty phase of trial. 

During the penalty phase, the jury often hears additional evidence to help it make a decision about whether the death penalty should be imposed. 

Different, more relaxed, rules of evidence apply during the penalty phase.  The prosecution typically presents aggravating evidence.  Aggravating evidence is that which suggests that death is the appropriate penalty. 

The defense attorney typically presents mitigating evidence.  Mitigating evidence is that which suggests the defendant does not deserve to be sentenced to death.

Factors that a jury might consider in deciding whether to impose the death penalty include:

• The circumstances of the crime
• The defendant’s mental and emotional state at the time of the crime
• Whether the defendant was legally insane or intoxicated at the time of the crime
• Whether the defendant believed the crime to be morally justified
• The defendant’s age and level of participation in the crime
• Prior felony convictions
• Other violent crimes committed by the defendant, whether he was convicted or not
• The victim’s role or participation in the murder
• Victim impact evidence (the impact of the murder on the victim’s family and friends)
• Any other extenuating circumstances
  

In California, the only two sentencing options available at the penalty phase are death or life without the possibility of parole.  Life without the possibility of parole is often called LWOP (pronounce el-wop).  A defendant sentenced to LWOP will spend the rest of his life in prison (unless his conviction is overturned).  It is considered a true life sentence.

OJ Simpson has claimed that his attorney for his Las Vegas robbery trial was ineffective. He has asserted two bases for his claim: 1) conflict of interest, and 2) failure to tell him about a plea offer.  This raises the question of what a criminal defendant must show for a claim of ineffective assistance of counsel.

What Is Ineffective Assistance of Counsel?

The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant the right to the effective assistance of counsel. 

That doesn't mean a defendant has the right to a perfect attorney or even a really good attorney.  It simply means a defendant has the right to an attorney who doesn't mess up in a way that is considered outside the professional norm.  Even then, the mess-up has to be so bad that it changes the outcome of the case.

Unlike a trial where the prosecution has the burden of proof to show a defendant is guilty, here it is the defendant's burden to prove that his attorney was ineffective. This is usually done through a petition for writ of habeas corpus. The defendant has to prove two things.

First, he must prove that his attorney acted outside the bounds of what is acceptable for a criminal defense attorney. This must be something more than a disagreement about tactics. It has to be something big. There are cases where even a drunk or sleeping attorney has not been held constitutionally ineffective.

Second, the defendant must prove that the attorney's mistake changed the outcome of the case. "If it wasn't for the mistake, I would have been acquitted." This is called prejudice.

Was OJ Denied the Right to the Effective Assistance of Counsel?

In OJ Simpson's case, he claims his attorney had a conflict of interest because he advised OJ that taking his memorabilia back was legal. A conflict of interest usually exists when an attorney has divided loyalties. Even if OJ's claim is true, it is unclear how that would have divided the attorney's loyalties. It is also unclear how that would have changed the outcome of the case. OJ would have to show his attorney's conflict caused him to be convicted when he would not have otherwise.

OJ's other claim is that his attorney did not tell him about a plea offer. a criminal defense attorney has a duty to communicate any plea offers to his client. The problem with this claim is that OJ would have to prove that he would have accepted the plea offer if he had known about it. Without that showing, there is no prejudice. No harm, no foul.  This is highly unlikely here. I suspect there is nothing that would have gotten OJ to plead guilty in this case.

It is generally very difficult for a criminal defendant to show that her attorney has been constitutionally ineffective. It does not appear that OJ will be able to make that showing.

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What is required to prove a criminal defendant is legally insane?  Each state has its own laws and rules about its legal definition of insanity, but there are some general concepts that can be used to understand what it means to be legally insane.  It is important to note that the insanity defense is rarely used and has even been abolished in some states.

Insanity is generally considered an "excuse" to committing a crime.  An excuse defense is where, even though the defendant engaged in criminal conduct, he is excused from legal responsibility because of some condition in the defendant.  

Insanity is also considered to be an "affirmative defense."  An affirmative defense is one in which the defendant must affirmatively assert the defense and produce some evidence supporting it.  For some affirmative defenses in some states, the defendant also has the burden of proving the defense is true.  

Defendants are generally presumed to be sane, so a prosecutor does not need to prove the defendant was sane unless the defendant puts his sanity into question.  Once it is put into question, either the prosecution must prove the defendant was sane beyond a reasonable doubt or the defendant must prove he was insane by a preponderance of the evidence.

In some states the defendant must enter a special plea, such as not guilty by reason of insanity. Some states have a separate sanity phase where the jury determines the defendant's sanity after it has decided he committed the charged crime.

The focus of determining a defendant's sanity is his mental condition at the time of the crime.  (This is one way the test for insanity is different than the test for competence to stand trial.  For a discussion of the differences between sanity and competency, check out this prior post.)

To be found insane, the defendant must show that he suffered from a mental disease or defect at the time he committed the crime.  Generally, the mental disease or defect may be permanent or temporary.

The M'Naghten Test

The defendant's mental condition must satisfy the legal standard for insanity.  The M'Naghten test is traditionally the most commonly used  test to determine insanity.  Under the M'Naghten test, a person is considered legally insane if: 

1.  at the time of the crime
2.  he suffered from a defect of reason that resulted in him either
     a.  not knowing the nature and quality of the act he performed, or
     b.  not knowing his act was wrong.

A defendant knows the nature of his act if he knows what act he is performing.  He knows the quality of his act if he understands the consequences that flow from his act.

For example, a woman is charged with murdering her baby by drowning.  To prove she was legally insane, she must prove that because of a defect of reason, she either did not know she was holding her baby's head underwater, or did not know that holding the baby's head underwater would result in him drowning.

Alternately, the defendant can show she did not know that her act was wrong.  The term "wrong" in this context may mean either legally wrong or morally wrong, depending on the state.

In the above example, if the woman knew she was holding her baby's head underwater and understood this would cause the baby to drown, but she believed she must do so to rid him of the devil, she would assert that she did not know her act was wrong.  This would be an example of a moral wrong.

Insane Delusions

If someone suffers from delusions because of a defect of reason, they may be able to assert the insanity defense, depending on the nature of the delusion.  If the delusion was to a fact that, if true, would have justified the defendant's acts, he could assert the insanity defense.  If, however, the delusion was to a fact that, if true, would not have justified the defendant's acts, he may not be considered insane.

For example, the defendant was delusional and believed the victim was holding a gun when in fact e was holding a pen.  The victim pointed the pen at the defendant, who believed he was about to be shot.  The defendant pulled out a gun and shot the victim.  The defendant could assert the insanity defense because, had the victim really pointed a gun at him, he would have been justified in shooting the victim in self-defense.

However, if the defendant's delusion was that the victim tricked him out of his money, and he shot the victim in revenge, he would not be considered legally insane because, even if his belief was true, tricking someone out of their money does not justify shooting them.

Irresistible Impulse Test

The irresistible impulse test is sometimes used in conjunction with the M'Naghten test.  Under this test, the defendant must have a defect of the mind that makes it impossible for him to control his actions.

It is not sufficient to meet this test if someone is overcome by anger, jealousy, or other strong emotions.  (Such passion may be sufficient to reduce a killing from murder to voluntary manslaughter, but it cannot be a complete defense.)

Model Penal Code Test

Another test for insanity is set out by the Model Penal Code.  Under this test a person is considered insane if, because of a mental disease or defect, the person did not have the capacity to:
1.  understand the criminality or wrongfulness of his conduct, or 
2.  to conform his conduct to the law.

This is sometimes called the "policeman at the elbow test."  In other words, if the person would have committed the act even if there had been a police officer at her elbow watching her, she is considered unable to have understood the wrongfulness of her conduct or to conform her conduct to the law.

A defendant's sanity may be proven by either medical professionals or by lay (non-expert) witnesses.  Lay witnesses may testify about the defendant's behavior around the time of the crime to help the jury determine whether the defendant was sane or insane at the time of the crime.

To understand the differences between insanity and competency to stand trial, click here.

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When you are in the criminal justice system or you are writing about the criminal justice system, it is helpful to know what stage of the process you are in.  Different things happen at different stages, and you should know where you are at any given time.

I have broken down the criminal justice system into 6 basic stages.  I will give a brief synopsis of each stage here.  I will go into each stage in greater detail in future posts.

1.  Crime Stage - This is where the crime occurs.  Crimes may be instantaneous, like a shooting, or may be ongoing, like a sophisticated ponzi scheme.

2.  Investigation Stage - This can occur simultaneously with an ongoing crime.  In most cases, the investigation phase happens after the crime has been committed.  An arrest usually happens during either the investigation phase or charging stage.

3.  Charging Stage - After an investigation is complete, a prosecutor must decide whether to bring charges, who to charge, and what crimes to charge.  This is an important step because it turns a suspect into a formally charged defendant and triggers certain constitutional rights.

4.  Pre-Trial Stage - Once a defendant is charged, the pre-trial stage begins.  The defense attorney will review the prosecution's evidence and may bring motions, such as a motion to dismiss or a motion to suppress evidence.  Witnesses are interviewed and prepared for trial.

5.  Trial Stage - This is where the fun happens.  Most trials are in front of juries, although a judge can hear trials too.  It's up to the defendant.  The prosecution has the burden of proof and will try to introduce evidence to prove the defendant guilty.  The defense need not introduce any evidence.

6.  Post-Trial Stage - After a defendant has been convicted at trial, there are a slew of things that can happen.  Sentencing happens in every case.  The defendant may also bring a new trial motion.  The defendant can appeal, file a petition for a writ of habeas corpus, or petition for clemency or a pardon.

Each of these phases has its own unique challenges, goals, rules, and rights.  I will develop each in more detail in future posts. 

A fictional crime story may take place in one, some, or all of these stages.  Whichever stages your story takes place in, it's critical to understand the rules and purposes of those stages.  I hope you will find this to be a helpful guide on your journey.

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