Can a jury exercise sympathy for the victims of the crime during the penalty phase?

California, United States of America

The following excerpt is from People v. Johnsen, 10 Cal.5th 1116, 274 Cal.Rptr.3d 599, 480 P.3d 2 (Cal. 2021):

in this case. [] You are to base your decision on the evidence, the arguments of counsel, and the law stated in these instructions. You are directed not to consider any feelings of sympathy you may feel for the parties injured or aggrieved in this case." During the penalty phase, however, "the jury may exercise sympathy for the defendant's murder victims and for their bereaved family members" in aggravation, as a circumstance of the crime. ( People v. Pollock (2004) 32 Cal.4th 1153, 1195, 13 Cal.Rptr.3d 34, 89 P.3d 353 ; see 190.3, factor (a).) The trial court was correct to deny this instruction, which erroneously stated that the jury must "not ... consider any feelings of sympathy ... for the parties injured or aggrieved."

[10 Cal.5th 1175]

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