Bifurcation In Non-Capital Criminal Jury Trials

By Matthew J. O'Connor and Jin Liu

Missouri's recent imposition of bifurcated trial process in non-capital criminal cases is drastically changing how the criminal jury trials are conducted in this state. The central goal of the bifurcated proceeding is to keep out certain evidence from the guilt stage, but to allow its introduction for sentencing purposes.

Missouri is one of the five states presently allowing jury sentencing in non-capital felony cases in this country.[1] Prior to the 2003 amendment of the section 557.036 of the Missouri Revised Statute, three of the jury sentencing states � Arkansas, Texas, and Virginia � bifurcated non-capital criminal proceedings into a trial and sentencing stage and the jury heard evidence relevant to sentencing only after it had already rendered a guilty verdict,[2] and Oklahoma mandated a bifurcated sentencing hearing if one of the sentencing aggravators was a prior conviction, otherwise was silent on bifurcation.[3] The section 557.036 of the Revised Statute of Missouri, prior to its 2003 amendment, required the jury to impose its sentence in a unitary proceeding at the same time when it returned its verdict.[4] Juries did not have access to sentencing guidelines or sentencing and probation statistics; instead, they were provided only with statutory maximums and minimums establishing a wide range of permissible sentences.[5] The unitary format presented serious difficulties in the handling of evidence. The 2003 Senate Bill No. 5 introduced the bifurcated trial process to resolve these difficulties.

Under the bifurcated scheme, evidence of prior convictions is usually limited to very general information about the nature of the crime in the punishment phase.[6] This practice reduces the danger that jurors, inflamed by the details of the defendant's prior offenses, place undue influence on the defendant's prior record when determining guilt.

The change to the bifurcated trial process is significant because it allows evidence mitigating or supporting punishment at the sentencing stage. It provides a chance for defense attorneys to better serve their clients through mitigating punishment; accordingly, jury can assess punishment more reasonably and properly.

2003 Amendment

The 2003 Missouri Senate Bill No. 5 set forth the bifurcated trial process applicable in both felony and misdemeanor cases. The Bill provided in the pertinent part, "ROLE OF THE COURT AND JURY IN SENTENCING � Creates a bifurcated trial if the jury reaches a guilty verdict. A second hearing shall be conducted for the jury to determine the extent or duration of sentence or other disposition based on the nature and circumstances of the offense and the history of the defendant."[7] (emphasis added).

Following the Senate Bill, the 2003 version of Mo. Rev. Stat. Sect. 557.036 provides:[8]

557.036. Role of court and jury in sentencing � jury informed of penalties

1. Upon a finding of guilt upon verdict or plea, the court shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly.

2. Where an offense is submitted to the jury, the trial shall proceed in two stages. At the first stage, the jury shall decide only whether the defendant is guilty or not guilty of any submitted offense. The issue of punishment shall not be submitted to the jury at the first stage.

3. If the jury at the first stage of a trial finds the defendant guilty of the submitted offense, the second stage of the trial shall proceed. The issue at the second stage of the trial shall be the punishment to be assessed and declared. Evidence supporting or mitigating punishment may be presented. Such evidence may include, within the discretion of the court, evidence concerning the impact of the crime upon the victim, the victim's family and others, the nature and circumstances of the offense, and the history and character of the defendant. Rebuttal and surrebuttal evidence may be presented. The state shall be the first to proceed. The court shall instruct the jury as to the range of punishment authorized by statute for each submitted offense. The attorneys may argue the issue of punishment to the jury, and the state shall have the right to open and close the argument. The jury shall assess and declare the punishment as authorized by statute.

4. A second stage of the trial shall not proceed and the court, and not the jury, shall assess punishment if:

(1) The defendant requests in writing, prior to voir dire, that the court assess the punishment in case of a finding of guilt; or

(2) The state pleads and proves the defendant is a prior offender, persistent offender, dangerous offender, or persistent misdemeanor offender as defined in section 558.016, RSMo, a persistent sexual offender as defined in section 558.018, RSMo, or a predatory sexual offender as defined in section 558.018, RSMo.

If the jury cannot agree on the punishment to be assessed, the court shall proceed as provided in subsection 1 of this section. If, after due deliberation by the jury, the court finds the jury cannot agree on punishment, then the court may instruct the jury that if it cannot agree on punishment that the court will assess punishment.

5. If the jury returns a verdict of guilty in the first stage and declares a term of imprisonment in the second stage, the court shall proceed as provided in subsection 1 of this section except that any term of imprisonment imposed cannot exceed the term declared by the jury unless the term declared by the jury is less than the authorized lowest term for the offense, in which event the court cannot impose a term of imprisonment greater than the lowest term provided for the offense.

6. If the defendant is found to be a prior offender, persistent offender, dangerous offender or persistent misdemeanor offender as defined in section 558.016, RSMo:

(1) If he has been found guilty of an offense, the court shall proceed as provided in section 558.016, RSMo; or

(2) If he has been found guilty of a class A felony, the court may impose any sentence authorized for the class A felony.

7. The court shall not seek an advisory verdict from the jury in cases of prior offenders, persistent offenders, dangerous offenders, persistent sexual offenders or predatory sexual offenders; if an advisory verdict is rendered, the court shall not deem it advisory, but shall consider it as mere surplusage.

Subsections 2 and 3 were newly added to the statute by the 2003 amendment, which provide that jury trial shall proceed in two separate stages: guilt phase and sentence phase, and in guilt phase, the issue of punishment shall not be submitted to the jury. According to the amendment, the bifurcating of the procedure is mandatory in non-capital criminal jury trials.

1. Exceptions to the bifurcated trial process. Although the bifurcated trial process is mandatory, there are three exceptions. First, the defense can waive jury sentence if "[t]he defendant requests in writing, prior to voir dire, that the court assess the punishment in case of a finding of guilt."[9] Therefore, the defense enjoys the right to waiving jury sentence, the statute, however, by its words, grants such a right only if it is exercised before voir dire and in writing.

The second exception exists when the state pleads and proves the defendant is 1) a prior offender, 2) persistent offender, 3) dangerous offender, or 4) persistent misdemeanor offender, 5) a persistent sexual offender, 6) or a predatory sexual offender. If that is the case, a second stage of the jury trial shall not proceed and the court, and not the jury, shall assess punishment.

Third, the court shall make the sentencing decision if the jury cannot agree on the punishment to be assessed. This exception may occur when the court finds, rather than the fact turns out, the jury, after its due deliberation, cannot agree on punishment. Under the latter situation, the court has the discretion to instruct the jury that if it cannot agree on punishment that the court will assess punishment.

2. Informing the jury about mandatory minimums of sentence. The court's instruction about the range of punishment authorized by statute for each submitted offense is mandatory at the sentencing stage. As a result, although juries are in charge of sentencing in a separate phase from the guilt-innocence stage the court's power in instructing the penalty range acts as a check on the juries' discretion in imposing punishment.

In deciding what types of evidence is admissible, other states mandating bifurcated trial process provide that the evidence rules in non-capital cases resemble those of capital cases because "[t]he goal of having an informed jury assess appropriate punishment should be no less essential merely because a [non-capital] offense is involved [rather than a capital case]."[12] Missouri has a long history of bifurcating trial process in capital cases, therefore, if the state accepts the view that the evidence rules in capital and non-capital cases do not significantly differ, long-standing capital cases can serve as a rich source for the evidence rules in sentencing stage of non-capital trials.

In regard to the impact evidence, Missouri is more liberal than other states because it admits not only the evidence of the impact on the victims but also that upon the victim's family and others and the connotation of "others" is subject to courts' interpretation. Virginia and Arkansas statutes explicitly allow only the impact evidence demonstrating impact upon victims and Texas does not expressly include the victim impact evidence among the list of admissible evidence.[13]

Some states also allow the evidence of the victim's trait. The Missouri statute, by its words, only permits the character evidence of the defendant, this construing of the statute, however, does not necessarily bar the victim's character evidence from being admissible under the category evidencing the nature and circumstance of the offense.

Missouri statute does not define the "history and character of the defendant" but other states' practice may offer some guidance. The admissible evidence related to the history and character of the defendant in other states allowing bifurcated trial process usually includes: 1) prior criminal convictions, both misdemeanor and felony, including adult convictions, juvenile convictions, and adjudication of delinquency,[14] 2) general reputation, character and opinion regarding the character,[15] 3) bad act shown beyond a reasonable doubt to have been committed by the defendant, regardless of whether he has previously been charged with or convicted of the crime or act,[16] 4) the conduct of a defendant while participating in the program as a condition of release on bail.[17]

4. Procedures of introducing sentencing evidence. Defense attorneys and prosecutors may present evidence at the beginning of the punishment stage; evidence can also be introduced for rebuttal and surrebuttal. Both parties can argue the issues of punishment to the jury, but the state shall be the first to present and shall have the right to open and close the argument. The bifurcated process, at least in theory, provides a chance for both parties to better serve their sentencing goals.

Other states also provide that if prior conviction evidence is introduced prosecutors should give notice to defendants certain days prior to the penalty trial.[18] Missouri statute does not explicitly require this practice, the court, however, may by its judicial power, hold notice necessary to insure defendants' due process rights.

5. Nature of the jury's sentencing verdict. The verdict rendered by the jury pursuant to the punishment phase of the bifurcated trial process is advisory to the court because upon the jury's declaration of a term of imprisonment "the court shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly."[19] The trial judge is free to depart from the jury's verdict, nonetheless, the verdict sets up a maximum of imprisonment and the court's departure can only go downward.

6. Jury instructions pursuant to the bifurcated trial. Pursuant to RSMo 557.036 and its introduction of the bifurcated trial process, the Supreme Court of Missouri in its "Order dated June 27, 2003, re: Revisions, additions and withdrawals to MACH-CR and MAI-CR 3d, including changes required by Senate Bill 5"[20] provides a series of jury instructions for bifurcated trial process. These jury instructions are either revisions of the prior versions or introductions of the first time.

MAI-CR 304.08 is for the guilt phase, which requires judges not to submit punishment to the jury in the verdict, and MAI-CR 304.44 is the verdict format.

In the punishment phase, if either party intends to introduce evidence in this stage, MAI-CR 3d 305.01 & 305.02 are used at the beginning of the punishment phase; and MAI-CR 3d 305.03 & 305.04 are for the close of the punishment phase. The jury instruction demonstrates that when assessing punishment jury may consider the evidence introduced both in guilt phase and in sentencing phase. If neither party intends to present evidence in the punishment phase, then MAI-CR 3d 305.01, 305.03, & 305.04 will be given at the beginning of the punishment phase. The verdict forms of the punishment phase are MAI- CR 3d 304.40, and in case the jury is unable to reach a verdict on punishment MAI-CR 3d 305.07 may be submitted.

More Accurate Sentencing

The choice between unitary and bifurcated trial formats is the most notable variation among jury-sentencing statutes.[21] In a unitary scheme, the jury decides the issue of guilt and determines the sentence at the same time, while courts in bifurcated sentencing states hold a separate sentencing hearing before the same jury after the verdict. The unitary format presents serious difficulties in the handling of evidence. If the jury is informed of facts generally left to the sentencing phase, particularly prior convictions, its verdict on the question of guilt may be prejudiced. On the other hand, if the trial jury is not presented with this information, it is forced to make a sentencing determination without all the evidence relevant to its decision. There is typically a myriad of information submitted at sentencing hearings that would at best slow down the guilt phase and at worse hopelessly prejudice it.[22] For example, when a defendant has prior felonies and elects not to testify, bifurcation will almost always be necessary to make sure that the jury is not prejudiced by the felonies in the guilt phase, but can consider them in the sentencing phase.

Bifurcation provides a clear solution to this difficulty. The critiques advocating the abolition of jury sentencing for the most part predate the trend toward bifurcation in non-capital jury sentencing. Bifurcating the guilt phase from the sentencing phase is an easy channel to defuse the compromise verdict criticism, as well as some of the practical evidentiary problems that can arise when guilt and punishment are tried simultaneously.[23]

Conslusion

The amendment of Mo. Rev. Stat. Sect. 577.036 has made bifurcated trial process mandatory in non-capital criminal jury trials. As a result, evidence aggregating and mitigating punishment can be introduced at the sentencing stage. This type of evidence includes the impact of the crime upon the victim, the victim's family and others, the nature and circumstances of the offense, the history and character of the defendant, and the rebuttal and surrebuttal evidence. Accordingly, both prosecutors and defense attorneys can introduce evidence supporting their sentencing allegations.

Notes

1. See Ark. Code Ann. Sect. 16-97-101 (Michie Supp. 2001); Tex. Crim. Code Proc. Ann. art. 37.07, Sect. 2 (Vernon Supp. 2003); Va. Code Ann. Sect. 19.2-295.1 (Michie Supp. 2002); Okla. Stat. Ann. tit. 22, Sects. 926.1, 927.1 (West Supp. 2003); Mo. Rev. Stat. Sect. 557.036 (2003). All non-capital sentencing in the federal courts is done by the judge, subject to the constraints of the Federal Sentencing Guidelines and occasionally to organic sentencing constraints contained in some federal criminal statutes. Fed. R. Crim. P. 32.

2. Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 Va. L. Rev. 311, 354 (2003).

3. Morris B. Hoffman, The Case For Jury Sentencing, 52 Duke L.J. 951, 1005 (2003).

4. Id.

5. Mo. Rev. Stat. Sect. 557.036 (2002): "[t]he court shall instruct the jury as to the range of punishment authorized by statute and upon a finding of guilt to assess and declare the punishment as a part of their verdict."

6. See Va. Code Ann. Sect. 19.2-295.1

7. Available at :

http://www.senate.state.mo.us/03info/bills/sb005.htm (It is an emergency clause, and goes into effect the day it is signed by the governor, June 27, 2003. Accordingly, it applies to any trial that takes place on or after its effective date, no matter when the criminal offenses are committed.) (Last visited on Oct. 28, 2003).

8. RSMo 557.036 (West 2003).

9. Id.

10. Id.

11. MAI-CR 3d 305.02.

12. Commonwealth v. Shiffllet, 257 Va. 34 (1999).

13. See Ark. Code Ann. Sect. 16-97-101 (Michie Supp. 2001); Tex. Crim. Code Proc. Ann. art. 37.07, Sect. 2 (Vernon Supp. 2003); Va. Code Ann. Sect. 19.2-295.1 (Michie Supp. 2002).

14. See Ark. Code Ann. Sect. 16-97-101 (Michie Supp. 2001); Tex. Crim. Code Proc. Ann. art. 37.07, Sect. 2 (Vernon Supp. 2003); Va. Code Ann. Sect. 19.2-295.1 (Michie Supp. 2002).

15. Ark. Code Ann. Sect. 16-97-101 (Michie Supp. 2001); Tex. Crim. Code Proc. Ann. art. 37.07, Sect. 2 (Vernon Supp. 2003).

16. Id.

17. Id.

18. See, e.g., Va. Code Ann. Sect. 19.2-295.1 (Michie Supp. 2002).

19. Mo. Rev. Stat. Sect. 557.036 (2003).

20. Available at

http://www.osca.state.mo.us/sup/index.nsf/0/949726d1d81dbf7186256d55007cd8e9?OpenDocument (last visited on Oct. 28, 2003).

21. Adriaan Lanni, Jury Sentencing in Noncapital Cases: An Idea Whose Time Has Come (Again)?, 108 Yale L.J. 1775, 1791-92 (1999).

22. There is no federal constitutional impediment to nonbifurcated, or so-called "unitary," proceedings, in which the jury simultaneously decides guilt and, if appropriate, punishment. �, 402 U.S. 183, 221 (1971)

23. Supra note 3, at FN 187.