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Terms and Definitions
Aggravating factors: Aggravating factors are those characteristics of a murder that make it death eligible. Aggravators generally are defined by statute and thus can vary between states. Common aggravators include the number of victims, special characteristics of the victim (police officer, particularly vulnerable because of age, infirmity, etc.), and other factors and that make one murder seem “worse” than others, such as torture of victims, extensive premeditation, murder for hire, etc..

Anders brief: An Anders brief is a mechanism for attorneys who have been appointed by the court to raise issues in a direct appeal which otherwise might be considered frivolous. The Anders brief describes the grounds for appeal and places a duty on the court to conduct an independent review of the record in the court below.

Clemency: Clemency is leniency or compassion shown towards convicted offenders by those empowered to administer justice. In every state, the governor or some other agency has been granted authority to commute prisoners' sentences, usually for humanitarian reasons. Federal prisoners may receive clemency from the President of the United States. Typical grounds for granting clemency include doubts regarding the defendant's guilt, disparities in sentencing, and injustices occuring during the offender's arrest or trial.    

Discretionary review: In most states, when a defendant appeals their conviction to an intermediate court that court must consider the appeal. However, when defendants appeal to state supreme courts and to the United States Supreme Court, these courts are not required to consider the defendant’s case. The court can simply refuse to grant certiorari, which means that the decision of the lower court will stand as the final one in a given case.

Exculpatory evidence: This type of evidence is that which suggests that the defendant is not in fact the person who committed the crime. DNA evidence is an important tool in capital cases and often is used as exculpatory evidence.

Eighth Amendment: The Eighth Amendment to the U.S. Constitution prohibits the government from imposing cruel and unusual punishments. In 1947, the Supreme Court held in Louisiana ex rel. Francis v. Resweber that inflicting "unecessary pain in the execution of the death sentence" constitutes cruel and unusual punishment. 329 U.S. 459, 464 (1947). The Court later determined that execution methods involving torture or a lingering death violate the Eighth Amendment. Ultimately, in Trop v. Dulles, the Court established that "cruel and unusual" punishments must be defined within the context of "evolving standards of decency that mark the progress of a maturing society." 356 U.S. 86, 101 (1958). In 2002, the Court held in Atkins v. Virginia that current standards of decency prohibit executing the mentally retarded.  

Fifth Amendment: The Fifth Amendment declares that no one shall be deprived of life, liberty, or property without due process of law.

Fourteenth Amendment: The Fourteenth Amendment has been interpreted to mean that many of the guarantees in the Bill of Rights must be observed not only by the federal government but also by the states. The Fourteenth Amendment also declares that everyone is entitled to equal protection of the laws.

Grand Jury: A group of citizens empanelled by the state or federal government to investigate and hear the government’s evidence in order to determine whether probable cause exists to believe that a crime has been committed by a particular individual. Grand juries can be as large as 23 people.

Habeas Corpus: A writ of habeas corpus may be used by inmates wishing to challenge the constitutionality of their conviction or sentence. Under 28 U.S.C. § 2254, the Supreme Court, a justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus only on the grounds that a person is in custody, pursuant to a state court's judgment, in violation of the Constitution or laws or treaties of the United States. The traditional purpose of habeas corpus is to allow an inmate to seek immediate release by challenging their confinement.   

Indictment: A written document drafted and submitted to the grand jury by the prosecutor charging an individual with a crime. The grand jury determines whether the accusation, if proved, would lead to the conviction of the accused. If so, the indictment is adopted by the grand jury and submitted to the court as the formal charge. The indictment is used as notification to the court and the defendant of the charges against the accused.

Information: An information serves as a formal document charging a defendant with a crime in states that do not use a grand jury process. An information is supported only by the oath of the prosecutor submitting it, as opposed to an indictment which is supported by the decision of the grand jury.

Juries in Capital Trials: One of the key issues in selecting juries for death penalty cases is whether the members of the jury will give unbiased consideration to whether the defendant deserved death as a punishment. Jurors for any trial are chosen through a process called voir dire, where the judge, prosecutor, and defense counsel all question the jurors about their qualifications and beliefs. The defense and the prosecution both have the opportunity to object to jurors, narrowing the group down to the final few who will serve. The Supreme Court has outlined in some detail what types of questions can be asked of potential jurors in voir dire as well as what characteristics can lead to elimination from the jury. A key case in this area was Witherspoon v. Illinois, decided in 1968. In Witherspoon the Supreme Court noted that jurors cannot be excluded simply because they indicate general objection to the death penalty, but they can be excluded if they indicate that they would automatically impose the death penalty upon a finding of guilt or if they would not be able to rationally assess the defendant’s guilt because of their anti-death penalty sentiments.

Mitigating Factors: Mitigating factors are those circumstances related to a crime or a defendant that would lead jurors to think the death penalty was not warranted in the particular case. Mitigating factors also are defined by statute, but often states have a catch-all category allowing defendants to raise “any other mitigating factor.” Common mitigating factors include diminished capacity, duress, past history of abuse, etc.

Sixth Amendment: The Sixth Amendment guarantees that an accused has a right to a trial by jury. (It should be noted that this right is not as all-encompassing as it appears but it still applies in death penalty cases.) Until recently, several states granted jury trials to defendants during the guilt phase, but allowed judges to impose the sentence of death after guilt had been determined and the judge had considered mitigating and aggravating factors. In Ring v. Arizona, the Supreme Court held this practice to be unconstitutional, demanding in particular that aggravating factors giving rise to imposition of a death sentence must be considered by a jury. Recently, the Ninth Circuit Court of Appeals determined that the ruling in Ring should be retroactive – effectively calling into question the sentences of more than 100 inmates in seven western states who were sentenced to death by a judge and not a jury. On 24 June 2004, the Supreme Court overruled this decision in Schriro v. Summerlin, holding that Ring cannot be applied retroactively where conviction and sentencing had already become final on direct review.

The Sixth Amendment also ensures that defendants have the assistance of counsel for their defense. The right to counsel has been held to include a right to effective counsel. This is particularly important in death penalty cases where many appeals turn on the fact that defense counsel was incompetent. However, the U.S. Supreme Court has ruled that defendants have no right to counsel in habeas corpus proceedings, even in death penalty cases.