Say the defendant has been found guilty of first degree murder. The Death Penalty is an option.
Defense stresses that the jury has found an innocent man guilty. “Are you now going to compound that error by sentencing him to death? Alive, he may eventually prove his innocence. Dead, and no such chance exists.”
IANAL, but no - because guilt has been established - most of the time by the jury you are now arguing penalty in front of (you wouldn’t want to piss them off).
You can, however, start to argue mitigating circumstances as to why death is ‘too much a penalty’, etc.
If I were a defense attorney and passionately felt my client were innocent, it would be difficult for me to adopt this persona of “Okay…you got us.” and start arguing why my client’s life should be spared without bringing up the elephant in the room, “BECAUSE HE’S INNOCENT!!”
…I guess I wouldn’t make a good defense attorney. Or one who could avoid contempt of court charges.
Defence Council can say whatever they want. Defence Counsel OTH, is likely to be ticked off by the judge. And its not like he is going to be taken out back and shot forthwith if they award him death. There will be an appeal.
Jurors are likely to react to this along the lines of “If he’s innocent, why didn’t you put yourself to the trouble of showing us how/why, instead of now abusing us for reaching the conclusion called for by the evidence?”
In the eyes of the law, it begins and ends with the jury’s decision (more or less). Anyone proclaiming, “He’s innocent” after being found guilty in a court of law is making a completely moot point. But if the conviction is anything less than a slam-dunk, and it’s in a state that has the jury also decide yay or nay on a death sentence I can guarantee you it will factor into their decision. And of course even in the US, one of the only Western nations to still have the death penalty, it usually takes 10 to 20 years for said sentence to be carried out.
No, it’s doesn’t vary by jurisdiction. The federal Constitution requires that only a jury can find that the aggravating factors necessary to impose the death penalty. That flows from the accused’s right to trial by jury, guaranteed by the Sixth Amendment.