# Legal question. Can defense council present this argument during sentencing? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [January 16, 2015, 7:54pm UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013 "2015-01-16T19:54:11Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![Dale\_Sams](https://avatars.discourse-cdn.com/v4/letter/d/779978/32.png) [@Dale\_Sams](https://boards.straightdope.com/u/Dale_Sams)\ **Post date:** [January 16, 2015, 7:54pm UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/1 "2015-01-16T19:54:11Z")
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.” ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [January 16, 2015, 8:00pm UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/2 "2015-01-16T20:00:08Z")
> [@Dale\_Sams](#): > > 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. ---
**Author:** ![Dale\_Sams](https://avatars.discourse-cdn.com/v4/letter/d/779978/32.png) [@Dale\_Sams](https://boards.straightdope.com/u/Dale_Sams)\ **Post date:** [January 16, 2015, 8:26pm UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/3 "2015-01-16T20:26:29Z")
> [@simster](#): > > 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. ---
**Author:** ![muldoonthief](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muldoonthief/32/3188_2.png) [@muldoonthief](https://boards.straightdope.com/u/muldoonthief)\ **Post date:** [January 16, 2015, 8:29pm UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/4 "2015-01-16T20:29:27Z")
> [@Dale\_Sams](#): > > 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. If you only took clients who you passionately felt were innocent, you’d probably starve too. ---
**Author:** ![TBG](https://avatars.discourse-cdn.com/v4/letter/t/c89c15/32.png) [@TBG](https://boards.straightdope.com/u/TBG)\ **Post date:** [January 17, 2015, 12:18am UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/5 "2015-01-17T00:18:21Z")
> [@simster](#): > > 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. Heh. “You idiots just found an innocent man guilty, pls dunt give him the death penalty too!” ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [January 17, 2015, 4:39am UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/6 "2015-01-17T04:39:01Z")
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. ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [January 17, 2015, 4:44am UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/7 "2015-01-17T04:44:25Z")
> [@Dale\_Sams](#): > > Defense stresses that the jury has found an innocent man guilty. “Are you now going to compound that error by sentencing him to death?” 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?” ---
**Author:** ![Hail\_Ants](https://avatars.discourse-cdn.com/v4/letter/h/dc4da7/32.png) [@Hail\_Ants](https://boards.straightdope.com/u/Hail_Ants)\ **Post date:** [January 18, 2015, 5:44am UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/8 "2015-01-18T05:44:37Z")
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. ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [January 19, 2015, 2:47am UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/9 "2015-01-19T02:47:43Z")
Usually, Juries determine guilt or innocence, but do not determine the penalty. Penalty is usually determined by the presiding judge. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [January 19, 2015, 3:46am UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/10 "2015-01-19T03:46:49Z")
> [@Isamu](#): > > Usually, Juries determine guilt or innocence, but do not determine the penalty. Penalty is usually determined by the presiding judge. Depends on the jurisdiction (and likely specifics of the case) - there are [penalty phases of trials](http://www.lectlaw.com/def2/p020.htm) that are heard in front of a jury. Which is what the OP was asking about. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 19, 2015, 4:06am UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/11 "2015-01-19T04:06:25Z")
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. See _Ring v. Arizona_: [Ring v. Arizona - Wikipedia](http://en.m.wikipedia.org/wiki/Ring_v._Arizona). ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [January 19, 2015, 4:19am UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/12 "2015-01-19T04:19:32Z")
Thanks, I didn’t know that about US law. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [January 19, 2015, 4:25am UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/13 "2015-01-19T04:25:47Z")
> [@Northern\_Piper](#): > > 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. > > See _Ring v. Arizona_: [Ring v. Arizona - Wikipedia](http://en.m.wikipedia.org/wiki/Ring_v._Arizona). Thanks for the clarification - I was being too general in that response. ---
**Author:** ![gms453](https://avatars.discourse-cdn.com/v4/letter/g/50afbb/32.png) [@gms453](https://boards.straightdope.com/u/gms453)\ **Post date:** [January 19, 2015, 3:34pm UTC](https://boards.straightdope.com/t/legal-question-can-defense-council-present-this-argument-during-sentencing/710013/14 "2015-01-19T15:34:13Z")
> [@Dale\_Sams](#): > > 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. Defts in death penalty cases in PA have two attys: one for the guilt phase and another for the penalty phase.