Can a capital murder defendant recall an earlier alibi witness to testify about the defendant's guilt during the penalty phase of a first-degree murder trial? The plurality decision of the U.S. Supreme Court in Locket v. Ohio (438 U.S. 586, 604 1978) interpreted the Eighth and Fourteenth Amendments to allow a sentencer to consider "as a mitigating factor…any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (A majority of the Court adopted this plurality opinion in Eddings v. Oklahoma [102 S.Ct.869, 1982.])
Oregon v. Guzek
In Oregon v. Guzek, the Oregon Supreme Court (336 Or. 424, 2002) relied on U.S. Supreme Court precedent and Oregon statute--"Either party may recall any witness who testified at the prior trial…and may present additional relevant evidence" (Ore.Rev.Stat. Sec.138.012  [b] )--to allow alibi testimony at a resentencing hearing. The guilt trial established that Randy Guzek and an associate robbed the home of Rob and Lois Houser, at which time the associate killed Mr. Houser and Guzek killed Mrs. Houser. Guzek had called his grandfather and mother as alibi witnesses, both testifying that Guzek was with one or the other of them at the time of the break-in. The jury failed to believe Guzek's alibi witnesses and found him guilty of first-degree murder (Oregon v. Guzek [126 S.Ct. 1226, 2006]).
The U.S. Supreme Court overturned the Oregon court on the grounds that a state has the right to "set reasonable limits" on the evidence that a defendant submits during the penalty phase and to "control the manner" in which the defendant submits that evidence (Oregon v. Guzek, 126 S.Ct. 1230, 2006). In other words, Oregon statute gave Guzek the right to submit a transcript of the alibi witnesses' testimony from the guilt phase of the trial, but did not give the right to recall his mother as an alibi witness because her testimony would not have been relevant evidence in the penalty phase. The alibi evidence would have gone to show "how, not whether, the defendant committed the crime" (Oregon v. Guzek at 1228), and the issue of how the defendant committed the crime was relevant only during the penalty phase of the trial.
The majority opinion came down on the side of the state of Oregon against the defendant because residual doubt evidence is about whether the defendant committed the crime, which is an issue that the jury had already resolved during the guilt phase. Further, the Oregon scheme still allowed the jury to review the alibi evidence in the transcripts of the guilt phase, which would be in front of the jury in the penalty phase. Although the majority opinion did not rule out a defendant's right to proffer evidence of residual doubtof guilt during the penalty phase of trial, at the very least, it failed to support an absolute right to include such evidence. Finally, it holds that the states have the jurisdiction to determine for themselves what evidence is relevant in determining how the defendant committed a homicide.
The minority opinion in the case, which Justice Scalia authored, argues that the Eighth Amendment does not support any right for residual doubt as a mitigation claim at a sentencing hearing. Justice Scalia finds no support for such mitigation in "our Nation's legal history and traditions" (Oregon v. Guzek at 1234). Future determinations of the legitimacy of residual doubt claims may occur at the federal level in the form of further analysis of the meaning of the Eighth Amendment against cruel and unusual punishment or at the state level as a discussion of the relevance of such evidence in state sentencing schemes.
In either case, empirical research can help determine the persuasive power of various forms of residual doubt evidence. Researchers could bring important empirical evidence to bear on this issue by testing the effects of different types of residual doubt evidence in the penalty phases of capital murder trials. Both mock jury analogue studies and archival studies from prior trials will be of interest to state and federal courts, as well as to state legislators. Research psychologists with the appropriate data could inform policy-makers about this important issue and play an important role in capital murder sentencing policy.
Judicial Notebook is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).
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