Jury Instructions and Verdict Forms

Verdict Forms

Draft Verdict Forms

Jury Instructions

The Virginia Model Jury Instructions for capital sentencing hearings may be found here. These can serve as a starting point for drafting your own sentencing instructions. However, it should be kept in mind that the Virginia Model Instructions are inadequate in many respects. They are both harder to understand and much less informative than the instructions normally given to capital sentencing juries in other states, and in the federal courts. Below are several supplemental instructions intended to fully apprize the jury of its sentencing responsibilities. Please contact us if you would like assistance in drafting an instruction not included below.

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Aggravated Battery Instruction
Instruction

Description: informs the jury that aggravated battery is more than an intentional killing; it requires more culpability than the minimum necessary to accomplish a killing.

Death Not Mandatory Instruction
Instruction

Description: instructs the jury that it is never required to impose a sentence of death.

Supplemental Future Dangerousness Instruction
Instruction | Memorandum

Description: Because Virginia's "future dangerousness" aggravating factor includes legal terms that uninstructed jurors are unlikely to understand, this supplemental "future dangerousness" instruction includes the Virginia Supreme Court's construction of the statutory language from Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978). The premise of this instruction-that the sentencing jury must be fully informed of the meaning of each ambiguous term in a statutory aggravating factor that renders a capital murder defendant eligible for the death penalty-flows directly from the Sixth and Fourteenth Amendments as construed by the United States Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002).

Mitigation Instruction
Instruction | Intro Memo | VSB Amicus Brief in Support

The Virginia State Bar has approved an expanded model instruction on mitigation that makes clear (1) that statutory mitigating factors are mitigating as a matter of law, (2) that all mitigating factors, whether statutory or nonstatutory, must be considered in making the juror's sentencing decision, and (3) that each juror must evaluate the existence or non-existence of mitigating factors individually, as required by Mills v. Maryland.

The introductory memo is a brief VSB-approved explanation of the instruction.

The Virginia State Bar (VSB) Amicus Brief in support (July 2005) is a more detailed argument in support of the instruction. This may be submitted as a VSB amicus filing in any case.

Vileness Instruction – Beyond a Reasonable Doubt and Unanimity

Description: The Virginia capital murder statue lays out three sub-elements of the vileness aggravating factor - torture, depravity of mind and aggravated battery. This instruction requires the jury to unanimously agree upon the same vileness sub-element and to find this sub-element beyond a reasonable doubt.

Supplemental Vileness Instruction – Depravity of Mind sub-element
Instruction | Memorandum

Description: This jury instruction includes the Virginia Supreme Court's definition of the "depravity of mind" sub-element of vileness from Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978). Because the Smith definition includes two additional legal terms that uninstructed jurors are unlikely to understand, "ordinary malice" and "ordinary premeditation," the defendant's proposed instruction also provides the Virginia Supreme Court's definitions of those terms. The premise of this proposed instruction, as detailed in the memorandum, is that the sentencing jury must be informed of the meaning of each element of any statutory aggravating factor-such as "vileness"-that renders a capital murder defendant eligible for the death penalty. Informed by the United States Supreme Court decision in Bell v. Cone, 125 S. Ct. 847 (2005), the memorandum submits that this requirement follows directly from the Sixth and Fourteenth Amendments as construed by the United States Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002).

Effects of Non-Unanimous Sentencing Verdict Instruction
Instruction | Memorandum

Description: This instruction is to dispel the jury's confusions about the effect in sentencing of not reaching a unanimous decision--which in the guilt phase would result in a mistrial.This instruction explains to the jury that while they are conscientiously to seek a unanimous verdict, the consequence of the jury not reaching a unanimous sentencing verdict will result in the defendant being sentenced to life in prison without the possibility of parole.