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Both Sides Rest in Dzhokhar Tsarnaev Trial | 18 comments (18 topical)

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The hearsay rule does not apply (none / 0) (#6)
by Peter G on Mon May 11, 2015 at 09:52:54 PM EST
at a federal death penalty hearing, nor does any formal rule defining what constitutes an "expert witness," under section 3593(c) of Title 18, the criminal code. The statute speaks of "information" not "evidence" being presented, and specifies that the Rules of Evidence do not apply. The judge has very wide discretion. (This is also true of ordinary federal sentencings, by the way. "Information" not "evidence" is presented, and per Fed.R.Evid. 1101(d)(3) the rules of evidence do not apply.) Having the defendant's statement of remorse presented indirectly through Sister Helen was a rather clever and no doubt compelling way to get it before the jury, without subjecting Dzhokar to cross-examination by the prosecutor and avoiding the risk that he would say something inappropriate or counter-productive on the witness stand. The only downside is the jury holding against him that he did not take the stand to say it himself. His Fifth Amendment right not to testify continues to apply, but his right to stay silent without any adverse inference being drawn may have been waived by his presentation of the Prejean testimony.

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Does Tsarnaev have a right to allocute (none / 0) (#10)
by TycheSD on Mon May 11, 2015 at 10:43:44 PM EST
without cross-examination?  He could have shown remorse during allocution.

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Great question. The common-law right (none / 0) (#14)
by Peter G on Tue May 12, 2015 at 09:04:45 AM EST
of allocution -- the right of the convicted defendant to respond, without oath or cross-examination -- to the judge's traditional query "whether you know any reason why judgment should not now be passed upon you," originally applied (in pre-19th Century England) only in "felony" (that is, capital) cases. The governing federal statute, which I linked in my earlier comment, is silent on this issue, that is, whether the defendant may "allocute" before the capital sentencing jury. I vaguely recall cases holding that the Eighth Amendment does not require states with the death penalty to allow this, as long as the defendant does have the right to take the stand like any other sentencing witness.  I honestly don't know how it applies in federal capital cases; there are so few of them, there is little precedent.  Jeralyn may know, from her McVeigh experience.

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Both Sides Rest in Dzhokhar Tsarnaev Trial | 18 comments (18 topical)

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