The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse and the Death Penalty

Posted: 8 Sep 1998

See all articles by Scott E. Sundby

Scott E. Sundby

University of Miami School of Law

Date Written: September 1998


One of the primary reasons, often the major reason, that jurors give for voting for a sentence of death is the defendant's lack of remorse. Indeed, death jurors frequently comment that if the defendant had shown some sign that he was sorry they never could have voted for death. The unsurprising conclusion emerges that a defendant's remorselessness is a significant factor in the jury's decision to sentence someone to death. The surprise comes when life jurors are also included in the mix. For when they are questioned about the defendant's remorsefulness, they too by and large believe that their defendant was not sorry for what he had done. How capital jurors use the defendant's degree of remorse, therefore, presents a bit of a puzzle: why is the defendant's lack of remorse such a signficant factor for death jurors and yet appears to play a much more minor role in the decision of the life jurors.

The answer appears to lie primarily in the trial strategy pursued by the defendant. In the death cases, the defendant's trial posture largely was one of a "denial defense" -- denying any responsibility for the killing, arguing, for instance, that the state had not proven him to be the killer beyond a reasonable doubt. The life cases, on the other hand, usually involved defendants who acknowledged responsibility for the killing but argued that the killing was unintentional, done in self-defense, or some other "admission defense." This difference in trial strategy at the guilt stage appeared to have a very significant impact on willing the jurors were to give credence to the defendant's mitigating evidence at the penalty phase. The findings are based on interviews with 150 California jurors that were done as part of the Capital Jury Project being funded by the National Science Foundation.

Suggested Citation

Sundby, Scott E., The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse and the Death Penalty (September 1998). Cornell Law Review, Vol. 83, No. 4, 1998.. Available at SSRN:

Scott E. Sundby (Contact Author)

University of Miami School of Law ( email )

1311 Miller Dr.
Coral Gables, FL 33146
United States
305-284-5848 (Phone)

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