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Capital Defendant's Right to a Continuance Between the Two Phases of a Death Penalty Trial

NCJ Number
New York University Law Review Volume: 64 Issue: 3 Dated: (June 1989) Pages: 379-627
R E Abrams
Date Published
49 pages
This analysis of the legal rules regarding capital trials concludes that State courts' frequent denials of continuances between the guilt and penalty phases of these trials undermines the constitutional protections that the United States Supreme Court has designed to ensure heightened reliability in these cases.
Without adequate time to prepare and present mitigating evidence, the procedural safeguards developed to protect the defendant's constitutional rights in a capital sentencing hearing are meaningless. The Supreme Court has emphasized that the qualitative difference between the death penalty and all other criminal sanctions requires greater concern for the procedural integrity of a capital trial. However, trial courts that are faced with requests to postpone a penalty phase to prepare constitutionally protected mitigating evidence apply the same legal standards to such motions as they do to ordinary requests for postponements. The result is that the defendant is deprived of the Eighth Amendment right to a meaningful and individualized sentencing proceeding and the 14th Amendment right to due process of law. Granting a 30-day continuance between the trial and penalty phases of a capital case would be the most effective means to guarantee the defendant's constitutional rights. In no case should the continuance be for less than 72 hours after the conviction. This change would reduce the chance that the jurors' physical or emotional fatigue or lack of awareness of mitigating circumstances will result in a death sentence. 338 footnotes and appended questions.


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