H.B. 306 Enrolled

CAPITAL SENTENCING AMENDMENTS
1998 GENERAL SESSION
STATE OF UTAH
Sponsor: David Ure
AN ACT RELATING TO THE CRIMINAL CODE; AMENDING PROCEDURES
REGARDING JURY PARTICIPATION IN THE SENTENCING PROCEEDINGS IN
CAPITAL FELONY CASES.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
76-3-207, as last amended by Chapter 286, Laws of Utah 1997
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 76-3-207 is amended to read:
76-3-207. Capital felony -- Sentencing proceeding.
(1) (a) When a defendant has pled guilty to or been found guilty of a capital felony, there
shall be further proceedings before the court or jury on the issue of sentence.
(b) In the case of a plea of guilty to a capital felony, the sentencing proceedings shall be
conducted before a jury or, upon request of the defendant and with the approval of the court and
the consent of the prosecution, by the court which accepted the plea [or by a jury upon request of
the defendant].
(c) (i) When a defendant has been found guilty of a capital felony, the proceedings shall
be conducted before the court or jury which found the defendant guilty, provided the defendant
may waive hearing before the jury with the approval of the court and the consent of the
prosecution, in which event the hearing shall be before the court.
(ii) If, however, circumstances make it impossible or impractical to reconvene the same
jury for the sentencing proceedings, the court may dismiss that jury and convene a new jury for
[such] the proceedings.
(d) If a retrial of the sentencing proceedings is necessary as a consequence of a remand
from an appellate court, the sentencing authority shall be determined as provided in Subsection
[(4)] (5).

(2) (a) In capital sentencing proceedings, evidence may be presented on:
(i) the nature and circumstances of the crime;
(ii) the defendant's character, background, history, mental and physical condition;
(iii) the victim and the impact of the crime on the victim's family and community without
comparison to other persons or victims; and
(iv) any other facts in aggravation or mitigation of the penalty that the court considers
relevant to the sentence.
(b) Any evidence the court considers to have probative force may be received regardless of
its admissibility under the exclusionary rules of evidence. The state's attorney and the defendant
shall be permitted to present argument for or against the sentence of death.
(3) Aggravating circumstances [shall] include those outlined in Section 76-5-202.
Mitigating circumstances [shall] include:
(a) the defendant has no significant history of prior criminal activity;
(b) the homicide was committed while the defendant was under the influence of mental or
emotional disturbance;
(c) the defendant acted under duress or under the domination of another person;
(d) at the time of the homicide, the capacity of the defendant to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirement of law was impaired as a result of mental
disease, intoxication, or influence of drugs;
(e) the youth of the defendant at the time of the crime;
(f) the defendant was an accomplice in the homicide committed by another person and the
defendant's participation was relatively minor; and
(g) any other fact in mitigation of the penalty.
(4) (a) The court or jury, as the case may be, shall retire to consider the penalty. Except as
provided in Subsection 76-3-207.5(2), in all proceedings before a jury, under this section, it shall be
instructed as to the punishment to be imposed upon a unanimous decision for death and that the
penalty of either life in prison or life in prison without parole, shall be imposed if a unanimous
decision for death is not found.

- 2 -

(b) The death penalty shall only be imposed if, after considering the totality of the
aggravating and mitigating circumstances, the jury is persuaded beyond a reasonable doubt that total
aggravation outweighs total mitigation, and is further persuaded, beyond a reasonable doubt, that the
imposition of the death penalty is justified and appropriate in the circumstances. If the jury reports
unanimous agreement to impose the sentence of death, the court shall discharge the jury and shall
impose the sentence of death.
(c) If the jury is unable to reach a unanimous decision imposing the sentence of death, except
as provided in Subsection 76-3-207.5(2), the jury shall then determine whether the penalty of life
in prison without parole shall be imposed. The penalty of life in prison without parole shall only be
imposed if the jury determines that the sentence of life in prison without parole is appropriate. If the
jury reports agreement by ten jurors or more to impose the sentence of life in prison without parole,
the court shall discharge the jury and shall impose the sentence of life in prison without parole. If
ten jurors or more do not agree upon a sentence of life in prison without parole, the court shall
discharge the jury and impose the sentence of life imprisonment with the possibility of parole.
(d) If the defendant waives hearing before the jury as to sentencing, with the approval of the
court and the consent of the prosecution, the court shall determine the appropriate penalty according
to the standards of this subsection.
(5) Upon any appeal by the defendant where the sentence is of death, the appellate court, if
it finds prejudicial error in the sentencing proceeding only, may set aside the sentence of death and
remand the case to the trial court for new sentencing proceedings to the extent necessary to correct
the error or errors. No error in the sentencing proceedings shall result in the reversal of the
conviction of a capital felony. In cases of remand for new sentencing proceedings, all exhibits and
a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing
proceedings shall be admissible in the new sentencing proceedings, and if the sentencing proceeding
was before a:
(a) jury, a new jury shall be impaneled for the new sentencing proceeding unless the
defendant waives the hearing before the jury with the approval of the court and the consent of the
prosecution, in which case the proceeding shall be held according to Subsection (5)(b) or (c), as

- 3 -

applicable;
(b) judge, the original trial judge shall conduct the new sentencing proceeding; or
(c) judge, and the original trial judge is unable or unavailable to conduct a new sentencing
proceeding, then another judge shall be designated to conduct the new sentencing proceeding, and
the new proceeding will be before a jury unless the defendant waives the hearing before the jury with
the approval of the court and the consent of the prosecution.
(6) In the event the death penalty is held to be unconstitutional by the Utah Supreme Court
or the United States Supreme Court, the court having jurisdiction over a person previously sentenced
to death for a capital felony shall cause the person to be brought before the court, and the court shall
sentence the person to life in prison, if the death penalty is held unconstitutional prior to April 27,
1992, or life in prison without parole if the death penalty is held unconstitutional on or after April
27, 1992, and any person who is thereafter convicted of a capital felony shall be sentenced to life in
prison or life in prison without parole.

- 4 -