Can a jury at the penalty phase of a capital trial consider whether there is evidence in aggravation not placed before the jury?
California, United States of America
The following excerpt is from People v. Mickey, 286 Cal.Rptr. 801, 54 Cal.3d 612, 818 P.2d 84 (Cal. 1991):
In support, defendant asserts that "The vice of this instruction at the penalty phase of a capital trial is its implication that there was evidence in aggravation not placed before the jury. In essence, it invites the jury to speculate on the probable existence of non-statutory aggravating factors, in violation of the rule of People v. Boyd [ (1985) ] 38 Cal.3d 762, 772-76 [215 Cal.Rptr. 1, 700 P.2d 782]."
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