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CNN LIVE EVENT/SPECIAL

Judge Gives Final Instructions to Jury in Scott Peterson Penalty Phase

Aired December 9, 2004 - 16:48   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


PAUL BEGALA, HOST, CROSSFIRE: Judge Alfred Delucchi has now arrived in the courtroom. Let's go to Redwood City, California, where the judge is about to deliver final instructions to the jury in the Scott Peterson case.
(JOINED IN PROGRESS)

JUDGE ALFRED DELUCCHI: Do not assume to be true any insinuations suggested by a question asked a witness.

A question is not evidence. It may be considered only as it helps you to understand the answer. Do not consider for any purpose any offer of evidence that was rejected or any evidence that was stricken by the court. Treat it though as you had never heard of it.

You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. You must not independently investigate the facts or the law or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit to the scene conduct experiments or consult reference works or persons for additional information.

You must not discuss this case with any other person, including, but not limited to spouses, spiritual leaders or advisers or a therapist, except a fellow juror during deliberations when all 12 of you are together in the jury room and then only after the case is submitted to you for your decision and only when all 12 jurors are present in the jury room.

You should give the testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact testified to by one witness which you believe is sufficient for the proof of that fact, you should carefully review all the evidence upon which the proof of that fact depends.

Every person who testifies under oath -- oops, I think this is in here twice.

We will get into the penalty part now, factors for consideration.

In determining which penalty is to be imposed, you shall consider all of the evidence which has been received during any part of the trial of this case, except that you may hear after being instructed.

You shall consider, take into account, and be guided by the following factors, if applicable. A, the circumstance of the crime of which the defendant was convicted in the present proceedings and the existence of any special circumstances found to be true. B, the presence or absence of criminal activity by the defendant other than the crimes for which the defendant has been tried in the present proceedings which involve the use or attempted use of force or violence or the expressed or implied threat to use force or violence. C, the presence or absence of any prior felony conviction, other than the crimes for which the defendant has been tried in the present proceedings. D, whether or not the offense was committed while a defendant was under the influence of extreme mental or emotional disturbance. E, whether or not the victim was a participant in a defendant's homicidal conduct or consented to the homicidal act.

F, whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation of his conduct. G, whether or not the defendant acted under extreme duress or under the substantial domination of another person. H, whether or not, at the time of the offense, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication.

I, the age of the defendant at the time of the crime. J, whether or not the defendant was an accomplice to the defense and his participation in the commission of the offense was relatively minor. And then factor K, any other circumstance which extenuates the gravity of the crime, even though it is not a legal excuse for the crime, and any sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on trial.

You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle. You may also consider any lingering or residual doubt as to the defendant's guilt or intent as a factor in mitigation. Lingering or residual doubt is defined as a state of mind between reasonable doubt and beyond all possible doubt.

You may not relitigate reconsider matters involved in the guilt phase, but you may consider it as a factor in mitigation. Sympathy for a defendant's family is not a matter that a capital jury can consider in mitigation. However, family members may offer testimony of the impact of an execution on them, if, by so doing, they illuminate some positive quality of the defendant's background of character which is offered as a basis for a sentence less than death.

The people and the defendant are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict, if you can do so. Each of you must decide the case for yourself, but should do so after only discussing the evidence and instructions with the other jurors. Do not hesitate to change an opinion if you are convinced it is wrong.

However, do not decide any question in a particular way because a majority of the jurors or any of them favor that decision. Do not decide any issue in this case by the flip of a coin or by any other chance determination.

The attitude and conduct of jurors at all times are very important. It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on a case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be aroused and one may hesitate to change a position, even if shown it is wrong. Remember that you are not partisans or advocates in this matter. You are impartial judges of the facts.

The instructions which I'm now giving to you will be made available in written form for your deliberations. They must not be defaced in any way. Do not disclose to anyone outside the jury, not even to me or any members of my staff, either orally or in writing, how you may be divided numerically in your balloting as to any issue unless I specifically direct otherwise.

As for the alternate jurors, you are still bound by the admonition that you are not to converse among yourselves or with anyone else on any subject connected with this trial or to form or express any opinion on it until the case is submitted to you, which means until such time as you are substituted in for one of the 12 jurors now deliberating on the case.

This also means that you are not to decide how you would vote if you were deliberating with the other jurors. I have not intended by anything I have said or done or by any questions I may have asked or by any ruling I may have made to intimate or suggest what you should find to be the facts or that I believe or disbelieve any witness.

If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusions. During deliberations, any question or request you may have should be addressed to the court on a form that will be provided. If there is any disagreement as to the actual testimony, you have the right, if you choose, to request a read-back by the reporter. You may request a partial or total read-back, but any read-back should be a fair presentation of that evidence.

If a read-back of testimony is requested, the reporter will delete objections, rulings and sidebar conferences, so that you will hear only the evidence that was actually presented. Please understand that counsel must first be contacted and it may take time to provide a response or read-back. Continue deliberating until you are called back into the courtroom.

In this case, there are only two possible verdict forms. These possible verdicts are set forth in the forms of verdict which you will receive. Only one of the possible verdicts may be returned by you. If you all have agreed upon one verdict, the corresponding form is the only verdict form to be signed. The other forms are to be left unsigned.

Now, this is simple choice. You have got two choices here. There's one form of the verdict reads as follows. And I don't mean to infer how you should find by the order in which I read these to you. It's the way I just pull them out of the folder here.

Here's the first form of the verdict. The people of the state of California vs. Scott Lee Peterson, penalty verdict. We the jury in the above entitled cause fix the penalty of life imprisonment without the possibility of parole, date, signature for the foreperson.

Second form of the verdict says, we the jury in the above entitled cause fix the penalty of death, dated and signed by the foreperson. That is it, only those two forms.

It is now your duty to determine which of the two penalties, death or imprisonment in a state prison for life without possibility of parole, shall be imposed on the defendant. After having heard all of the evidence and having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances, upon which you have been instructed.

An aggravating fact is any fact, condition or event attending the commission of a crime which increases its severity or enormity or adds to its injurious consequences, which is above and beyond the elements of the crime itself. A mitigating circumstance is any fact, condition or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty.

The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale or the arbitrary assignment of weights to any of them. You are free to attach whatever moral of sympathetic value you deem appropriate to each and all of the various factors you are committed to consider.

In weighing the various circumstances, you determine, under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances.

To return a judgment of death each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole and remember we covered that during the whole (UNINTELLIGIBLE). I went through all of that.

You shall now retire to deliberate on the penalty. The foreperson previously selected may preside over your deliberations or you may choose a new foreperson. In order to make a determine (ph) as to the penalty all 12 jurors must agree. It has to be a unanimous verdict on the penalty. Any verdict that you reach must be dated and signed by your foreperson on a form that we provided and then you shall return with it to this courtroom. You want to swear the bailiffs?

UNIDENTIFIED FEMALE: Raise your right hand. Do each of you solemnly swear that you will keep the jurors in some quiet and convenient place. You will not speak to them or allow them to be spoken to unless ordered to do so by the court or as soon as they have reached a verdict. That you will return them into the courtroom when they have reached a verdict or when ordered to do so by the court. So help you God? Please state and spell your names for the record please.

DELUCCHI: OK. You may start deliberating. And you'll hand the jury book...

WOLF BLITZER, CNN ANCHOR: And there we have it, Judge Alfred Delucchi giving instructions -- final instructions to members of the jury in the Scott Peterson murder trial. Scott Peterson will either live or die depending on what these 12 jurors decide in the coming hours.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com


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