Death penalty instructions to jurors : still not comprehensible after all these years

This paper describes and analyzes the unrevised, current state of death penalty pattern jury instructions in the state of Washington. With comparisons to the findings of the Capital Jury Project, this study examines why the death penalty instructions are even more difficult than the ordinary, difficult tounderstand US pattern jury instructions. The concept of mitigation presents particular problems, with jurors misunderstanding the instruction, misapplying it orignoring it. As mitigation is the alternative to aggravation and a death penaltyverdict, this problem is critical. In addition, as Judith Levi (1993) found in theIllinois death penalty pattern jury instructions, the instructions in general pointto a default position for death. Washington’s pattern jury instructions for deathpenalty cases are as difficult to comprehend as both pattern jury instructions ingeneral and death penalty instructions in particular.