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3799
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MARVIN MANDEL, Governor
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which the death penalty may be sought, if §412 is
inapplicable there is no basis for the jury to determine
in its verdict whether the defendant is guilty of murder
in the first or second degree. We do not find that
argument persuasive.
8. Section 413(b) also pointedly provides that evidence
which is both relevant to sentence and which possesses
probative value may be received even if it would be
inadmissible under the exclusionary rules of evidence (as
distinct from exclusionary rules of a prophylactic nature
firmly grounded in constitutional principles). This
provision that the ordinary exclusionary rules of
evidence need not be strictly adhered to in the
sentencing proceeding reflects an intent to give
relatively wide latitude to both parties, and in
particular to the defendant, to introduce evidence
bearing on proof of the presence or absence of
aggravating or mitigating circumstances. This liberal
attitude on the admissibility of evidence, which was also
reflected in the Florida statute, does not in our view
raise any significant constitutional questions so long as
the basic standards of relevance and probative value are
adhered to.
9. Such a provision was included in the Administration
Bill, but is clearly not present in Senate Bill 106.
10. It is possible but doubtful, in our opinion, that
the language beginning at line 138 could be construed so
as to allow the defendant to waive his right to a
sentencing recommendation from the trial jury if and when
confronted with a hung jury and request the empaneling of
a separate jury.
11. As our answer to your next question indicates, the
Florida Supreme Court has stressed the important role
played by the jury and its recommendations and has
admonished trial judges to not lightly disregard those
recommendations, especially where they do so by imposing
the death penalty. This stress placed on the role of the
jury raises some doubt as to the ability of the judge to
proceed without a recommendation.
12. This issue was of course not presented by the
Administration Bill, which provided for final, not
advisory, sentencing by the jury.
13. Pattern jury instructions published by authority of
the Florida Supreme Court in January, 1976 provide for a
simple recommendation of sentence form without any
subsidiary or underlying findings.
14. The language employed in these two particular
aggravating circumstances is identical to that employed
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