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Jury trial sentencing phase: Grand finale or lackluster fizzle

Vol. 77, No. 2 / Mar. - Apr. 2021

H. Morley Swingle
H. Morley Swingle served as prosecuting attorney for Cape Girardeau County for 25 years, as an assistant United States attorney for the Eastern District of Missouri, and as an assistant circuit attorney in St. Louis.  He is currently an assistant prosecuting attorney for Boone County.


Busy prosecutors and defense lawyers preparing for the guilt phase of a non-capital jury trial often neglect to adequately prepare the best possible presentation for the sentencing stage. Instead, they focus almost entirely on getting that conviction or acquittal. A good trial lawyer, though, should not overlook this important part of a criminal trial, which can either be a grand finale or a lackluster fizzle.


Before 2003, criminal jury trials in Missouri (except death penalty cases) did not have separate phases for the issue of guilt and the issue of punishment.2 A criminal trial consisted of one slam-bang phase, where the jury decided guilt and punishment in one fell swoop. This was generally considered a bad situation for prosecutors and for the justice system itself since juries often ended up recommending punishment in ignorance, without knowing about prior convictions or other character evidence showing that the defendant deserved stiff punishment. For that reason, the Missouri Legislature created the bifurcated trial system. Now, the jury decides the issue of guilt without knowing about the character of the defendant. Afterward, if the defendant has been found guilty, the jury is given additional information about the defendant’s character so it can make an informed recommendation as to punishment.

Most overworked prosecutors and defense lawyers tend to focus pretrial preparation on the guilt phase of the trial, which makes sense. There won’t be a penalty phase for the prosecutor unless he or she wins the guilt phase. The defense is gunning for an acquittal and likely doesn’t want to think about the worst-case scenario. In the nearly two decades since Missouri implemented bifurcated trials in criminal cases, a body of law has developed pertaining to the sentencing stage of a jury trial. Both sides need to be aware of the issues involved and be thoroughly prepared to make a compelling presentation during a possible penalty phase.

Rules of Evidence and Burden of Proof

The rules of evidence apply at the penalty phase of a jury trial. The penalty stage is not open season for either side to offer hearsay testimony that does not fall under a recognized exception.3 Both sides must make sure they have witnesses and exhibits ready for the penalty phase. It will start as soon as the jury announces its guilty verdict.

The Supreme Court of Missouri has held that sentencing stage facts are not required to be proven beyond a reasonable doubt.4 Rather, the burden of proof in the penalty phase is preponderance of the evidence.5 Preponderance of the evidence is defined as evidence of greater weight or more convincing than evidence in opposition to it; it is evidence that as a whole shows the fact to be proven more probable than not.6 But even this lower standard is not met when trying to prove a prior unadjudicated crime by merely introducing a copy of an indictment; instead, the state must produce witnesses or other evidence sufficient to prove the facts of the prior bad act.7 Likewise, a juvenile court document showing the defendant had been charged in juvenile court was insufficient to prove by a preponderance of the evidence that he’d committed any offense.8 In addition, it is impermissible to allow a probation officer to give hearsay testimony about the contents of a police report prepared by someone else.9 It is also inadmissible for a mother who was not an eyewitness to give hearsay testimony that her oldest daughter had been fondled by the defendant.10

Penalty Phase Evidence

The evidence to be admitted at the penalty phase is governed by § 557.036, RSMo 2017. The applicable part reads as follows:

If the jury at the first stage of a trial finds the defendant guilty of the submitted offense, the second stage of the trial shall proceed. The issue at the second stage of the trial shall be the punishment to be assessed and declared. Evidence supporting or mitigating punishment may be presented. Such evidence may include, within the discretion of the court, evidence concerning the impact of the offense upon the victim, the victim’s family and others, the nature and circumstances of the offense, and the history and character of the defendant.11

Thus, evidence that would have been prejudicial or irrelevant at the guilt phase is specifically admissible in the penalty phase. In general, the trial court has discretion during the sentencing phase to admit “whatever evidence it believes may be helpful to the jury in assessing punishment.”12

Victim Impact Testimony

State statute specifically authorizes the presentation of victim impact evidence.13 The parameters of victim impact testimony are set out by a different statute:

At the time of sentencing of any person who has pled guilty or been found guilty of a felony offense, the victim of such offense may appear before the court personally or by counsel for the purpose of making a statement or may submit a written statement. The statement shall relate solely to the facts of the case and any personal injuries or financial loss incurred by the victim. A member of the immediate family of the victim may appear personally or by counsel to make a statement if the victim has died or is otherwise unable to appear as a result of the offense committed by the defendant.14

When done properly, this usually means the victim, a family member of the victim, or some other person is testifying about the impact the crime has had upon that person. The authorization of victim impact testimony is not a blank check for the victim to take the stand to insult or castigate the defendant, or to give a speech vilifying this type of criminal. Victim impact testimony can violate a defendant’s due process rights if it is so “unduly prejudicial that it renders the trial fundamentally unfair.”15

Prosecutors can be creative in the presentation of victim impact evidence to a jury. In the famous Chain of Rocks Bridge murder case in St. Louis, for example, a parent whose daughters were thrown from the bridge was allowed to play for the jury a video of her last Christmas with the girls.16 In a Texas trial, a prosecutor played for the jury a recording of the murder victim’s family learning of his death at the hospital.17 Presentations of this sort can be compelling.

Sometimes the prosecutor can go too far.18 For example, in another Texas case, the prosecutor presented through the victim’s father a 17-minute collage of 140 photos of the murder victim set to music from the movie “Titanic.”19 The court held that the sheer volume of the photographs and the emphasis on the adult victim’s “halcyon” childhood caused the probative value to be outweighed by the prejudicial effect.20 The court noted: “[T]he punishment phase of a criminal trial is not a memorial service for the victim. What may be entirely appropriate eulogies to celebrate the life and accomplishments of a unique individual are not necessarily admissible in a criminal trial.”21 The defense should consider using a motion in limine to learn the details of any victim impact testimony in advance to be able to object to it outside the presence of the jury.22

It is generally improper to allow the victim to give his or her personal opinion as to what the specific sentence should be.23 Furthermore, counsel should be aware that if the prosecutor puts on evidence of the victim’s good character, the door is flung open for the defense to admit bad character evidence about the victim. In fact, in Gill v. State,24 the brother-in-law and sister of a murder victim testified at length about the good character of their departed loved one. The defense lawyer was later found to be ineffective for failing to point out to the jury that this victim with such a stellar character had child pornography on his computer.

Victim impact testimony is not limited to the specific victim or a family member. In State v. Smith,25 emergency personnel who responded to a particularly revolting crime scene involving the abuse of an autistic child qualified as “others” under the statute to testify about how responding to that horrific call affected them, including prompting one’s early retirement.

The prosecutor is not the only one who should consider presenting victim impact testimony. When the defense knows a victim has previously given a statement minimizing the impact of the crime, the defense lawyer should keep the victim under subpoena in order to present that testimony in the penalty phase. In a Kansas case, for example, the parents of a vehicular manslaughter victim provided victim impact statements helpful to the defense. The victim’s father testified that the defendant should not be incarcerated, and the victim’s mother testified that she didn’t feel the defendant had intentionally killed her son.26 The phenomena of “reverse victim impact” evidence has developed in some jurisdictions, where defendants present the testimony of victims who don’t want the same sentence sought by an aggressive prosecutor.27

The Nature and Circumstances of the Offense

The statute specifically allows the sentencing jury to consider the nature and circumstances of the offense. Often, no additional evidence will be needed on this topic because the gory details of the crime were admitted during the guilt phase. The jury is instructed in the penalty stage that it can consider the evidence presented in either phase when deciding punishment.28 A prosecutor may choose, however, to save a particularly gruesome bit of evidence for the sentencing phase to give jurors an extra reason to impose a maximum sentence. In another situation, the judge may have refused to admit evidence during the guilt phase of a particularly horrible photo or exhibit after finding the prejudicial effect outweighed the probative value on the issue of guilt. Since the purpose of the penalty phase, though, is for the jury to consider the full nature of the crime and sentence accordingly, gruesome evidence kept out during the guilt phase may now be admitted in the penalty stage.

From the defense side, the fact the defendant was an accomplice who was less culpable than the main actor would be an important point to prove and argue in the sentencing phase. So would lack of serious injuries or the non-violent nature of the crime.

History and Character of the Defendant

The statute specifically calls for the admission of evidence relating to the history and character of the defendant. Both the state and the defense may introduce evidence that relates to the defendant’s character.29 This is an area that can help either the prosecution or the defense and can be an opportunity for vigorous advocacy.

Other crimes and bad acts evidence is normally inadmissible in the guilt phase of a criminal trial30 but is specifically admissible in the penalty stage.31 A well-prepared prosecutor can have a field day presenting evidence of prior convictions, as well as prior bad acts that did not amount to convictions.32 For example, in State v. Clark,33 the prosecutor was allowed to present evidence in the penalty phase that the defendant had committed two prior murders, even though he had been acquitted. This was permitted because the standard of proof was lower at the sentencing hearing than in a guilt phase.34 In State v. Davis,35 the state was allowed to present evidence of defendant’s alleged sexual abuse of a second victim in the sentencing phase of his sodomy trial, even though he’d been acquitted of the charges relating to that victim. In State v. McArthur,36 the state presented the testimony of the defendant’s biological daughter that he had sexually abused her when she was 13 years old. In State v. Snow,37 after the defendant was found guilty of possession of a controlled substance, the prosecutor was allowed to present unadjudicated bad act evidence showing that the defendant was a drug dealer.

Evidence that has not been disclosed in discovery is not admissible at trial, even in the penalty stage.38 Thus, the prosecution must make sure to disclose its findings  prior to trial. Otherwise, the prosecutor’s penalty phase may be a flop. The prosecution is not required, however, to specifically designate which witnesses and exhibits are intended for use in the penalty phase as opposed to the guilt phase.39

The history and character of the defendant is also fertile ground for advocacy by the defense. Capital litigation provides a model for defense counsel. The same sort of evidence that can convince a jury to spare a defendant’s life in a death penalty case can also motivate them to impose a lenient sentence in a shoplifting trial. Relevant evidence might include the defendant’s stellar reputation in the past; the defendant’s diminished mental capacity; the defendant’s drug or alcohol dependency (and efforts already being made to deal with the problem); the need of defendant’s family members for support from the defendant; or any other circumstances in the defendant’s history or character that would call for mitigation of punishment or pull on the heartstrings of the jurors.

Future Dangerousness

The U. S. Supreme Court and the Supreme Court of Missouri have “approved the jury’s consideration of future dangerousness during the penalty phase of a capital trial, recognizing that a defendant’s future dangerousness bears on all sentencing determinations made in our criminal justice system.”40 Prior to the bifurcated trial framework in Missouri, courts held that in non-capital cases it was improper to argue future dangerousness because the defendant had the right to be tried only for what he or she had done, not for what he or she might do in the future.41 Now, both the prosecutor and the defense should be allowed to use the defendant’s history and criminal record (or lack thereof) as a basis to argue whether the defendant presents a risk of danger to the public if not incarcerated.

Sentencing Guidelines and Truth in Sentencing Laws

It is usually improper to offer evidence about parole or probation eligibility, suspended sentences, and other forms of judicial clemency.42 Neither the prosecution nor the defense is allowed to have a probation officer testify about sentencing guidelines. The concern is that the jury would place too much emphasis on them.43 Likewise, a trial court is not authorized to instruct the jury that a defendant found guilty of drug trafficking is required to serve his sentence without eligibility for parole.44 Nor should the court instruct the jury on whether the counts would run consecutively or concurrently.45 Similarly, it would not be error for the court to refuse to allow testimony about the fact the defendant would be required to serve 85% of any sentence under Missouri’s “Truth in Sentencing” law.

Effect of Jury Recommendation

The jury’s recommendation as to punishment is not necessarily binding upon the judge. Rather, it acts as a ceiling on the sentence the judge may impose.46 Under Rule 29.05, the trial judge can reduce the punishment recommended by the jury. Most judges typically follow the recommendation made by a jury under the logic that the verdict represents the feeling of the community as to the appropriate punishment in the case. A judge may, however, give a lesser sentence than the one recommended by the jury. It is plain error, however, for a prosecutor or judge to inform the jurors that their verdict is merely a recommendation and is not binding on the court.47

Prior Offenders

When the prosecutor has charged and proven the defendant to be a prior offender, persistent offender, dangerous offender, persistent misdemeanor offender, persistent sexual offender, or predatory sexual offender, a penalty stage will not be held.48 Instead, the judge will determine the appropriate sentence without input from the jury. The state statute specifically prohibits the judge from seeking an advisory verdict from a jury in cases of prior offenders.49 Surprisingly, the prosecutor can take punishment away from the jury in a felony case by charging the defendant as a persistent misdemeanor offender.50

Waiver of Jury Sentencing

The defense has the right to waive jury sentencing and have the judge determine the appropriate sentence. This waiver must be made in writing prior to voir dire.51 The trial court is not required to question the defendant on the record about the waiver.52 The defense counsel should always consider in advance of trial the pros and cons of waiving jury sentencing in a particular case.

Jury Instructions and Advocacy

Pattern jury instructions exist for the penalty stage of a criminal jury trial.53 Counsel should study these instructions and the Notes on Use in advance and prepare accordingly. Other instructions – such as a defendant’s right not to testify – must be given if applicable and properly requested.54 The pattern instructions do not require the jury to find any fact beyond a reasonable doubt, nor is such language permitted.55 At this point in time, the pattern jury instructions do not mention the preponderance of evidence standard, even though the Supreme Court of Missouri has held it applicable.

Each side has an opportunity to give an opening statement and closing argument in this stage of trial. A good trial lawyer will prepare words of wisdom in advance, rather than waiting for seat-of-the-pants inspiration at a time when he or she might be licking wounds.


The Capital Division of the Public Defender System specifically assigns a lawyer to focus almost exclusively on the presentation for the penalty phase of a death penalty case in order to make sure the punishment aspect of the litigation is not overlooked. While this painstaking level of preparation may not be required in every criminal case, lawyers for both sides should make sure they do not neglect to adequately prepare for this important stage of the criminal trial.


1 H. Morley Swingle served as prosecuting attorney for Cape Girardeau County for 25 years, as an assistant United States attorney for the Eastern District of Missouri, and as an assistant circuit attorney in St. Louis.  He is currently an assistant prosecuting attorney for Boone County.

2 James R. Wyrsch, Bifurcated Jury Trials in Non-Capital Criminal Cases, 61 J. Mo. Bar 39, 39 (2005); Meredith Hammers, Bifurcated Criminal Trials: A New Mandate Without Guidance, 72 UMKC L. Rev. 1137, 1137 (2004).

3 State v. Voss, 488 S.W.3d 97, 115 (Mo App. E.D. 2016).

4 State v. Jaco, 156 S.W.3d 775, 780-81 (Mo. banc 2005).

5 State v. Fassero, 256 S.W.3d 109, 119 (Mo. banc 2008).

6 State v. Davis, 422 S.W.3d 458, 464 (Mo. App. E.D. 2014).

7 Fassero, 256 S.W.3d at 119.

8 State v. Doss, 394 S.W.3d 486 (Mo. App. W.D. 2013).

9 Voss, 488 S.W.3d at 123.

10 State v. Thurman, 272 S.W.3d 489, 497-98 (Mo App. E.D. 2008).

11 RSMo § 557.036.3 (2017).

12 Fassero, 256 S.W.3d at 118-19.

13 RSMo § 557.036.3 (2017).

14 RSMo § 595.229 (2017).

15 State v. Kreutzer, 928 S.W.2d 854, 868 (Mo. banc 1996) (citing Payne v. Tennessee, 501 U.S. 808 (1991)).

16 State v. Gray, 887 S.W.2d 369, 389 (Mo. banc 1994).

17 Gilbert v. State, 575 S.W.3d 848, 870-72 (Tex. App. 2019).

18 See Kimberly J. Winbush, Admissibility of Victim Impact Evidence in Noncapital State Proceedings, 8 A.L.R.7th Art. 6 2016).

19 Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002).

20 Id. at 337.

21 Id. at 335-36.

22 Wyrsch at 45.

23 State v. Roll, 942 S.W.2d 370, 378 (Mo. banc 1997) (murder victim’s family members should not be allowed to ask for death sentence); Cf. Adams v. State, 951 S.W.2d 722 (Mo. App. W.D. 1997) (minor assault victim’s father and grandmother allowed to request a maximum sentence).

24 300 S.W.3d 225, 232-34 (Mo. banc 2009).

25 502 S.W.3d 689, 700-702 (Mo. App. E.D. 2016).

26 State v. Heath, 21 Kan.App.2d 410(Kan. App. 1995).

27 Adrienne N. Barnes, Reverse Impact Testimony: A New and Improved Victim Impact Statement, 14 Cap. Def. J. 245 (2002).

28 MAI-CR 4th § 405.03 (2017).

29 State v. Snow, 299 S.W.3d 710, 719 (Mo. App. W.D. 2009).

30 H. Morley Swingle, Other Crimes and Bad Acts Evidence in Missouri, 75 J. Mo. Bar 70 (2019).

31 RSMo §557.036.3 (2017).

32 Jaco, 156 S.W.3d at 781.

33 197 S.W.3d 598 (Mo. banc 2006).

34 Id. at 600-01.

35 State v. Davis, 422 S.W.3d at 464 (Mo. App. E.D. 2014).

36 State v. McArthur, 343 S.W.3d 726, 727 (Mo. App. E.D. 2011).

37 State v. Snow, 299 S.W.3d at 718 (Mo. App. W.D. 2009).

38 Rule 25.02 of Missouri’s Rules of Criminal Procedure requires the state to disclose the names and last known addresses of any witnesses it intends to call at trial, together with their written or recorded statements, and any existing memoranda reporting part or all of their statements.

39 Jaco, 156 S.W.3d at 781.

40 State v. Deck, 303 S.W.3d 527, 543-44 (Mo. banc 2010), citing Simmons v. South Carolina, 512 U.S. 154, 162 (1994).

41 State v. Schaefer, 855 S.W.2d 504, 507 (Mo. App. E.D. 1993).

42 State v. Prosser, 186 S.W.3d 330, 331-32 (Mo. App. E.D. 2005).

43 State v. Edwards, 228 S.W.3d 88, 90 (Mo. App. E.D. 2007).

44 Prosser, 186 S.W.3d at 332.

45 State v. Atkeson, 255 S.W.3d 8, 11-12 (Mo. App. S.D. 2008).

46 RSMo § 557.036.5 (2017); State v. Maxon, 641 S.W.2d 162, 163 (Mo. App. E.D. 1982).

47 State v. Stutts, 723 S.W.2d 594, 596-97 (Mo. App. W.D. 1987).

48 RSMo § 557.036.4(2) (2017).

49 RSMo § 557.036.7 (2017).

50 State v. Manley, 223 S.W.3d 887, 893 (Mo. App. W.D. 2007).

51 RSMo § 557.036.4(1) (2017); State v. Weaver, 178 S.W.3d 545, 548 (Mo. App. W.D. 2005).

52 State v. Price, 433 S.W.3d 472, 474-75 (Mo. App. W.D. 2014).

53 MAI-CR 4th, § 405 (2017).

54 MAI-CR 4th 405.03 § , Notes on Use 5 (2017).

55 Jaco, 156 S.W.3d at 781.