Talking about Sentencing at Trial

It’s like Fight Club: the first rule of talking about sentencing at trial is don’t talk about sentencing at trial. Well, it’s not actually a hard-and-fast rule. But the relatively few cases we have suggest that it’s rarely a good idea to discuss a defendant’s possible punishment in front of a jury. A leading case is State v. Lopez, 363 N.C. 535 (2009). In Lopez, the jury found the defendant guilty of involuntary manslaughter. The State also pursued the aggravating factor that the crime knowingly created a great risk of death to more than one person. When presenting that factor to the jury, the State gave a pretty detailed presentation—using a blackboard—of the impact the aggravating factor could have on the sentence. Here’s an excerpt: “All right. If we got up to this range, this aggravator, say we’re in the aggravated range of 20, there would be a corresponding maximum that goes with that. And this one would be 24. . . . And these are all in months.” Id. at 537. Suffice it to say the presentation was detailed. The jury found the factor and the judge sentenced in the aggravated range. On appeal, the defendant argued that the trial judge erred in allowing the prosecutor to discuss the sentencing possibilities at trial. The punishment impact, he contended, was irrelevant to whether the aggravator was actually present. Relying on older cases, the court of appeals agreed; the trial court erred by allowing the State to explain the possible effect of [...]