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North Carolina v. McKoy9/7/1988
t of Appeals in its Mills opinion and the State of Maryland before the United States Supreme Court both conceded that mitigating evidence continued to be legally relevant even if the jury does not unanimously find it to have mitigating value; but in North Carolina such evidence ceases to be legally relevant if rejected by even one juror.
This argument stands Mills and the Eighth Amendment jurisprudence upon which it rests on their respective heads. The jurisprudence so far developed by the Supreme Court in a series of cases to which I have already referred is that the Eighth and Fourteenth Amendments preclude a state from creating barriers to the consideration by a capital sentencer of all evidence which may reasonably be said to have mitigating value. It makes no difference
what form these barriers take. The Supreme Court said unequivocally in Mills :
Under our decisions, it is not relevant whether the barrier to the sentencer's consideration of all mitigating evidence is interposed by statute, Lockett v. Ohio, supra; Hitchcock v. Dugger, 481 U.S. , 95 L. Ed. 2d 347, 107 S. Ct. 1821 (1987); by the sentencing court, Eddings v. Oklahoma, supra ; or by an evidentiary ruling, Skipper v. South Carolina, supra. The same must be true with respect to a single juror's holdout vote against finding the presence of a mitigating circumstance. Whatever the cause, . . . the conclusion would necessarily be the same: "Because the [sentencer's] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing." Eddings v. Oklahoma, 455 U.S. at 117, 71 L. Ed. 2d 1, 102 S. Ct. 869 (O'Connor, J., concurring).
Mills, 486 U.S. at , 100 L. Ed. 2d at 394 (emphasis supplied).
" t is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have 'any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" New Jersey v. T.L.O., 469 U.S. 325, 345, 83 L. Ed. 2d 720, 737 (1985), quoting Fed. R. Evid. 401. As noted by Thayer, "The law furnishes no test of relevancy." E. Thayer, A Preliminary Treatise on Evidence at the Common Law 265 (1898). The concept of logical relevancy employed in Rule 401 must be kept separate from issues of sufficiency of evidence for any purpose such as to satisfy a burden of production. M. Graham, Handbook of Federal Evidence § 401.1 (2d ed. 1986). This concept of relevancy is the same in the context of mitigating evidence in a capital sentencing proceeding as it is in other contexts. Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. Whether the fact-finder accepts or rejects the evidence has no bearing on the evidence's relevancy. The relevance exists even if the fact-finder fails to be persuaded by that evidence. It is not necessary that the item of evidence alone
convinces the trier of fact or be sufficient to convince the trier of fact of the truth of the proposition for which it is offered. Id. at § 401.1 n.12.
To say, as the majority here does, that jury unanimity on a mitigating factor is necessary to make that factor legally relevant in the final balancing process seems not only to be a misuse of the concept of relevancy but also a classical case of circular reasoning with regard to the constitutional question presented. When the Supreme Court speaks in Mills of the constitutional necessit
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