Proposed Jury
Instruction for Mercy Eligibility for
Parole Consideration in Capital Cases
NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).
MERCY
ELIGIBILITY FOR PAROLE CONSIDERATION
IN CAPITAL CASES
STATE'S INSTRUCTION _____
The Court further instructs the members of the jury
that mere eligibility for parole in no way guarantees immediate parole after
______ years and that parole is given to inmates only after a thorough consideration
of their records by the parole board.
COMMENT
MERCY
ELIGIBILITY FOR PAROLE CONSIDERATION
IN CAPITAL CASES
1. The Court should instruct the jury along the lines
of this instruction that parole eligibility after ten years does not guarantee
parole, but rather that the parole board may grant parole only after thorough
consideration of the inmate's records. State v. Jenkins, 443 S.E. 2d
244, 256 (W.Va. 1994); State v. Headley, 168 W.Va. 138, 282 S.E. 2d 872,
875 (1981); State v. Lindsay, 160 W.Va. 284, 233 S.E. 2d 734, 738-739
(1977).
2. The Court must instruct the jury along the lines
of this instruction whether requested or not.