Aggravation and mitigation hearing is the second phase of trial in a capital case. In Arizona, the trial of a capital case is divided into two separate proceedings. The first phase is called the guilt phase of trial. During this phase the prosecutor presents factual evidence showing the defendant’s guilt for the murder. The second phase called the aggravation and mitigation hearing is the sentencing proceeding. During the aggravation and mitigation hearing, the prosecutor presents evidence to show the existence of aggravating circumstances, and the defense/prosecution presents evidence as to the existence of mitigating circumstances.
The court sets a date for the aggravation and mitigation hearing in cases where a defendant is convicted of first degree murder. A.R.S. § 13-703(F) lists the aggravating circumstances and A.R.S. § 13-703(G) lists the mitigating circumstances. The judge will take into account evidence relating to the existence of these circumstances to decide if a death penalty is to be imposed on the victim. The prosecutor is responsible for presenting evidence of aggravating circumstances. Admissibility of such evidence is governed by the rules of evidence. Evidence of mitigating circumstances may be produced either by the defense or the State regardless of its admissibility under the rules of evidence. Generally, the judge that presided over the trial, or before whom a guilty plea was entered conducts the aggravation and mitigation hearing. However, another judge may conduct the hearing if the judge who presided at the trial resigned, died, is disqualified, or has become incapacitated.
The presentation of evidence at the aggravation and mitigation hearing, and the guilt phase follows a similar pattern. Witnesses testify under oath and are cross-examined, evidence is presented before the court, and oral arguments are presented by prosecution and the defense. After that, the judge considers the evidence relating to the aggravating and mitigating circumstances presented and decides if a death penalty is to be imposed.