37.071 requires that the jury "shall consider all evidence admitted at the guilt or innocence stage and the punishment stage" in assessing punishment of a capital case. Here's the rub: what about those cases where there is a retrial for punishment only? In such a case, the jury does not hear a "guilt or innocence stage." Does 37.071 authorize the introduction of evidence from the guilt-innocence phase of the trial without having to put the same witnesses back on the stand again? I suspect not, at least without a showing of unavailability, but I'd be interested to know how any of you who have retried capital cases for punishment only went about it.

[This message was edited by WHM on 02-02-09 at .]

You have to read in conjunction with Art. 44.29(c). Basically, while a retrial on punishment only, you will need to put on everything you want your jury to know about assessing punishment. And in voir dire you need to qualify them on the fact that the issue of guilt has been determined and they are to decide punishment only. That may not be as easy as it sounds, the solution to which is put it all on.

Having retried a case on punishment only, it can be awkward to explain to the jury that they will not decide guilt. The jury tends to feel cheated on that. In addition, something about that process actually minimizes the crime, as if there must be some reason other than the crime to punish the defendant.

As suggested above, you should just try the case as if guilt were in question.