Page:United States Statutes at Large Volume 102 Part 5.djvu/383

 PUBLIC LAW 100-690—NOV. 18, 1988

102 STAT. 4389

"(iv) after initial imposition of a sentence under this section, redetermination of the sentence under this section is necessary; or "(C) before the court alone, upon the motion of the defendant and with the approval of the Government. "(2) A jury impaneled under paragraph (I)(B) shall consist of 12 members, unless, at any time before the conclusion of the hearing, the parties stipiilate with the approval of the court that it shall consist of any number less than 12. "Proof of Aggravating and Mitigating Factors "(j) Notwithstanding rule 32(c) of the Federal Rules of Criminal Procedure, when a defendant is found guilty of or pleads guilty to an offense under subsection (e), no presentence report shall be prepared. In the sentencing hearing, information may be presented as to matters relating to any of the aggravating or mitigating factors set forth in subsections (m) and (n), or any other mitigating factor or any other aggravating factor for which notice has been provided under subsection (h)(l)(B). Where information is presented relating to any of the a ^ r a v a t i n g factors set forth in sul^ection (n), information may be presented relating to any other aggravating factor for which notice has been provided under subsection (h)(l)(B). Information presented may include the trial transcript and exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial judge's discretion. Any other information relevant to such mitigating or aggravating factors may be presented by either the Government or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials, except that information may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The Government and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any of the a ^ r a v a t i n g or mitigating factors and as to appropriateness in that case of imposing a sentence of death. The Government shall open the argument. The defendant shall be permitted to reply. The Government shall then be permitted to reply in rebuttal. The burden of establishing the existence of any aggravating factor is on the Government, and is not satisfied unless established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless establish«l by a preponderance of the evidence. "Return of Findings "(k) The jury, or if there is no jury, the court, shall consider all the information received during the hearing. It shall return special findings identifying any aggravating factors set forth in subsection (n), found to exist If one of the aggravating factors set forth in subsection (n)(1) and another of the aggravating factors set forth in paragraphs (2) through (12) of subsection (n) is found to exist, a special finding identifying any other aggravating factor for which notice has been provided under subsection (h)(l)(B), may be returned. A finding with respect to a mitigating factor may be made by one or more of the menibers of the jury, and any member of the

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