Cite as: 522 U. S. 269 (1998)
Breyer, J., dissenting
evidence presented of circumstances which do not justify or excuse the offense but which in fairness or mercy may extenuate or reduce the degree of moral culpability and punishment." Virginia Model Jury Instructions, Criminal, Instruction No. 34.127 (1993 and Supp. 1995).
Finally, unlike the majority, I do not believe that "the entire context in which the instructions were given," ante, at 278, can make up for their failings. I concede that the defense presented considerable evidence about the defendant's background. But the presentation of evidence does not tell the jury that the evidence presented is relevant and can be taken into account—particularly in the context of an instruction that seems to exclude the evidence from the universe of relevant considerations. Cf. Hitchcock v. Dugger, 481 U. S. 393, 397-398 (1987); Penry, supra, at 319 ("[I]t is not enough simply to allow the defendant to present mitigating evidence to the sentencer"). I also realize that the defense attorney told the jury the evidence was relevant, and the prosecution conceded the point. But a jury may well consider such advice from a defense attorney to be advocacy which it should ignore or discount. And the jury here might have lost the significance of the prosecution's concession, for that concession made a brief appearance in lengthy opening and closing arguments, the basic point of which was that the evidence did not sufficiently mitigate the crime but warranted death.
Though statements by counsel can help a jury understand a judge's instructions, they cannot make up for so serious a misinstruction, with such significant consequences as are present here. The jury will look to the judge, not to counsel, for authoritative direction about what it is to do with the evidence that it hears. Taylor v. Kentucky, 436 U. S. 478, 488-489 (1978); see also Carter v. Kentucky, 450 U. S. 288, 302, n. 20 (1981). For the reasons I have mentioned, taking the instructions and the context together, the judge's instructions created a "reasonable likelihood" that the jury "applied the challenged instruction in a way that prevents
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