PUBLIC LAW 102-382—OCT. 5, 1992 106 STAT. 1439 of its admissibility under the rules governing the admission of evidence at criminal trials, except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. The information presented may include trial transcripts and esdiibits. The attorney for the government and for 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 aggravating or mitigating factor, and as to the appropriateness in that case of imposing a sentence of death. The attorney for the government shall open the argument, the defendant shall be permitted to reply, and the government shall then be permitted to reply in rebuttal.
- (i) FINDINGS OF AGGRAVATING AND MITIGATING FACTORS. —
The jury shall return special findings identifying any aggravating factor or factors for which notice has been provided under subsection (f) and which the jury unanimously determines have been established by the government beyond a reasonable doubt. A mitigating factor is established if the defendant has proven its existence by a preponderance of the evidence, and any member of the jury who finds the existence of such a factor may regard it as established for piirposes of this section regardless of the number of jurors who concur that the factor has been established. "*(i) FINDING CONCERNING A SENTENCE OF DEATH. —If the jury specially finds under subsection (i) that 1 or more aggravating factors set forth in subsection (e) exist, and the jury fumier finds imanimously that there are no mitigating factors or that the aggravating factor or factors specially found under subsection (i) outweigh any mitigating factors, the jury shall recommend a sentence of death. In any other case, the jury shall not recommend a sentence of death. The jury shall be instructed that it must avoid any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factors in its decision, and should make such a recommendation as the information warrants. "'(k) SPECIAL PRECAUTION TO ASSURE AGAINST DISCRIMINA- TION.—In a hearing held before a jury, the court, before the return of a finding under subsection (j), shall instruct the jury that, in considering whether to recommend a sentence of death, it shall not consider the race, color, religion, national origin, or sex of the defendant or any victim, and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for such a crime regardless of the race, color, religion, national origin, or sex of the defendant or any victim. The jury, upon the return of a finding under subsection (j), shall also return to the court a certificate, signed by each juror, that the race, color, religion, national origin, or sex of the defendant or any victim did not affect the juror's individual decision and that the individual juror would have recommended the same sentence for such a crime regardless of the race, color, religion, national origin, or sex of the defendant or any victim. "XD IMPOSITION OF A SENTENCE OF DEATH.— Upon a rec- Courts. ommendation under subsection (j) that a sentence of death be imposed, the court shall sentence uie defendant to death. Otherwise the court shall impose a sentence of life imprisonment without the possibility of parole. " '(m) REVIEW OF A SENTENCE OF DEATH.—