DEATH PENALTY PROCEEDINGS - CIRCUMSTANTIAL EVIDENCE
The State relies [in part] upon circumstantial evidence for proof of the aggravating circumstance(s) of [Specify the Aggravating Circumstance(s) That Is/Are Applicable]. In order to warrant a finding of any aggravating circumstance or circumstances upon circumstantial evidence, each fact necessary to prove the existence of the circumstance must be established by the evidence beyond a reasonable doubt. All of the facts and circumstances, taken together, must establish to your satisfaction the existence of the aggravating circumstance(s) beyond a reasonable doubt.
Notes on Use
This instruction may be given when the prosecution relies on circumstantial evidence for proof of an aggravating circumstance. The trial judge shall give OUJI-CR 9-2 through 9-4 along with this instruction.
This instruction is adapted from former OUJI-CR 804 (currently OUJI-CR 9-5), which was written for cases where circumstantial evidence is used to establish the defendant's guilt. In Snow v. State, 1994 OK CR 39, ¶ 33, 876 P.2d 291, 299, the Oklahoma Court of Criminal Appeals found that when circumstantial evidence is used to support an aggravating circumstance, the circumstantial evidence must rule out all other reasonable hypotheses.
The Oklahoma Court of Criminal Appeals has summarized the rules concerning the giving of former OUJI-CR 804 as follows:
Grimmett v. State, 1977 OK CR 320, ¶ 5, 572 P.2d 272, 274.
- [O]ne, it is error for the trial court not to instruct the jury, even though no request is made, when all the evidence relied upon is circumstantial;
- Two, when the evidence is both direct and circumstantial, it is not error to fail to give an instruction when none is requested; and
- Three, the failure to give an instruction where all of the evidence is circumstantial and no request is made, is not reversible error unless the evidence against the defendant is inherently weak or improbable.
In Harmon v. State, 2011 OK CR 6, ¶ 57, 248 P.3d 918, 938, the Oklahoma Court of Criminal Appeals held that the reasoning of Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 557, applied to both the first and second stage instructions, and that the reasonable hypothesis test should be removed from OUJI-CR 4-77.
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