DEATH PENALTY PROCEEDINGS -
JURY'S DETERMINATION OF MITIGATING CIRCUMSTANCES
Mitigating circumstances are 1) circumstances that may extenuate or reduce the degree of moral culpability or blame, or 2) circumstances which in fairness, sympathy or mercy may lead you as jurors individually or collectively to decide against imposing the death penalty. The determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case.
While all twelve jurors must unanimously agree that the State has established beyond a reasonable doubt the existence of at least one aggravating circumstance prior to consideration of the death penalty, unanimous agreement of jurors concerning mitigating circumstances is not required. In addition, mitigating circumstances do not have to be proved beyond a reasonable doubt in order for you to consider them.
Notes on Use
The last paragraph of this instruction addresses the concern noted in Mills v. Maryland, 486 U.S. 367, 373-84 (1988), that jurors in a death penalty case might mistakenly think that their instructions precluded them from considering any mitigating circumstance unless they unanimously agreed on its existence. Because the sentencing procedures in the Mills case differ from Oklahoma's, the Oklahoma Court of Criminal Appeals has consistently distinguished Mills and has ruled that the Oklahoma Uniform Jury Instructions could not reasonably be interpreted to require unanimity regarding mitigating circumstances. McGregor v. State, 1994 OK CR 71, ¶ 41, 885 P.2d 1366, 1384; Bryson v. State, 1994 OK CR 32, ¶ 61, 876 P.2d 240, 262. Accordingly, the Court of Criminal Appeals held in McGregor and Bryson, as well as in other cases, that it is not error for the trial court to not instruct the jury that its findings regarding mitigating circumstances do not have to be unanimous. The Committee has concluded, however, that such an instruction would assist the jury in its deliberations.
In Harris v. State, 2007 OK CR 28, ¶ 26, 164 P.3d 1103, 1114, 2007 WL 2052612, the Oklahoma Court of Criminal Appeals expressed concern that under the previous version of this Instruction "prosecutors could further argue that evidence of a defendant's history, characteristics or propensities should not be considered as mitigating simply because it does not go to his moral culpability or extenuate his guilt." It suggested modifying this Instruction to "include both (a) that mitigating circumstances may extenuate or reduce the degree of moral conduct or blame, and separately, (b) that mitigating circumstances are those which in fairness, sympathy or mercy would lead jurors individually or collectively to decide against imposing the death penalty." Id. at ¶ 27, 164 P.3d at 1114.
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