N.C.P.I.—Crim. 150.05

All of the evidence relevant to this determination has been presented,

and it is now your duty to decide what the facts are. You must then apply to

those facts the law, which I am about to give you, concerning intellectual

disability. It is absolutely necessary that you understand and apply the law

as I give it to you and not as you think it is or might like it to be. This is

important because justice requires that anyone found to be guilty of first-

degree murder who has presented evidence of his or her intellectual

disability is entitled to have his or her mental status determined in the same

manner and to have the same law applied to the person.

You are the sole judges of the credibility of each witness, meaning that

you must decide for yourselves whether to believe the testimony of any

witness. You may believe all, any part, or none of what a witness has

testified to on the stand.

In determining whether to believe any witness, you should apply the

same tests of truthfulness, which you apply in your everyday affairs. As

applied to this trial, these tests may include: the opportunity of the witness

to see, hear, know, or remember the facts or occurrences about which the

witness testified; the manner and appearance of the witness; any interest,

bias, or prejudice the witness may have; the apparent understanding and

fairness of the witness; whether the witness’s testimony is reasonable; and

whether the witness’s testimony is consistent with other believable evidence

in the case.

You are also the sole judges of the weight to be given any

evidence. By this I mean, if you decide that certain evidence is believable

you must then determine the importance of that evidence in light of all other

believable evidence in the case.

You have heard evidence relevant to the defendant's intellectual

disability from [a witness] [witnesses] who [has] [have] testified as (an)

expert witness(es). An expert witness is permitted to testify in the form of

an opinion in a field where the expert witness purports to have specialized

skill or knowledge.

As I have instructed you, you are the sole judges of the credibility of

each witness and the weight to be given to the testimony of each witness. In

making this determination as to the testimony of an expert witness, you

should consider, in addition to the other tests of credibility and weight, the

witness's training, qualifications, and experience or lack thereof; the

reasons, if any, given for the opinion; whether the opinion is supported by

facts that you find from the evidence; whether the opinion is reasonable;

and whether it is consistent with other believable evidence in the case.

You should consider the opinion of an expert witness, but you are not

bound by it. In other words, you are not required to accept an expert

witness's opinion to the exclusion of the facts and circumstances disclosed

by other testimony.

The law provides that no defendant who is intellectually disabled shall

be sentenced to death.1 In the event the jury determines the defendant to

be intellectually disabled, the court shall impose a sentence of life

imprisonment without parole.2

The one issue for you to determine at this stage of the proceedings

reads:

“Is the defendant, (name), intellectually disabled?”

The defendant has the burden of persuading you by a preponderance

of the evidence that the defendant is intellectually disabled.3 Preponderance

of the evidence means that the evidence taken as a whole must satisfy you -

not beyond a reasonable doubt, but simply satisfy you - that the defendant

is intellectually disabled. To meet this burden, the defendant must persuade

you by a preponderance of the evidence of the following three things:

First, that the defendant has significant sub-average general

intellectual functioning,4 which means that the defendant has an intelligence

quotient of approximately 70 or below.5 An intelligence quotient of

approximately 70 or below6 on an individually administered scientifically

recognized standardized intelligence quotient test administered by a licensed

psychiatrist or psychologist is evidence of significant sub-average general

intellectual functioning.7 Significant means important or notable. An

intelligence quotient is not conclusive of the determination of intellectual

disability, and an intelligence quotient higher than 70 would not preclude

you from determining the defendant is intellectually disabled, if you conclude

from the evidence that defendant has significant sub-average general

intellectual functioning. It is for you to determine whether or not you find

the defendant intellectually disabled.

Second, that the defendant has significant limitations in adaptive

functioning,8 which means having significant limitations in two or more of

the following adaptive skill areas: [communication] [self-care] [home living]

[social skills] [community use] [self-direction] [health and safety]

[functional academics] [leisure skills] [work skills].9

And Third, that the defendant's sub-average general intellectual

functioning and the defendant’s significant limitations in adaptive skill areas

both were manifested before the defendant reached the age of 18.10

If the defendant has persuaded you by a preponderance of the

evidence that the defendant has significant sub-average general intellectual

functioning existing concurrently with significant limitations in adaptive

functioning, it would be your duty to answer this issue “yes.”

If you are not persuaded by a preponderance of the evidence, it would

be your duty to answer this issue “no.”

Your answer to this intellectual disability issue, either “yes” or “no,”

must be unanimous.

When you have agreed upon a unanimous answer, your foreperson

should so indicate on the Intellectual Disability Issue Form.

NOTE WELL: Inform the alternate jurors to remain seated as the

first twelve retire, then segregate them to have them available

to continue with issues and punishment recommendation in the

event the jury answers the intellectual disability issue “no.”

After reaching the jury room your first order of business is to select

your foreperson. You may begin your deliberations when the bailiff delivers

the Intellectual Disability Issue Form to you. Your foreperson should lead

the deliberations. When you have unanimously agreed upon an answer to

this issue and are ready to announce it, your foreperson should record your

answer, sign and date the form, and notify the bailiff by knocking on the jury

room door (or otherwise summoning the bailiff). You will be returned to the

courtroom and your answer will be announced.

Thank you. You may retire and select your foreperson.

Intellectual Disability Issue Form found in N.C.P.I.—Crim. 150.05A

statute providing a hard and fast demarcation of intellectual disability as an IQ of 70 is

unconstitutional. This age onset requirement is likely subject to such Constitutional

challenge as well, since it contradicts the Court’s precedent in Atkins. If there is evidence

that a defendant meets the definition of intellectual disability, except for the age of onset,

the trial judge should consider whether to edit the instruction accordingly to eliminate this

third element and its prior to age 18 onset requirement.