10th Cir. Crim. Pattern Jury Instr. 3.10

The law never assumes or presumes that a defendant should

be sentenced to death. Accordingly, the defense is under no

obligation to establish the existence of any mitigating factors (or to

disprove the existence of any aggravating factors). A defendant

may, of course, choose to argue specific mitigating factors, and the

defendant has offered evidence on the following factors in this

case:

[Insert mitigating factors.]

The defendant need only prove these mitigating factors by a

preponderance of the evidence; that is, by evidence sufficient to

persuade you that the factor is more likely present than not

present. (Please refer to paragraph (1) of the Comment and modify

this instruction as appropriate.) And the law does not require

unanimous agreement with regard to mitigating factors. Any juror

may find the existence of a mitigating factor and must then

consider that factor in weighing the aggravating and mitigating

factors even though other jurors may not agree that the particular

mitigating factor has been established. (Please refer to paragraph

(2) of the Comment and modify this instruction as appropriate.)

Moreover, any juror may consider a mitigating factor found by

another juror, even if he or she did not concur in that finding.

(Please refer to paragraph (3) of the Comment and modify this

instruction as appropriate.)

Your discretion in considering mitigating factors is much

broader than your discretion in considering aggravating factors.

The law permits you to consider any other relevant mitigating

information presented in this proceeding, in addition to the

specific factors recited above, so long as its existence was proved

by a preponderance of the evidence. “Relevant mitigating

information” includes anything in the defendant’s background,

record, character, or any circumstances of the offense, which

suggests to you that a sentence of death should not be imposed.

(Please refer to paragraph of the Comment an d modify this

instruction as appropriate. ) Throughout these instructions,

references to mitigating factors should be understood to include

other relevant mitigating information.

Record your findings as to the mitigating factors as indicated

by the Special Findings Form. (Please refer to paragraph (5) of the