8th Cir. Model Jury Instr. (Criminal) 12.01

Members of the jury, you have unanimously found the defendant1 __________ guilty of the offense of __________ as charged in Count _____(repeat for each offense) of the indictment. You must now consider whether to impose a sentence of death, or a sentence of life imprisonment without the possibility of release2[, or whether to recommend that the defendant be sentenced to a lesser sentence to be determined by the court]3 for commission of this [these] crime[s].

This decision is left exclusively to you, the jury. If you determine4 that the defendant should be sentenced to death, or to life imprisonment without possibility of release, the court is required to impose that sentence.

Before you may consider whether to impose a sentence of death, you must determine unanimously whether each of the following [two] [three] propositions has been proved beyond a reasonable doubt:

[First, you must find unanimously and beyond a reasonable doubt that defendant was at least 18 years of age at the time of the offense[s]5; and]

[First] [Second], you must determine unanimously whether the [government] [prosecution] has proved beyond a reasonable doubt that defendant

[intentionally killed (name of victim)]

[intentionally inflicted serious bodily injury that resulted in the death of (name of victim)]

[intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and (name of victim) died as a direct result of the act]

[intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and (name of victim) died as a direct result of the act]; and

[Second] [Third], you must determine unanimously whether the [government] [prosecution] has proved beyond a reasonable doubt the existence of at least one statutory aggravating factor. I will define the term “aggravating factors” for you shortly.

If, after fair and impartial consideration of all the evidence in this case, any one of you does not determine that the [government] [prosecution] has proved those [two] [three] things beyond a reasonable doubt, your deliberations will be over [and the defendant will be sentenced to life imprisonment without the possibility of release].6 If you do unanimously determine that the [government] [prosecution] has proved those [two] [three] things beyond a reasonable doubt, you will then proceed to determine whether you unanimously find that the [government] [prosecution] has proved the existence of any nonstatutory aggravating factors beyond a reasonable doubt. Next, you will determine whether any of you find that the defendant has proved any mitigating factors by the [preponderance] [greater weight] of the evidence. You must then engage in a weighing process. If you unanimously find that the aggravating factor or factors, which you all found to exist, sufficiently outweigh any mitigating factor or factors, which any one of you7 found to exist to justify imposition of8 a sentence of death, or, if, in the absence of a mitigating factor or factors, you find that the aggravating factor or factors alone are sufficient to justify imposition of a sentence of death, and that death is therefore the appropriate sentence in this case, the law provides that the defendant must9 be sentenced to death.

[If, after weighing the aggravating and mitigating factors, any one of you determines not to impose a sentence of death, the jury must then determine whether to impose a sentence of life imprisonment without possibility of release, or whether to recommend that the defendant be sentenced to a lesser sentence to be determined by the court.]10

Again, whether or not the circumstances in this case justify a sentence of death is a decision that is entirely yours. [You must not take anything I may say or do during this phase of the trial as indicating [what I think of the evidence or] what I think your verdict should be.]

Two terms that you have already heard and will hear throughout this phase of the case are “aggravating factors” and “mitigating factors.” These factors concern the circumstances of the crime or the personal traits, character or background of the defendant [and the effect of the offense on the victim (and the victim's family)]11.

[The word “aggravate” means “to make worse or more offensive” or “to intensify.” The word “mitigate” means “to make less severe” or “to moderate.”]12 An aggravating factor[, then,] is a fact or circumstance which would tend to support imposition of the death penalty. A mitigating factor is any aspect of a defendant's character or background, any circumstance of the offense(s), or any other relevant fact or circumstance which might indicate that the defendant should not be sentenced to death.

In the death penalty statute, a number of aggravating factors are listed. These are called “statutory aggravating factors.” As I instructed you earlier, before you may consider imposition of the death penalty, you must determine that the [government] [prosecution] proved at least one of these aggravating factors specifically listed in the death penalty statute, and your finding must be unanimous and beyond a reasonable doubt. [In addition to statutory aggravating factors, there may also be nonstatutory aggravating factors not specifically set out in the death penalty statute[, but which are permitted by law.] Again, your finding that any nonstatutory aggravating factor exists must be unanimous and beyond a reasonable doubt. You may only consider aggravating factors, whether statutory or nonstatutory, which have been specifically alleged by the [government] [prosecution] and listed in these instructions.

The defendant has the burden of proving any mitigating factors. However, there is a different standard of proof as to mitigating factors. You need not be convinced beyond a reasonable doubt about the existence of a mitigating factor; you need only be convinced [that it is more likely true than not true] [by the greater weight of the evidence] in order to find that it exists. A unanimous finding is not required. Instead, any one of you may find the existence of a mitigating factor, regardless of the number of other jurors who may agree.

If you have unanimously determined that at least one statutory aggravating factor exists, you then must weigh the aggravating factors you have all found to exist [, whether statutory or nonstatutory,] against any mitigating factors you have individually found to exist, to determine the appropriate sentence. Any juror may also weigh a mitigating factor found by another juror, even if he or she did not also find that factor to be mitigating.13 I will give you detailed instructions regarding the weighing of aggravating [and mitigating] factors before you begin your deliberations. However, I instruct you now that you must not simply count the number of aggravating [and mitigating] factors and reach a decision [based on which number is greater]; on the contrary, you must consider the weight and value of each factor.

[The [government] [prosecution] alleges the following statutory aggravating factors: (list factors). The [government] [prosecution] also alleges the following nonstatutory aggravating factors: (list factors). The defendant alleges the following mitigating factors: (list factors).]14