8th Cir. Model Jury Instr. (Criminal) 12.10

The mitigating factors which the defendant asserts he has proved by the [preponderance] [greater weight] of the evidence are (include any of the following applicable mitigating factors):

The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, regardless of whether his capacity was so impaired as to constitute a defense to the charge [and that fact tends to mitigate against imposition of the death penalty].

The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge [and that fact tends to mitigate against imposition of the death penalty].

The defendant is punishable as a principal in the offense, which was committed by another, but his participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge [and that fact tends to mitigate against imposition of the death penalty].

Another defendant or defendants, equally culpable in the crime, will not be punished by death [and that fact tends to mitigate against imposition of the death penalty].

The defendant does not have a significant prior history of other criminal conduct [and that fact tends to mitigate against imposition of the death penalty].

The defendant committed the offense under severe mental or emotional disturbance [and that fact tends to mitigate against imposition of the death penalty].

The victim consented to the criminal conduct that resulted in the victim's death [and that fact tends to mitigate against imposition of the death penalty].

The defendant demonstrated severe learning problems in school, which led to academic failure, increased frustration, and eventual dropout, [and that [those] fact[s] tend to mitigate against imposition of the death penalty].1

You are permitted to consider anything else about the commission of the crime or about the defendant's background or character that would mitigate against imposition of the death penalty. If there are any such mitigating factors, whether or not specifically argued by defense counsel, which are established by the [preponderance] [greater weight] of the evidence, you are free to consider them in your deliberations.

On [the appropriate] page [_____] of Section [IV] [V] of the Special Verdict Form, you are [asked] to identify any mitigating factors that any one of you finds has been proved by the [preponderance] [greater weight] of the evidence[, but you are not required to do so]2.