MUJI 2d CR1423

A defendant is required to establish the special mitigation of extreme emotional distress by a preponderance of the evidence. I have already instructed you on the reasonable doubt standard that applies to the prosecution; and now I will instruct you on the preponderance of the evidence standard that applies to the defendant.

Under the preponderance of the evidence standard, the defendant must persuade you, by the evidence, that a particular fact is more likely to be true than not true.

Another way of saying this is proof by the greater weight of the evidence, however slight. Weighing the evidence does not mean counting the number of witnesses nor the amount of testimony. Rather, it means evaluating the persuasive character of the evidence. In weighing the evidence, you should consider all of the evidence that applies to a particular fact, no matter which party presented it. The weight to be given to each piece of evidence is for you to decide.

After weighing all of the evidence, if you decide that the facts for extreme emotional distress are more likely true than not, then you must find that the defendant has proved that fact. On the other hand, if you decide that the evidence regarding the facts for extreme emotional distress is evenly balanced or is not more likely true, then you must find that the fact has not been proved by the defendant.

Your decision on special mitigation, extreme emotional distress, will be reflected in the Special Verdict Form.