The opinion
Supreme Court of Florida
____________
No. SC17-583
____________
IN RE: STANDARD CRIMINAL JURY INSTRUCTIONS
IN CAPITAL CASES.
[April 13, 2017]
PER CURIAM.
This matter is before the Court on our own motion to consider the criminal
jury instructions pertaining to the imposition of the death penalty. On an interim
basis, we authorize for publication and use amended Standard Jury Instructions in
Criminal Cases 7.11 (Preliminary Instructions in Penalty Proceedings—Capital
Cases) and 7.12 (Dialogue for Polling the Jury (Death Penalty Case)). In addition,
we propose, on our own motion, new instructions 3.12(e) (Jury Verdict Form—
Death Penalty) and 7.11(a) (Final Instructions in Penalty Proceedings—Capital
Cases).1 We have jurisdiction. See art. V, § 2(a), Fla. Const.
1. The amendments and the new jury instructions are based upon proposals
that, while not previously filed with the Court, were published by the Supreme
Court Committee on Standard Jury Instructions in Criminal Cases (Committee).
In Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616 (2016), the United
States Supreme Court held a portion of Florida’s death penalty sentencing scheme
unconstitutional because a jury was not required to find the facts necessary to
impose a sentence of death. See id. at 619. On remand from the Supreme Court,
in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), petition for cert. filed, No.
16-998 (U.S. Feb. 13, 2017), we held that “in addition to unanimously finding the
existence of any aggravating factor, the jury must also unanimously find that the
aggravating factors are sufficient for the imposition of death and unanimously find
that the aggravating factors outweigh the mitigation before a sentence of death may
be considered by the judge.” Id. at 54. We further held that a unanimous jury
recommendation for death is required before a trial court may impose a sentence of
death. Id. In response to Hurst, the Florida Legislature enacted chapter 2017-1,
Laws of Florida, effective March 13, 2017. This legislation requires a jury to
unanimously determine that a defendant should be sentenced to death before a trial
court may impose the death penalty.
In light of chapter 2017-1, Laws of Florida, and our decision in Hurst, we
hereby authorize on an interim basis the publication and use of jury instructions
3.12(e), 7.11, 7.11(a), and 7.12, as set forth in the appendix to this opinion.
We take this opportunity to thank the Committee for its dedication to this
significant undertaking.
-2-
Certain language that previously appeared in jury instruction 7.11, unrelated to the
portion of Florida’s death penalty law that was deemed constitutionally
problematic in Hurst v. Florida and Hurst—for example, the definitions of
statutory aggravating factors—has been transferred to new instruction 7.11(a)
without any substantive changes. In adopting these interim instructions, we
express no opinion on their correctness and further note that this authorization
forecloses neither requesting additional or alternative instructions, nor contesting
the legal correctness of the instructions. New language is indicated by underlining,
and deleted language is struck through. These interim instructions are authorized
for use immediately and until further order of the Court.
We seek comments and suggestions on the interim instructions from the
Committee, specifically with regard to those changes that are based upon chapter
2017-1, Laws of Florida, and Hurst. We further invite comments from any other
interested persons regarding these specific aspects of the interim instructions. All
comments shall be filed with the Court no later than forty-five days from the date
of this opinion.2
2. All comments must be filed with the Court on or before May 29, 2017,
with a certificate of service verifying that a copy has been served on the Criminal
Jury Instructions Committee Chair, The Honorable F. Rand Wallis, c/o Bart
Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee,
Florida 32399-1925, schneidb@flcourts.org, as well as a separate request for oral
argument if the person filing the comment wishes to participate in oral argument,
which may be scheduled in this case. The Committee has until June 28, 2017, to
-3-
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
PARIENTE, J., concurs with an opinion.
LAWSON, J., concurs specially with an opinion.
POLSTON, J., dissents with an opinion, in which CANADY, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring.
I write in response to Justice Polston’s dissent, which apparently disagrees
with authorizing the proposed jury instructions for publication on an interim basis.
Regardless of his views on the merits of Hurst v. State (Hurst), 202 So. 3d 40 (Fla.
2016), Justice Polston ignores that there is now legislation passed by the
Legislature and signed into law by the Governor, effective March 13, 2017, which
requires a unanimous jury verdict of death. Ch. 2017-1, § 1 Laws of Fla.; see
file a response to any comments filed with the Court, as well as to propose any
suggested modifications deemed appropriate and necessary. If filed by an attorney
in good standing with The Florida Bar, the comment must be electronically filed
via the Portal in accordance with In re: Electronic Filing in the Supreme Court of
Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7
(Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in
Florida, the comment must be electronically filed via e-mail in accordance with In
re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order
No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be
submitted in Microsoft Word 97 or higher. Any person unable to submit a
comment electronically must mail or hand-deliver the originally signed comment
to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street,
Tallahassee, Florida 32399-1927; no additional copies are required or will be
accepted.
-4-
§ 921.141(2), Fla. Stat. (2016); see also Perry v. State, 41 Fla. L. Weekly S449
(Fla. Oct. 14, 2016). Ironically, even while continuing to adhere to his views on
Hurst, Justice Polston joined the majority in Evans v. State, 42 Fla. L. Weekly
S200 (Fla. Feb. 20, 2017), concluding that chapter 2016-13, Laws of Florida, could
be applied to pending prosecutions with jury instructions consistent with Hurst.
Clearly the new capital sentencing law applies to pending prosecutions in
Florida, and it is this Court’s obligation to provide guidance to the trial courts,
lawyers, litigants, and, most importantly, the jury—the finder of fact—as to the
proper instructions on the law and verdict form. Thus, I concur in the majority’s
authorization of the jury instructions and verdict form, which are consistent with
the Legislature’s most recent revision to Florida’s capital sentencing law.
LAWSON, J., specially concurring.
In light of changes to section 921.141, Florida Statutes, made by the
Legislature in 2016 and recently in chapter 2017-1, Laws of Florida, I am not
opposed to issuing proposed jury instructions for comment. I agree that the jury
should be asked to render a verdict as to each aggravating circumstance alleged by
the State, since that is expressly required by the statute and since the death penalty
cannot be imposed unless at least one aggravating factor is proven beyond a
-5-
reasonable doubt. § 921.141(2)(b)1, Fla. Stat. (2016).3 The jury’s decision as to
each aggravator, of course, must be unanimous. § 921.141(2)(b), Fla. Stat.
However, I question whether we need special verdicts as to each statutory
mitigating circumstance or as to the weighing process.4 See ch. 2017-1, § 1, Laws
of Fla. (“If a unanimous jury determines that the defendant should be sentenced to
death, the jury’s recommendation to the court shall be a sentence of death.”). I
would invite comment as to whether it would be preferable to ask a jury that
unanimously finds an aggravating factor to then simply return a general verdict
reflecting its sentencing recommendation, consistent with the statute.
3. Section 921.141 requires the jury to “return findings identifying each
aggravating factor found to exist.” § 921.141(2)(b), Fla. Stat. (2016). The statute
also provides that the “defendant is eligible for a sentence of death” only if the jury
“[u]nanimously finds at least one aggravating factor.” § 921.141(2)(b)2.
4. Section 921.141(2)(b) directs that the jury must base its recommendation
on whether sufficient aggravating factors exist and whether the aggravating factors
outweigh the mitigating circumstances. A properly instructed jury could simply be
instructed to answer yes or no to the following question: “Do you unanimously
recommend a sentence of death?” It makes no sense to me to have the jury make
findings on mitigating circumstances because that is not required by the statute and
because the jury’s verdict is only a recommendation to the judge, who must then
make independent findings as to mitigating circumstances and make an
independent sentencing decision. The majority’s proposed interrogatory-style
verdicts would imply that the judge should be bound by a jury’s assessment of
mitigating circumstances, which is contrary to the statute and makes no sense. Are
we really suggesting that the sentencing judge cannot find a circumstance to be
mitigating unless found by the jury? If detailed jury findings as to mitigating
circumstances are not intended to be binding on the sentencing judge, I question
why they are needed at all.
-6-
POLSTON, J., dissenting.
The proposed jury instructions are based in part on this Court’s decision in
Hurst v. State, 202 So. 3d 40 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S.
Feb. 13, 2017). Accordingly, because I continue to believe that the United States
Constitution and the United States Supreme Court’s decision in Hurst v. Florida,
136 S. Ct. 616 (2016), do not support this Court’s erroneous holding in Hurst v.
State, I dissent. As Justice Canady cogently explained,
[c]ontrary to the majority’s view, “each fact necessary to
impose a sentence of death” that must be found by a jury is not
equivalent to each determination necessary to impose a death
sentence. The case law makes clear beyond any doubt that when the
[United States Supreme] Court refers to “facts” in this context it
denotes “elements” or their functional equivalent. And the case law
also makes clear beyond any doubt that in the process for imposing a
sentence of death, once the jury has found the element of an
aggravator, no additional “facts” need be proved by the government to
the jury. After an aggravator has been found, all the determinations
necessary for the imposition of a death sentence fall outside the
category of such “facts.”
Hurst v. State, 202 So. 3d at 77 (Canady, J., dissenting).
Contrary to Justice Pariente’s assertion in her concurring opinion, I have not
forgotten that the Florida Legislature was forced to address the majority’s
erroneous ruling. And although I agreed in an earlier decision that chapter 2016-
13, Laws of Florida, could be applied to pending prosecutions with jury
instructions, there is nothing ironic about that. I agree that the Court should
approve relevant instructions but through our normal committee process to address
-7-
chapter 2017-1, Laws of Florida. Until that happens, I do not believe our trial
courts are frozen and unable to function without hearing how to instruct a jury
from this Court. They are better than that.
CANADY, J., concurs.
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
-8-
APPENDIX
3.12(e) JURY VERDICT FORM—DEATH PENALTY
We the jury find as follows as to (Defendant) in this case:
A. Aggravating Factors as to Count ___:
We the jury unanimously find that the State has established beyond a
reasonable doubt the existence of (aggravating factor).
YES _________
NO __________
Repeat this step for each statutory aggravating factor submitted to the jury.
If you answer YES to at least one of the aggravating factors listed, please
proceed to Section B. If you answered NO to every aggravating factor listed,
do not proceed to Section B; (Defendant) is not eligible for the death sentence
and will be sentenced to life in prison without the possibility of parole.
B. Sufficiency of the Aggravating Factors as to Count ___:
Reviewing the aggravating factors that we unanimously found to be
established beyond a reasonable doubt (Section A), we the jury
unanimously find that the aggravating factors are sufficient to warrant
a possible sentence of death.
YES _________
NO __________
If you answer YES to Section B, please proceed to Section C. If you answer
NO to Section B, do not proceed to Section C; (Defendant) will be sentenced to
life in prison without the possibility of parole.
C. Statutory Mitigating Circumstances:
We the jury find that (statutory mitigating circumstance) was
established by the greater weight of the evidence.
-9-
YES _________
NO __________
If you answered YES above, please provide the jury vote as to the
existence of (statutory mitigating circumstance).
VOTE OF ____ TO ____.
Repeat for each statutory mitigating circumstance.
Please proceed to Section D, regardless of your findings in Section C.
D. Eligibility for the Death Penalty for Count ___.
We the jury unanimously find that the aggravating factors that were
proven beyond a reasonable doubt (Section A) outweigh the
mitigating circumstances established (Section C above) as to Count
___.
YES _________
NO __________
If you answered YES to Section D, please proceed to Section E. If you
answered NO to Section D, do not proceed; (Defendant) will be sentenced to
life in prison without the possibility of parole.
E. Jury Verdict as to Death Penalty
Having unanimously found that at least one aggravating factor has
been established beyond a reasonable doubt (Section A), that the
aggravating factors are sufficient to warrant a sentence of death
(Section B), and the aggravating factors outweigh the mitigating
circumstances (Section D), we the jury unanimously find that
(Defendant) should be sentenced to death.
YES __________
NO ___________
If NO, our vote to impose a sentence of life is _____ to _____.
If your vote to impose death is less than unanimous, the trial court shall
impose a sentence of life without the possibility of parole.
- 10 -
Dated this __________ day of _________, 20__, in ______ County, Florida.
___________________________________
(Signature of foreperson)
7.11 PRELIMINARY INSTRUCTIONS IN PENALTY PROCEEDINGS —
CAPITAL CASES
§ 921.141, Fla. Stat.
This instruction is to be given immediately before the opening statements in the
penalty phase of a death penalty case.
Give 1a at the beginning of penalty proceedings before a jury that did not
try the issue of guilt. Give bracketed language if the case has been remanded for a
new penalty proceeding. See Hitchcock v. State, 673 So. 2d 859 (Fla. 1996). In
addition, give the jury other appropriate general instructions.
1. a. Ladies and gentlemen Members of the jury, the defendant
has been found guilty of ____ count[s] of Murder in the First
Degree in a previous proceeding. [An appellate court has
reviewed and affirmed the defendant’s conviction. However, the
appellate court sent the case back to this court with instructions
that the defendant is to have a new trial to decide what sentence
should be imposed.] Consequently, you will not concern
yourselves with the question of [his] [her] guilt. The only issue
before you is to determine the appropriate sentence.
Give 1b at the beginning of penalty proceedings before the jury that found
the defendant guilty.
b. Ladies and gentlemen Members of the jury, you have found
the defendant guilty of count[s] of Murder in the First
Degree.
For murders committed prior to before May 25, 1994, the penalties were
different; therefore, for crimes committed before that date, the following
instruction paragraph should be modified to comply with the statute in effect at the
time the crime was committed. If the jury inquires whether the defendant will
- 11 -
receive credit for time served against a sentence of life without possibility of parole
for 25 years, the court should instruct that the defendant will receive credit for all
time served but that there is no guarantee the defendant will be granted parole
either upon serving 25 years or subsequently. See Green v. State, 907 So. 2d 489,
496 (Fla. 2005).
2. The punishment for this crime is either death or life
imprisonment without the possibility of parole or death. The
decision as to which punishment shall be imposed rests with the
judge of this court; however, the law requires that you, the jury,
provide an advisory sentence as to which punishment should be
imposed upon the defendant.
Give this instruction in all cases before taking evidence in penalty
proceedings.
The attorneys will now have an opportunity, if they wish, to make an
opening statement. The opening statement gives the attorneys a chance to tell
you what evidence they believe will be presented during the penalty phase of
this trial. What the lawyers say during opening statements is not evidence,
and you are not to consider it as such. After the attorneys have had the
opportunity to present their opening statements, theThe State and the
defendant may now present evidence relative to the nature of the crime and
the defendant’s character, background, or life of the defendant. You are
instructed that this evidence is presented in order for you to determine, as you
will be instructed, (1) whether each aggravating factor is proven beyond a
reasonable doubt; (2) whether one or more aggravating factors exist beyond a
reasonable doubt; (3) whether the aggravating factors found to exist beyond a
reasonable doubt are sufficient to justify the imposition of the death penalty;
(4) whether mitigating circumstances are proven by the greater weight of the
evidence; (5) whether the aggravating factors outweigh the mitigating
circumstances; and (6) whether the defendant should be sentenced to life
imprisonment without the possibility of parole or death. At the conclusion of
the evidence and after argument of counsel, you will be instructed on the law
that will guide your deliberations.
Give only to the jury that found the defendant guilty.
this evidence when considered with the evidence you have already heard
Give only to a new penalty phase jury.
this evidence
- 12 -
is presented in order that you might determine, first, whether sufficient
aggravating circumstances exist that would justify the imposition of the death
penalty and, second, whether there are mitigating circumstances sufficient to
outweigh the aggravating circumstances, if any. At the conclusion of the
taking of the evidence and after argument of counsel, you will be instructed on
the factors in aggravation and mitigation that you may consider.
Give after the taking of evidence and argument.
It is now your duty to advise the court as to the punishment that should
be imposed upon the defendant for the crime of First Degree Murder. You
must follow the law that will now be given to you and provide an advisory
sentence based upon your determination as to whether sufficient aggravating
circumstances exist to justify the imposition of the death penalty or whether
sufficient mitigating circumstances exist that outweigh any aggravating
circumstances found to exist. The definition of aggravating and mitigating
circumstances will be given to you in a few moments. As you have been told,
the final decision as to which punishment shall be imposed is the responsibility
of the judge. In this case, as the trial judge, that responsibility will fall on me.
However, the law requires you to provide me with an advisory sentence as to
which punishment should be imposed—life imprisonment without the
possibility of parole or the death penalty.
Give only in cases where mitigation was presented to the jury by the
defendant and not where mitigation was waived.
Although the recommendation of the jury as to the penalty is advisory
in nature and is not binding, the jury recommendation must be given great
weight and deference by the Court in determining which punishment to
impose.
Give only to the jury that found the defendant guilty.
Your advisory sentence should be based upon the evidence of
aggravating and mitigating circumstances that you have heard while trying
the guilt or innocence of the defendant and the evidence that has been
presented to you in these proceedings.
Give only to a new penalty phase jury.
Your advisory sentence should be based upon the evidence of
aggravating and mitigating circumstances that has been presented to you in
these proceedings.
- 13 -
Weighing the evidence.
It is up to you to decide which evidence is reliable. You should use your
common sense in deciding which is the best evidence, and which evidence
should not be relied upon in considering your verdict. You may find some of
the evidence not reliable, or less reliable than other evidence.
Credibility of witnesses.
You should consider how the witnesses acted, as well as what they said.
Some things you should consider are:
1. Did the witness seem to have an opportunity to see and know the
things about which the witness testified?
2. Did the witness seem to have an accurate memory?
3. Was the witness honest and straightforward in answering the
attorneys’ questions?
4. Did the witness have some interest in how the case should be
decided?
5. Did the witness’ testimony agree with the other testimony and
other evidence in the case?
6. Had the witness been offered or received any money, preferred
treatment or other benefit in order to get the witness to testify?
7. Had any pressure or threat been used against the witness that
affected the truth of the witness’ testimony?
8. Did the witness at some other time make a statement that is
inconsistent with the testimony he or she gave in court?
9. Has the witness been convicted of a felony or of a misdemeanor
involving [dishonesty] [false statement]?
10. Does the witness have a general reputation for [dishonesty]
[truthfulness]?
Law enforcement witness.
- 14 -
The fact that a witness is employed in law enforcement does not mean
that [his] [her] testimony deserves more or less consideration than that of any
other witness.
Expert witnesses.
Expert witnesses are like other witnesses with one exception—the law
permits an expert witness to give an opinion. However, an expert’s opinion is
only reliable when given on a subject about which you believe that person to
be an expert. Like other witnesses, you may believe or disbelieve all or any
part of an expert’s testimony.
Accomplices and Informants.
You must consider the testimony of some witnesses with more caution
than others. For example, a witness who [claims to have helped the defendant
commit a crime] [has been promised immunity from prosecution] [hopes to
gain more favorable treatment in his or her own case] may have a reason to
make a false statement in order to strike a good bargain with the State. This is
particularly true when there is no other evidence tending to agree with what
the witness says about the defendant. So, while a witness of that kind may be
entirely truthful when testifying, you should consider [his] [or] [her] testimony
with more caution than the testimony of other witnesses.
Child witness.
You have heard the testimony of a child. No witness is disqualified just
because of age. There is no precise age that determines whether a witness may
testify. The critical consideration is not the witness’s age, but whether the
witness understands the difference between what is true and what is not true,
and understands the duty to tell the truth.
Give only if the defendant did not testify.
A defendant in a criminal case has a constitutional right not to testify at
any stage of the proceedings. You must not draw any inference from the fact
that a defendant does not testify.
Give only if the defendant testified.
The defendant in this case has become a witness. You should apply the
same rules to consideration of [his] [her] testimony that you apply to the
testimony of the other witnesses.
- 15 -
Witness talked to lawyer.
It is entirely proper for a lawyer to talk to a witness about what testimony the
witness would give if called to the courtroom. The witness should not be
discredited by talking to a lawyer about [his] [her] testimony.
Give in all cases.
You may rely upon your own conclusion about the credibility of any
witness. A juror may believe or disbelieve all or any part of the evidence or
the testimony of any witness.
Rules for deliberation.
These are some general rules that apply to your discussion. You must
follow these rules in order to return a lawful recommendation:
1. You must follow the law as it is set out in these instructions. If
you fail to follow the law, your recommendation will be a miscarriage of
justice. There is no reason for failing to follow the law in this case. All
of us are depending upon you to make a wise and legal decision in this
matter.
2. Your recommendation must be decided only upon the evidence
that you have heard from the testimony of the witnesses, [have seen in
the form of the exhibits in evidence] and these instructions.
3. Your recommendation must not be based upon the fact that you
feel sorry for anyone, or are angry at anyone.
4. Remember, the lawyers are not on trial. Your feelings about
them should not influence your recommendation.
5. The jury is not to discuss any question[s] that [a juror] [jurors]
wrote that [was] [were] not asked by the court, and must not hold that
against either party.
6. Your recommendation should not be influenced by feelings of
prejudice, or by racial or ethnic bias, or by sympathy. Your
recommendation must be based on the evidence, and on the law
contained in these instructions.
- 16 -
7. During deliberations, jurors must communicate about the case
only with one another and only when all jurors are present in the jury
room. You are not to communicate with any person outside the jury
about this case. Until you have reached an advisory sentence, you must
not talk about this case in person or through the telephone, writing, or
electronic communication, such as a blog, twitter, e-mail, text message,
or any other means. Do not contact anyone to assist you during
deliberations. These communications rules apply until I discharge you
at the end of the case. If you become aware of any violation of these
instructions or any other instruction I have given in this case, you must
tell me by giving a note to the [court deputy] [bailiff].
8. If you need to communicate with me, send a note through the
[court deputy] [bailiff], signed by the foreperson. If you have questions,
I will talk with the attorneys before I answer, so it may take some time.
You may continue your deliberations while you wait for my answer. I
will answer any questions, if I can, in writing or orally here in open
court.
Aggravating circumstancesFactors:. § 921.141(5), Fla. Stat.
An aggravating circumstancefactor is a standard to guide the jury in
making the choice between the alternative recommendations recommending
of life imprisonment without the possibility of parole or death. It is a
statutorily enumerated circumstance which that increases the gravity of a
crime or the harm to a victim.
An You must unanimously agree that each aggravating circumstance
factor must bewas proven beyond a reasonable doubt before it may be
considered by you in arriving at your final recommendationverdict. In order
to consider the death penalty as a possible penalty, you must determine that at
least one aggravating circumstance factor has been proven beyond a
reasonable doubt.
The State has the burden to prove each aggravating circumstance factor
beyond a reasonable doubt. A reasonable doubt is not a mere possible doubt, a
speculative, imaginary, or forced doubt. Such a doubt must not influence you
to disregard an aggravating circumstancefactor if you have an abiding
conviction that it exists. On the other hand, if, after carefully considering,
comparing, and weighing all the evidence, you do not have an abiding
conviction that the aggravating circumstance factor exists, or if, having a
- 17 -
conviction, it is one which is not stable but one which wavers and vacillates,
then the aggravating circumstance factor has not been proved beyond every
reasonable doubt and you must not consider it in providing your an advisory
sentence verdict on the appropriate sentence to the court.
Give only to the jury that found the defendant guilty.
It is to the evidence introduced during the guilt phase of this trial and in
this proceeding, and to it alone, that you are to look for that proof.
Give only to a new penalty phase jury.
It is to the evidence introduced during this proceeding, and to it alone,
that you are to look for that proof.
A reasonable doubt as to the existence of an aggravating circumstance
factor may arise from the evidence, conflicts in the evidence, or the lack of
evidence. If you have a reasonable doubt as to the existence of an aggravating
circumstancefactor, you should must find that it does not exist. However, if
you have no reasonable doubt, you should find that the aggravating
circumstance factor does exist and give it whatever weight you determine it
should receive.
Before moving on to the mitigating circumstances, you must determine
that the aggravating factors are sufficient to impose a sentence of death. If
you do not unanimously agree that the aggravating factors are sufficient to
impose death, do not move on to consider the mitigating circumstances.
The aggravating circumstances that you may consider are limited to any
of the following that you find are established by the evidence:
Give only those aggravating circumstances for which evidence has been
presented.
1. The capital felony was committed by a person previously
convicted of a felony and [under sentence of imprisonment] [on
community control] [on felony probation].
2. The defendant was previously convicted of [another capital
felony] [a felony involving the [use] [threat] of violence to the person].
Because the character of a crime if involving violence or threat of violence
is a matter of law, when the State offers evidence under aggravating circumstance
“2” the court shall instruct the jury of the following, as applicable:
- 18 -
Give 2a or 2b as applicable.
a. The crime of (previous crime) is a capital felony.
b. The crime of (previous crime) is a felony involving the [use]
[threat] of violence to another person.
3. The defendant knowingly created a great risk of death to many
persons.
4. The capital felony was committed while the defendant was
[engaged]
[an accomplice]
in
[the commission of]
[an attempt to commit]
[flight after committing or attempting to commit]
any
Check § 921.141(5)(d), Fla. Stat., for any change in list of offenses.
[robbery].
[sexual battery].
[aggravated child abuse].
[abuse of an elderly person or disabled adult resulting in great
bodily harm, permanent disability, or permanent disfigurement].
[arson].
[burglary].
[kidnapping].
[aircraft piracy].
[unlawful throwing, placing or discharging of a destructive device
or bomb].
5. The capital felony was committed for the purpose of avoiding or
preventing a lawful arrest or effecting an escape from custody.
6. The capital felony was committed for financial gain.
- 19 -
7. The capital felony was committed to disrupt or hinder the lawful
exercise of any governmental function or the enforcement of laws.
8. The capital felony was especially heinous, atrocious or cruel.
“Heinous” means extremely wicked or shockingly evil.
“Atrocious” means outrageously wicked and vile.
“Cruel” means designed to inflict a high degree of pain with utter
indifference to, or even enjoyment of, the suffering of others.
The kind of crime intended to be included as heinous, atrocious,
or cruel is one accompanied by additional acts that show that the
crime was conscienceless or pitiless and was unnecessarily
torturous to the victim.
9. The capital felony was a homicide and was committed in a cold,
calculated, and premeditated manner, without any pretense of moral or
legal justification.
“Cold” means the murder was the product of calm and cool
reflection.
“Calculated” means having a careful plan or prearranged design
to commit murder.
A killing is “premeditated” if it occurs after the defendant
consciously decides to kill. The decision must be present in the
mind at the time of the killing. The law does not fix the exact
period of time that must pass between the formation of the
premeditated intent to kill and the killing. The period of time
must be long enough to allow reflection by the defendant. The
premeditated intent to kill must be formed before the killing.
However, in order for this aggravating circumstance to apply, a
heightened level of premeditation, demonstrated by a substantial
period of reflection, is required.
- 20 -
A “pretense of moral or legal justification” is any claim of
justification or excuse that, though insufficient to reduce the
degree of murder, nevertheless rebuts the otherwise cold,
calculated, or premeditated nature of the murder.
10. The victim of the capital felony was a law enforcement officer
engaged in the performance of [his] [her] official duties.
11. The victim of the capital felony was an elected or appointed public
official engaged in the performance of [his] [her] official duties, if the
motive for the capital felony was related, in whole or in part, to the
victim’s official capacity.
12. The victim of the capital felony was a person less than 12 years of
age.
13. The victim of the capital felony was particularly vulnerable due to
advanced age or disability, or because the defendant stood in a position
of familial or custodial authority over the victim.
With the following aggravating factor, definitions as appropriate from
§ 874.03, Fla. Stat., must be given.
14. The capital felony was committed by a criminal street gang
member.
15. The capital felony was committed by a person designated as a
sexual predator or a person previously designated as a sexual predator
who had the sexual predator designation removed.
16. The capital felony was committed by a person subject to
[a domestic violence injunction issued by a Florida judge],
[a [repeat] [sexual] [dating] violence injunction issued by a
Florida judge],
[a protection order issued from [another state] [the District of
Columbia] [an Indian tribe] [a commonwealth, territory, or
possession of the United States]],
and
- 21 -
the victim of the capital felony was [the person] [a [spouse] [child]
[sibling] [parent] of the person] who obtained the [injunction]
[protective order].
Merging aggravating factors.
Give the following paragraph if applicable. When it is given, you must also
give the jury an example specifying each potentially duplicitous aggravating
circumstance. See Castro v. State, 597 So. 2d 259 (Fla. 1992).
The State may not rely upon a single aspect of the offense to establish
more than one aggravating circumstance. Therefore, if you find that two or
more of the aggravating circumstances are proven beyond a reasonable doubt
by a single aspect of the offense, you are to consider that as supporting only
one aggravating circumstance.
If you find the aggravating circumstances do not justify the death
penalty, your advisory sentence should be one of life imprisonment without
possibility of parole.
Mitigating cCircumstances. § 921.141(6), Fla. Stat.:
Should you find sufficient aggravating circumstances factors do exist to
justify recommending the imposition of the death penalty, it will then be your
duty to determine whether the aggravating factors that you unanimously find
to have been proven beyond a reasonable doubt outweigh the mitigating
circumstances outweigh the aggravating circumstances that you find to
existhave been established. Unlike aggravating factors, you do not need to
unanimously agree that a mitigating circumstance has been established.
A mitigating circumstance is not limited to the facts surrounding the
crime. It can be anything in the life of the defendant which might indicate
that the death penalty is not appropriate for the defendant. In other words, a
mitigating circumstance may include any aspect of the defendant’s character,
background, or life or any circumstance of the offense that reasonably may
indicate that the death penalty is not an appropriate sentence in this case.
A mitigating circumstance need not be provedn beyond a reasonable
doubt by the defendant. A mitigating circumstance need only be provedn by
the greater weight of the evidence, which means evidence that more likely
than not tends to prove the existence of a mitigating circumstance. If you
determine by the greater weight of the evidence that a mitigating
circumstance exists, you may consider it established and give that evidence
- 22 -
such weight as you determine it should receive in reaching your conclusion as
to the sentence to be imposed.
Among the mitigating circumstances you may consider are:
Give only those mitigating circumstances for which evidence has been
presented.
1. The defendant has no significant history of prior criminal activity.
If the defendant offers evidence on this circumstance and the State, in
rebuttal, offers evidence of other crimes, also give the following:
Conviction of (previous crime) is not an aggravating circumstance to be
considered in determining the penalty to be imposed on the defendant, but a
conviction of that crime may be considered by the jury in determining
whether the defendant has a significant history of prior criminal activity.
2. The capital felony was committed while the defendant was under
the influence of extreme mental or emotional disturbance.
3. The victim was a participant in the defendant’s conduct or
consented to the act.
4. The defendant was an accomplice in the capital felony committed
by another person and [his] [her] participation was relatively minor.
5. The defendant acted under extreme duress or under the
substantial domination of another person.
6. The capacity of the defendant to appreciate the criminality of [his]
[her] conduct or to conform [his] [her] conduct to the requirements of
law was substantially impaired.
7. The age of the defendant at the time of the crime.
8. The existence of any other factors in the defendant’s character,
background or life, or the circumstances of the offense that would
mitigate against the imposition of the death penalty.
If one or more aggravating circumstances are established, you should
consider all the evidence tending to establish one or more mitigating
- 23 -
circumstances and give that evidence such weight as you determine it should
receive in reaching your conclusion as to the sentence that should be imposed.
Victim impact evidence. Give 1, or 2, or 3, or all as applicable.
You have heard evidence about the impact of this homicide on the
1. family,
2. friends,
3. community
of (decedent). This evidence was presented to show the victim’s uniqueness as
an individual and the resultant loss by (decedent’s) death. However, you may
not consider this evidence as an aggravating circumstance. Your
recommendation to the court must be based on the aggravating circumstances
and the mitigating circumstances upon which you have been instructed.
Recommended sentence.
The sentence that you recommend must be based upon the facts as you
find them from the evidence and the law. If, after weighing the aggravating
and mitigating circumstances, you determine that at least one aggravating
circumstance is found to exist and that the mitigating circumstances do not
outweigh the aggravating circumstances, or, in the absence of mitigating
factors, that the aggravating factors alone are sufficient, you may recommend
that a sentence of death be imposed rather than a sentence of life in prison
without the possibility of parole. Regardless of your findings in this respect,
however, you are neither compelled nor required to recommend a sentence of
death. If, on the other hand, you determine that no aggravating
circumstances are found to exist, or that the mitigating circumstances
outweigh the aggravating circumstances, or, in the absence of mitigating
factors, that the aggravating factors alone are not sufficient, you must
recommend imposition of a sentence of life in prison without the possibility of
parole rather than a sentence of death.
The process of weighing aggravating and mitigating factors to
determine the proper punishment is not a mechanical process. The law
contemplates that different factors may be given different weight or values by
different jurors. In your decision-making process, you, and you alone, are to
decide what weight is to be given to a particular factor.
- 24 -
In these proceedings it is not necessary that the advisory sentence of the
jury be unanimous.
The fact that the jury can recommend a sentence of life imprisonment
or death in this case on a single ballot should not influence you to act hastily
or without due regard to the gravity of these proceedings. Before you ballot
you should carefully weigh, sift, and consider the evidence, realizing that
human life is at stake, and bring your best judgment to bear in reaching your
advisory sentence.
If a majority of the jury, seven or more, determine that (defendant)
should be sentenced to death, your advisory sentence will be:
A majority of the jury by a vote of _________, to
__________ advise and recommend to the court that it
impose the death penalty upon (defendant).
On the other hand, if by six or more votes the jury determines that
(defendant) should not be sentenced to death, your advisory sentence will be:
The jury advises and recommends to the court that it
impose a sentence of life imprisonment upon
(defendant) without possibility of parole.
When you have reached an advisory sentence in conformity with these
instructions, that form of recommendation should be signed by your
foreperson, dated with today’s date and returned to the court. There is no set
time for a jury to reach a verdict. Sometimes it only takes a few minutes.
Other times it takes hours or even days. It all depends upon the complexity of
the case, the issues involved and the makeup of the individual jury. You
should take sufficient time to fairly discuss the evidence and arrive at a well
reasoned recommendation.
You will now retire to consider your recommendation as to the penalty
to be imposed upon the defendant.
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
1989 [543 So. 2d 1205], 1991 [579 So. 2d 75], 1992 [603 So. 2d 1175], 1994 [639
So. 2d 602], 1995 [665 So. 2d 212], 1996 [678 So. 2d 1224], 1997 [690 So. 2d
- 25 -
1263], 1998 [723 So. 2d 123], 2009 [22 So. 3d 17], and 2014 [146 So. 3d 1110],
and 2017.
7.11(a) FINAL INSTRUCTIONS IN PENALTY PROCEEDINGS —
CAPITAL CASES
§ 921.141, Fla. Stat.
This instruction should be given after the closing arguments in the penalty
phase of a death penalty trial.
Members of the jury, you have heard all the evidence and the argument
of counsel. It is now your duty to make a decision as to the appropriate
sentence that should be imposed upon the defendant for the crime of First
Degree Murder. There are two possible punishments: (1) life imprisonment
without the possibility of parole, or (2) death.
In making your decision, you must first unanimously determine
whether the aggravating factor[s] alleged by the State [has] [have] been
proven beyond a reasonable doubt. An aggravating factor is a circumstance
that increases the gravity of a crime or the harm to a victim. No facts other
than proven aggravating factors may be considered in support of a death
sentence.
Aggravating factors. § 921.141(6), Fla. Stat.
The aggravating factor[s] alleged by the State [is] [are]:
Give only those aggravating factors noticed by the State which are
supported by the evidence.
1. (Defendant) was previously convicted of a felony and [under
sentence of imprisonment] [on community control] [on felony
probation].
2. (Defendant) was previously convicted of [another capital felony] [a
felony involving the [use] [threat] of violence to another person].
Give 2a or 2b as applicable.
a. The crime of (previous crime) is a capital felony.
- 26 -
b. The crime of (previous crime) is a felony involving the [use]
[threat] of violence to another person.
3. (Defendant) knowingly created a great risk of death to many
persons.
4. The First Degree Murder was committed while (defendant) was
[engaged] [an accomplice] in [the commission of] [an attempt to
commit] [flight after committing or attempting to commit]
any
[robbery].
[sexual battery].
[aggravated child abuse].
[abuse of an elderly person or disabled adult resulting in great bodily
harm, permanent disability, or permanent disfigurement].
[arson].
[burglary].
[kidnapping].
[aircraft piracy].
[unlawful throwing, placing or discharging of a destructive device or
bomb].
Check § 921.141(6)(d), Fla. Stat., for any change in list of offenses.
5. The First Degree Murder was committed for the purpose of
avoiding or preventing a lawful arrest or effecting an escape from
custody.
6. The First Degree Murder was committed for financial gain.
7. The First Degree Murder was committed to disrupt or hinder the
lawful exercise of any governmental function or the enforcement of
laws.
8. The First Degree Murder was especially heinous, atrocious or
cruel.
“Heinous” means extremely wicked or shockingly evil.
- 27 -
“Atrocious” means outrageously wicked and vile.
“Cruel” means designed to inflict a high degree of pain with utter
indifference to, or even enjoyment of, the suffering of others.
The kind of crime intended to be included as especially heinous,
atrocious, or cruel is one accompanied by additional acts that
show that the crime was conscienceless or pitiless and was
unnecessarily torturous to (decedent).
9. The First Degree Murder was committed in a cold, calculated,
and premeditated manner, without any pretense of moral or legal
justification.
“Cold” means the murder was the product of calm and cool
reflection.
“Calculated” means having a careful plan or prearranged design
to commit murder.
A killing is “premeditated” if it occurs after the defendant
consciously decides to kill. The decision must be present in the
mind at the time of the killing. The law does not fix the exact
period of time that must pass between the formation of the
premeditated intent to kill and the killing. The period of time
must be long enough to allow reflection by the defendant. The
premeditated intent to kill must be formed before the killing.
However, in order for this aggravating factor to apply, a
heightened level of premeditation, demonstrated by a substantial
period of reflection, is required.
A “pretense of moral or legal justification” is any claim of
justification or excuse that, though insufficient to reduce the
degree of murder, nevertheless rebuts the otherwise cold,
calculated, or premeditated nature of the murder.
10. (Decedent) was a law enforcement officer engaged in the
performance of [his] [her] official duties.
- 28 -
11. (Decedent) was an elected or appointed public official engaged in
the performance of [his] [her] official duties, if the motive for the First
Degree Murder was related, in whole or in part, to (decedent’s) official
capacity.
12. (Decedent) was a person less than 12 years of age.
13. (Decedent) was particularly vulnerable due to advanced age or
disability, or because (defendant) stood in a position of familial or
custodial authority over (decedent).
With the following aggravating factor, definitions as appropriate from
§ 874.03, Fla. Stat., must be given.
14. The First Degree Murder was committed by a criminal street
gang member.
15. The First Degree Murder was committed by a person designated
as a sexual predator or a person previously designated as a sexual
predator who had the sexual predator designation removed.
16. The First Degree Murder was committed by a person subject to
[a domestic violence injunction issued by a Florida judge],
[a [repeat] [sexual] [dating] violence injunction issued by a
Florida judge],
[a protection order issued from [another state] [the District of
Columbia] [an Indian tribe] [a commonwealth, territory, or
possession of the United States]],
and
the victim of the First Degree Murder was [the person] [a [spouse]
[child] [sibling] [parent] of the person] who obtained the
[injunction] [protective order].
Give in all cases.
As explained before the presentation of evidence, the State has the
burden to prove an aggravating factor beyond a reasonable doubt. A
reasonable doubt is not a mere possible doubt, a speculative, imaginary, or
- 29 -
forced doubt. Such a doubt must not influence you to disregard an
aggravating factor if you have an abiding conviction that it exists. On the
other hand, if, after carefully considering, comparing, and weighing all the
evidence, you do not have an abiding conviction that the aggravating factor
exists, or if, having a conviction, it is one which is not stable but one which
waivers and vacillates, then the aggravating factor has not been proved
beyond every reasonable doubt and you must not consider it in providing a
verdict.
A reasonable doubt as to the existence of an aggravating factor may
arise from the evidence, a conflict in the evidence, or the lack of evidence. If
you have a reasonable doubt as to the existence of an aggravating factor, you
must find that it does not exist. However, if you have no reasonable doubt, you
should find the aggravating factor does exist.
A finding that an aggravating factor exists must be unanimous, that is,
all of you must agree that each presented aggravating factor exists. You will
be provided a form to make this finding [as to each alleged aggravating
factor] and you should indicate whether or not you find [the] [each]
aggravating factor has been proven beyond a reasonable doubt.
If you do not unanimously find that at least one aggravating factor was
proven by the State, then the defendant is not eligible for the death penalty,
and your verdict must be for a sentence of life imprisonment without the
possibility for parole. At such point, your deliberations are complete.
If, however, you unanimously find that [one or more] [the] aggravating
factor[s] [has] [have] been proven beyond a reasonable doubt, then the
defendant is eligible for the death penalty, and you must make additional
findings to determine whether the appropriate sentence to be imposed is life
imprisonment without the possibility of parole or death.
Mitigating circumstances. § 921.141(7), Fla. Stat.
If you do unanimously find the existence of at least one aggravating
factor and that the aggravating factor(s) [is] [are] sufficient to impose a
sentence of death, the next step in the process is for you to determine whether
any mitigating circumstances exist. A mitigating circumstance can be
anything in the life of the defendant which might indicate that the death
penalty is not appropriate. It is not limited to the facts surrounding the crime.
A mitigating circumstance may include any aspect of the defendant’s
- 30 -
character, background, or life or any circumstance of the offense that may
reasonably indicate that the death penalty is not an appropriate sentence in
this case.
Among the mitigating circumstances you may consider are:
Give only those mitigating circumstances for which evidence has been
presented.
1. (Defendant) has no significant history of prior criminal activity.
If the defendant offers evidence on this circumstance and the State, in
rebuttal, offers evidence of other crimes, also give the following:
Conviction of (previous crime) is not an aggravating factor to be
considered in determining the penalty to be imposed on the defendant, but a
conviction of that crime may be considered by the jury in determining
whether the defendant has a significant history of prior criminal activity.
2. The First Degree Murder was committed while (defendant) was
under the influence of extreme mental or emotional disturbance.
3. (Decedent) was a participant in (defendant’s) conduct or consented
to the act.
4. (Defendant) was an accomplice in the First Degree Murder
committed by another person and [his] [her] participation was
relatively minor.
5. (Defendant) acted under extreme duress or under the substantial
domination of another person.
6. The capacity of (defendant) to appreciate the criminality of [his]
[her] conduct or to conform [his] [her] conduct to the requirements of
law was substantially impaired.
7. (Defendant’s) age at the time of the crime.
The judge should also instruct on any additional mitigating circumstances
as requested.
8. The existence of any other factors in (defendant’s) character,
background, or life or the circumstances of the offense that would
mitigate against the imposition of the death penalty.
- 31 -
It is the defendant’s burden to prove that mitigating circumstances
exist. As explained before these proceedings, the defendant need only establish
a mitigating circumstance by the greater weight of the evidence, which means
evidence that more likely than not tends to establish the existence of a
mitigating circumstance. If you determine by the greater weight of the
evidence that a mitigating circumstance exists, you must consider it
established and give that evidence such weight as you determine it should
receive in reaching your verdict about the appropriate sentence to be
imposed. Any juror persuaded as to the existence of a mitigating circumstance
must consider it in this case. Further, any juror may consider a mitigating
circumstance found by another juror, even if he or she did not find that factor
to be mitigating.
Your decision regarding the appropriate sentence should be based upon
proven aggravating factors and established mitigating circumstances that
have been presented to you during these proceedings. You will now engage in
a weighing process.
Merging aggravating factors. Give the following paragraph if applicable.
For example, the aggravating circumstances that 1) the murder was committed
during the course of a robbery and 2) the murder was committed for financial
gain, relate to the same aspect of the offense and may be considered as only a
single aggravating circumstance. Castro v. State, 597 So. 2d 259 (Fla. 1992).
Pursuant to Florida law, the aggravating factors of (insert aggravating
factor) and (insert aggravating factor) are considered to merge because they are
considered to be a single aspect of the offense. If you unanimously determine
that the aggravating factors of (insert aggravating factor) and (insert
aggravating factor) have both been proven beyond a reasonable doubt, your
findings should indicate that both aggravating factors exist, but you must
consider them as only one aggravating factor during the weighing process that
I am about to explain to you.
You must weigh all of the following:
a. Whether the aggravating factor[s] found to exist [is] [are] sufficient
to justify the death penalty,
b. Whether the aggravating factor[s] outweigh[s] any mitigating
circumstance[s] found to exist, and
c. Based on all of the considerations pursuant to these instructions,
whether the defendant should be sentenced to life imprisonment
- 32 -
without the possibility of parole or death.
The process of weighing aggravating factors and mitigating
circumstances is not a mechanical or mathematical process. In other words,
you should not merely total the number of aggravating factors and compare
that number to the total number of mitigating circumstances. The law
contemplates that different factors or circumstances may be given different
weight or values by different jurors. Therefore, in your decision-making
process, each individual juror must decide what weight is to be given to a
particular factor or circumstance. Regardless of the results of each juror’s
individual weighing process—even if you find that the sufficient aggravators
outweigh the mitigators—the law neither compels nor requires you to
determine that the defendant should be sentenced to death.
Once each juror has weighed the proven factors, he or she must
determine the appropriate punishment for the defendant. The jury’s decision
regarding the appropriate sentence must be unanimous if death is to be
imposed. To repeat what I have said, if your verdict is that the defendant
should be sentenced to death, your finding that each aggravating factor exists
must be unanimous, your finding that the aggravating factors are sufficient to
impose death must be unanimous, and your finding that the aggravating
factor(s) found to exist outweigh the established mitigating circumstances
must be unanimous, and your decision if to impose a sentence of death must
be unanimous.
You will be provided a form to reflect your findings and decision
regarding the appropriate sentence. If your vote on the appropriate sentence
is less than unanimous, the defendant will be sentenced to life in prison
without the possibility of parole.
The fact that the jury can make its decision on a single ballot should not
influence you to act hastily or without due regard to the gravity of these
proceedings. Before you vote, you should carefully consider and weigh the
evidence, realizing that a human life is at stake, and bring your best judgment
to bear in reaching your verdict.
Weighing the evidence.
When considering aggravating factors and mitigating circumstances, it
is up to you to decide which evidence is reliable. You should use your common
sense in deciding which is the best evidence and which evidence should not be
- 33 -
relied upon in making your decision as to what sentence should be imposed.
You may find some of the evidence not reliable, or less reliable than other
evidence.
You should consider how the witnesses acted, as well as what they said.
Some things you should consider are:
1. Did the witness seem to have an opportunity to see and know the
things about which the witness testified?
2. Did the witness seem to have an accurate memory?
3. Was the witness honest and straightforward in answering the
attorneys’ questions?
4. Did the witness have some interest in how the case should be
decided?
5. Did the witness’s testimony agree with the other testimony and
other evidence in the case?
Give as applicable.
6. Had the witness been offered or received any money, preferred
treatment or other benefit in order to get the witness to testify?
7. Had any pressure or threat been used against the witness that
affected the truth of the witness’s testimony?
8. Did the witness at some other time make a statement that is
inconsistent with the testimony he or she gave in court?
9. Has the witness been convicted of a felony or of a misdemeanor
involving [dishonesty] [false statement]?
10. Does the witness have a general reputation for [dishonesty]
[truthfulness]?
Law enforcement witness.
- 34 -
The fact that a witness is employed in law enforcement does not mean
that [his] [her] testimony deserves more or less consideration than that of any
other witness.
Expert witnesses.
Expert witnesses are like other witnesses with one exception—the law
permits an expert witness to give an opinion. However, an expert’s opinion is
only reliable when given on a subject about which you believe that person to
be an expert. Like other witnesses, you may believe or disbelieve all or any
part of an expert’s testimony.
Accomplices and Informants.
You must consider the testimony of some witnesses with more caution
than others. For example, a witness who [claims to have helped the defendant
commit a crime] [has been promised immunity from prosecution] [hopes to
gain more favorable treatment in his or her own case] may have a reason to
make a false statement in order to strike a good bargain with the State. This is
particularly true when there is no other evidence tending to agree with what
the witness says about the defendant. So, while a witness of that kind may be
entirely truthful when testifying, you should consider [his] [her] testimony
with more caution than the testimony of other witnesses.
Child witness.
You have heard the testimony of a child. No witness is disqualified just
because of age. There is no precise age that determines whether a witness may
testify. The critical consideration is not the witness’s age, but whether the
witness understands the difference between what is true and what is not true,
and understands the duty to tell the truth.
Give only if the defendant testified.
The defendant in this case has become a witness. You should apply the
same rules to consideration of [his] [her] testimony that you apply to the
testimony of the other witnesses.
Witness talked to lawyer.
It is entirely proper for a lawyer to talk to a witness about what
testimony the witness would give if called to the courtroom. The witness
should not be discredited by talking to a lawyer about [his] [her] testimony.
Give in all cases.
- 35 -
You may rely upon your own conclusion about the credibility of any
witness. A juror may believe or disbelieve all or any part of the evidence or
the testimony of any witness.
Give only if the defendant did not testify.
The defendant exercised a fundamental right by choosing not to be a
witness in this case. You must not be influenced in any way by [his] [her]
decision. No juror should ever be concerned that the defendant did or did not
take the witness stand to give testimony in the case.
Rules for deliberation.
These are some general rules that apply to your discussions. You must
follow these rules in order to make a lawful decision.
1. You must follow the law as it is set out in these instructions. If you
fail to follow the law, your decisions will be a miscarriage of justice.
There is no reason for failing to follow the law in this case. All of us are
depending upon you to make wise and legal decisions in this matter.
2. Your decisions must be based only upon the evidence that you
have heard from the testimony of the witnesses, [have seen in the form
of the exhibits in evidence,] and these instructions.
3. Your decisions must not be based upon the fact that you feel sorry
for anyone or are angry at anyone.
4. Remember, the lawyers are not on trial. Your feelings about them
should not influence your decisions.
Give #5 if applicable.
5. The jury is not to discuss any question[s] that [a juror] [jurors]
wrote that [was] [were] not asked by the Court, and must not hold that
against either party.
6. Your decisions should not be influenced by feelings of prejudice,
racial or ethnic bias, or sympathy. Your decisions must
be based on the evidence and the law contained in these
instructions.
Victim-impact evidence.
- 36 -
You have heard evidence about the impact of this murder on the
[family] [friends] [community] of (decedent). This evidence was presented to
show the victim’s uniqueness as an individual and the resultant loss by
(decedent’s) death. However, you may not consider this evidence as an
aggravating factor. Your decisions must be based on the aggravating factor[s],
the mitigating circumstance[s], and the weighing process upon which you have
been instructed.
Submitting case to jurors.
In just a few moments you will be taken to the jury room by the [court
deputy] [bailiff]. When you have reached decisions in conformity with these
instructions, the appropriate form[s] should be signed and dated by your
foreperson.
During deliberations, jurors must communicate about the case only
with one another and only when all jurors are present in the jury room. You
are not to communicate with any person outside the jury about this case, and
you must not talk about this case in person or through the telephone, writing,
or electronic communication, such as a blog, Twitter, e-mail, text message, or
any other means.
Give if judge has allowed jurors to keep their electronic devices during the
penalty phase.
Many of you may have cell phones, tablets, laptops, or other electronic
devices here in the courtroom. The rules do not allow you to bring your
phones or any of those types of electronic devices into the jury room. Kindly
leave those devices on your seats where they will be guarded by the [court
deputy] [bailiff] while you deliberate.
Do not contact anyone to assist you during deliberations. These
communications rules apply until I discharge you at the end of the case. If
you become aware of any violation of these instructions or any other
instruction I have given in this case, you must tell me by giving a note to the
[court deputy] [bailiff].
Give if applicable.
During this trial, [an item] [items] [was] [were] received into evidence as
[an] exhibit[s]. You may examine whatever exhibit[s] you think will help you
in your deliberations.
- 37 -
Give a or b as appropriate.
a. The[se] exhibit[s] will be sent into the jury room with you
when you begin to deliberate.
b. If you wish to see an[y] exhibit[s], please request that in
writing.
I cannot participate in your deliberations in any way. Please disregard
anything I may have said or done that made you think I preferred one
decision over another. If you need to communicate with me, send a note
through the [court deputy] [bailiff], signed by the foreperson. If you have
questions, I will talk with the attorneys before I answer, so it may take some
time. You may continue your deliberations while you wait for my answer. I
will answer any questions, if I can, in writing or orally here in open court.
In closing, let me remind you that it is important that you follow the law
spelled out in these instructions. There are no other laws that apply to this
case. Even if you do not like the laws that must be applied, you must use them.
For more than two centuries we have lived by the constitution and the law. No
juror has the right to violate rules we all share.
Comment
This instruction was adopted in 2017.
7.12 DIALOGUE FOR POLLING THE JURY (DEATH PENALTY CASE)
Ladies and gentlemen Members of the jury, we are going to ask each of
you individually concerning the advisory sentenceabout the verdict[s] that you
have just heard. It is not necessary that you state how you personally voted, or
how any other person voted, but only if the advisory sentenceThe question[s]
pertain to whether the verdict[s], as read by the clerk, [was] [were] correctly
stated.
The following question is to be asked of each juror if the
recommendationverdict is for the death penalty:
Do you, [Mr.] [Ms.]_____________________________, agree and confirm that
a majority of the jury join in the advisory sentence that you have just heard
- 38 -
read by the clerk? Do you, (name of juror))] [juror number (number of juror)),
agree that each of the findings in the verdict form is yours?
The following question is to be asked of each juror if the
recommendationverdict is for a life sentence:
Do you, [Mr.] [Ms.]_____________________________(name of juror))] [juror
number (number of juror)), agree and confirm that at least six or more one
member of the jury join in the advisory sentence that you have just heard
read by the clerkvoted for a sentence of life imprisonment without the
possibility of parole?
Comment
This instruction was adopted in 1981 and was amended in 1997 and 2017.
- 39 -