Amendments to death penalty jury instructions.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following new and amended instructions to the Florida Standard Jury Instructions in Criminal Cases for comment. The committee proposes the following:

7.10--PRELIMINARY INSTRUCTIONS IN PENALTY PROCEEDINGS--CAPITAL CASES

7.11--FINAL INSTRUCTIONS IN PENALTY PROCEEDINGS--CAPITAL CASES

7.11(a)--VERDICT FORMS FOR DEATH PENALTY CASES

7.12--POLLING THE JURY (DEATH PENALTY CASES)

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either electronic format or hard copy on or before May 15, 2017. The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to CrimJuryInst@flcourts.org, in the format of a Word document. If you cannot file electronically, mail a hard copy of the comment to Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel's Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.

7.10 PRELIMINARY INSTRUCTIONS IN PENALTY PROCEEDINGS--CAPITAL CASES

[section] 921.141, Fla. Stat.

The instruction is designed for first degree murders committed after May 24, 1994, when the legislature omitted the possibility of parole for anyone convicted of First Degree Murder. For first degree murders committed before May 25. 1994, this instruction will have to be modified.

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.

1. a. Members of the jury, the defendant has been found guilty of First Degree Murder in a previous proceeding. Consequently, you will not concern yourselves with the question of guilt. You must accept the fact that the defendant is guilty of First Degree Murder. Give 1b at beginning of penalty proceedings before the jury that found the defendant guilty.

   2. Members of the jury, you have found the defendant guilty of First Degree Murder

   Give in all cases.

   Your deliberations in this penalty phase will determine the appropriate sentence for the crime of First Degree Murder. There are only two options: Life imprisonment without the possibility of parole, or death.

   At the conclusion of this penalty phase trial, the jury will determine whether one or more aggravating factors exist: whether any aggravating factors found to exist are sufficient to warrant a sentence of death: whether any mitigating circumstances exist: whether the aggravating factors outweigh the mitigating circumstances: and whether the defendant should be sentenced to life imprisonment without the possibility of parole, or death.

   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 this penalty phase. What the lawyers say is not evidence, and you are not to consider it as such. After the attorneys have had the opportunity to present their opening statements, the State and the defendant may present evidence relative to the nature of the crime and the character-background, or life of the defendant.

   Comments

   The trial judge may want to include other standard instructions in this preliminary instruction, including but not limited to 3.7--Reasonable Doubt and 3.9--Weighing the Evidence.

   This instruction was adopted in 2017.

   7.11 FINAL INSTRUCTIONS IN PENALTY PROCEEDINGS--CAPITAL CASES

   [section] 921.141, Fla. Stat.

   [Delete existing instruction 7.11 and replace with the following:]

   This instruction is designed to be given after the closing arguments in the penalty phase of a death penalty case. It may be modified for those judges who will give part of it before closing arguments. Additionally. The instruction is designed for first degree murders committed after May 24. 1994. When the legislature omitted the possibility of parole for anyone convicted of First Degree Murder. For first degree murders committed before May 25. 1994. This instruction will have to be modified.

   Members of the jury, you have heard the evidence and the arguments of counsel. It is now your duty to determine the appropriate sentence that should be imposed upon (defendant). There are two possible punishments: Life imprisonment without the possibility of parole, or death.

   However, before a sentence of death may be imposed, the State must prove the following three elements beyond a reasonable doubt:

1. One or more aggravating factors alleged by the State exist:

2. The aggravating factor, or factors, found to exist are sufficient to warrant a sentence of death: and,

3. The aggravating factor, or factors, found to exist outweigh the mitigating circumstances found to exist.

   The terms aggravating factor and mitigating circumstance will be explained to you.

   Determining the appropriate sentence involves a multi-step process.

   The first step is for you to determine whether the aggravating factor[s] alleged by the State [has] [have] been proven beyond a reasonable doubt.

   An aggravating factor is a fact specified by law that the jury may find increases the seriousness of a First Degree Murder.

   Aggravating factors. [section] 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]...