DEATH PENALTY - MENTAL RETARDATION
You must first determine if the Defendant is mentally retarded as it is defined below. This must be done before deciding what sentence to impose. A Defendant who is mentally retarded cannot be sentenced to death. It is the Defendant's burden to prove by a preponderance of the evidence that he/she is mentally retarded. Preponderance of the evidence means more probable than not.
A person is mentally retarded if he/she has significantly subaverage general intellectual functioning along with significant limitations in adaptive functioning.
"Significantly subaverage general intellectual functioning" means an intelligence quotient of seventy (70) or below. An intelligence quotient of seventy (70) or below on an individually administered, scientifically recognized standard intelligence quotient test administered by a licensed psychiatrist or psychologist is evidence of significantly subaverage general intellectual functioning. A score on an intelligence quotient test may differ from a person's actual intelligence quotient because of the possibility of measurement error, and you must take into account the standard error of measurement for the test administered in determining the intelligence quotient. "Significant limitations in adaptive functioning" means significant limitations in two or more of the following adaptive skill areas; communication, self-care, home living, social skills, community use, self-direction, health, safety, functional academics, leisure skills and work skills.
The onset of the defendant's mental retardation must have been noticeable before the age of eighteen (18) years; however, the intelligence quotient test does not have to have been administered before the age of eighteen (18) years.
In reaching your decision, you must determine:
(1) Does the Defendant have an intelligence quotient of seventy (70) or below?
(2) Does the Defendant have significant limitations in adaptive functions in at least two of the following skill areas: communication; self-care; home living; social skills; community use; self-direction; health and safety; functional academics; leisure skills; and work skills?
(3) Is there evidence that the Defendant's onset of the mental retardation was noticeable before the Defendant was eighteen (18) years of age?
If you unanimously find by a preponderance of the evidence that the answer to each of these questions is yes, then you must find that the Defendant is mentally retarded and so indicate on your verdict form. You must then decide whether the Defendant shall be sentenced to life imprisonment or life imprisonment without the possibility of parole and so indicate on your verdict form.
If you unanimously find that the answer to any of these questions is no, then you must find that the Defendant is not mentally retarded and so indicate on your verdict form. If you either unanimously find that the Defendant is not mentally retarded or you are unable to reach a unanimous decision, you must then consider the remainder of the instructions relating to the death penalty and decide whether the defendant shall be sentenced to life imprisonment, life imprisonment without the possibility of parole, or death.
Statutory Authority: 21 O.S. 2011, § 701.10b(D)
Notes on Use
This instruction should be used if the defendant has raised mental retardation as a bar to a death sentence in accordance with ¶ D of 21 O.S. 2011, § 701.10b and has requested submission of the issue of mental retardation to the jury during the sentencing phase. The verdict form in OUJI-CR 4-87A should be used with this instruction.
If the jury either determines that the defendant is not mentally retarded or is unable to reach a unanimous decision on mental retardation, the judge should instruct the jury that it may consider evidence of mental retardation as a mitigating factor. See 21 O.S. 2011, § 701.10b(G); OUJI-CR 4-79, infra.
The Supreme Court in Hall v. Florida, 134 S.Ct. 1986, 1990 (2014) reversed a death sentence because Florida applied a strict IQ test score cutoff of 70 without taking into account the standard error of measurement on the IQ test. See id. at 1994 ("That strict IQ test score of 70 is the issue in this case.").