OUJI-CR 9-45


The prosecution has introduced what is known as victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim's death on the members of the victim's immediate family. This evidence is simply another method of informing you about the specific harm caused by the crime in question. You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to a moral inquiry into the culpability of the defendant, not an emotional response to the evidence.

As it relates to the death penalty: Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim's family is not proof of an aggravating circumstance. Introduction of this victim impact evidence in no way relieves the State of its burden to prove beyond a reasonable doubt at least one aggravating circumstance which has been alleged. You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstance has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating circumstances.

As it relates to the other sentencing options: You may consider this victim impact evidence in determining the appropriate punishment as warranted under the law and facts in the case.

Statutory Authority: 21 O.S. 2016, § 710.10(C).

Notes on Use

This instruction is for use in death penalty cases. It should not be given if affirmatively waived by the defendant and his attorney.
The Court of Criminal Appeals held in Cooper v. State, 1997 OK CR 22, ¶¶ 3-4, 894 P.2d 420, 422, that it was improper for the trial court to order a second stage for the sole purpose of presenting victim impact evidence to the jury before the jury recommended a sentence. 21 O.S. 2011, § 142A-8 authorizes victim impact statements to be presented "at the sentence proceeding". Separate sentencing proceedings should not be conducted before a jury, except in cases where the death penalty is sought and in bifurcated proceedings for enhanced sentencing after former conviction of a felony. The Court of Criminal Appeals has not ruled on whether victim impact statements are admissible in a bifurcated proceeding for enhanced sentencing after former conviction of a felony. Accordingly, the Committee has not prepared a jury instruction for such cases.

Committee Comments

This instruction is taken from Cargle v. State, 1995 OK CR 77, ¶ 77, 909 P.2d 806, 828-29. Cargle has been modified by the Tenth Circuit Court of Appeals in Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003). The United States Supreme Court decided in Bosse v. Oklahoma, 137 S.Ct. 1 (2016), that it was improper for relatives of a victim in a murder case to recommend a death sentence to a jury.

(2017 Supp.)