Jurors Must Unanimously Reject Any Defenses Before Convicting

by Thomas Lundy     

    An affirmative defense – which must be proven by the defense – negates guilt even if all elements of the charge have been proven beyond a reasonable doubt. (E.g., insanity; entrapment in jurisdictions placing burden on the defense.) Logically, therefore, the jurors should not be permitted to find the defendant guilty unless all jurors (or the required number of jurors in jurisdictions allowing non-unanimous conviction) have rejected the affirmative defense. (See U.S. v. Southwell (9th Cir. 2005) 432 F3d 1050.) This logic has been explained in the civil context as follows:

" . . . [A] defendant cannot be held liable until the jury unanimously rejects an affirmative defense." (Jazzabi v. Allstate Ins. Co. (9th Cir. 2002) 278 F3d 979, 982-83; see also Baxter Healthcare Corp. v. Spectramed, Inc. (Fed. Cir. 1995) 49 F3d 1575, 1579-80, 1583-84 [affirming a district court’s refusal to enter judgment for plaintiff on two special interrogatories setting forth affirmative defenses when the jury did not unanimously agree on answers to the interrogatories]. As explained in Jazzabi, "elements and affirmative defenses are co-equal components of the jury’s liability determination: Liability cannot be established until after the jurors unanimously agree that the elements are satisfied and they unanimously reject the affirmative defenses." (278 F3d at 984.)

The same logic applies with at least equal force to affirmative defenses in criminal cases. If a juror finds that the government has proven each element of the offense beyond a reasonable doubt, and also finds that the defendant has not proven insanity by clear and convincing evidence, he must find the defendant guilty. If another juror finds that the government has proven each element of the offense beyond a reasonable doubt, but also finds that the defendant has proven insanity by clear and convincing evidence, he must find the defendant not guilty by reason of insanity. [Footnote omitted.] Since a jury verdict must be unanimous, a jury united as to guilt but divided as to an affirmative defense (such as insanity) is necessarily a hung jury. (United States v. Southwell (9th Cir. 2005) 432 F3d 1050, 1054-1055.)

    For example, in State v. Miyashiro (Haw. Ct. App. 1999) 90 Haw. 489, 979 P2d 85, the Hawaii Intermediate Court of Appeals held that an affirmative defense must be unanimously rejected before a defendant can be found guilty:

If the jurors unanimously agreed that all the elements of the charged offense have been proved beyond a reasonable doubt but are unable to reach unanimous agreement as to the affirmative defense of entrapment, no unanimous verdict can be reached as to the charged offense because some jurors would vote for conviction and others for acquittal. In such instance, a mistrial would have to be declared due to the hung jury.

(Id. at 95; see also People v. McIntyre (1990) 222 CA3d 229 ["If the jury did not agree on entrapment, there was a hung jury."].) This rationale applies equally to the insanity defense: "The jury’s determination on an insanity defense is as demanding of unanimity as is the determination on the plea of not guilty. . . . If the jury could not agree upon defendant’s sanity then no verdict could be reached." (State v. Harris (R.I. 1959) 152 A2d 106, 109; see also State v. Uyesugi (Haw. 2002) 100 Haw. 442, 60 P3d 843, 857-60 [defendant’s statement "that before reaching a guilty as charged verdict, rejection of the mental defense must also be unanimous . . . sets forth a correct statement of the law"] (internal quotation marks omitted).)

    The United States Supreme Court has recognized the issue without resolving it. (Compare McKoy v. North Carolina (1990) 494 US 433, 450-51 [108 LEd2d 369; 110 SCt 1227, (Blackmun, J., concurring) ["The dissent’s analogy presumes that once the elements of an offense have been proved, the jury’s failure to agree as to an affirmative defense results in a conviction . . . but our cases do not say that, and it is not at all clear that a conviction, rather than a hung jury, would be the outcome." (citing State v. Harris (R.I. 1959) 89 R.I. 202, 152 A.2d 106, 109)]; with id. at 467 n.4 (Scalia, J., dissenting, joined by Rehnquist, C.J., and O’Connor, J.) ["If the jurors follow their instructions, it would appear that the jury that has considered but not unanimously found an affirmative defense must return a verdict of guilty."].)

    Accordingly, because most if not all state and federal decisions which have considered the issue require unanimous rejection of affirmative defenses, the above instruction should be given.

    In the case of defense theories which negate an element of the charge it could be reasoned that by finding all the elements of the charge the jurors necessarily rejected the defense. However, in the absence of clear and express instruction there is no assurance of juror understanding. (See e.g., People v. Brown (1984) 152 CA3d 674, 677-78 [Former CALJIC 2.91 and 2.20 ‘are not alone sufficient to render the failure to give requested instruction linking reasonable doubt to identification harmless error’]; People v. Adrian (1982) 135 CA3d 335, 342 [general burden of proof instruction insufficient to pinpoint specific defense theory]; see also People v. Danks (2004) 32 C4th 269, 307 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].)

    Moreover, the proposition that the jurors must unanimously reject a defense theory which negates an element is certainly a correct statement of the law. (See generally EC 501; People v. Tewksbury (1976) 15 C3d 953, 963; Rock v. Arkansas (1987) 483 US 44 [97 LEd2d 37; 107 SCt 2704]; Chambers v. Mississippi (1973) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; United States v. Sayetsitty (9th Cir. 1997) 107 F3d 1045, 1414.)

    In sum, because the instruction is necessary for the jurors’ understanding and is a correct statement of the law, it should be given. (See U.S. v. Southwell (9th Cir. 2005) 432 F3d 1050; see also generally Bollenbach v. U.S. (1946) 326 US 607, 612-613 [90 LEd 350; 66 SCt 402]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833.)

Alternative a [defense which negates element of the charge]:

The prosecution must prove beyond a reasonable doubt that the defendant did not _______________ <insert defense theory (e.g., act in self-defense)> as defined elsewhere in these instructions. Unless you all unanimously find that the prosecution has met its burden of disproving __________ <defense theory> you may not find the defendant guilty of _______________ <insert applicable charge(s)>.

Alternative b [affirmative defense]:

The defendant has raised the affirmative defense of _______________ <insert affirmative defense (e.g., necessity)> as defined elsewhere in these instructions. Unless you all unanimously find that the defendant failed to prove this defense by a preponderance of the evidence you may not find the defendant guilty of _______________ <insert applicable charge(s)>.

Alternative c [further clarification: defense which negates element]:

If one or more jurors have a reasonable doubt that the prosecution disproved _______________ <insert defense (e.g., self-defense)> then you may not find the defendant guilty.

Alternative d [further clarification: affirmative defense]:

If one or more jurors find that the defendant _______________ <insert affirmative defense (e.g., acted out of necessity)> then you may not find the defendant guilty.

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