FEATURED ARTICLE

Duplicity - Part I: The Constitutional And Common Law Roots Of The Rule Requiring Juror Unanimity As To Each Discrete Offense Shown By The Evidence

by Thomas Lundy

Because the question of specific juror unanimity/duplicity continues to surface on a regular basis, the "Jury Instruction Corner" will cover this issue in a three part series. This month’s article addresses the constitutional and common law roots of the jury unanimity doctrine. Part II will discuss the complex question of which evidentiary situations require juror unanimity as to specific acts, theories or offenses, and part III will provide specific cases and instructions to illustrate the situations in which the issue may arise.

In 2001 California appellate Justice Sims made the following "request" in a short-lived concurring opinion:

"I concur in the majority opinion.

I write separately to say that I am completely dumbfounded by the continuing failure of our trial courts to give the standard jury instruction requiring jury unanimity. (CALJIC No. 17.01.)

Each year, the California Center for Judicial Education and Research (CJER) publishes a valuable handbook: "Mandatory Criminal Jury Instructions Handbook." Each year, that handbook contains a section entitled "Selected Common Instructional Errors." (See, e.g. CJER Mandatory Criminal Jury Instructions Handbook (CJER 12th ed. 2003) Chapter 3.) Each year—year after year—the failure to give CALJIC No. 17.01 ranks near the top of the most common errors. (Id. at §3.8, p. 107.)

I do not understand what it is about CALJIC No. 17.01 that causes trial judges not to give it. It is not arcane. It is not long. It does not carry bacteria. Its language is fairly straightforward, and jurors appear to understand it.

To be sure, there are some cases in which CALJIC No. 17.01 need not be given. These are summarized in the CJER handbook at §3.10 and §3.11. But these cases represent relatively rare exceptions. In most criminal cases, evidence of more than one act constituting a charged offense is adduced, and the instruction should be given.

So here is my fervent and frustrated request to trial judges with respect to CALJIC No. 17.01: Give the instruction unless, after having thought about it, there is good reason not to, PLEASE!

Thank you. SIMS, J." [Footnote 1]

Five years later Justice Sims renewed his request in an opinion that remained published:

III. Advice To Trial Judges:

"As we have said, the failure to give a jury unanimity instruction (now CALCRIM No. 3500) is the most common kind of instructional error in criminal cases. There may be good reason not to give a unanimity instruction, for example, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed. (See People v. Russo, supra, 25 Cal.4th at pp. 1132–1133.)

A most helpful discussion of the requirements for giving a unanimity instruction is found in a publication of the Administrative Office of the Courts, Education Division, Center for Judicial Education and Research: CJER Mandatory Criminal Jury Instructions Handbook (CJER 2007) sections 3.6 through 3.13.

So we have this advice for trial judges: in a criminal case, put CALCRIM No. 3500 on your list of standard instructions to give, then ask yourself: "Is there some reason not to give this instruction in this case?"

(People v. Norman (CA 2007) 157 Cal.App 4th 460, 467.)

Justice Sims’s concerns have also been expressed by courts in other jurisdictions. For example, in U.S. v. Gipson (5th Cir. 1977) 553 F.2d 453, 457 the Fifth Circuit concluded that the notion of unanimity requires "jurors to be in substantial agreement as to just what a defendant did" before determining his or her guilt or innocence. "Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless the prerequisite of jury consensus as to the defendant’s course of action is also required." (Id. at 458 [footnote omitted]; see also U.S. v. Holley (5th Cir. 1991) 942 F.2d 916, 927; Liu v. State (DE 1993) 628 A.2d 1376, 1387.)

Similarly, in Oliver North’s first appeal the reviewing court emphasized the importance of a specific unanimity instruction by concluding that "in cases where there is a danger of a fragmented verdict the trial court must upon request offer a specific unanimity instruction." (United States v. North (D.C. Cir. 1990) 910 F.2d 843, 875, vacated in part and rev’d in part on rehearing, 920 F.2d 940 (D.C.Cir.1990); see also United States v. Ryan (3dCir. 1987) 828 F.2d 1010, 1020; United States v. Mangieri (D.C. Cir.1982) 694 F.2d 1270.)

Because the question of specific juror unanimity continues to surface on a regular basis in many jurisdictions the "Jury Instruction Corner" will discuss this issue in a three part series. This month’s article addresses the constitutional and common law roots of the jury unanimity doctrine. Part II will discuss the complex question of which evidentiary situations require juror unanimity as to specific acts, theories or offenses. Part III will provide specific cases and instructions to illustrate the many situations in which the issue may arise.

The principles discussed in this article are often described as relating to the question of "jury unanimity." However, another term used to describe this doctrine is "duplicity."

"Duplicity is the joining in a single count of two or more distinct and separate offenses." (U.S. v. Starks (3d Cir. 1975) 515 F.2d 112, 116.) Courts have long recognized that duplicity may abridge a criminal defendant’s due process rights. (See e.g., United States v. Ngai Man Lee (1st Cir. 2003) 317 F.3d 26, 36.)

To the extent that the doctrine of duplicity is limited to the charging document it is often addressed in the context of a motion to dismiss a duplicitous count in the charging document. (See e.g., U.S. v. Starks, supra, 515 F.2d 112; United States v. Root (3d Cir. Pa. Oct. 29, 2009), 2009 U.S. App. LEXIS 23845, 40-43 [Footnote 2]; United States v. Caruso (D.N.J. 1996) 948 F. Supp. 382, 388-389.)

However, even if the charging document is not duplicitious there may still be a danger of improper fragmentation or aggregation of the evidence presented at trial. For example, if the indictment charges five counts based on five discrete acts but the evidence includes six discrete acts then the resulting general verdict – i.e., a verdict returned without a specific unanimity instruction – may be improper. (See e.g., State v. Parks (Wash. Ct. App. May 23, 2006) UNPUBLISHED 2006 Wash. App. LEXIS 1046, 20-24; see also United States v. D’Amico (1st Cir. Mass. 2007) 496 F.3d 95, 100 ["While, as we have noted, one of the purposes of the prohibition against duplicitous indictments is to guard against conviction without a unanimous jury verdict, the fact that an indictment is not duplicitous on its face of course does not guarantee that a jury verdict will be unanimous, based on the evidence actually presented."].)

The gravamen of an improper duplicitous charge is that any general verdict which results from such a charge may not reveal what the jurors found and did not find. For example, Sanders v. State (Fla. Dist. Ct. App. 2d Dist. 2007) 959 So.2d 1232, 1232-1234 concluded that "[the] error [was] fundamental because the jury returned a general verdict of guilt without specifying the basis for the conviction, making it impossible to know whether [the defendant] was convicted of the form of battery with which he was charged rather than the form with which he was not charged." [Internal citations and quotation marks omitted]; see also Ritter v. State (Fla. Dist. Ct. App. 2d Dist. 2008) 989 So.2d 1277, 1281.) "If a guilty verdict is rendered on a count containing two or more separate offenses, there is the prospect of uncertainty as to whether the jury unanimously found guilt as to all offenses, at least one but less than all, or none..." (Cooksey v. State (Md. 2000) 359 Md. 1, 10-11.) This uncertainty has variously been described as raising the potential of a "patchwork" (State v. Frisby (N.J. 2002) 174 N.J. 583, 599), "fragmented" (U.S. v. North, supra, 910 F.2d at 875), "aggregated" (United States v. Root, supra, 2009 U.S. App. LEXIS 23845, 40; United States v. Conley (W.D. Pa. 1993) 826 F. Supp. 1536,1546) or "composite" (United States v. Duncan (6th Cir. Tenn. 1988) 850 F.2d 1104, 1110-1113) verdict. However, regardless of how the problem is described, the verdict’s "uncertainty raises a host of problems." (Cooksey v. State, supra, 359 Md. at 10.) Starks described these problems in terms of the "vices" of duplicity:

One vice of duplicity is that a general verdict for a defendant on that count does not reveal whether the jury found him not guilty of one crime or not guilty of both. Conceivably this could prejudice the defendant in protecting himself against double jeopardy. Another vice of duplicity is that a general verdict of guilty does not disclose whether the jury found the defendant guilty of one crime or of both. Conceivably, this could prejudice the defendant in sentencing and in obtaining appellate review. A third vice of duplicity is that it may prejudice the defendant with respect to evidentiary rulings during the trial, since evidence admissible on one offense might be inadmissible on the other. [Footnote omitted.] Joining conspiracy and substantive offenses in the same count present this vice in a particularly aggravated form, because of the admissibility of declarations made by coconspirators. Assuming such a joinder, and a general guilty verdict, there would ordinarily be no way of discerning whether the jury found the defendant guilty of the offense in proof of which such coconspirator’s admissions were properly admitted. Finally, there is no way of knowing with a general verdict on two separate offenses joined in a single count whether the jury was unanimous with respect to either.

(515 F.2d at 117.)

In sum, the juror unanimity doctrine is a broadly recognized safeguard in criminal cases:

"... [T]he unanimity requirement serves several salutary purposes. For one thing, it helps to ensure that no defendant will be convicted unless the government has carried its burden of proving guilt beyond a reasonable doubt. [Citation.] For another thing, it functions as a corollary of due process rules against duplicity." [Citations.] Finally, it serves to protect defendants against the vagueness and imprecision that haunt some criminal statutes. [Citations.]" (United States v. Ngai Man Lee, supra, 317 F.3d at 36; see also Richardson v. United States (1999) 526 U.S. 813, 820 [". . . this Court has indicated that the Constitution itself limits a State’s power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition." (citing Schad v. Arizona (1991) 501 U.S. 624, 632-633 (plurality opinion); 501 U.S. at 651 (Scalia, J., concurring) "We would not permit . . . an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday . . . "].)

"Jury unanimity is a constitutionally based concept, ‘the defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citation.]" (People v. Melhado (CA 1998) 60 Cal.App.4th 1529, 1534.) "[S]ubstantial agreement on a discrete set of actions is essential to insure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct." (U.S. v. Edmonds (3d Cir. 1996) 80 F.3d 810, 819; U.S. v. Echeverri (3rd Cir. 1988) 854 F.2d 638.) This rule actually stems from the long-standing notion of fairness and due process related to the requirement that the defendant be given notice as to the particular act upon which the charges will be proven. (See Hamling v. U.S. (1974) 418 U.S. 87, 117-18; U.S. v. Hess (1888) 124 U.S. 483, 487; People v. Jones (CA 1990) 51 Cal.3d 294, 311-12; People v. Williams (CA 1901) 133 Cal. 165, 169; State v. Parker (1991) 124 N.J. 628, 592 A.2d 228, 235, dis. opn. ["Because the rule requiring a unanimous verdict of guilt in criminal trials is ‘fundamental,’ doubt about the jury’s consensus strikes at the heart of a defendant’s right to a fair trial."].) Hence, it has been widely recognized that the erroneous omission of a unanimity instruction is a violation of federal due process principles. (See United States v. Ngai Man Lee, supra, 317 F.3d at 36; see also People v. Brown (CA 1996) 42 Cal.App.4th 1493, 1501-02; People v. Thompson (CA 1995) 36 Cal.App.4th 843, 853; People v. Deletto (CA 1983) 147 Cal.App.3d 458, 471-72.)

As explained in People v. Smith (CA 2005) 132 Cal.App.4th 1537, 1545:

"Federal due process requires that before one can be convicted of a crime the prosecution must convince a jury that the evidence establishes the defendant’s guilt of the crime beyond a reasonable doubt. (Citing In re Winship (1970) 397 U.S. 358.) If a jury ... is permitted to amalgamate evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt to all of the jurors required to agree on the verdict, the prosecution’s burden is lessened and defendant is denied due process. [Footnote omitted.]"

The United States Supreme Court has apparently agreed that the requirement of jury consensus as to a defendant’s course of action "is more accurately characterized as a due process right than as one under the Sixth Amendment." (Schad v. Arizona, supra, 501 U.S. at 635 (plurality opinion of Souter, J.); id. at 648-52 (Scalia, J., concurring); and id. at 652 (White, J., dissenting); United States v. Correa-Ventura (5th Cir. Tex. 1993) 6 F.3d 1070, 1076-1077; Liu v. State, supra, 628 A.2d at 1387, fn 4; see also Scott W. Howe, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Between Convicting Jurors, 58 Mo. L. Rev. 1, 8-9 n.36 (1993) [In Schad, the "Supreme Court unanimously agreed that the factual concurrence mandate stems, not from the Sixth Amendment, but from the residual protections of due process."])

Furthermore, the common-law underpinnings of the jury unanimity/duplicity doctrine provides a basis for finding that the rule is embraced within the due process provisions of the 14th Amendment. As recognized by the United States Supreme Court, courts should look to the common law to determine whether the defendant has a vested due process right in a particular defense. (See Montana v. Egelhoff (1996) 518 U.S. 37, 62-63 [plurality opinion]; see also Schad v. Arizona, supra, 501 U.S. 624.)

While the United States Supreme Court has held that there is no right to a unanimous verdict as to all twelve jurors (see Apodaca v. Oregon (1972) 406 U.S. 404), it has also declared that there do exist size and unanimity limits that cannot be transgressed if the essence of the jury trial right is to be maintained. Thus, Ballew v. Georgia (1978) 435 U.S. 223 held that a reduction in the size of a jury to below six persons in non-petty criminal cases raises such substantial doubts as to the fairness of the proceeding and the jury’s ability to represent the true sense of the community that it deprives the accused of his or her right to trial by jury. For the same reasons, the court concluded in Burch v. Louisiana (1979) 441 U.S. 130, 137-38 that conviction for a non-petty offense by only five members of a six-person jury presents a similar threat to the preservation of the substance of the jury trial guarantee and violates the 6th Amendment as applied to the states through the 14th Amendment. At least in cases where three or more acts were presented to the jury, Burch and Ballew suggest that the right to trial by jury would be violated by the failure to require juror agreement since the jurors could have been equally divided among the three acts and, hence, conviction could have been based upon agreement of only four jurors. (See e.g., State v. Handyside (WA 1985) 711 P.2d 379, 381-382 [special unanimity instruction required when trial evidence would support conviction based on any of three different acts].) Moreover, even when only two acts are involved, as few as six jurors may agree on a particular act and this may also be insufficient since the "line separating the permissible jury practice from the impermissible [is] not ... the brightest ..." (Brown v. Louisiana (1980) 447 U.S. 323, 331.)

Another doctrinal basis for the 6th Amendment right to jury unanimity is protection of the reasonable doubt standard. "The requirement that all twelve jurors be in agreement as to the defendant’s guilt is employed to give substance to the reasonable-doubt standard; if a verdict is less than unanimous the dissention tends to show that a reasonable doubt exists as to the criminal activity charged." (U.S. v. Correa-Ventura, supra, 6 F.3d at 1077.)

Finally, certain prosecution practices create an unacceptable risk of a non-unanimous verdict in contravention of 6th amendment standards. Joining of multiple offenses under a single count creates such a risk, (City of Seattle v. Norby (WA 1997) 945 P.2d 269, 278); State v. Kitchen (WA 1985) 756 P.2d 105, 109) as does trial evidence alleging multiple acts, any one of which could constitute the same charged offense. (Norby, at 278.)

Among the equally important but subordinate rights often identified as being protected by the prohibition against duplicitous pleading are the right of the accused to reasonable notice of the charges, guaranteed by the Sixth Amendment to the U.S. Constitution. (Cooksey 10; United States v. Tanner (7th Cir. 1972) 471 F.2d 128, 137; United States v. Kearney (D.N.Y. 1978) 451 F. Supp. 33, 38.)

As observed by United States v. Starks, supra, 515 F.2d at 116, "one vice of duplicity is that a general verdict . . . could prejudice the defendant in protecting himself against double jeopardy." (See also, United States v. Rigas, 2009 U.S. App. LEXIS 23307, 32-34 (3d Cir. Pa. 2009); United States v. Davis (7th Cir. Ind. 2006) 471 F.3d 783, 791.) The double jeopardy and jury unanimity concerns arise because a court cannot always be certain that a verdict rendered on a duplicitous count truly represents the unanimous agreement of the jury as to each offense charged in the count. (See Cooksey, supra, at 9.) Even if the jury is hung on a duplicitous count, the question lurks whether it may have acquitted on one or more of the combined offenses had they been separately charged, and, upon any retrial, the same double jeopardy prospect is presented. (Id. at 10; see also 4 WAYNE LAFAVE, JEROLD ISRAEL, NANCY KING, CRIMINAL PROCEDURE, Section19.3(c) (2d ed. 1999).)

Duplicity also may prejudice the defendant’s evidentiary, sentencing and appellate rights. Duplicitous counts may conceal the specific charges, prevent the jury from deciding guilt or innocence with respect to a particular offense, exploit the risk of prejudicial evidentiary rulings, id. at 116-17, or endanger fair sentencing. (United States v. Monte, 2007 U.S. Dist. LEXIS 42796, 21-22 (W.D. Pa. June 13, 2007); United States v. Haddy (3d Cir. N.J. 1998); 134 F.3d 542, 548 United States v. Shorter (D.C. Cir. 1987) 257 U.S. App. D.C. 358, 809 F.2d 54, 58 n.1.) Duplicity may prejudice the defendant with respect to evidentiary rulings during the trial, since evidence admissible on one offense might be inadmissible on the other. (United States v. Starks, supra, 515 F.2d at 116 .) Additionally, a general verdict of guilty does not disclose whether the jury found the defendant guilty of one crime or of both. This could prejudice the defendant in obtaining appellate review. (Ibid.)

In some states, the jury unanimity doctrine is founded upon both federal due process and a long-standing construction of the state constitutional right to a unanimous jury verdict. (See e.g., Alaska: Covington v. State (AK 1985) 703 P.2d 436, 440; California: People v. Mickle (CA 1991) 54 Cal.3d 140, 178; Florida: Saldana v. State (Fla. Dist. Ct. App. 2d Dist. 2008) 980 So.2d 1220, 1222; Hawaii: State v. Arceo (HI 1996) 928 P.2d 843, 869-870; Massachusetts: Commonwealth v. Conefrey (MA 1995) 650 N.E.2d 1268, 1270; Commonwealth v. Hebert (MA 1980) 400 N.E.2d 851, 853; Michigan: State v. Cooks (MI 1994) 521 N.W.2d 275, 278; Washington: State v. Camarillo (WA 1990) 794 P.2d 850, 852; State v. Norby (WA 1997) 945 P.2d 269, 278; Wisconsin: State v. Molitor (WI 1997) 565 N.W.2d 248, 250; State v. Seymour (WI 1994) 515 N.W.2d 874, 879.)

Common law traditions provide the ultimate roots of the right to trial by jury, including the principle of jury unanimity and specific applications of the jury unanimity standard. (See U.S. v. Edmonds, supra, 80 F.3d at 818-819, discussion of "Tradition in Criminal Jurisprudence.")

For example, Edmonds relied on the common law tradition of criminal jurisprudence to require that jurors be unanimously persuaded beyond reasonable doubt as to the occurrence and illegality of a discrete set of actions, in order to convict. (Edmonds, 80 F.3d at 819.) The Court observed: "In the face of this tradition, we cannot read from Congress’s silence that it intended CCE [Continuing Criminal Enterprise] predicate offenses to constitute mere means of violating a single CCE offense." (Id.; see also Richardson v. U.S. , supra, 526 U.S. at 815.) Thus common law provides authority for jury unanimity as to different acts asserted in support of a single charge.

State common law carries similar weight to that of federal common law, in state jurisprudence. For example historical California cases provide a basis for that state’s recognition of a due process right to a unanimous jury verdict. (See e.g., People v. Castro (CA 1901) 133 Cal. 11, 12; People v. Williams, supra, 133 Cal. at 169; People Jones (CA 1890) 51 Cal.3d 294, 311-12; see also Commonwealth v. Berry (MA 1995) 648 N.E.2d 732, 742, fn. 16.)

If a count is duplicitous, a trial judge may require the government to elect the particular offense with which it wishes to proceed, or may give a special instruction as to jury unanimity. (U.S. v. Miller (1985) 471 U.S. 130, 145; U.S. v. Hicks (5th Cir. 1976) 529 F.2d 841, 843; see also McSorley "Federal Conspiracy Law" (2003) (American Bar Association) Chapter 4, § C.)

If the judge fails to act defense counsel may request the trial judge to instruct the jury on specific unanimity. Such an instruction should require the jurors to be unanimously find at least one of the charged offenses/acts beyond a reasonable doubt. (See U.S. v. Ryan, supra, 828 F.2d at 1020; U.S. v. Mangieri, supra, 694 F.2d at 1281; U.S. v. Hicks, supra, 529 F.2d at 843.); State v. Bland (WA 1993) 860 P.2d 1046, 1049; State v. Parker (NJ 1991) 592 A.2d 228, 233

The foregoing discussion confirms Justice Sims’s concern that potential juror unanimity and/or duplicity issues should be closely scrutinized in every trial. However, as one court observed, "the unanimity requirement is more easily stated than applied." (United States v. Ngai Man Lee, supra, 317 F.3d at 36.) When it comes to applying juror unanimity principles in actual cases "the devil is in the details." (Ibid.)

The next two installments of the "Jury Instruction Corner" will discuss strategies for exorcizing the devil from those case specific details, part II will discuss the complex question of which evidentiary situations require juror unanimity as to specific acts, theories or offenses, and part III will provide specific cases and instructions to illustrate the many situations in which the issue may arise.

FOOTNOTES:

Footnote 1:  On January 9, 2002 this concurring opinion was later deleted from the official published version of the opinion. (People v. Sanchez (CA 2002) 94 Cal.App.4th 622 ["As modified January 9, 2002."].)

Footnote 2:  In April 2006, proposed Federal Rule of Appellate Procedure (FRAP) 32.1 was adopted by the U.S. Supreme Court. The rule, which went into effect on December 1, 2006, prohibits Federal Circuit Courts from disallowing citation to federal unpublished opinions issued on or after January 1, 2007.

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