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273.1 Jury Unanimity: Miscellaneous Issues And Instructions

    273.1.1 Jury Unanimity: Sample Instructions
    273.1.2 Motion For Unanimity Instruction And Special Findings
    273.1.3 Special Instructions Relating Jury Unanimity To Burden Of Proof Beyond A Reasonable Doubt
    273.1.4 Jury Unanimity: Harmless Error Analysis Where Jury Findings Were Functional Equivalent To Unanimity
    273.1.5 Jury Unanimity: Federal Model Instructions And Notes

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See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    In order to convict the defendant you must unanimously agree beyond a reasonable doubt upon at least one incident.

[Source: Commonwealth v. Conefrey (MA 1995) 650 NE2d 1268, 1270; see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.25 [Unanimity Of Theory] note (2001).]

    You have been instructed that your verdict, whether it is guilty or not guilty, must be unanimous. The following instruction applies to the unanimity requirement as to Count ___.

    Count ___ of the indictment accuses the defendant of committing the crime of _______ in [two] different ways. The first is that the defendant _______. The second is that the defendant _______.

    The government does not have to prove both of these for you to return a guilty verdict on this charge. Proof beyond a reasonable doubt on one or the other is enough. But in order to return a guilty verdict, all twelve of you must agree that the same one has been proved. All of you must agree that the government proved beyond a reasonable doubt that the defendant _______; or, all of you must agree that the government proved beyond a reasonable doubt that the defendant _______.

[5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.25 [Unanimity Of Theory] (2001).]

SAMPLE INSTRUCTION # 3:

    You may not find the defendant guilty of ________ (insert charged offense) unless all jurors have found beyond a reasonable doubt that the accused committed the same act.

[See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 517 [Jury Agreement: Evidence Of More Than One Act Introduced To Prove One Charge] ¶ 2 (University of Wisconsin Law School, 1999).]

    The indictment charges a conspiracy to commit [two] [three, etc.] separate crimes or offenses. It is not necessary for the Government to prove a conspiracy to commit [both] [all] of those offenses. It would be sufficient if the Government proves, beyond a reasonable doubt, a conspiracy to commit one of those offenses; but, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the [two] [three, etc.] offenses was the subject of the conspiracy. If you cannot agree in that manner, you must find the defendant not guilty. [In this case, you must decide which of the controlled substances, if any, [each] defendant conspired to [manufacture] [distribute] [possess with intent to distribute] and record your unanimous verdict on the form provided.]

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.06F [Conspiracy: Multiple Offense] (2000).]

    The prosecution has presented evidence of the following [acts] [incidents]: 1. _______ ; 2._______ ; 3. _______ ; 4. _______ .  You may not convict the defendant unless the prosecution has proved beyond a reasonable doubt that the defendant committed at least one of these [acts] with the required intent and/or mental state.  

[See CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.72 [Unanimity] (Bar Association of the District of Columbia, 4th ed. 1993); see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.01 [Verdict May Be Based On One Of A Number Of Unlawful Acts] (West, 6th Ed. 1996).]

    We, the jury, find defendant (name) __________________ (guilty/not guilty) of the of a firearm during and in relation to a crime of violence [as charged in Count _____ of the indictment] [under Instruction No. _____ ]. If you find defendant "guilty," you must answer the following:

    Which of the following firearms do you find were used by defendant?

    _____ A 9mm semi-automatic pistol.

    _____ An M-16 fully automatic rifle.

    _____ A short-barreled 12-gauge shotgun.

    (Check each firearm which the jury unanimously agrees defendant used.)

____________________________________
Foreperson

____________________
(Date)

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 11.03 [Sample Special Verdict Form (Interrogatories To Follow Finding Of Guilt)] (2000).]

    The indictment alleges that the Defendant received, possessed, concealed, stored, sold and disposed of a certain motor vehicle. The law specifies these several different ways in which the offense can be committed, and it is not necessary for the Government to prove that all of such acts were in fact committed. The Government must prove beyond a reasonable doubt that the Defendant either received, possessed, concealed, stored, sold or disposed of the motor vehicle; but, in order to return a verdict of guilt you must agree unanimously upon the way in which the offense was committed.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL OI 77 [Sale Or Receipt Of A Stolen Motor Vehicle 18 USC 2313] ¶ 2 (1997).]

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    Defendant __________ requests that the jury be instructed that it must unanimously agree as to __________ [insert theories and/or acts for which unanimity instruction is requested]. The failure of the jury to agree upon the act committed implicates federal constitutional rights to trial by jury (6th Amendment), constitutional due process (14th Amendment) and state constitutional jury trial rights (Cal. Const., Art. I, § 16 [or equivalent state provision (if any)] [or equivalent state authority (if any)].)

    Defendant further requests that the jury be given a "special findings" form requiring it to state which [act] [theory] it relied on to reach its verdict.

    Griffin v. United States (1991) 502 US 46, 51 [112 SCt 466; 116 LEd2d 371]) and People v. Guiton (CA 1993) 4 C4th 1116, 1128-29 [17 CR2d 365] [or equivalent state authority (if any)]) impose an appellate burden upon the defendant to show juror reliance upon an incorrect factual theory. On appeal, defendant may be required to show that __________ [briefly summarize relevant theories and/or facts]. Without a special verdict the defendant will have no realistic opportunity to meet this burden since the appellate record will likely be inadequate and post-verdict inquiry into the jurors' mental process is precluded by FRE 606(b) [or equivalent state provision (e.g., California Evidence Code § 1150)(if any)]. Therefore, fundamental fairness and due process as guaranteed by the state and federal constitutions (14th Amendment) necessitate the special findings. (See generally FORECITE National™ 300.1.14 [Due Process On Appeal: Applicability Of Federal Due Process To Appeal].)

    Special findings have been approved as supplemental to a general verdict "so long as they do not interfere with the jury's deliberative process." (People v. Webster (CA 1991) 54 C3d 411, 447 [285 CR 31]; see also People v. Farmer (CA 1989) 47 C3d 888, 920 [254 CR 508]; People v. Mickle (CA 1991) 54 C3d 140, 178 fn 21 [284 CR 511] [verdict forms should not allow jurors leeway in the wording of special findings]; People v. Boyajian (CA 1991) 228 CA3d 771, 774-75 [279 CR 359].) [or equivalent state authority (if any)] [See also FORECITE National™ 273.11 [Jury Unanimity: Use Of Special Verdict Forms].]

]

Dated: __________                                                             Respectfully submitted,

                                                                                            _____________________________

CAVEAT: Requesting a special finding may pose some risks, such as:

1.    If the court of appeal finds error in refusing, the unanimity instruction the special finding could cure that error by showing that the jury actually did unanimously agree.

2.    If the erroneous theory which is submitted to the jury is a legal rather than a factual theory, the special findings could aid the prosecution in meeting its burden of showing that the jury did not rely on the erroneous theory. (See e.g., People v. Webster (CA 1991) 54 C3d 411, 447 [285 CR 31].)

3.    Special verdicts may actually make it easier for the jury to convict. (See FORECITE National™ 287.1.2 [Coercive Impact Of Special Verdicts].)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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RATIONALE: Due to the vital importance of the prosecution's burden to prove guilt beyond a reasonable doubt, that burden should be specifically related to the unanimity instruction.

POINTS AND AUTHORITIES: In many jurisdictions juror unanimity is constitutionally required. (See FORECITE National™ 273.2 [Legal Authority For Requirement Of Juror Unanimity As To Which Act Constitutes The Charged Offense]; see also FORECITE National™ 273.4 [State Constitutions].) However, often the standard pattern instructions "make no attempt to specifically relate the unanimity requirement to the requirement of proof beyond a reasonable doubt."  (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.03 [Unanimity Verdict], commentary (1991).)

    Yet, the reasonable doubt standard plays a "vital" role in our criminal justice system. It is a "prime instrument" for reducing the risk of an erroneous conviction and it performs the "indispensible" function of "impress[ing]...the trier of fact [with] the necessity of reaching a subjective state of certitude [on] the facts in issue." (In re Winship (1970) 397 US 358, 363-64 [90 SCt 1068; 25 LEd2d 368].) "Given the importance of the reasonable doubt requirement...the jurors should be specifically instructed on this point." (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.03 [Unanimity Verdict] ¶3, commentary (1991).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 12.2].

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

    Your verdict, whether it is guilty or not guilty, must be unanimous.

    To find the defendant guilty, every one of you must agree that the [prosecution] has overcome the presumption of innocence with evidence that proves [the defendant's] guilt beyond a reasonable doubt.

    To find [defendant] not guilty, every one of you must agree that the government has failed to prove guilt beyond a reasonable doubt.

    Either way, guilty or not guilty, your verdict must be unanimous.

[Source: Adapted from 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.03 [Unanimity Verdict] (1991).]

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    273.1.4    Jury Unanimity: Harmless Error Analysis Where Jury Findings Were Functional Equivalent To Unanimity

PRACTICE NOTE: Appellate courts have affirmed convictions notwithstanding improper withholding of special unanimity instructions, where other jury findings were functionally equivalent to a unanimous conclusion as to predicate acts. (People v. Edmonds (3rd Cir. 1996) 80 F3d 810, 825-827 [failure to give special unanimity instruction rendered harmless error by verdict explicitly convicting defendant of all charged, predicate offenses]; accord, Ianniello v. U.S. (2nd Cir. 1993) 10 F3d 59, 64 [jury unanimity as to existence of required relatedness between predicate offenses supporting RICO charge was implicit in convictions all three predicate offenses, given the particular evidence before the jury].) Convictions have also been affirmed absent required unanimity instruction. if the overall guilty verdict was only logically compatible with unanimous agreement that the defendant committed the disputed predicate acts. (State v. Jones (CT 1984) 475 A2d 1087, 1091 [unanimous felony-murder conviction affirmed notwithstanding potential jury non-unanimity as to whether predicate felony was robbery or attempted robbery, since no juror could have believed that defendant committed the robbery without also believing that he committed attempted robbery]; People v. Rocha (CA 1996) 48 CA4th 1060, 1070-71 [56 CR2d 212 [court assumes that unanimity applies to act upon which arming enhancement is predicated but concludes that no instruction is required where one act was conceded making the other mere surplusage].)

NOTE: Jury’s failure to indicate unanimous agreement on special verdict form as to defendant’s commission of a particular predicate offense does not constitute implicit acquittal as to that offense.

    The Fourth Circuit has held that a jury’s failure to mark the space on a special verdict form indicating unanimous agreement that a RICO defendant committed a particular predicate offense did not constitute an implicit acquittal as to that predicate offense. (U.S. v. Ham (4th Cir. 1995) 58 F3d 78, 85.) The Court of Appeals noted, however, that acquittal may have been implied, had the a verdict established any fact inconsistent with conviction for the disputed predicate offense. (Ham, 58 F3d at 85-86.)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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    273.1.5    Jury Unanimity: Federal Model Instructions And Notes

See 1st Circuit Pattern Jury Instructions - Criminal 6.01.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.25.

See also 6th Circuit Pattern Jury Instructions - Criminal 8.03A.

See also 7th Circuit Federal Jury Instructions - Criminal 4.03.

See also 9th Circuit Model Jury Instructions - Criminal 7.9.