FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 273
Go to Volume 13 Table of Contents  -  Go to Chapter 273 Table of Contents

273.10 Juror Unanimity: Specific Offenses

    273.10.9 Jury Unanimity: Homicide

    273.10.9.1 Jury Unanimity As To Act Constituting Homicide
    273.10.9.2 Jury Unanimity Among Different Theories Of Murder
    273.10.9.3 Felony Murder: All Elements Of The Predicate Felony Must Be Proven Beyond A Reasonable Doubt
    273.10.9.4 Felony Murder: Jury Unanimity Among Multiple Predicate Felonies

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 273

PRACTICE NOTE: The courts have held in a variety of contexts that juror unanimity is not required as to "theories" of legal liability. (See People v. Gonzales (CA 1995) 31 CA4th 1248, 1255 [37 CR2d 537]; People v. Brown (CA 1995) 35 CA4th 708, 714 [41 CR2d 321] [theories of malice]; People v. Sutherland (CA 1993) 17 CA4th 602, 618 [21 CR2d 752]; People v. Davis (CA 1992) 8 CA4th 28, 44 [10 CR2d 381]; People v. Milan (CA 1973) 9 C3d 185, 194 [107 CR 68] [theories of first degree murder].) Under this analysis unanimity is not required for multiple theories or acts upon which a "discrete criminal event" is predicated. However, a unanimity instruction is required where a single count is based on two or more "discrete criminal events." (People v. Hernandez (CA 1995) 34 CA4th 73, 80 [40 CR2d 223].)

    Accordingly, when the defendant is charged with a single offense and the prosecution presents evidence of several separate acts -- any one of which could support conviction -- then the jury must unanimously agree on the same act upon which the finding of guilt is based. (See People v. Alva (CA 1979) 90 CA3d 418, 424-426 [153 CR 644]; see also Richardson v. U.S. (1999) 526 US 813, 816 [119 SCt 1707; 143 LEd2d 985] [improper to impose punishment "on a defendant for the underlying crimes without any factfinder having found that the defendant committed those crimes"].) Otherwise, there is a danger that the defendant will be convicted of an offense where part of the jury might think one act has been proven and part might think another act proven. (People v. Creighton (CA 1976) 57 CA3d 314, 319 [129 CR 249]; People v. Gavin (CA 1971) 21 CA3d 408, 419 [98 CR 518].) Such a result violates the fundamental judicial principle that a defendant must not be found guilty unless the charged act has been proven beyond a reasonable doubt to the satisfaction of all twelve jurors. (People v. Diedrich (CA 1982) 31 C3d 263, 286 [182 CR 354]; People v. Madden (CA 1981) 116 CA3d 212, 215 [171 CR 897]; People v. Williams (CA 1901) 133 C 165, 168 [65 P 323]; People v. Castro (CA 1901) 133 C 11, 12 [65 P 13].) For example, in People v. Dellinger (CA 1984) 163 CA3d 284, 300 [209 CR 503], the prosecution presented multiple factual bases for a charge of murder. The court held that juror unanimity as to the actus reus was required:

    "Characteristically, a defendant could have been charged with several different counts but was charged only once. [Citation.] Here there was only one offense and one victim but there were several hypotheses as to which act or acts caused Jaclyn's death. As long as there are multiple acts presented to the jury which could constitute the charged offense, a defendant is entitled to an instruction on unanimity." (Dellinger, 163 CA3d at 301.)

    Because the failure to require juror unanimity has the effect of reversing or lightening the burden of proof," it constitutes an infringement of the defendant's constitutional rights to due process under the state and federal constitutions. (People v. Delletto (CA 1983) 147 CA3d 458, 472 [195 CR 233].)

    The constitutional implications of a criminal conviction based upon acts which are not found by a majority of the jurors are momentous.

    First, such a conviction violates the state and federal constitutional rights to trial by jury. (See FORECITE National™ 273.2.3 [Authority For Right To Jury Unanimity: Federal Constitutional Right To Trial By Jury].) The failure to instruct the jury upon unanimity in the appropriate case is clear error which "goes to the defendant's fundamental right to a jury trial and due process." (People v. Metheney (CA 1984) 154 CA3d 555, 563, fn 5 [201 CR 281].)

    Second, lack of unanimity as to the act which constitutes the crime violates 14th Amendment federal due process principles. Agreement as to "just what a defendant did [is] a step preliminary to determining whether the defendant is guilty of the crime charged." (Richardson v. U.S. (1999) 526 US 813, 819 [119 SCt 1707; 143 LEd2d 985] [the federal 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 501 US 624, 632-633 [111 SCt 2491; 115 LEd2d 555])]; United States v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819; U.S. v. Gipson (5th Cir. 1977) 553 F2d 453, 457-458.)

    Third, lack of jury consensus upon the act committed by the defendant lightens the prosecution's burden of proof and, thus, violates the defendant's constitutional right to due process. (See People v. Delletto (CA 1983) 147 CA3d 458, 472 [195 CR 233].)

    Fourth, arbitrary denial of the state constitutional right to juror unanimity would violate federal 14th Amendment due process. (Hicks v. Oklahoma (1980) 447 US 343, 346 [100 SCt 2227; 65 LEd2d 175]; see also FORECITE National™ 300.3.2 [Due Process Violation For Arbitrary Denial Of State Created Right].)

    Hence, if there are several acts presented to the jury in a murder case which could constitute the charged offense, and there is a basis for juror divergence as to which act was committed, the jury must unanimously agree upon a single act.

NOTE: Regarding termination of a felony see FORECITE National™ 92.9.3 [Felony Murder: Whether Killing Was Committed During The Underlying Felony].

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

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

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 273

PRACTICE NOTE: It has been held that juror unanimity is not required as to a particular theory of first degree murder. (See Schad v. Arizona (1991) 501 US 624, 630 [110 SCt 1227; 115 LEd2d 555]; see also People v. Guerra (CA 1985) 40 C3d 377, 386 [220 CR 374]; People v. Nicholas (CA 1980) 112 CA3d 249, 272-73 [169 CR 497] [affirming the defendant's conviction for murder in the first degree regardless of whether the jury was unanimous in finding the felony-murder rule applicable or finding that the killing was done in a willful and premeditated manner since the jury was unanimous in finding that the defendant's conduct constituted first-degree murder]; People v. Milan (CA 1973) 9 C3d 185, 194 [107 CR 68]; but see People v. O’Neill 803 P2d 164, 173 [special verdict forms should indicate which theories of first degree murder the prosecution has proved]; State v. Boots (OR 1989) 780 P2d 725, 727 [instruction that all jurors need not agree on manner in which aggravated murder was committed was reversible error].)

    Nevertheless, the Supreme Court's decision in Schad provides a basis for arguing that juror unanimity is required when felony murder and another alternate theory of first degree murder are presented to the jury. In Schad the court analyzed the issue as a question of whether or not felony murder and premeditation/deliberation in Arizona are "separate offenses" or simply different means of committing the same offense. The court observed that if a state's courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, "we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law. [Citation.]" (Schad, 501 US at 636 [115 LEd2d at 568].)

    In Arizona, as a matter of state law, premeditation and the commission of a felony are not independent elements of the crime but rather are means of satisfying a single mens rea element. Hence, because the state legislature's definition of the elements of the offense is "usually dispositive" and, because there is no due process violation in so defining the elements of first degree murder, Schad held that no constitutional requirement of juror unanimity was required. (501 US at 639.) The court did note, however, that increased verdict specificity would be desirable in such cases. (Schad, 501 US at 644.)

    A different analysis should be applied in jurisdictions where malice murder and felony murder are not the "same crimes." (See e.g. State v. Boots (OR 1989) 780 P2d 725, 727 [instruction that all jurors need not agree on manner in which aggravated murder was committed was reversible error].)

    In sum, the analysis in Schad, while not requiring unanimity in states such as Arizona where felony murder is not a distinct crime, should not require unanimity in jurisdictions where statutory construction differentiates felony murder and other categories of murder as distinct and separate offenses.

    See also FORECITE National™ 273.7.1 [Jury Unanimity: Multiple Theories (Alternative Means Of Commission)] for a detailed discussion of the "multiple theories" exception to the right to jury unanimity, including an extensive list of cases holding that verdicts must be unanimous as to the theories of culpability.

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

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

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 273

    See FORECITE National™ 92.9.2.3 [Felony Murder: All Elements Of The Predicate Felony Must Be Proven Beyond A Reasonable Doubt].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 273

RATIONALE: Because commission of the predicate or underlying felony is an element of a charge of felony murder, juror unanimity should be required as to the felony.

POINTS AND AUTHORITIES: In most jurisdictions proof of the underlying or predicate felony is an essential element of felony murder. (See FORECITE National™ 92.9.2.2 [Felony Murder: Instruction On Elements Of Underlying Felony]; see also FORECITE National™ 92.9.4.4 [Felony Murder: Duty To Instruct On Defenses To Uncharged Predicate Felony].) Therefore, to the extent that juror unanimity would apply if the felony were charged independently, unanimity should also be required when the felony is charged as a predicate to felony murder. (See generally FORECITE National™ 273.9 [Juror Unanimity As To Predicate Acts Of Compound Offenses].)

    As the U.S. Supreme Court explained in Richardson v. U.S. (1999) 526 US 813, 816 [119 SCt 1707; 143 LEd2d 985], lack of unanimity as to elemental uncharged predicate acts for which no prior conviction has been obtained "imposes punishment on a defendant for the underlying crimes without any factfinder having found that the defendant committed those crimes." (Richardson, 526 US at 822.)

    In other words, because unanimity would be required if the offenses were separately charged, that requirement cannot be constitutionally eliminated simply by charging those same offenses as a predicate to liability under another statute. Hence, it would violate the defendant's federal constitutional rights to trial by jury and due process (5th, 6th and 14th Amendments) to allow the jury to find the existence of an essential element of a criminal street gang offense or enhancement without juror agreement as to which prior crimes were committed. "[S]ubstantial agreement on a discrete set of actions is essential to ensure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct. [Citation.]" (U.S. v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819; see also Eric S. Miller, Compound/Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts (1995) 104 Yale L.J. 2277.)

    Hence, in State v. Harris (NJ 1995) 662 A2d 333, 351 in the context of death penalty eligibility, it was held that upon request the jury must be instructed that it is required to unanimously agree on which predicate crime or crimes defendant was engaged in committing when the death occurred. (See also State v. Grey (NJ 1996) 685 A2d 923, 929 fn 2; but see People v. Guffie (CO 1987) 749 P2d 976, 980 [no unanimity required as to multiple robbery victims].)

    In sum, if evidence is presented as to different felony predicates (e.g., robbery or burglary), multiple incidents involving the same offense or multiple discrete criminal acts the jury should be instructed that it must unanimously agree upon at least one offense or act as the predicate for felony murder.

PRACTICE NOTE: A special verdict may be used when multiple predicate felonies are involved: "If the jury is charged and instructed on the basis of alternative felonies, separate verdict forms should be given in order to determine which felony was committed." (OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-93, comments [Murder In The Second Degree By Felony Murder-In The Commission Of Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).)

    However, there may be strategic reasons for avoiding special verdict forms. (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].

    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 felony murder based on two different felonies. The first alleged felony is that the defendant _______. The second is that the defendant _______.

    The government does not have to prove both of these felonies for you to return a guilty verdict based on felony murder. Proof beyond a reasonable doubt on one or the other is enough. But in order to return a guilty verdict based on felony murder, 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 committed; or, all of you must agree that the government proved beyond a reasonable doubt that the defendant committed.

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

    The indictment charges a felony murder based on [two] [three, etc.] separate crimes or offenses. It is not necessary for the Government to prove [both] [all] of those felony offenses. It would be sufficient if the Government proves, beyond a reasonable doubt, one of those offenses; but, in that event, in order to return a verdict of guilty based on felony murder, you must unanimously agree upon which of the [two] [three, etc.] offenses was committed. If you cannot agree in that manner, you must find the defendant not guilty.

[Source: Adapted from 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.06F [Conspiracy: Multiple Offenses] (2000).]