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273.5 Authority For Right To Jury Unanimity: Common Law (State And Federal)

    273.5.1 Jury Unanimity: Federal Common Law
    273.5.2 Jury Unanimity: State Common Law

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    273.5.1    Jury Unanimity: Federal Common Law

PRACTICE NOTE: Common law traditions provide the ultimate roots of the right to jury trial generally, including the principle of jury unanimity and specific applications of the jury unanimity standard. (See U.S. v. Edmonds (3d Cir. 1996) 80 F3d 810, 818-819, discussion of "Tradition in Criminal Jurisprudence.")

    For example, Edmonds relied on the common law tradition of criminal jurisprudence as requiring 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 F3d 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. (1999) 526 US 813, 815 [119 SCt 1707; 143 LEd 985].) Thus common law provides authority for jury unanimity as to different acts asserted in support of a single charge.

    The broad common law unanimity standard is significant because these common-law underpinnings are a basis for including the rule within due process provisions of the Fourteenth Amendment. (See discussion, FORECITE National™ 300.1.1 [Due Process Applicable To Deeply Rooted Common Law Right].)

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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PRACTICE NOTE: 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 C 11, 12 [65 P 13]; People v. Williams (CA 1901) 133 C 165, 169 [65 P 323]; People v. Jones (CA 1990) 51 C3d 294, 311-12 [270 CR 611]; Commonwealth v. Berry (MA 1995) 648 NE2d 732, 741.)

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

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