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273.6 When Is Jury Unanimity Instruction Required

    273.6.1 Jury Unanimity: Different Statutory Offenses Charged In Single Count
    273.6.2 Jury Unanimity: Multiple Incidents, Factual Scenarios Or Discrete Acts Which Could Sustain The Charge
    273.6.3 Jury Unanimity: Alternative Elements Asserted For Single Offense
    273.6.4 Jury Unanimity: Multiple Victims
    273.6.5 Jury Unanimity: Different Defenses
    273.6.6 Jury Unanimity: Importance Of Identifying Sources Of Juror Disagreement Or Consensus
    273.6.7 Wording Of Unanimity Instruction Must Be Carefully Drafted To Include All Elements Of The Charge

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PRACTICE NOTE: "Duplicity is the joining in a single count of two or more distinct and separate offenses." (U.S. v. Starks (3d Cir. 1975) 515 F2d 112, 116.)  The constitutional danger in duplicitous charging is that jurors may improperly aggregate the conclusions of two or more minority factions, where each faction premises its finding of guilt on a different offense. Thus apparent unanimity as to the defendant’s guilt under the count as a whole may mask the absence of unanimity as to any one offense. (U.S. v. Gibson (2d Cir. 1962) 310 F2d 79, 80; U.S. v. Starks, supra, 515 F2d 112, 116; U.S. v. Tanner (7th Cir. 1972) 471 F2d 128, 138.)

    If a count is duplicitous, a trial judge may make the government 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 US 130, 145 [105 SCt 1811; 85 LEd2d 99]; U.S. v. Hicks (5th Cir. 1976) 529 F2d 841, 843; see also McSorley "Federal Conspiracy Law" (2003) (American Bar Association) Chapter 4, § C.)

PRACTICE NOTE: Defense counsel may request the trial judge to instruct the jury that it must be unanimous as to which, if any, statute is violated (see U.S. v. Mangieri (DC Cir. 1982) 694 F2d 1270, 1281) or request that the prosecution elect. (See e.g., State v. Bland (WA 1993) 860 P2d 1046, 1049.)

See generally, NCJIC 305.10.4 [Jury Unanimity].

See generally NCJIC 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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PRACTICE NOTE: The general rule is that when there is evidence of more than one incident, factual scenario or discrete acts from which the jury could conclude the defendant was guilty of a particular offense, a special jury unanimity instruction must be given. (See State v. Solano (AZ 1996) 930 P2d 1315, 1323; State v. Counterman (AZ 1968) 448 P2d 96, 101; People v. Moore (CA 1989) 211 CA3d 1400, 1415 [260 CR 134]; People v. Diedrich (CA 1982) 31 C3d 263, 282 [182 CR 354]; State v. Handyside (WA 1985) 711 P2d 379, 381-382.) 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, 77 [40 CR2d 223]; see also U.S. v. Beros (3rd Cir. 1987) 833 F2d 455, 460.)

    When there exists a genuine possibility that either: (1) the jury will be confused because of the complexity of the case; or (2) a conviction will occur as a result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice. (Beros, at 833 F2d at 461.) "Conviction by a jury that was not unanimous as [to] the defendant’s specific illegal action is no more justifiable than is a conviction by a jury that is not unanimous on the specific count." (Id. at 462.) As U.S. Supreme Court Justice Scalia has pointed out, "We would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday[.]" (Schad v. Arizona (1991) 501 US 624, 651 [111 SCt 2491; 115 LEd2d 555] (Scalia, J., concurring in the judgment).)

    However, where there is no reasonable basis for the jury to distinguish between multiple acts, normally no unanimity instruction should be required. (See Moore, 211 CA3d at 1416; People v. Winkle (CA 1988) 206 CA3d 822, 828-29 [253 CR 726].)

    Failure to give a requested special unanimity instruction as to multiple acts on which a guilty verdict could be based may be reversible error. (See e.g., Hack v. United States (DC 1982) 445 A2d 634, 641; Davis v. United States (DC 1982) 448 A2d 242; Hawkins v. United States (DC 1981) 434 A2d 446, 449.)  Moreover, trial courts should employ the instruction without request in multiple acts cases, although failure to do so may not be reversible error absent showing of plain error. (See U.S. v. Mangieri (DC Cir. 1982) 694 F2d 1270, 1281.)

NOTE: As explained above, the crucial issue regarding jury unanimity is whether there is a basis for the jury to distinguish between the multiple acts. (See NCJIC 273.2 [Legal Authority For Requirement Of Juror Unanimity As To Which Act Constitutes The Charged Offense].) For example, the strength of the prosecution's evidence may vary between one act and the other and this should provide a basis for a unanimity instruction. (See e.g., People v. Madden (CA 1981) 116 CA3d 212, 214-20 [171 CR 897].) It is therefore important for counsel to identify differences in proof required, defenses and other dissimilarities between alternative factual bases for conviction.

See generally, NCJIC 305.10.4 [Jury Unanimity].

See generally NCJIC 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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PRACTICE NOTE: Trial courts must require election or give special unanimity instruction when prosecutors assert alternative incidents or factual bases for a single charge such as theft. (See e.g., State v. Bland (WA 1993) 860 P2d 1046, 1049-1050 [prosecutors elected and identified the acts underlying each count, and adequately communicated that election to jurors in charging documents, verdict forms and jury instructions]; People v. Jackson (CA 1996) 13 C4th 1164, 1223 [56 CR2d 49]; Jackson v. State (WI 1979) 284 NW2d 685, 689-90.)

See generally, NCJIC 305.10.4 [Jury Unanimity].

See generally NCJIC 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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PRACTICE NOTE: When the prosecution alleges multiple victims the need for juror unanimity may depend on whether each victim constitutes a separate offense or merely an alternative means of committing a single offense.

    For example, if an assault or sex offense is alleged to have been committed against more than one victim, the jury should be required to unanimously agree as to at least one of the victims. (See NCJIC 101.4.3.6 [Continuous Sexual Abuse Of A Child -- Juror Unanimity Required As To Single Victim When Charges Include Multiple Victims]; State v. Stephens (WA 1980) 607 P2d 304, 305-06 [one count of assault against two victims constituted two separate crimes and required unanimity instruction].)

    On the other hand, multiple theft victims may only constitute alternative means of committing theft rather than separate crimes. (See State v. Lee (WA 1995) 904 P2d 1143, 1146.)

See generally, NCJIC 305.10.4 [Jury Unanimity].

See generally NCJIC 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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PRACTICE NOTE: The "discrete criminal event" basis for juror unanimity (see e.g., People v. Davis (CA 1992) 8 CA4th 28, 45 [10 CR2d 381) should not be read to relieve the need to find unanimity as to closely connected acts which form part of one transaction when the defendant tenders different defenses as to each act or if there is otherwise a reasonable basis for the jury to distinguish between them. (See e.g., People v. Crandell (CA 1988) 46 C3d 833, 875 [251 CR 227]; People v. LaPort (CA 1987) 189 CA3d 281, 283-84 [234 CR 399].)

OPINION AVAILABLE: For additional briefing and an unpublished opinion concluding that unanimity is required as to the act upon which a charge of battery was predicated, click here.  [Opinion Bank # 0-177].

See generally, NCJIC 305.10.4 [Jury Unanimity].

See generally NCJIC 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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PRACTICE NOTE: A specific unanimity instruction is required where different jurors may have convicted a defendant based on the existence of different facts due to the complexity of the evidence, a discrepancy between the evidence and the indictment, or some other factor creating a real possibility of juror confusion. (U.S. v. Feldman (9th Cir.1988) 853 F2d 648, 653.) Otherwise, a general instruction on the requirement of unanimity will suffice. (U.S. v. Sanchez (9th Cir. 1990) 914 F2d 1355, 1360.)

    Therefore, defense counsel should emphasize potential sources of juror confusion which might result in, or which might increase the danger of, a non-unanimous verdict, when requesting election or a special unanimity instruction. This will both establish the full danger which exists of a flawed verdict, and will document overall juror confusion as a possible basis for reversal, independent of specific multiple-offense, multiple-fact or other technical unanimity issues.

    In this regard, it is important to offer different defenses, counter evidence, and/or arguments as to multiple factual scenarios relied upon by the prosecution in order to obtain a unanimity instruction. For example, if the primary defense is to attack the witness' credibility, there still may be alternate attacks such as good faith misidentification etc., which may apply with greater force to one of the factual scenarios as opposed to the other. Moreover, even if the defenses are not different, the strength of the prosecution's evidence may vary between one act and the other and this, too, should provide a basis for the unanimity instruction. (See e.g., People v. Madden (CA 1981) 116 CA3d 212, 214-20 [171 CR 897]; see also NCJIC 273.6.5 [Jury Unanimity: Different Defenses].)

See generally, NCJIC 305.10.4 [Jury Unanimity].

See generally NCJIC 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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PRACTICE NOTE: The wording of a special unanimity instruction should include all elements of the charge. Otherwise the unanimity instruction wording may actually encourage a non-unanimous verdict, rather than merely fail to safeguard against it. For example, in U.S. v. Fawley (7th Cir.1998) 137 F3d 458 the court gave an instruction in a perjury trial indicating that jurors must agree unanimously "that at least one of the answers given by the defendant as charged in the indictment was false."  (Id. at 464.)  This instruction was held reversible because it did not require that all of the jurors unanimously concur in the knowing falsity of at least one particular statement. (Id. at 471.) The instruction was also "misleading, and in the process, eviscerate[d] the defendant’s due process right to a unanimous jury." (Ibid.)

    For sample unanimity instructions see NCJIC 273.1.1 [Juror Unanimity: Sample Instructions].

See generally, NCJIC 305.10.4 [Jury Unanimity].

See generally NCJIC 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].