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Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 18 - CHAPTER 309
Go to Volume 18 Table of Contents  -  Go to Chapter 309 Table of Contents

Macro 309.12    Deliberation And Verdict

    Macro 12.1   Juror Coercion By Judge
    Macro 12.2   Unanimity
    Macro 12.3   Multiplicity

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

VOLUME 18 - CHAPTER 309

    "Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation.]" (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.) This means that each individual juror must fully and fairly deliberate and follow their conscientiously held beliefs in voting on a verdict during deliberations. (Allen v. U.S. (1896) 164 US 492, 501 [17 SCt 154; 41 LEd 528]; People v. Gainer (CA 1977) 19 C3d 835, 842-47 [139 CR 861] [judge must not admonish minority jurors to reconsider their position in light of the majority]; Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 750-51 [judge reminded jurors not to surrender their sincerely held beliefs under pressure from the majority]; see also Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 981; In re Hitchings (CA 1993) 6 C4th 97 [24 CR2d 74] [bias of even a single juror requires reversal].)

    These rights are implicated by any procedures, instructions and/or absence of instructions which permit or encourage the jurors to vote for a verdict which is contrary to their conscientiously held beliefs. (See Smalls v. Batista (2nd Cir. 1999) 191 F3d 272, 279 ["lack of any cautionary language which would discourage jurors from surrendering their own conscientiously held beliefs was a 'fatal flaw'"]; U.S. v. Mason (9th Cir. 1981) 658 F2d 1263, 1267-68; U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337; Allen v. U.S. (1896) 164 US 492, 501 [17 SCt 154; 41 LEdd 528].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for FORECITE National™ Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See FORECITE National™ 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See FORECITE National™ 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.12.2    Unanimity

    "[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 (3rd Cir. 1996) 80 F3d 810, 819; see also Hamling v. U.S. (1974) 418 US 87, 117-18 [94 SCt 2887; 41 LEd2d 590]; U.S. v. Hess (1888) 124 US 483, 487 [8 SCt 571; 31 LEd2d 516]; U.S. v. Echeverri (3rd Cir. 1988) 854 F2d 638, 642.)

    Hence, jury unanimity is required by the due process clause of the federal constitution. (5th and 14th Amendments.) Unanimity may also be required by the jury trial clause of the federal constitution (6th and 14th Amendments) if evidence of more than two discrete acts has been presented. (See FORECITE National™ 273.2.3 [Authority For Right To Jury Unanimity: Federal Constitutional Right To Trial By Jury].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: Federalization Macro 6.3 [Arbitrary Denial Of State Created Right]; see also 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for the FORECITE National™ Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above.

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See FORECITE National™ 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case. (See e.g., FORECITE National™ Chapter 300 [Substantive Federal Constitutional Claims Relevant To Jury Instruction] for a compendium of potential constitutional claims which can be used as a starting point.)

    309.12.3    Multiplicity

    See FORECITE National™ 276.8.1 [Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)].