Focus Instead on the Fact that It Only Takes 1-3 Jurors to Acquit
Okay, very misleading title. This has nothing to do with unanimity instructions, and I'll leave it up to you whether to object to the current 10-2 instruction.
And it doesn't take 1-3 jurors to acquit of the underlying criminal charge, so I'm being misleading there as well. But it does take as few as 1-3 jurors to acquit of the enhancement factors, and, I submit, it takes only 1-3 jurors to acquit of CDO factors, the gun minimum and those factors which elevate a burglary from a 7 to an 8 or 9.
More precisely, unlike criminal charges, an enhancement fact is either proven or not proven. There is no hung jury on an enhancement fact. And to constitute "proven," 10 or more of the same jurors who voted for guilt must also vote for the enhancement fact.
If less than 10 vote for "proven," then it's not proven. And if it's not proven, then it's, well, "not proven."
Here's the relevant statute:
136.785 Burden of proof; effect of finding.(1) When an enhancement fact is tried to a jury, any question relating to the enhancement fact shall be submitted to the jury.
(2) The state has the burden of proving an enhancement fact beyond a reasonable doubt.
(3) An enhancement fact that is tried to a jury is not proven unless:
(a) The number of jurors who find that the state has met its burden of proof with regard to the enhancement fact is equal to or greater than the number of jurors that was required to find the defendant guilty of the crime; and
(b) Of the jurors who find that the state has met its burden of proof, at least the minimum number of jurors required by this subsection to prove an enhancement fact are also jurors who found the defendant guilty of the crime or alternate jurors as provided by ORS 136.773 (5).
Okay, before you had a jury trial on an enhancement factor (or before you advised your client to waive jury), you read the statute above and you knew this. But did you also realize that there is an argument -- a strong argument -- that the same rule applies to the gun minimum? Or factors that elevate a burglary to a level 8 or 9? Or commercial drug offense factors?
That "strong argument" can be found How Many Jurors Are Needed To Acquit of the Gun Minimum or CDO Factors? .