Quickie Update on Jury Concurrence
by: Ryan • February 10, 2012 • no comments
In my recent Thoughts on Jury Concurrence and a Work-in-Progress Jury Instruction , I suggested that defense attorneys should be asking for jury concurrence instructions in a number of situations where defense attorneys aren't currently doing so. The post was prompted by a new COA opinion, but frankly, I hadn't reviewed recent case law on jury concurrence issues. Had I done even a superficial survey, I would have discovered that that a couple of the arguments I had strongly suggested had already been shot down by the COA.
This happened in cases like State v. Jesse Jerome Phillips and State v. Bruce Lynn Pipkin.
I found those cases - and recognized my negligence - somewhat indirectly. Yesterday, the Oregon Supreme Court published on-line a press release, and it indicated it took review of Phillips and Pipkin. A forthcoming press release will discuss the questions the OSC - at least initially - intends to answer, but both of those cases - as I indicated - have Boots issues that were decided unfavorably for the defense.
So it's very possible my advice will turn out to be quite valid and worthwhile, but this experience is nevertheless a useful reminder that my posts shouldn't be taken as gospel, especially if I'm prompted to write on a recent opinion and the topic is one that I haven't otherwise had reason to think about in depth.
Still, please request the special jury instructions I recommended even if you have a duty to let the court know that your request might be foreclosed by recent COA decisions. Nevertheless, you can tell the court that you are asking for the instructions regardless, because the COA opinions may not be the final word on the subject.
