Thoughts on Jury Concurrence and a Work-in-Progress Jury Instruction
Today's COA opinion on jury concurrence in an attempted burglary case does a good job in explaining an issue that might be unfamiliar to even experienced trial attorneys.
We should probably be asking for similar instructions when the state alleges every alternative basis for a crime. Take Encouraging Child Sexual Abuse in the First Degree. I've seen indictments where the prosecutor alleges every single alternative theory from the statute: develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance or sells a visual recording of sexually explicit conduct involving a child or knowingly possesses, accesses or views such a visual recording with the intent to develop, duplicate, publish, print, disseminate, exchange, display or sell it.
Well, which is it? The jury needs to concur.
But even before you submit the case to the jury, you need to do a little weeding at the MJOA stage. Maybe there's enough evidence of "duplicating," for example, to survive MJOA. You should still move for a judgment of acquittal on "develops" and "prints" and "disseminates." Get it all out of there. Why submit allegations to a jury that nobody thinks your client did but just happened to be in the DA's boilerplate?
Then, with whatever alternative theories are remaining, ask for a concurrence instruction.
Why does this matter? Well, it makes life a lot easier for your appellate attorney, and it might just get you an acquittal you weren't expecting.
How? Let's go back to the ECSA instruction. Assume that the evidence, for most of the counts anyway, is that the defendant "duplicated" the images by downloading them. But you move for a general MJOA that doesn't get too specific about every single alternative theory. The case goes up to the court of appeals but before the briefs are filed, a case comes down saying that "downloading" does NOT equal duplication. Great! The appellate attorney can maybe succeed on a plain error argument. Except that there's every other theory that survived MJOA, including possesses with intent to disseminate, because the trial attorney didn't go through each alternative theory. From the appellate point of view, it's going to be so much harder to make a plain error argument on every single alternative theory, when there are 15 alternative theories. If there are a few different issues for appeal, does the appellate attorney really want to spend twenty pages knocking off every single theory as plain error? It's an appellate nightmare, and it could have been avoided with a few minutes of pruning at the trial level.
Same goes for ID Theft, if the indictment alleges the defendant "obtains, possesses, transfers, creates, utters or converts." Move for an MJOA on each alternative theory, and whatever remains - if more than one - should be subject to a concurrence instruction.
Anyway, getting back to today's opinion, I was struck by this section:
In Boots, the Supreme Court held that the jury must agree on all of the material facts leading to a conviction. 308 Or at 380 (stating that the jury concurrence rule "'requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged'" (quoting United States v. Gipson, 553 F2d 453 (5th Cir 1977))); see also State v. Lotches, 331 Or 455, 468-70, 17 P3d 1045 (2000), cert den, 534 US 833 (2001) (same).
Okay, nothing out of the ordinary, but it reminded me of a post I did months ago about the complexity of properly instructing on certain crimes. Before we get to the tough examples, let's take an easy one. PCS. Two roommates in the home. Some witnesses say your client possessed the drugs found in the living room, some say he merely aided the roommate's possession, your client says he's not guilty at all.
First of all, when you submit instructions on any case in which there is some ambiguity whether your client is a principal or an accomplice, you need to submit a jury concurrence instruction, telling the jurors they must substantially concur whether he is a principal or accomplice before determining guilt. Y'all aren't doing that, and you really need to. (If nothing else, maybe you won't get the instruction, but properly preserved, you'd get a reversal.)
So, in the PCS hypo, you instruct the jurors that before they determine guilt or innocence of PCS, they need to agree substantially on what your client did. And if he's a principal, he must knowingly possess the drugs. If an accomplice, he must intend to facilitate his roommate's possession of the drugs.
Let's assume the jury agrees factually on what your client did. In this case, that means they must decide whether he possessed the drugs or facilitated their possession or neither. Ignoring innocence for a moment, if they decide he possessed the drugs, then they must decide if he did so knowingly. But if they find he merely facilitated their possession, they must determine if he did so intentionally.
In other words, in the simplest possible accomplice/principal case, involving the easy charge of possession, the instructions to the jury need to be a bit more complicated than merely saying, "10 or more of you must be in substantial agreement on what the defendant did before determining if he is guilty of the crime charged."
What about a more complicated charge, like assault III (aided by another person actually present)? If your client is merely an accomplice, he's only guilty of assault IV. But what comes first? Let's assume the jurors reach agreement on factually what your client did (again ignoring innocence as an option). Do they then decide if he's guilty of Assault III and only if they acquit, consider Assault IV? Or do they decide if he's a principle or an accomplice - pursuant to the concurrence instruction I urged above - and if it's the latter, skip assault III and go straight to figuring out if he intentionally facilitated the assault?
And if this is the right way to do it, then the "acquittal-first" instruction must be wrong, at least in this scenario.
Either way, it needs to be a more complicated instruction than - I suspect - the instruction that even the best attorneys are asking for right now.