This Post is Really Not About EED

Revision as of 13:43, August 31, 2026

I wrote the following blog post not that long ago: https://libraryofdefense.ocdla.org/Blog:Main/Even_ignoring_the_constitutional_argument,_a_jury_must_unanimously_reject_an_EED_defense

Since then, I've seen a number of legal memos on that topic. They've been written in the hope of convincing the trial judge that a jury must in fact be unanimous in its rejection of EED. In other words, if 11 jurors reject EED, but 1 does not, it's a hung jury, not a murder conviction.

The memos I've read are thorough and reflect a deep understanding of the complex legal issues. If I were a law school professor, I would give each of them an A.

They also suck.

Part of the reason they suck is that they go on for pages and pages. I think instead you need four sentences total. Two for the constitutional argument, two for the statutory argument. First, the constitutional argument.

"The COA rejected the constitutional argument that unanimity is required to reject the EED defense in State v. Wayman. The OSC now has the issue under advisement, so we will know in a year if the argument the COA rejected -- and we are adopting -- is the right one."

Now the statutory argument.

"In Richards v Brown, the COA held that the 2019 version of ORS 136.450 required that 10 out of 12 jurors reject the EED argument. In 2021, that statute was amended to require 12 out of 12 jurors."

Literally, that's all you need. If you want to go a little further, you could explain:

ORS 136.450(2019) said this: "136.450 Number of jurors required for verdict. The verdict of a trial jury in a criminal action shall be by concurrence of at least 10 of 12 jurors."

ORS 136.450(2021) says this: "136.450 Number of jurors required for verdict. (1) A jury in a criminal action may render a verdict of guilty only by unanimous agreement. (2) A jury in a criminal action may render a verdict of not guilty only by a concurrence of at least 10 of 12 jurors."

The new version split the old version into two parts. Guilty has to be unanimous and not guilty by 10-2. Before 10-2 was enough either way.

The question then becomes, when the court in Richards v Brown made its ruling under the old version, did they base their holding on the fact that a guilty verdict only had to be 10-2 or on the fact that a not-guilty verdict had to be 10-2? Because obviously, if they based their holding on the fact that the statute said the not-guilty verdict had to be 10-2, then the state wins the argument that 10-2 is enough to reject. If they based their ruling on the fact that the guilty verdict had to be 10-2, and it now has to be unanimous, then you win.

To find the answer, we have to look at what the actual Richards opinion said. "Therefore, under ORS 136.450 (2019), just as ten jurors had to concur on the elements in order to render a guilty verdict for second-degree murder, ten jurors had to concur that petitioner had not proven her affirmative defense." [Bold added.]

Self-evidently, the Richards court based their decision on the fact that the statute in 2019 said 10 jurors had to agree on a guilty verdict. That portion of ORS 136.450 now says 12 jurors have to agree on a guilty verdict. The issue could not be more simple.

When you argue this, whether on paper or orally, if you are bringing up general verdicts and special verdicts, or what other jurisdictions have done in similar circumstances, then you don't understand what is persuasive to a judge who is juggling a million things and will be reflexively against disturbing the status quo.