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A Methodology for Determining When Specific Juror Unanimity Is Required
By Thomas Lundy
Jury unanimity is a constitutionally based concept — a defendant is
entitled to a verdict in which all 12 jurors concur, beyond a reasonable
doubt, as to each count charged. “Duplicity,” another term used to
describe this doctrine, is the joining in a single count of two or more
distinct and separate offenses. For example, there is a duplicity issue
when a jury returns a general verdict of guilt without specifying
whether the defendant was convicted of the form of battery with which he
was charged rather than the form with which he was not charged.
When is an instruction on specific unanimity necessary? The simple
answer is that specific unanimity comes into play if the prosecutor
could have separately charged the defendant for alternative acts alleged
in support of a single count.1 However, it is not always
easy to determine if separate offenses could have been charged for
alternative acts. This article proposes a multi-step methodology for
making that det
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