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Jury Instruction Corner
By Thomas Lundy
Duplicity— Part Four
Appellate Review of Specific Unanimity Claims
This is the fourth installment of Jury Instruction Corner on duplicity and juror unanimity. The first article discussed the constitutional and statutory underpinnings of the doctrine, the second suggested a methodology for determining when a specific unanimity instruction may be necessary, and the third discussed juror unanimity issues in the context of predicate or preliminary facts. This final article will discuss issues related to appellate review of specific unanimity claims.1
Cognizability and Standard of Review
If trial counsel objected and/or made instruction requests that preserved the specific unanimity claim, then there should be no cognizability problem on appeal and typically it will be considered under the abuse of discretion standard.2 However, even if the claim was not raised below, it may still be cognizable on appeal. Specific juror unanimity relates to the fairness of the trial and
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