Unanimity revisited

Shawn Minihan and Korey Kaul won in State v. Voyles, No. 92,030 (Kan. June 22, 2007), reversing Kingman County aggravated criminal sodomy and aggravated indecent solicitation conviction for failure to give a unanimity instruction. The KSC abandoned its somewhat convoluted test for reversal for such error set out in State v. Hill, its own 2001 case. Now, the Court asks three questions. First: is the case a multiple acts case (a legal question). Second: if it is a multiple acts case, the state must elect an act or the trial court must give a unanimity instruction. Failure to do so in a multiple acts case is error. Finally, the KSC indicated that it will use normal "clear error: analysis to determine whether error will require reversal where the instruction is not requested:

For the third step, the ultimate and specific test for harmlessness under the circumstances of this case is the "clearly erroneous" standard, not Hill's "harmless beyond a reasonable doubt with respect to all acts" or the other options previously discussed. We so conclude because "clearly erroneous" is the standard established by the Kansas Legislature, and followed by this court, for the specific situation when no jury instruction has been requested or given and no constitutional error has been alleged.

The KSC went on to apply this test and, because of discrepencies in testimony regarding the multiple acts, reversed:

We acknowledge that youthful victims reporting incidents, giving statements, and testifying cannot provide mathematical certainty about events. We also acknowledge, however, the substantial prejudice to a defendant when the equivalent of evidence of propensity to commit crime–more multiple acts than charges, without an election or instruction–is placed before a jury. Accordingly, instead of prosecutors relying upon appellate courts to essentially use the victims' youth-caused inconsistencies as a basis for finding the error harmless, we continue to conclude that the better solution is for the State to elect or for the trial court to instruct on unanimity in multiple acts cases–as we have clearly required since at least 2001. Because we are firmly convinced that under these facts there is a real possibility the jury would have returned a different verdict if the unanimity instruction had been given, we reverse and remand to the district court for a new trial.

This case provides a nice primer on the history of unanimity cases in Kansas. I really can't understand why district judges don't give a unanimity instruction in every case--it wouldn't hurt in a single act case and would absolutely prevent reversals of convictions. In any case, defense practitioners should be requesting a unanimity instruction in every case!

On June 25, 2007, the KSC ordered the parties to respond to whether Voyles was controlling on another unanimity case that was on PR. So it looks like this case will have some immediate impact.