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WPIC 4.26 Jury Unanimity—Several Distinct Criminal Acts—Election to Specify a Particular Act

11 WAPRAC WPIC 4.26Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 4.26 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part I. General Instructions

WPIC CHAPTER 4.20. Elements of the Crime—Format

WPIC 4.26 Jury Unanimity—Several Distinct Criminal Acts—Election to Specify a Particular Act

In alleging that the defendant committed (name of crime), the [State] [County] [City] relies upon evidence regarding a single act constituting [each count of] the alleged crime. To convict the defendant [on any count], you must unanimously agree that this specific act was proved.

NOTE ON USE

This instruction may be used for a case in which the jury heard evidence of multiple acts but the prosecutor has elected to specify one act as constituting the criminal conduct. If no such election has occurred, then use WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction) instead of this instruction.

Use the bracketed phrases if the instruction applies to more than one count in the case. If the crime requires proof of a series of acts, then revise the instruction accordingly.

COMMENT

Background. If there is evidence of multiple distinct occurrences of the crime, the prosecutor may elect to rely upon a specific occurrence to support a conviction, thereby avoiding the Petrich issues that are discussed in the Comment to WPIC 4.25 (Jury Unanimity—Several Distinct Acts—Petrich Instruction). In order to avoid confusing jurors who have heard evidence of multiple acts, it may be advisable to instruct jurors that they must reach a unanimous verdict with respect to the specific occurrence relied upon.

Caution needed when more specifically identifying the elected act. If the instruction needs to more specifically identify the particular occurrence, then care should be taken to make sure that the instruction does not constitute a comment on the evidence. In particular, the instruction should be drafted so as to avoid compounding in a single element complicated factual allegations in a manner that suggests to jurors that some of the allegations are, in fact, true. For example, in State v. Eaker, 113 Wn.App. 111, 117–20, 53 P.3d 37 (2002), the jury heard evidence of several distinct acts of rape committed in different locations during the years 1988 through 1991. The prosecutor elected to rely on one incident that allegedly occurred in the house on Isaacs Street between January 1, 1990, and December 31, 1991. The trial judge used the following language (taken from the to-convict instruction) in instructing the jury as to the single incident they could consider:

That on or between the 1st day of January, 1990 and the 31st day of December, 1991, the defendant had sexual intercourse with [M.F.] while [M.F.'s] parents were on vacation on the day that Judy Russel was babysitting [M.F.] and took him to his house at 1325 Isaacs Street, Walla Walla[.]

The Court of Appeals concluded that this instruction, although intended to merely specify the particular occurrence at issue, impermissibly commented on the evidence because:

[T]he instruction assumes as an undisputed fact that on a day sometime between January 1, 1990 and December 31, 1991, Judy Russell served as a babysitter for M.F. and took him to his house on Isaacs. Even if we assume that Ms. Russell did babysit for M.F., and that she returned him to the house on Isaacs, this event may or may not have occurred between January 1, 1990 and December 31, 1991.

State v. Eaker, 113 Wn.App. at 118.

[Current as of May 2019.]

End of Document