The unanimity jury instruction in criminal cases.

In a criminal case, a jury’s verdict must be unanimous. MCR 6.410(B). “In order to protect a defendant’s right to a unanimous verdict, it is the duty of the trial court to properly instruct the jury regarding the unanimity requirement.” People v Cooks, 446 Mich 503, 511 (1994). Generally, a trial court may meet this requirement through a general instruction on unanimity, but where multiple acts are presented as evidence of the actus reus of a single offense, the court may be required to issue a specific unanimity instruction. Id. at 510- 512. The Court in Cooks concluded that: [A] specific unanimity instruction is not required in all cases in which more than one act is presented as evidence of the actus reus of a single criminal offense.

The critical inquiry is whether either party has presented any evidence that materially distinguishes any of the alleged multiple acts from the others. In other words, where materially identical evidence is presented with respect to each act, and there is no juror confusion, a general unanimity instruction will suffice. [Id. at 512-513 (emphasis in original).]  Defendant argues that a specific unanimity instruction should have been given based on People v Yarger, 193 Mich App 532; (1992), overruled in part Cooks, 446 Mich at 530. Yarger is factually distinguishable from this case. In Yarger, the defendant faced a single charge of third-degree criminal sexual conduct, but the complainant testified to two separate sexual encounters with the defendant that occurred about a month apart and were factually distinct. Id. at 533-534. This Court held that the trial court erred in failing to give a specific unanimity instruction, and that as a result, it was possible that the jury did not unanimously agree as to which alleged act of sexual penetration formed the basis of the conviction. Id. at 536-537.

Sample Instructions:

In this case it is alleged that __________________________.  If you all agree that __________________________ or ________________________, it is not necessary that you agree on which of these two occurrences took place.  However, in order to return a verdict of guilty you must all agree that one of the two alternatives did occur.

In this case it is alleged that the defendant has committed the offense of <insert name of offense> in two different ways, <identify the two way of committing the offense>. You may find the defendant guilty of the offense only if you all unanimously agree on which of the two ways the defendant committed the offense. This means you may not find the defendant guilty unless you all agree that the People have proved beyond a reasonable doubt that the defendant <insert first theory of culpability> or you all agree that the state has proved beyond a reasonable doubt that the defendant <insert second theory of culpability>.