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Justices discuss jury unanimity in molestation cases

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The Indiana Supreme Court addressed the issue of unanimous jury verdicts in child molesting cases Thursday, and adopted reasoning from the California Supreme Court when dealing with the “either/or” rule in cases where multiple instances are mentioned but the defendant faces only one charge.

Elmer Baker was convicted of three counts of child molesting with two of his victims being relatives and one the friend of a victim. He challenged his convictions on several grounds, but the only issue the Supreme Court took up in Elmer D. Baker v. State of Indiana, No. 17S04-1009-CR-500, was Baker’s challenge that his convictions aren’t sustained by evidence of jury unanimity. The justices summarily affirmed the Indiana Court of Appeals opinion in all other respects.

The victims testified at trial of multiple acts, but Baker was only convicted of two counts of Class A felony child molesting and one count of Class C felony child molesting.

The justices delved into issues surrounding unanimous verdicts and child molesting cases, noting in general, the precise time and date of the commission of a child molestation offense isn’t regarded as a material element of the crime. Writing for the court, Justice Robert Rucker pointed out that depending on the facts, applying the rule of jury unanimity can present challenges in charges of child molestation.

The justices then went on to give a few scenarios in which this issue arises, including when a young child is abused so frequently that they lose any reference of time and give generic testimony, such as the molestation occurred every time the parent went to the store. Several jurisdictions have enacted criminal statutes that don’t require evidence of particular incidents for prosecution, yet Indiana has not. The justices encouraged the General Assembly to consider adopting a statute criminalizing an ongoing pattern of sexual abuse when the victim is unable to reconstruct the specific circumstances of any one incident.

Jury unanimity is also at issue when, as in the case of Baker, evidence is presented of a greater number of separate criminal offenses than the defendant is charged with. The “either/or” rule is the procedure most commonly followed to balance the need to prosecute these types of cases.

“That is to say, the defendant is entitled either to an election by the State of the single act upon which it is relying for a conviction or to a specific unanimity instruction,” wrote Justice Rucker.

The Indiana justices decided to adopt the California Supreme Court’s adoption of the either/or rule, and held that the state may in its discretion designate a specific act or acts on which it relies to prove a particular charge. If the state decides not to so designate, then the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.

The state didn’t do so in Baker’s case, but it wasn’t compelled to do so. In addition, Baker never objected to the trial court’s instruction nor offered an instruction of his own, so the issue is waived, the justices ruled. They held Baker didn’t demonstrate that the instruction error was so prejudicial that he was denied a fair trial.
 

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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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