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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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  1. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  2. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  3. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  4. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

  5. No, Ron Drake is not running against incumbent Larry Bucshon. That’s totally wrong; and destructively misleading to say anything like that. All political candidates, including me in the 8th district, are facing voters, not incumbents. You should not firewall away any of voters’ options. We need them all now more than ever. Right? Y’all have for decades given the Ds and Rs free 24/7/365 coverage of taxpayer-supported promotion at the expense of all alternatives. That’s plenty of head-start, money-in-the-pocket advantage for parties and people that don’t need any more free immunities, powers, privileges and money denied all others. Now it’s time to play fair and let voters know that there are, in fact, options. Much, much better, and not-corrupt options. Liberty or Bust! Andy Horning Libertarian for IN08 USA House of Representatives Freedom, Indiana

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