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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. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  2. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  3. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

  4. The is putting restrictions on vaping just because big tobacco companies are losing money. http://vapingisthefuture.com

  5. Oh, and I should add ... the stigma JLAP attaches lasts forever. As my documents show, I had good reason to reject the many conflicted diagnoses for not thinking like the state wanted me to. BUT when I resisted and raised constitutional and even ADA "regarded as" arguments I was then denied licensed in Indiana for LIFE. As in until death does us part. Evidence in comments here: http://www.theindianalawyer.com/scotus-denies-cert-to-kansas-attorney-seeking-to-practice-in-indiana/PARAMS/article/40522 Resistance is futile, comrades.

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