Typically courts do not require juror unanimity as to alternative means of violating a single statute. For example, in Kansas “[t]here must be jury unanimity as to guilt for the single crime charged, but not as to the particular means by which the crime was committed." See State v. Stevens, 285 Kan. 307, 314, 172 P.3d 570 (2007).
However, courts are not in agreement as to the effect of a general verdict when one of the alternative means is not supported by substantial evidence. For example, one Kansas decision, State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994) concluded that a general verdict as to alternative means requires the reviewing court to “determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]'" Timley, 255 Kan. at 289.
However, other Kansas cases adopted the view taken by the United States Supreme Court in Griffin v. United States, 502 U.S. 46, 59-60, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991):
“Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law--whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence [citation omitted]. . . .”
“[I]f the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury's consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction.” [Citations and quotation marks omitted.] State v. Grissom, 251 Kan. 851, 892, 840 P.2d 1142 (1992); see also State v. Dixon, 279 Kan. 563, 604-06, 112 P.3d 883 (2005).
State v. Wright, 224 P.3d 1159, 1163-1167 (Kan., No. 97,013, 2010) resolved the conflict in favor of the Timley approach. “The Timley super-sufficiency condition evolved for a good reason. It evolved because we recognized that we were allowing uncertainty as to how the State persuaded each juror. We were comfortable with this uncertainty--at that particular level of generality in the jury's factfinding--only because we insisted on assurance that each juror's vote was supported by a means for which there was sufficient evidence. Without that assurance, we are back to where we were before Timley. We have no guarantee that the jury was unanimous at the level of factual generality that matters most of all: guilt v. innocence. [Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L. J. 275, 299.]
“We are now persuaded that the Timley alternative means rule is the only choice to ensure a criminal defendant's statutory entitlement to jury unanimity. Any contrary language in Dixon is specifically disapproved.” (224 P.2d at 1166-67.)
For subscription based briefing and sample instructions on this and related issues see:
Forecite National™
Chapter 273: Jury Unanimity As To The Act Or Offense Committed (Duplicity)
Forecite California™
F 4.71.5 - Juror Unanimity
F 17.01 - Juror Unanimity
F 3500.1 - Unanimity: Duty To Instruct
