The New Jersey Supreme Court continued in relevant part: Under this Court’s precedent, a specific unanimity instruction may be required when, for example: (1) a criminal offense “can be proven by different theories,” based on different acts, relying on different evidence; (2) the “facts are exceptionally complex”; (3) “the allegations in a single count are either contradictory or only marginally related to one another”; (4) “there is a variance between the indictment and the proof at trial”; or (5) there is strong evidence of jury confusion or “danger of a fragmented verdict.” On appeal, in the main, “the reviewing court should examine two factors: whether the acts alleged are conceptually similar or are ‘contradictory or only marginally related to each other,’ and whether there is a ‘tangible indication of jury confusion.'” State v. Gandhi (2010).
This case is not like prior cases in which we, or the United States Supreme Court, have held that a specific unanimity charge was required. In Richardson, the defendant was convicted of engaging in a “continuing criminal enterprise” contrary to 21 U.S.C. § 848(a), which required the jury to find a “series of violations of the federal drug laws.” 526 U.S. at 815-16. The judge charged the jurors that they “must unanimously agree that the defendant committed at least three federal narcotics offenses,” but did not “have to agree as to the particular three or more federal narcotics offenses committed by the defendant.” The Supreme Court reversed, holding that to convict the defendant of a “continuing criminal enterprise,” the jury was required to unanimously agree not only that defendant had committed at least three federal narcotics offenses, but which three federal narcotics offenses he committed. Here, the jury unanimously agreed that defendant committed the only offense in question — reckless manslaughter. The jury also unanimously agreed that defendant’s conduct was not justified by self-defense.
In Frisby, the Court reviewed a conviction for endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a). The statute required three elements. On the third element, the State advanced two contradictory theories at trial. The first was that the defendant was in the motel room with her son when he died and either inflicted the injuries herself or failed to supervise him, resulting in death. The second was that the defendant abandoned her son alone in the motel room for several hours, during which time he sustained injuries and died. The trial court instructed the jury that to convict, the State could prove “either” of the contradictory theories. The defendant asserted that “because the State proffered two entirely distinct factual scenarios . . . the jurors may have convicted her although some believed she was at the motel when the injuries were sustained while others believed she abandoned her son for a night on the town.” We agreed with the defendant. As we explained, the State advanced “different theories” on the third element, “based on different acts and entirely different evidence. In one scenario, the defendant was present and inflicted the injuries on her son or allowed him to be injured. In the other, she went out and left him alone.” Because the State’s two different theories were “‘contradictory,’ ‘conceptually distinct,’ and not even ‘marginally related’ to each other,” we held, a “specific unanimity instruction” was required.
The required instruction in Frisby would not be obvious to most judges who do not have significant criminal trial experience. A lack of criminal trial experience is common among most superior court judges in New Jersey.
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