Conn. Crim. Jury Instr. 2.11-6

<Instruct as to the type(s) of unanimity required in light of the charge(s) at issue and the form of

the information:>

Unanimity as to Elements

The state has alleged that the defendant has committed the offense of <insert name of offense> in

two different ways, <identify the two way of committing the offense>. You may find the

defendant guilty of the offense only if you all unanimously agree on which of the two ways the

defendant committed the offense. This means you may not find the defendant guilty unless you

all agree that the state has proved beyond a reasonable doubt that the defendant <insert first

theory of culpability> or you all agree that the state has proved beyond a reasonable doubt that

the defendant <insert second theory of culpability>. Thus, in order for you to find the defendant

guilty of <insert name of offense>, you must be unanimous as to which of the alternative ways

the defendant is alleged to have committed it.

Unanimity as to Instances of Conduct

The state has alleged that the defendant has committed the offense of <insert name of offense>

on more than one occasion, <identify the instances of the offense alleged>. You may find the

defendant guilty of the offense only if you all unanimously agree on which of the instances

alleged the defendant committed the offense. This means that you may not find the defendant

guilty unless you all agree that the state has proved beyond a reasonable doubt that the defendant

<insert first instance of offense alleged> or that the defendant <insert second instance of offense

alleged> or that the defendant . . . <list, in the disjunctive, each instance of the offense alleged>.

____________________________________________________

1 In State v. Joseph V., 345 Conn. 516 (2022), the Supreme Court held that it and the Appellate

Court had been applying the wrong test for unanimity as to elements claims to determine

whether “the statutory language at issue creates alternative means of committing a single element

[for which jury unanimity is not required] or, instead, creates separate elements, thereby

constituting separate crimes that must be charged in separate counts [or charged in a single count

but with a unanimity instruction given].” Id., 562-63. Accordingly, the analysis in cases

predating Joseph V. concerning such claims should no longer be utilized. See, e.g., State v.

Famiglietti, 219 Conn. 605, 619-20 (1991) (applying reasoning of United States v. Gipson, 553

F.2d 453, 458-59 (5

th Cir. 1977)). The correct test is that enunciated in Schad v. Arizona, 501

U.S. 624 (1991), and used by the federal courts, which applies when analyzing “both multiple

actus reus elements and multiple mens rea elements.” State v. Joseph V., supra, 345 Conn. 567.

It requires consideration of “the statutory language, relevant legal traditions and practices, the

overall structure of the statute at issue, its legislative history, moral and practical equivalence

between the alternative actus rea or mens rea, and any other implications for unfairness

associated with the absence of a specific unanimity instruction.” Id.

Because the viability of cases applying the overruled analysis is questionable; see, e.g., State v.

Anderson, 211 Conn. 18, 35 (1989) (“[t]he several ways in which sexual intercourse may be

committed under General Statutes § 53a-65 (2) are only one conceptual offense”); State v.

Griffin, 97 Conn. App. 169, 181-85 (instruction that sexual intercourse included vaginal

intercourse or cunnilingus did not sanction improper non-unanimous verdict), cert. denied, 280

Conn. 925 (2006)); courts are cautioned against relying upon their holdings without first

revisiting the question of whether unanimity is required by applying the test enunciated in Joseph

V., supra, 345 Conn. 567.

2 When a party requests a unanimity as to instances of conduct charge, the court must determine

whether the charged crime may be, and properly was, charged as a continuing course of conduct,

in which case jury unanimity as to which particular instance was proven is not required. If the

court determines instead that the charged crime alleges multiple instances of conduct, each of

which could independently establish a violation of the charged statute, a unanimity instruction is

required.

In State v. Douglas C., 345 Conn. 421 (2022), and State v. Joseph V., supra, 345 Conn. 516, the

Supreme Court held, as a matter of federal law, that a defendant has a right to jury unanimity

when he is charged in a single count with a single statutory violation, but there is evidence

presented at trial of multiple, separate instances of conduct, each of which could independently

establish a violation of the charged statute. In such circumstances, the count is duplicitous and

must be cured by a bill of particulars or a specific unanimity instruction, if the duplicity creates

the risk that the defendant will be convicted as a result of different jurors concluding that he

committed different criminal acts. State v. Douglas C., supra, 345 Conn. 425-26; State v. Joseph

V., supra, 345 Conn. 521.

The opinions articulated and applied a three-pronged test for unanimity as to instances of

conduct cases to determine, on appeal, whether a defendant was entitled to a specific unanimity

charge: “(1) Considering the allegations in the information and the evidence admitted at trial,

does a single count charge the defendant with violating a single statute in multiple, separate

instances? (2) If so, then does each instance of conduct establish a separate violation of the

statute? If the statute contemplates criminalizing a continuing course of conduct, then each

instance of conduct is not a separate violation of the statute but a single, continuing violation. To

determine whether the statute contemplates criminalizing a continuing course of conduct,

[established principles of statutory interpretation are employed]. Only if each instance of

conduct constitutes a separate violation of the statute is a count duplicitous. And (3) if

duplicitous, was the duplicity cured by a bill of particulars or a specific unanimity instruction? If

yes, then there is no unanimity issue. If not, then a duplicitous count violates a defendant’s right

to jury unanimity but reversal of the defendant’s conviction is required only if the defendant

establishes prejudice [namely, that the duplicity created the genuine possibility that the

conviction occurred as a result of different jurors concluding that the defendant committed

different acts].” State v. Douglas C., supra, 345 Conn. 448; State v. Joseph V., supra, 345 Conn.

531-32.

Regarding step two, “[i]f the underlying criminal statute contemplates criminalizing a continuing

course of conduct and the defendant has been charged with violating the statute by a continuing

course of conduct, a single count premised on multiple, separate instances of conduct is not

duplicitous when the multiple instances of conduct constitute a continuing course of conduct,

during a discrete period of time . . . . To determine if a statute criminalizes only a single act, a

continuing course of conduct, or both, courts must interpret the statute’s language in the manner

directed by [General Statutes] § 1-2z. . . . If a statute does criminalize a continuing course of

conduct, then the court must determine whether the multiple instances of conduct alleged in fact

constitute a continuing course of conduct by examining, among other things, whether the acts

occurred within a relatively short period of time, were committed by one defendant, involved a

single victim, and furthered a single, continuing objective.” State v. Douglas C., supra, 345

Conn. 442-45; State v. Joseph V., supra, 345 Conn. 553.

The Supreme Court ultimately concluded that a prosecutor has discretion to charge a defendant

with risk of injury in violation of General Statutes § 53-21 (a) (2) as a continuous course of

conduct and, if the prosecutor properly does so, the jury does not need to be unanimous as to a

particular instance of the offense. In contrast, sexual assault in the first degree in violation of

General Statutes § 53a-70 (a) (2) contemplates multiple instances of conduct being charged as

separate offenses, thereby requiring jury unanimity as to which particular instance of conduct has

been proven.