Debates about jury unanimity in criminal trials currently focus on whether the requirement should be applied to states through the Due Process Clause of the Fourteenth Amendment.1 Although the answer to this has been "no" ever since the Supreme Court decision in Apodaca v. Oregon, 2 academics continue to focus on the topic.3 Despite this attention on incorporation, a looming background question remains mostly untouched by academics 4-one that matters regardless of whether the requirement for juries is unanimity or a supermajority. This is the question of what exactly jurors have to agree about. To be more precise: What is the level of specificity that must be agreed on by jurors?
One way to approach questions about the level of specificity required for jury agreement5 is by examining current state laws and their various jury agreement doctrines.6 Continuous course of conduct offenses in particular can be helpful in examining these types of questions. Continuous course of conduct offenses can allow defendants to be found guilty without jury agreement on particular events, acts, or dates, as long as other requirements are met.7 This Note will focus on one particular type of continuous course of conduct offenses-"continuous sexual abuse of a child" (CSA) statutes-that has become popular in the last two decades.
CSA statutes are meant to battle a difficulty in convicting child molesters: many of these cases revolve around alleged repeated sexual abuse with only generic evidence available since the child in question has difficulty providing event-specific evidence.8 I use the term "generic evidence" to refer to evidence regarding abuse in general that is not specific to any one particular event in time. There is a tension present between trying to enforce offenses like this and traditional notions imbedded in our criminal law system.9 CSA statutes have been written by states to increase prosecutors' ability to convict child molesters,10 yet to do this CSA statutes actually focus on proxies for this sort of continuous abuse, rather than having to prove the individual bad acts themselves.11 Thus, CSA statutes allow a defendant to be convicted without jury agreement on particular specific acts committed, as long as the requisite number of acts can be agreed on, along with other requirements depending on the state.12
The two states that will receive the most focus in this Note are California and Texas. In California, the CSA statute states:
(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense . . . is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
(b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.13
Texas's CSA statute states:
A person commits an offense if: . . . during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims . . . .
. . . .
. . . [M]embers of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.14
Current Supreme Court doctrine allows wide latitude for how states wish to construct their criminal offenses and define what level of specificity must be agreed upon by jurors. …