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Due Process / Right to Unanimous Verdict – Jury Agreement on Underlying Acts

State v. William G. Johnson, 2001 WI 52, 243 Wis. 2d 365, 627 N.W.2d 455
For Johnson: Martha K. Askins, SPD, Madison Appellate

Issue: Whether § 948.025 (repeated sexual assault of a child) violates the rights to due process and unanimous verdict by not requiring unanimity that each predicate act occurred.

Holding: Unanimity is required on the elements of an offense, but generally not the alternate modes of commission unless required by considerations of due process. ¶¶12-13. The predicate acts of assault under § 948.025 are not themselves elements; therefore, under the statute, unanimity is not required regarding these individual assaults. ¶¶15-16. And, because the predicate acts “all involve the sexual abuse of children, crimes of the same or similar nature and level of culpability[,]” due process doesn’t compel unanimity under “an inquiry into the fundamental fairness and rationality of the legislative choice.” ¶¶18-19.

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