CON: Amendment No. 4 would take away right to unanimous jury | The Honolulu Advertiser

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CON: Amendment No. 4 would take away right to unanimous jury | The Honolulu Advertiser | Hawaii's Newspaper

Posted on: Sunday, October 22, 2006

COMMENTARY
CON: Amendment No. 4 would take away right to unanimous jury

By Earle Partington

Hawai'i's voters should vote "no" on state constitutional amendment No. 4.

If passed, this amendment would remove the requirement of a unanimous jury in cases where a member of a household is charged with three or more acts of sexual abuse against a child of that household. Under existing law, a person charged with this crime cannot be convicted unless the jury unanimously agrees not only that there have been at least three acts of abuse, but also must unanimously agree as to the same three acts of abuse. If adopted, juries no longer will have to be unanimous as to the three specific acts as long as each juror believes that three acts of abuse occurred. A unanimous verdict will no longer be necessary.

Proponents would like you to believe certain misleading arguments:

Child molesters are getting away with their crimes because present law requires very small children to remember the exact day and time of the abuse — something which is impossible. Present law imposes no such requirement and never has. All that is required is that the jury is in agreement as to the instances — instances can be as vague as "when Auntie visited last spring." It is distressing that the proponents feel it necessary to brazenly lie to the public on this point in order to get support for this amendment.

Child molesters are not being prosecuted because of the present unanimity requirement. I have been a criminal defense attorney for more than 37 years. I am not aware of a single case here where a child molester could not be prosecuted under the existing statute because of this requirement. I recently challenged Attorney General Mark Bennett to identify a particular case where prosecution was impossible under existing law but would be possible under this amendment. Mr. Bennett could not identify such a case.

This amendment is necessary to protect children. This is nothing but a scare tactic by the proponents to get the public to ignore the threat to our liberties. In fact, this proposed amendment is completely unnecessary for the protection of children, because juries routinely convict people charged with these crimes under existing law even on very weak evidence. As a criminal defense attorney, I can tell you that these cases are the most difficult to defend.

Why, then, is this constitutional amendment being proposed? Sadly, it's election time. Politicians want the public to believe that they are doing something about crime. They have come up with this amendment to show how "tough" they are on crime. The requirement that a jury be unanimous in order to convict is at the very core of Anglo-American common law. It protects people from arbitrary government action and acts as the best guarantee that only the guilty will be convicted. If this constitutional amendment passes, it will set a very dangerous precedent. New crimes can be created whereby the prosecution can convict people involved in continuous activity even though a majority of the jury may believe that the person is innocent.

Do not be lulled into giving up the precious right to a unanimous jury.

Earle Partington is an attorney in Honolulu whose specialties include civil rights. Reach him at earle@partington-foley.com. He wrote this commentary for The Advertiser.

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