Victim says Defendant penetrated his rectum with Defendant's penis. However, victim was turned and facing the other direction and is not 100% certain.

Defendant gives a typical Defendant confession that yes, at some point he had penetrated the child's anus but it was with his finger and by accident when he was "wiping" the 10 year old boy's rectum and his hand slipped and his finger went in victim's rectum. Yeah, sure.

The grand jury indicted that the penetration occurred by a manner and means unkown to the Grand Jury. (It is either one or the other)

At trial the evidence will show two potential means of penetration. Do we have to call the foreman of the GJ for him to show that the GJ made diligent inquiry into the manner and means?

I know the general rule is that when an indictment alleges that the manner or means utilized to inflict an injury is unknown and the evidence at trial does not show what type of object was used, a prima facie showing exists that the object was unknown to the grand jury, and thus you don't have to call the foreman.

But in this case we will actually be suggesting two different possible means. Arg.

Any ideas?

The indictment should allege the following manner and means: "by the defendant's penis, finger or a manner and means unknown."

You simply give the defendant notice of every variation raised by the evidence. As for proving it through the grand jury, that is old law, no longer applicable.

This issue was raised recently in another thread. For details and case cites, click here.

Thanks JB. I was hoping to avoid recalling the grand jury if possible, but I think the language you suggested is appropriate.

Then again, I may just amend the indictment alleging penetration by penis or finger. I will offer proof as to those two means.

Am I correct that the jury will not have to be unanimous as to how the penetration occurred? They will only have to be unanimous with regard to the fact that penetration did in fact occur.

that's correct, John. Doesn't have to be unanimous as long as you put it in the same count, like JB set forth or you just do separate paragraphs. Just don't put it in separate counts.