Alternative Theories of the Crime

80 Pages Posted: 7 Nov 2009 Last revised: 10 Nov 2009

Date Written: May 24, 2007


To convict a defendant, a jury must unanimously find "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." But some facts can be found less unanimously than others. Murder, for example, is illegal regardless of when it occurs, who the victim is, or how it is accomplished. But can jurors disagree on crucial facts - whether the defendant murdered X on Tuesday or Y on Wednesday, whether the victim was strangled or run over by a bulldozer - and still convict the defendant of murder tout court? Or must even trivial disputes, such as whether the murderer held the gun in his left hand or his right, always invalidate a "patchwork verdict" of guilt?

The Supreme Court's attempts to solve the problem in Schad and Richardson only convinced the Justices of the "impossibility of determining, as an a priori matter, whether a given combination of facts is consistent with there being only one offense." But it is a problem capable of solution, which this essay seeks to provide. The reason why courts and commentators have not yet produced a workable answer is that they have largely been asking the wrong question. What matters is not the scope of the criminal offense, as defined by the statute, but rather the nature of the factual beliefs held by the jurors and the evidence on which they relied. Like lesser-included-offense instructions, special unanimity instructions could be given when and only when the evidence merits them. Such a system would not only be theoretically coherent, but it would also be minimally disruptive to existing trial procedure.

Suggested Citation

Sachs, Stephen E., Alternative Theories of the Crime (May 24, 2007). Available at SSRN: or

Stephen E. Sachs (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States
617-495-5009 (Phone)

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