Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors

84 Pages Posted: 13 Aug 2006

See all articles by Scott Howe

Scott Howe

Chapman University, The Dale E. Fowler School of Law


In recent decades, the potential for factual disagreement among convicting jurors has emerged as a prevalent constitutional claim. In United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), the U.S. Court of Appeals for the Fifth Circuit became the first federal court to reverse a conviction under the Constitution on this basis. Following Gipson, criminal defendants raised a variety of challenges alleging the potential for juror disagreement over the facts constituting the crime. Courts also sometimes reversed guilty verdicts based on these arguments, often citing Gipson. However, the Gipson decision remained controversial. Some courts simply rejected its holding. Others distinguished it on questionable grounds. Even among judges and commentators who agreed with the premise that the Constitution mandates some level of factual agreement among convicting jurors, many noted the difficulty of articulating principles to define the level of factual specificity at which convicting jurors must concur. Recognizing the lower courts' need for guidance, the Supreme Court addressed a factual divergence problem for the first time in Schad v. Arizona, 501 U.S. 624 (1991), but offered little illumination. The Court ultimately rejected Schad's claim. However, the Justices were sharply divided; a four-Justice plurality, with Justice Scalia concurring in the judgment, ruled against Schad, while four others were prepared to rule in his favor. Moreover, although all of the Justices conceded that factual nonconcurrence among criminal jurors could sometimes violate the Constitution, none of the opinions offered a clear vision of when and why trial courts should require factual agreement.

This article outlines a general approach for evaluating and remedying factual non-concurrence claims in criminal cases. The problem with patchwork guilty verdicts stems from the doubt that a factual disagreement may reflect about whether the defendant committed any prohibited act. However, not all factual disagreements are sufficiently material to cast doubt on the defendant's guilt. The article provides guidelines that can help determine when a factual disagreement is material. The article also explains how trial courts can remedy potential nonconcurrenc problems through verdict questions and special instructions.

Keywords: Gipson, Schad, factual concurrence, factual agreement, juror agreement, patchwork verdict

Suggested Citation

Howe, Scott, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors. Missouri Law Review, Vol. 58, No. 1, 1993, Available at SSRN: https://ssrn.com/abstract=923883

Scott Howe (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics