Reaching Agreement on When Jurors Must Agree

New Criminal Law Review, Vol. 10, No. 2, pp. 153-209, Spring 2007

U of Michigan Public Law Working Paper No. 84

58 Pages Posted: 20 May 2007

See all articles by Peter K. Westen

Peter K. Westen

University of Michigan Law School

Eric Ow

University of California, Berkeley


Most criminal statutes are drafted in such a manner that they can be violated in one or more alternative ways, such as statutes that make it an offense to "buy" or "sell" controlled substances. Moreover, even where statutes contain single elements, the prosecution may offer evidence of alternative ways in which a defendant allegedly violated those single elements, such as evidence that a defendant either used a screwdriver or used a crowbar to break and enter a dwelling. In all such cases, therefore, the constitutional question arises, "When, if ever, must jurors agree on which alternative means defendants used to commit alleged offenses?"

The U.S. Supreme Court has addressed this question twice, ruling for the prosecution in 1991 (Schad v. Arizona), and for the defense in 1999 (Richardson v. United States). In doing so, a total of twelve Justices produced a total of five opinions that agree on one thing but disagree about nearly everything else. The twelve Justices who participated in the two cases agreed that that the Constitution sometimes does and sometimes does not require that jurors concur on how offenses are committed. However, the Justices disagreed about when jurors are constitutionally required to concur, and where the requirement is located in the Constitution. With respect to when, Justices variously search for answers in the antiquity statutes; the form in which statutes are drafted; the motives of legislators who enacted the statutes; and the manner in which defendants are alleged to have committed offenses. With respect where, Justices variously look for answers in 6th and 14th Amendment rights to jury trial; 5th and 14th Amendment presumptions of innocence; and 5th and 14th Amendment due process limits on the power of states to define criminal offenses.

We argue that the Justices disagree for the same reason that their various proposals founder. They are looking for answers in the wrong places. Jurors are, indeed, sometimes required to concur on the means by which defendants commit alleged offenses - and sometimes not. The determining factor, however, is the shape of the prosecution's proof at the close of evidence, regardless of the statute under which the evidence arises.

In all cases in which defendants are alleged to have committed offenses by one or another, or all, of multiple means, judges must decide if there is sufficient evidence by which individual jurors can find beyond a reasonable doubt that, if the defendant did not commit alleged offenses by one of the alleged means, he must have committed them by another of the alleged means. If such evidence is lacking, judges must instruct jurors that they cannot convict without agreeing on which means the defendant used. If such evidence is present, jurors may convict if, as among the various alleged means, one particular means exists that each juror believes beyond a reasonable doubt is either the very means the defendant used or the means (or among the means) he must used if he did not use any of the other alleged means.

These requirements are, indeed, constitutional in nature, but not by virtue of originating in 6th and 14th Amendment rights to trial by jury. They are constitutional by virtue of the 5th and 14th Amendment requirement that no person shall be convicted of a criminal offense unless proven guilty beyond a reasonable doubt.

The Court can correct its course without overruling either Schad or Richardson. All the Court requires is a trial record that puts the matter into issue - that is, a prosecutor or defense attorney who is astute enough to realize that his client may benefit from such a jury instruction, and a lower court or opposing party that refuses to accept it.

Keywords: jury, unanimity

Suggested Citation

Westen, Peter K. and Ow, Eric, Reaching Agreement on When Jurors Must Agree. New Criminal Law Review, Vol. 10, No. 2, pp. 153-209, Spring 2007, U of Michigan Public Law Working Paper No. 84, Available at SSRN:

Peter K. Westen (Contact Author)

University of Michigan Law School ( email )

3178 South Hall
701 South State Street
Ann Arbor, MI 48109-3091
United States
505 577-2855 (Phone)
505 992-6885 (Fax)

Eric Ow

University of California, Berkeley ( email )

310 Barrows Hall
Berkeley, CA 94720
United States

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