Criminal Law

Jury Verdicts in Criminal Trials: Unanimous, or Not?

By Janet Portman, Attorney
A unanimous jury verdict is one way to insure that a defendant isn’t convicted unless the prosecution has proved its case beyond a reasonable doubt.

Prosecutors who seek to convict a criminal defendant must convince jurors that they can conclude, beyond a reasonable doubt, that the defendant is guilty. One way to insure that this standard has been met is to require every member of the jury to reach this conclusion. Requiring unanimity in jury verdicts is the rule in federal courts (Rule 31(a), Federal Rules of Criminal Procedure), and in every state but Oregon and Louisiana, where less than unanimous votes can support a conviction (unanimity is required in Louisiana for death penalty cases, however).

The requirement for a unanimous verdict means more than having jurors decide that a crime was committed. They must substantially agree as to the principal factual elements underlying a specified offense, and they may disagree as to other, tangential pieces of evidence. For example, in a prosecution for theft, the prosecutor’s case might include evidence as to what the defendant intended to do with the stolen loot. The jury need not agree that these intentions were planned; it’s enough if they agree, among other things, that the defendant intended to permanently deprive the owner of the stolen item.

How Do Juries Demonstrate Their Unanimous Vote?

In order for a verdict to be unanimous, all jurors must have reached a final decision, one that is clear and unambiguous. The trial court judge is responsible for making sure that a verdict satisfies this requirement, and often does so by “polling” each juror in open court. Often the stuff of dramatic movie and television scenes, the judge asks each juror, “Is this is your verdict?” It’s not unheard of for a juror to say, “No,” at which point the judge will usually send the jury back for more deliberations.

Can Defendants Waive Their Right to Unanimity?

Defendants in federal court cannot waive, or give up, their right to a unanimous verdict. But a few states will allow a defendant to waive this right, just as the defendant can waive other Constitutional rights, such as the Fifth Amendment right not to be compelled to testify. The majority of states, however, do not allow a defendant to agree to a less than unanimous verdict.

Unanimity and the Problem of Complex and Compound Crimes

A defendant’s right to a unanimous jury verdict becomes quite complicated when the charged crime is known as a “complex-compound” crime. These crimes target large-scale criminal activity, requiring that a defendant have engaged in a pattern or series of specified, illegal acts. The acts that constitute the pattern, known as “predicate crimes,” are defined elsewhere in the criminal code. For example, when the government charges someone with racketeering under the Racketeering Influenced and Corrupt Organizations Act (the RICO Act, which targets organized crime of all varieties), the prosecutor will try to prove various instances of bribery, theft, and so on.

In the course of a compound-complex prosecution, the government will introduce evidence of many instances of illegal behavior. In theory, all of these acts add up to the pattern of illegality that makes up the compound crime, and typically, the charged crime requires that the jury find that the defendant committed, say, at least three of the underlying crimes. But, before a defendant can be convicted of a compound-complex crime, must a jury unanimously agree upon exactly which acts the defendant committed? Or is it sufficient if they each agree that the defendant committed the minimum number of these acts, without specifically agreeing on which ones?

For example, suppose the prosecutor introduces evidence of five predicate crimes, A, B, C, D, and E. The compound statute requires a pattern of at least three predicate crimes. Suppose all jurors agree that the defendant committed A, B, and C—no problem here, the test is satisfied. But now, suppose that each juror votes “guilty” for three or more crimes, but no crime receives a unanimous vote. Because each juror was convinced that the defendant committed three of the underlying crimes, does this suffice for a unanimous verdict? This result is known as a “patchwork” verdict.

When there’s a possibility of a patchwork verdict, most often when the government presents evidence of more than the required predicate acts, the court should instruct the jury that they must be unanimous as to each of the required minimum acts. The judge does this by giving them jury verdict forms for each charged predicate act. On the form, if the vote is unanimous, the foreperson writes “Guilty.” Otherwise the form remains blank or, in the event of a unanimous not guilty vote, the foreperson writes “Not Guilty.”

Questions for Your Attorney

  • When the evidence suggests more than one way that a defendant could have committed the charged offense, does the defendant automatically get jury verdict forms that force the jury to pick one method?
  • Can we waive the unanimity requirement after the trial has started? Should we agree to a less-than-unanimous jury if we think the jury is tending towards a not guilty verdict?
  • How do we determine which facts are so important that the jury must agree that they have been proven beyond a reasonable doubt, and which are not that essential?
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