Reaching Agreement on When Jurors Must Agree
Authors: Westen Peter , Ow Eric 
Published: April 2007

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 to where, Justices variously look for answers in Sixth and Fourteenth Amendment rights to jury trial; Fifth and Fourteenth Amendment presumptions of innocence; and Fifth and Fourteenth 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 allegedly commit 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 a defendant is alleged to have committed an offense 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 the alleged offense by one of the alleged means, he must have committed it 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 have 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 Sixth and Fourteenth Amendment rights to trial by jury. They are constitutional by virtue of the Fifth and Fourteenth 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.