The Constitution's Unanimity Requirement: On What Must the Jury Agree?

The U.S. Constitution requires that jurors in federal criminal trials be unanimous in any verdict at which they arrive. This unanimity requirement, which the U.S. Supreme Court has recognized as “one of the indispensable features of federal jury trial[s],” mandates that jurors reach agreement on the essential elements of the offenses charged.¹ There is no requirement, however, that jurors reach agreement on the underlying facts that support each element of an offense.

The principal reason for this distinction between elements on the one hand, and underlying facts on the other, is that the government is permitted to allege alternative means by which a criminal offense is carried out, and different jurors may rely on different pieces of evidence and therefore may reach different conclusions concerning the means and manner by which a particular defendant committed that offense. The bottom line, according to the Supreme Court, is that the jury must agree on the elements of the crime that the legislature has created, but not the underlying “brute facts” constituting the elements or precise manner by which those elements are established.