ARTICLE
Alternative Elements
Jessica A. Roth* 
59 UCLA L. Rev. 170

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Abstract

The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of the offense beyond a reasonable doubt. Yet what the elements of any given offense are is not as clear as one might expect. Frequently, criminal statutes—especially federal statutes—describe an array of prohibited conduct, leaving ambiguous whether a particular statute sets forth (1) a single offense with alternative means of commission or (2) several different crimes. Under current doctrine, pursuant to Schad v. Arizona, this distinction is a significant one. If the statutory alternatives are determined to be alternative means of committing a single offense—or, more precisely, alternative means of establishing a particular element of a single crime—then a jury need not agree on any of the alternatives before it can convict. By contrast, if the alternatives represent discrete elements, signifying discrete offenses, then the jury must agree unanimously on at least one of the alternatives before it can convict. This Article argues that the ambiguity surrounding “alternative elements” has negative consequences throughout the criminal justice system, not the least of which is that it undermines the proof beyond a reasonable doubt standard. Drawing upon some of the insights set forth in Apprendi v. New Jersey and its progeny, this Article draws out the tensions between Apprendi and Schad and suggests a new approach to “alternative elements” that could strengthen the jury’s constitutional role and be a force for greater clarity in our criminal laws.


* Assistant Professor of Law at Benjamin N. Cardozo School of Law.

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