In The People of the State of New York v. Donald J. Trump, Justice Juan Merchan issued a set of jury instructions—55 pages in length. Merchan permitted the jury to convict based on a violation of N.Y. Election Law Section 17-152. Conviction under Section 17-152 requires a predicate legal violation: a violation of some other law as part of a conspiracy to promote the election of a candidate for public office. That is, Section 17-152 is satisfied only if the defendant has violated Section 17-152 “by unlawful means.” However, according to Merchan’s instructions, the jurors did not need to reach a unanimous agreement as to what were the “unlawful means.”

Merchan’s jury instructions state:

Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.

In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following unlawful means: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.

In short, in order to convict, the jury must unanimously agree that a predicate legal violation occurred: (1) or (2) or (3), as listed above. But the jury, according to Merchan’s instructions, need not unanimously agree on any one such predicate violation. The 12-member jury could divide 4-to-4-to-4, where each juror agreed that Trump committed one of the three predicate legal violations, but there is no unanimity required in regard to any one or more of them.

There is some good reason to believe Merchan’s jury instructions are flawed, that is, the jury instructions violate Trump’s constitutional right to a unanimous verdict. To support that position one looks to other similar statutes, where the same unanimity issue has been adjudicated by a court of record. Indeed, Section 17-152 is not the only statute making use of predicate acts, where the predicate acts are themselves legal violations.

For example, the Racketeer Influenced and Corrupt Organizations (RICO) Act, a federal statute, also makes use of predicate legal violations. And it is not uncommon for indictments to allege many such predicate violations in support of a single RICO charge. So RICO and Section 17-152 involve the same unanimity issue. In the RICO context, the United States Court of Appeals for the Second Circuit explained:

[T]he jury [in a RICO case] must be unanimous not only that at least two [predicate] acts were proved, but must be unanimous as to each of two predicate acts.

United States v. Gotti, 451 F.3d 133, 137 (2d Cir. 2006) (emphasis added); see also Haynes v. United States, 936 F.3d 683 (7th Cir. 2019) (same) (quoting Gotti, supra); United States v. Carr, 424 F.3d 213, 224 (2d Cir. 2005) (“[T]he jury must find that the prosecution proved each one of those two … specifically alleged predicate acts beyond a reasonable doubt.”).

State courts examining similar state statutes have reached the same result. For example, the Connecticut Appellate Court stated:

The defendant claims that this situation required the [trial] court specifically to instruct the jurors that they had to agree unanimously on which, if either, of the [predicate] acts was committed by the defendant. … Such a charge is required if (1) a jury is instructed that the commission of any one of several alternative actions would subject the defendant to criminal liability, (2) the actions are conceptually different and (3) the state has presented evidence on each of the alternatives.

[State v. Edwards, 524 A.2d 648, 653 (Conn. App. 1987) (footnote omitted) (emphasis added); see also United States v. Lujan, No. CR 05-0924 RB, 2011 WL 13210661 (D.N.M. Aug. 10, 2011) (applying federal criminal law) (same); Stevenson v. State, 709 A.2d 619 (Del. 1998) (applying Delaware law) (same); State v. Benite, 507 A.2d 478 (Conn. App. 1986) (applying Connecticut law) (same).]

In other words, where statutory criminal predicates are merely alternative acts, jury instructions, in some circumstances, may be disjunctive and use “or” between different predicates. As long as each juror determines that the defendant’s conduct satisfied, at least one such act, then jury unanimity is met.

However, where statutory criminal predicates are not merely alternative acts, but different legal violations, then a substantially different unanimity rule applies. Where statutory criminal predicates are themselves legal violations, and if charged, would subject the defendant to criminal liability, then the jury must be unanimous in regard to any such predicate. That is what Merchan’s jury instructions failed to do.

There is nothing surprising about this result. It flows from the most basic conceptions of traditional American jury rights and due process. Where a statute adopts other criminal law or legal violations as a predicate, for that predicate to be established, the jury must be unanimous in regard to that separate predicate and each of its constituent elements—even if the defendant has not actually been separately charged with that statutory criminal predicate or otherwise held liable.

Just last year, during 2023, the North Carolina Court of Appeals, in a discussion about jury instructions, explained:

Defendant maintains that the trial court erred in its conspiracy instruction because the “instruction allowed the jury to convict [Defendant] of conspiracy based on one of two different victims, in violation of the unanimity requirement” for jury verdicts. This argument is also inapt.

Our State Constitution provides that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court[.]” N.C. Const. art. I, § 24. “To convict a defendant, the jurors must unanimously agree that the State has proven beyond a reasonable doubt each and every essential element of the crime charged.” State v. Jordan, 305 N.C. 274, 279, 287 S.E.2d 827, 831 (1982). A “disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed [any] one particular offense.” State v. Lyons, 330 N.C. 298, 302–03, 412 S.E.2d 308, 312 (1991). However, “if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.” Id. at 303, 412 S.E.2d at 312.

[State v. Purcell, 884 S.E.2d 181, 2023 WL 2577540, *9–10 (N.C. App. 2023) (two separate bolds added) (italics in the original) (noting applicability of Rule 30(e)(3) of N.C.R.A.P.).]

The settled practice of American courts, federal and state, adjudicating predicate acts used in a criminal charge is consistent with Gotti, Edwards, and Purcell, discussed above. Where a mere act is a predicate for a legal violation, the statute can—in some circumstances—allow for several such acts to be charged disjunctively, and jury unanimity is preserved as long as each juror agrees to at least one such act (that is, where only one such predicate act is sufficient for conviction). In other words, the 4-to-4-to-4 example above would be fine in such a case. But where any statutory criminal predicate (even if uncharged) is itself a legal violation, then every juror must agree that that specific predicate (or legal violation) was violated as if it had been separately charged. Why? Because any separately charged legal violation would require unanimity in regard to that separate offense and in regard to every element of that separate offense. See generally Matthis v. United States, 579 U.S. 500 (2016) (discussing and contrasting means from elements); Richardson v. United States, 526 U.S. 813, 817 (1999) (same); Schad v. Ariz., 501 U.S. 624 (1991) (same); Jessica A. Roth, Alternative Elements, 59 UCLA L. Rev. 170 (2011); Rebecca Sharpless, Finally, a True Elements Test, 82 Brooklyn L. Rev. 1275 (2017); David B. Rivkin & Elizabeth Price Foley, Trump’s Trial Violated Due Process, Wall Street Journal, June 5, 2024, at A17.

As for New York state law, I have found no positive law, case law, or model jury instructions that are on-point and explain the application of state and federal jury-unanimity constitutional requirements to a Section 17-152 violation.

In People v. Trump, the District Attorney’s brief addressed this issue. The District Attorney cited three New York appellate cases: People v. Mackey, 49 N.Y.2d 274, 279 (1980), People v. Mateo, 2 N.Y.3d 383, 407 (2004), and People v. Watson, 284 A.D.2d 212, 213 (N.Y. App. Div. 1st Dept. 2001). Not one of these cases addressed Section 17-152 or anything closely analogous.

Mackey was a decision of the New York Court of Appeals, which is New York’s highest court. Mackey, the appellant, challenged the sufficiency of the indictment, but neither the word “unanimity,” nor any of its variants, appear anywhere in the decision. It is instead a ruling on the sufficiency of an indictment, and not about the federal or state constitutional right to a unanimous verdict.

Mateo, also a Court of Appeals decision, was a challenge relating to the jury’s unanimity instruction in a first-degree murder case. See N.Y. Penal Law Section 125.27(1)(a)(vii). Here, the court refused to reverse a conviction notwithstanding that the jury charge permitted two predicate conditions to be charged disjunctively. In supporting its holding, the Court of Appeals looked to the particular structure, language, and history of the state’s murder statute, its statutory predecessor, and long-established New York case law interpreting that specific statute. We have nothing like this for Section 17-152. More importantly, the Court of Appeals characterized each predicate in the specific murder statute as “essentially a preliminary fact,” as opposed to free-standing legal violations (even if uncharged). The Court of Appeals explained:

Defendant certainly kidnapped the victim—that is undisputed. He took on the mental state required: it was his decision to execute Matos. Thus, whether he personally pointed the gun at the victim’s head and pulled the trigger, or whether, handing the gun to Monica, he gave her an order and stood near as she carried it out, the two choices for the jury were not so different that they amounted to any more than alternatives to a common end.

People v. Trump is significantly different. The mental states for the predicate violations in the Trump case are not the same. How could they be? They are entirely different free-standing crimes taking place at different times with different elements. To the extent that concrete “victims” could be discovered—victims of an election-related “conspiracy” or “fraud”—we have no reason to believe that the victims were identical or even significantly overlap with one another. Indeed, it has been said that the predicates involve allegations about different presidential elections! In Mateo, there was one victim—it was only a question of which of two closely related acts were used in regard to that singular victim.

Watson was decided by New York’s appellate division, that is, New York’s intermediate court of appeals. The First Division explained:

Where the grand larceny count of the indictment did not specify a theory of larceny, and the court instructed the jury as to the theories of larceny by false promise and false pretense, the court properly determined that there was no basis for submission of a special verdict sheet distinguishing between these two theories. A conviction of larceny, whether by false promise or false pretense, constitutes only one offense. Thus, juror unanimity is not required as to the particular method by which the larceny was committed. Accordingly, there was no basis upon which to submit a special verdict sheet. Defendant’s claims that submission of a verdict sheet that failed to require unanimity as to a specific theory of larceny violated his constitutional due process rights and the statutory prohibition of duplicitous counts are unpreserved and we decline to review them in the interest of justice. (internal citations omitted) (emphasis added)

Under New York law, larceny is a crime, codified at Penal Law Sections 155.00 to 155.45. The First Division permitted the conviction to be upheld because the jury unanimously held that the defendant committed at least one of two predicate acts: engaged in a false pretense or engaged in a false promise, with both charged disjunctively. However, neither of those two predicates acts, i.e., false pretenses and false promises, are free-standing legal violations. Indeed, although the larceny statute establishes these two predicates—neither false pretenses nor false promises is cross-listed to other New York penal code provisions as a free-standing crime. In short, Watson did not and does not establish that Justice Merchan’s jury instructions were correct or in accord with settled practice.


In People v. Trump, the statutory predicates include three different legal violations. Moreover, the legal violations are conceptually different from one another, and the prosecutors presented different evidence for each such predicate. Edwards, 524 A.2d at 653. In these circumstances, the constitutional minimum for jury unanimity has not been met. See United States v. Gipson, 553 F.2d 453, 458–59 (5th Cir. 1977) (“[U]nder the [trial court’s jury] instruction, the jury was permitted to convict Gipson even though there may have been significant disagreement among the jurors as to what he did. The instruction was therefore violative of Gipson’s right to a unanimous jury verdict.”). If Merchan’s jury instructions had followed the settled practice, then, in order to convict, the jury instructions were required to mandate unanimity at least in regard to one such predicate. As we know, there was no such charge. It is fair to say that Merchan’s jury instructions have squarely departed from the settled practice. One might ask why?

Was the unanimity issue preserved by contemporaneous objections? And if this issue has not been preserved, has it been waived? Or, rather than waived, is this issue subject to plain error review because a fundamental constitutional right is involved? All these questions are for another day and another article—perhaps, to be answered by an appellate court or, even, by more than one such court. Here, my primary point is that the jury instructions erred.

IMAGE: Former U.S. President Donald Trump (C) sits next to his lawyers Todd Blanche (L) and Emil Bove as he arrives for his trial for allegedly covering up hush money payments linked to an extramarital affair with Stormy Daniels, at Manhattan Criminal Court on May 14, 2024 in New York City. Former U.S. President Donald Trump faces 34 felony counts of falsifying business records in the first of his criminal cases to go to trial. (Photo by Curtis Means – Pool/Getty Images)