NACDL

Juror Unanimity and Predicate Facts

This is the third installment of Jury Instruction Corner on duplicity and juror unanimity. The first article discussed the constitutional and statutory underpinnings of the doctrine, and the second suggested a methodology for determining when a specific unanimity instruction may be necessary. This installment will discuss juror unanimity issues in the context of predicate or preliminary facts.

What Is a ‘Predicate Fact’?

For purposes of this article, a predicate fact is a discrete subpart or element of a compound offense that must be proved before the defendant may be convicted of that offense. For example, in a felony murder prosecution commission of the underlying felony is a “predicate fact,” as is the overt act element of a conspiracy offense requiring proof of an overt act.

Essential Facts That Are Not Elements of The Charged Offense

Before discussing predicate facts that are elements of the crime, it is useful to consider juror unanimity in the con