The Jury Instructions in New York v. Trump and the Mis-Reporting in the Press And Elsewhere on the "Unanimity" Issue

Pundits, reporters, and attorneys who do not practice criminal law are unreliable sources for explanations about jury instructions -- the New York case is an example

I’m going to start right out with what I put in the sub-caption above — accepting legal analysis from journalists, pundits, or attorneys who do not practice criminal law will often lead to confusion and outright misunderstandings about what is happening in criminal trials. You will get misinformation where they claim things are wrong when they are not, and vice-versa.

I accepted at face value some of the commentary last week suggesting that the Judge was going to instruct the jury that they would not need to be unanimous on one or more issues in connection with the charged offenses — BEFORE the actual instructions were available to the public to read.

The debate over the past week centered on two issues — the refusal/failure by the prosecution to identify with specificity the second or “predicate” offense that the false records were intended to cover up, and a jury instruction that told the jury they did not need to unanimously agree on what that second offense might be as long as they all agreed the documents were created with the purpose of concealing some other criminal offense.

I participated in some of those discussions in Spaces and in posting on X, but the instructions themselves were not released to the public until the morning the Judge read them to the jury. So no one claiming to know what the language of the instructions was going to be really knew for sure. I went along with the view that if the jury was told they did not need to be unanimous on what the “predicate” crime was, that would be a violation of due process. The reasoning was that the finding on the second crime was necessary to prove a felony rather than a misdemeanor false records offense. Based on what was being reported and discussed, not having unanimity on the second offense meant the verdict could be split on what the predicate crime was, yet still elevate the misdemeanor false record charge to a felony.

But in some very significant ways, what was accepted as an accurate description of what the instructions were going to say turned out to be WRONG.

Even as late as today I still see pundits and journalist mis-stating the what the instructions told the jury, continuing to argue over the issue of whether the jury was allowed to find Trump guilty on a non-unanimous basis as long as they each were convinced that he was intending to conceal some prior crime by creating the false business records.

This is a link to all the instructions as read to the jury by the Judge. These are for a New York state case, and all my experience is in federal courts. But to my eye they read the same as jury instructions that have been used in all my jury trials over the past 30+ years. If you have ever been curious about what jury instructions sound like or how the jury’s task is explained to it after it has heard all the evidence, take a few minutes to read through them. This is one of the “bread & butter” aspects of criminal trial practice work.