As the jury in the Manhattan trial of former President Donald Trump headed toward deliberation May 29, Judge Juan Merchan gave jurors their instructions.
Once the instructions filtered onto social media, however, they were distorted.
“Judge Merchan has instructed the jury they do not need to have a UNANIMOUS verdict in order to convict former President Donald J. Trump,” former Fox News writer and producer Kyle Becker wrote May 29 on X.
“This is insane,” the conservative End Wokeness X account posted a few minutes later to its 2.5 million followers. “New York Judge Merchan just told jurors that they DO NOT have to unanimously agree on what crime Trump is guilty of.”
Other social media posts, including from Trump-aligned political strategist Steve Bannon, also claimed the jury verdict did not have to be unanimous. The posts echoed a statement Trump made May 26 on Truth Social that said Merchan imparted “FAKE options for the jury to choose from, without requiring them to be unanimous, which is completely UNAMERICAN AND UNCONSTITUTIONAL.”
Trump’s campaign did not respond to a request for comment.
The posts are inaccurate. If the jury decides to convict, Merchan told them, jurors must agree unanimously on two things: that Trump falsified business records and that he did so intending to commit a separate crime.
Juror unanimity is not necessary on what separate crime Trump intended to commit. Merchan cited three possible crimes: violations of the Federal Election Campaign Act; the falsification of other business records; and a violation of tax laws.
Jurors “all need to agree on the verdict, but they can get to that result through different paths and reasoning,” said Cheryl G. Bader, a Fordham University associate clinical law professor.
Duncan P. Levin, a Brooklyn, New York-based lawyer with Levin & Associates PLLC, called the social media spin on Marchan’s instructions “absurd.”
“It has to be unanimous on the elements of the crime,” namely that Trump “caused business records to be filed (and) intended to conceal election by unlawful means,” Levin said. But it doesn’t have to be unanimous on the means, he said.
“That is not unusual at all. (It’s) very standard,” Levin said. “Someone can be convicted of murder even if the jurors disagree about the type of murder weapon.”
Merchan’s instructions were clear: a guilty or not guilty verdict must be unanimous
In his instructions, Merchan told jurors that any verdict must be unanimous.
“Your verdict, on each count you consider, whether guilty or not guilty, must be unanimous; that is, each and every juror must agree to it,” Merchan said. “To reach a unanimous verdict you must deliberate with the other jurors.”
That’s standard in criminal law: The New York jury handbook says that in a criminal case, “a finding that the defendant is guilty or not guilty must be by unanimous vote of the jury.”
But Merchan offered caveats about what aspects of a jury’s decision could diverge.
Merchan said, “In order to find the defendant guilty, however, you need not be unanimous on whether the defendant committed the crime personally, or by acting in concert with another, or both.”
He also said, “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.”
Neama Rahmani, a former prosecutor who co-founded the firm West Coast Trial Lawyers, said, “The verdict has to be unanimous, but the jurors don’t have to agree on the other crime that the false business records furthered or covered up.”
Bill Otis, former head of the Appellate Division of the U.S. attorney’s office for Virginia’s Eastern District and Special Counsel to former President George H.W. Bush, said that although this split structure for jury decisions is common, he understands why Trump allies express concern about it. Otis said the parts of this case that do not require the jury’s unanimity are unusually central to the question of Trump’s guilt.
For this reason, Otis said, it could become a ripe issue for an appeals court to consider, if Trump is convicted.
Our ruling
Social media posts said Merchan told jurors the verdict in Trump’s trial does not need to be unanimous.
That’s not what Merchan said. To convict, the jurors must agree unanimously on two things: that Trump falsified business records, and that he did so intending to commit a separate crime. “Your verdict, on each count you consider, whether guilty or not guilty, must be unanimous,” Merchan said.
The social media posts conflated this requirement with other aspects of the deliberations that don’t require unanimity — notably, which specific crime the jurors believe Trump tried to commit by falsifying business records. The judge said jurors would need to believe only that at least one of three cited crimes could be the one furthered by the records falsification.
We rate this statement False.
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