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| - The jury must unanimously agree on Trump's guilt of falsifying business records in the first degree (he faces 34 counts of this crime). A first-degree charge of falsification of business records requires a "predicate crime" for which the falsification was plausibly intended to cover up. The jury does not need to agree on the predicate crime for a conviction.
On May 29, 2024, the jury in former U.S. President Donald Trump's trial over alleged hush-money payments to adult film star Stormy Daniels began their deliberations. Immediately after the publication of Justice Juan Merchan's instructions to the jury, numerous pundits and politicians — including Republican U.S. Sen. Marco Rubio of Florida — claimed the judge told the jury that "they don't have to unanimously agree on which crime was committed as long as they all at least pick one."
This claim was not true. In this trial, Trump is charged with 34 counts of falsifying business records in the first degree. For a guilty conviction on each of these counts, the jury must unanimously agree on Trump's guilt, as is clear in the jury instructions:
Your verdict, on each count you consider, whether guilty or not guilty, must be unanimous.
The misinformation arises from the legal requirements for a conviction of first-degree falsification of business records. Such a crime requires not only the demonstrated falsification of a business record, but also the existence of some other crime for which the falsification was plausibly carried out to hide:
For the count of Falsifying Business Records in the First Degree, the intent to defraud must include an intent to commit another crime or to aid or conceal the commission thereof. Under our law, although the People must prove an intent to commit another crime or to aid or conceal the commission thereof, they need not prove that the other crime was in fact committed, aided, or concealed.
This other crime is referred to as the "predicate crime." During the trial, Merchan allowed New York prosecutors to present evidence pertaining to three possible predicate crimes: violations of the Federal Election Campaign Act; the falsification of other business records; or a violation of tax laws. As explained in his jury instructions, the jury does not have to unanimously agree on the predicate crime, just that one existed:
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.
Before Merchan issued his instructions, Trump's defense argued that the jury should be instructed to agree on a predicate crime as well, something the judge ruled against.
Because the jury must be unanimous on each count of the crime Trump is charged with — falsification of business records in the first degree — for a conviction on that count, the claim that the jury was instructed that they need not unanimously convict Trump, or that they could propose their own crime to convict him of, is "False."
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