Stephen Ehrlich


Ever since In re Winship in 1970, it is well settled that the Due Process Clause requires a jury to find “proof beyond a reasonable doubt of every fact necessary to constitute the crime.” But as axiomatic as this holding may seem, the distinction between necessary facts of a crime and “mere means” of its commission has confounded courts for years. The Supreme Court, recognizing the need to re-address such an important issue, attempted to provide some guidance in this area through two landmark cases decided just before the turn of the twenty first century: Schad v. Arizona and Richardson v. United States. It failed. This pernicious problem is sown into the very fabric of the American legal system. It is therefore imperative that courts, adrift in this jurisprudential Sargasso Sea, chart a course so as not to impose unjust punishment on innocent parties, while also embracing the integrity of legislative and judicial choices. This article seeks to: (1) critically examine the problem of juror concurrence as discussed in Schad; (2) analyze the effect of Richardson on the analytical framework set out in Schad; (3) explore the problems caused by the Schad-Richardson framework; and (4) propose one possible solution to the issue of juror concurrence.