Specific Unanimity in Minnesota Criminal Trials
A jury returns a guilty verdict. Twelve people agreed. That should settle the question of what happened… Except sometimes it doesn’t. If the State charges one count of a crime but the trial evidence describes more than one act that could each, on its own satisfy that charge, a general “guilty” verdict can hide real disagreement. Six jurors might believe the defendant did the act one way. The other six may believe they did it another way, at a different time. Both groups vote guilty, but they never agreed with each other on what actually happened.
Minnesota’s appellate courts tolerated that gap for over a decade. Two Minnesota Supreme Court Decisions issued this July closed it, and one of them did so even though the defendant’s own trial attorney never asked for the fix.
What Specific Unanimity Actually Requires
Every criminal jury in Minnesota has to reach a unanimous verdict, grounded in the Sixth and Fourteenth Amendments and spelled out within Minn. R. Crim. P. 26.01, subd. 1(5). What’s less obvious is what unanimity requires when the trial evidence describes several different things the defendant might have done.
The law draws a line between the means of committing a crime and the elements of the crime itself. Jurors don’t have to agree on the means. If a burglary could have been committed by prying a window or picking a lock, the jury only needs to agree that a burglary happened, not which one. But jurors do have to agree, unanimously, on the elements the State must prove. When the trial evidence shows two or more separate acts, each independently capable of satisfying an element of the single count charged, that’s no longer a “means” question. That’s a question of whether the jury agreed on what the defendant actually did, and due process says they have to.
Keyes: The Framework
In State v. Keyes, the Minnesota Supreme Court gave district courts a clear test. A court looks first to the statute defining the offense to identify the elements and separate out any means of committing them. Then it looks to what the State actually presented at trial, asking whether the evidence showed one act or multiple distinct acts, each capable on its own of proving the offense. If it’s the latter, and the State charges only one count, the jury must be told it has to agree on which act it is relying on.
That holding replaced an approach the Court of Appeals had used since 2011, the “single behavioral incident” test, which asked mainly whether the alleged acts happened close together in time and place. The state supreme court rejected that test as untethered from its own case law, inconsistent from case to case, and out of step with how federal courts and most other states handle the question.
Keyes himself involved a defendant convicted of first-degree criminal sexual conduct where the evidence described two separate acts in different rooms of the same home. Trial counsel had requested a specific-unanimity instruction, and the district court declined to give it. Whether that request stayed alive through the rest of trial was a close, contested question (three justices thought it hadn’t), but the majority treated it as preserved and reviewed the denial for abuse of discretion, with reversal required unless the State could show beyond a reasonable doubt that the missing instruction made no difference. The State couldn’t. The witness’s account of the two acts had shifted over time, including one version that surfaced for the first time at trial, making it entirely plausible that different jurors credited different parts of her testimony. The court reversed the first-degree conviction for a new trial.
Yang: The Harder Question
The tougher issue, and the one that matters most to anyone weighing whether an older conviction deserves a second look, came a week later in State v. Yang. There, the trial counsel never asked for a specific-unanimity instruction at all, which ordinarily forfeits the issue on appeal and leaves only the demanding plain-error standard: an error, that is plain, that affected substantial rights, and that must be corrected to protect the fairness and integrity of the proceedings.
The State’s strongest argument was timing: Keyes hadn’t even been decided yet when Yang went to trial, so the missing instruction couldn’t have been “plain” at the time. The supreme court rejected that framing. Minnesota assesses whether an error was plain using the law in effect at the time of appellate review, not at trial. Because Keyes was the law by the time Yang’s appeal was decided, the district court’s failure to give the instruction, even without a request, counted as plain error. Combined with allegations that were vague on timing and location and spanned roughly two years, the court found it reasonably likely the missing instruction affected the verdict, and reversed the first-degree conviction. Along the way, it overruled State v. Rucker, a 2008 Court of Appeals decision that had let prosecutors treat generalized descriptions of ongoing abuse as mere “examples” rather than distinct acts requiring unanimity.
Both decisions were decided by a divided court, with the same three justices dissenting each time. Their view is that courts should instead ask case by case whether charging multiple acts under one count actually risked a non-unanimous verdict, closer to how federal courts handle “duplicitous” charges, and they raised pointed concerns about how a rigid rule interacts with cases resting on the testimony of trauma-affected witnesses, particularly children. That doesn’t change the current rule, but it signals this area of law is still moving.
What Separates a Strong Claim from a Weak One?
Not every case with more than one alleged incident has this problem. The State can still charge conduct as a single course of conduct where the statute allows it, and the supreme court expressly left open how unanimity applies there. The claim gets real traction when three things line up: a single count, trial evidence describing genuinely separate acts rather than alternative descriptions of the same act, and no instruction telling the jury it had to agree on which act it was relying on. The vaguer and more numerous the alleged acts, the stronger the argument that jurors could have split without anyone noticing. This isn’t limited to sex-offense cases, either. Minnesota courts applied the same logic well before Keyes to a drug possession charge, where the evidence showed the defendant holding drugs in two separate locations under a single count.
What This Means For You Going Forward
Defendants commonly face a single charge for allegations involving multiple, separate acts. This is most common in sex crimes where a defendant often faces a single charge, though the complainant alleges the wrongdoing happened several times, in different areas, and/or different means. Before these cases, the State could rely on the cumulative effect of those multiple allegations to warrant a conviction from the jury. Now, if the defense attorney wisely demands a specific-unanimity jury instruction, it puts a tougher burden on the State to prove the allegations separately.
At North Star Criminal Defense, this is exactly the kind of subtle, but critical trial advocacy that can be the difference between a guilty and not guilty verdict. We know the buttons to push and we know how to fight for our clients at this most critical juncture. Contact us today to learn more about how we can help.