Peter Povilonis (DePaul University College of Law) has posted Nonunanimous Acquittals, North Carolina Law Review, Volume 104 (forthcoming 2026), on SSRN. Here is the abstract:
In forty-nine states, a jury needs to present a unanimous verdict to convict or acquit a defendant. If the jury is not unanimous, the result is a hung jury, which leads to a mistrial. The academic discussions around jury unanimity have almost exclusively focused on whether unanimity should be required to convict a defendant. However, the unanimity rule also applies to verdicts of acquittal—what can be called “symmetrical unanimity.” Although it is not clear why so many states enforce symmetrical unanimity, this Article casts doubt on the assumption that the same justifications for unanimous convictions are applicable to unanimous acquittals.
For one, unanimous convictions are required by the defendant’s Sixth Amendment right to a jury trial, but nothing in the Constitution requires an acquittal to be unanimous. Also, the difference in evidentiary burdens for acquittal and conviction may present a reason to doubt whether the same unanimity rule should apply to both.To convict, the government needs to present proof “beyond a reasonable doubt.” Requiring jury unanimity to convict may be seen as reinforcing the highest burden. But the burden of proof rationale does not apply to acquittals because there is no “burden” to acquit. Acquittal simply means the government failed to prove its burden to convict. Although symmetrical unanimity seems like a neutral, balanced rule, the two parties in a criminal trial do not start in equipoise—the defendant has the rights, and the government has the burden.
Not only should we doubt the assumption that unanimity should be applied symmetrically, but the balance of policy factors also weighs in favor of adopting nonunanimous acquittals. The justifications for unanimity—including community representation, improved deliberations, and reinforcement of the highest burden of proof—are persuasive for convictions but are less relevant for acquittals. Moreover, unanimous acquittals are more likely to create holdout juror problems, and for no added benefit, as they are unlikely to prevent truly guilty defendants from going free.
Unanimous acquittals have a serious impact on the outcome of a trial. Because the Fifth Amendment right against double jeopardy does not prohibit a new trial after a nonunanimous acquittal, the government can re-prosecute. The onus of a mistrial is not spread equally; the government obtains a strong advantage with an opportunity for a second trial. Allowing for nonunanimous acquittals can avoid some of the harms that the right against double jeopardy was designed to protect.
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