Judges in federal criminal cases provide juries with instructions before the jury members retire to consider their verdict. In some situations, the judge may include alternative theories of guilt, informing the jury that it may convict a defendant of a single offense on the basis of one of several different theories. But because most juries in federal criminal trials deliver only a general verdict of either “guilty” or “not guilty,” it is usually not possible to determine the theory upon which the jury relied in reaching its decision. This lack of transparency may be problematic if the defendant appeals his conviction on the basis of an alleged “alternative theory error,” which occurs when one—but not all—of the theories in the jury instruction is subsequently found to have been invalid. A reviewing court must then determine whether the defendant is entitled to relief as a result of the erroneous instruction, which it assesses by reference to the harmless error standard of review.

The U.S. Supreme Court set forth the standard for determining whether an alternative theory error is harmless in Hedgpeth v. Pulido. Pulido requires a reviewing court to determine whether the relevant error “had substantial and injurious effect or influence in determining the jury’s verdict.” However, the circuits are divided in their interpretation of this standard. Some circuits have interpreted the rule as imposing a less demanding standard on the defendant-appellant to establish grounds for reversal, merely requiring it to be shown, for example, that the jury did not necessarily make the findings to rely on the valid theory of guilt. Other circuits, however, impose a more demanding standard, for example, finding an error harmless unless the defendant-appellant can show not only that the jury did not necessarily rely on the valid theory of guilt, but also had evidence that could rationally lead to an acquittal on the basis of the valid theory.

This Note examines the historical development of the Supreme Court’s alternative theory error standard so as to better understand why the circuit courts have diverging interpretations. It also considers the impact of general verdicts on harmless error review, particularly as compared to special verdicts. Ultimately, this Note concludes that all circuits should place a heavier burden on the government to defend the harmlessness of alternative theory errors.