Cite as: 519 U. S. 2 (1996)
Scalia, J., concurring
v. Louisiana, 508 U. S. 275 (1993), a criminal defendant is constitutionally entitled to a jury verdict that he is guilty of the crime, and absent such a verdict the conviction must be reversed, "no matter how inescapable the findings to support that verdict might be." Id., at 279. A jury verdict that he is guilty of the crime means, of course, a verdict that he is guilty of each necessary element of the crime. United States v. Gaudin, 515 U. S. 506, 522-523 (1995). Formally, at least, such a verdict did not exist here: The jury was never asked to determine that Roy had the "intent or purpose of committing, encouraging, or facilitating" his confederate's crime. People v. Beeman, 35 Cal. 3d 547, 561, 674 P. 2d 1318, 1326 (1984).
The absence of a formal verdict on this point cannot be rendered harmless by the fact that, given the evidence, no reasonable jury would have found otherwise. To allow the error to be cured in that fashion would be to dispense with trial by jury. "The Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty." Sullivan, supra, at 280. The error in the present case can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well. See Carella v. California, 491 U. S. 263, 271 (1989) (Scalia, J., concurring). I concur in the remand so that the Ninth Circuit may determine whether there is "grave doubt" that this is so, rather than (what it did) determine whether it is impossible to "be certain" that this is so, 81 F. 3d 863, 867 (1996). Elsewhere in its opinion, the Ninth Circuit purported to be applying the O'Neal standard, stating that "[w]hen the reviewing court is unable to conclude the jury necessarily found an element that was omitted from the instructions," it "can only be 'in grave doubt as to the harmlessness of the error,' " 81 F. 3d, at 868 (quoting O'Neal
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