Use of alternate jurors

Most jurisdictions permit “alternate” jurors to be empanelled.  The function of an alternate juror is to replace a “regular” juror who for some reason becomes unable to serve during the course of the trial.  In some jurisdictions the alternate jurors are chosen at the beginning of the process and the alternate jurors are told that they have been so designated; in other jurisdictions the alternates are chosen at the outset and are known to the judge and the parties, but the jurors are not told who the alternates are (on the theory that someone who knows in advance that he/she is an alternate may not pay as much attention to the trial); and in still other jurisdictions the alternates are chosen by random selection before the jurors retire to deliberate.  The use of alternate jurors is governed by statutes in each jurisdiction.  The key issue for use of alternate jurors is whether the substitution of an alternate is sought before the case has been submitted to the jury for deliberation, or after. 

Pre-submission substitution usually raises no major issues.  This is because the jurors have been instructed in almost every jurisdiction that they are not to discuss the case among themselves before they have retired to deliberate.  Thus, there is really no difference between regular and alternate jurors before the jury retires to deliberate.  The bases for pre-submission substitution are set forth in the governing statute and usually include death or illness of the juror, or other personal hardship that arose after the trial began.  Most statutes also contain a provision that allows the trial judge to substitute for “other good cause.”  Some such causes include that the juror is perpetually tardy or fails to attend, falls asleep during the trial, or makes known to the judge that the juror is emotionally incapable of dealing with the trial. 

Post-submission substitution raises thornier issues, because at that point a regular juror and an alternate are significantly different: the regular juror has been a part of the deliberations and the alternate juror has not.  If a juror becomes unable to serve after the jury has begun to deliberate, the judge is faced with three options: order a mistrial (a costly and inefficient solution, particularly if the trial is lengthy); allow deliberations to proceed with less than the required number of jurors; or substitute an alternate juror.  For much of American history most jurisdictions required that the mistrial be declared, but as trials became more lengthy and costly, many jurisdictions balked at the inefficiency of this solution.  Thus, many jurisdictions now permit deliberations to proceed with less than the required number of jurors.  Some statutes permit this only with the agreement of the parties, while others permit the trial judge to allow the deliberations to continue with a less-than-required number of jurors even over the objection of one of the parties (see, for example, Federal Rule of Criminal Procedure 23(b)). 

Some jurisdictions permit the trial judge the option of substituting an alternate juror after deliberations have begun.  For example, post-submission substitution is permitted in federal criminal cases (see Federal Rule of Criminal Procedure 24(c)), and in California criminal cases (see California Penal Code section 1089).  In jurisdictions that permit such a substitution to be made, the trial judge must instruct the jury to begin its deliberations anew in order to give the new juror the full benefit of the deliberative process.  But not all jurisdictions permit post-submission substitution (see, for example Maryland Rule 4-312(b)(3), which permits substitution of an alternate only before the jury has “retire[d] to consider its verdict”).

In jurisdictions that permit post-submission substitution, some bases for substitution are relatively non-controversial, like death or illness of a juror, or other serious personal hardship.  But other bases for substitution raise serious issues about the sanctity of the deliberative process, primarily allegations by some jurors that another juror is unwilling or unable to meaningfully deliberate, or is unwilling to follow the law.  Such an allegation requires a hearing where the judge must decide the tricky question whether the juror is truly unfit to serve, or is merely expressing an alternative viewpoint that will likely result in a hung jury.  Only if the judge concludes that the challenged juror is truly unfit to serve, will the judge be authorized to dismiss that juror and substitute an alternate juror.

Further reading on the use of alternate jurors

Mary Kaluk Lanning, Comment, The Unnecessary Alternate Juror, 73 U. Colo. L. Rev. 1047 (2002).

Alison Markovitz, Note, Jury Secrecy During Deliberations, 110 Yale L. J. 1493 (2001).

Douglas J. McDermott, Note, Substitution of Alternate Jurors During Deliberations and Implications on the Rights of Litigants: The Reginald Denny Trial, 35 B.C. L. Rev. 847 (1994).