A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Three: The Trial Phase
3.13 Incompetent Jurors, Late Or
Missing Jurors
A.
Civil
B.
Criminal
A MANUAL OF JURY TRIAL PROCEDURES - 2004
A. Incompetent Jurors, Late Or Missing Jurors: Civil
NCJIC Materials Related To This Issues:
NCJIC 16.2 [Conduct And Duty Of The Jury During Trial]
The court has discretion to excuse jurors for cause during the trial. United States v. Gay, 967 F.2d 322, 324 (9th Cir.), cert. denied, 506 U.S. 929 (1992). A trial court
's "need to manage juries, witnesses, parties, and attorneys, and to set schedules" are factors that can outweigh a party's right to a particular jury. Id. (citing United States v. Jorn, 400 U.S. 470, 479-80 (1971)). The removal of a juror must meet the "good cause" standard. See Fed. R. Civ. P. 47(c). Although "[s]ickness, family emergency or juror misconduct that might occasion a mistrial are examples of 'appropriate grounds' for excusing a juror" (Fed. R. Civ. P. 47(c) Advisory Committee Note 1991 Amendment), the judge's discretion is not limited to those scenarios. Before excusing a juror, the court should determine the basis for the actions and discuss the matter with the lawyers on the record.A MANUAL OF JURY TRIAL PROCEDURES - 2004
B. Incompetent Jurors, Late Or Missing Jurors: Criminal
NCJIC Materials Related To This Issues:
NCJIC 16.2 [Conduct And Duty Of The Jury During Trial]
In a criminal case, the trial judge makes the determination whether to substitute alternates for sitting jurors who "are unable to perform or who are disqualified from performing their duties." Fed. R. Crim. P. 24(c).
The trial court may remove a juror and replace the juror with an alternate whenever facts convince the judge that the juror
's ability to perform his or her duties as a juror has been impaired. A juror's drunkenness is good cause for substitution with an alternate. United States v. Jones, 534 F.2d 1344, 1346 (9th Cir.), cert. denied, 429 U.S. 840 (1976).In criminal cases, the court has discretion to excuse a juror for cause. Although no finding is required if a juror becomes manifestly unable to perform his or her duties, it is better to make an adequate record.
United States v. Lustig, 555 F.2d 737, 745 (9th Cir.), cert. denied, 434 U.S. 926 (1977), and cert. denied, 434 U.S. 1045 (1978). "Just cause" as used in Fed. R. Crim. P. 23(b) (providing for the removal of a juror for "just cause" after jury deliberations have begun) " . . . embraces all kinds of problems - temporary as well as those of long duration - that may befall a juror during jury deliberations." United States v. Reese, 33 F.3d 166, 173 (2d Cir. 1994), cert. denied, 513 U.S. 1092 (1995) (In 2002, Rule 23 was amended to substitute "good" for "just" cause.)The missing or late juror who is absent from court for a period sufficiently long to interfere with the reasonable dispatch of business may be the subject of dismissal.
See United States v. Gay, 967 F.2d 322 (9th Cir.), cert. denied, 506 U.S. 929 (1992) (three hour delay may be enough in certain circumstances). But see United States v. Tabacca, 924 F.2d 906, 913-15 (9th Cir. 1991) (A one-day absence after deliberations had begun on a two- and-one half- day trial does not constitute "just cause" under Fed. R. Crim. P. 23(b) for excusing the juror and allowing the remaining 11 to deliberate and return a verdict. Because the trial was not complex, a delay of only one day would be unlikely to induce dulled memories on the part of the jurors. Excusing the juror was held to be reversible error.)