A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Five: Jury Deliberations

5.3     Number of Jurors, Removal, and Seating Alternates (Criminal)
          A. Size of Jury
          B. Removal of Jurors
          C. Alternate Jurors  

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A.     Number of Jurors, Removal, and Seating Alternates (Criminal): Size of Jury

1. Generally

Unless provided otherwise in Fed. R. Crim. P. 23, a jury in a criminal case consists of 12 persons. Fed. R. Crim. P. 23(b)(1).

2. Upon Stipulation of the Parties

At any time before the verdict (even after the beginning of deliberations), the parties may stipulate in writing, with the court's approval, that:

a) the jury may consist of fewer than 12 persons, or

b) a jury of fewer than 12 persons may return a verdict if a juror is excused by the court for good cause. (In 2002, Rule 23 was amended to substitute "good" for "just" cause.) Fed. R. Crim. P. 23(b)(2)(A), (B).

Although there is not a clear minimum number of jurors required to return a verdict upon the parties' stipulation and the court's approval, a sufficient number of jurors must remain so as to constitute the "essential feature of a jury." See Advisory Committee Notes to 1983 Amendments to Rule 23.

3. Without Stipulation of the Parties

After the jury begins deliberations, the court may permit a jury of 11 persons to return a verdict, even absent stipulations of the parties, if the court excuses a juror for good cause. Fed. R. Crim. P. 23(b)(3).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B.    Number of Jurors, Removal, and Seating Alternates (Criminal): Removal of Jurors

1. In General

The court must have an adequate basis for finding good cause to excuse a juror. (In 2002, Rule 23 was amended to substitute "good" for "just" cause.) Good cause "generally focuses on sickness, family emergency, or juror misconduct." See United States v. Beard, 161 F.3d 1190, 1193 (9th Cir. 1998). Good cause may arise when the length of a juror's absence is unknown, such as from sickness. Good cause may also exist when a prolonged absence would result in dulled memories during a lengthy and complex trial. See United States v. Tabacca, 924 F.2d 906, 914-15 (9th Cir. 1991) (excusing a juror who could not attend one day of a two-and-one-half-day trial was reversible error). See also United States v. Stratton, 779 F.2d 820, 832 (2d Cir. 1985) (excusing juror who notified the court of upcoming religious holiday was not an abuse of discretion since jury would have been forced to wait four and one-half days), cert. denied, 476 U.S. 1162 (1986).

2. Grounds for Excusing a Deliberating Juror

Trial courts may dismiss and replace jurors whose physical or mental condition prevents effective participation in deliberations. Perez v. Marshall, 119 F.3d 1422, 1426-28 (9th Cir. 1997) (replacing juror who was emotionally incapable of deliberating was not error), cert. denied, 522 U.S. 1096 (1998).

However, the court must not dismiss a juror "if the record evidence discloses any reasonable possibility that the impetus for . . . dismissal stems from the juror's views on the merits of the case . . .." United States v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999) (emphasis in original). "Under such circumstances, the trial judge has only two options: send the jury back to continue deliberating or declare a mistrial." Id.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

C.    Number of Jurors, Removal, and Seating Alternates (Criminal): Alternate Jurors

1. Seating Alternate Jurors

The court may impanel up to 6 alternate jurors who (1) have the same qualifications, and (2) were selected and sworn in the

same manner as any other juror to replace any jurors who are unable to perform or who are disqualified from performing their duties. Fed. R. Crim. P. 24(c).

2. Retaining Alternate Jurors

"The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged." Fed. R. Crim. P. 24(c)(3).

3. Substituting Alternate Jurors During Deliberations

"If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew." Fed. R. Crim. P. 24(c)(3).