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282.2 Alternate Jurors: Instructional Issues

    282.2.1 Substitute Of Alternate Juror: Deliberations Must Start Over
    282.2.2 Substitution Of Alternate Juror After Partial Verdict
    282.2.3 Admonition To Alternate Jurors
    282.2.4 Discharge Of Alternate: Admonition Against Discussing Case Or Revealing Opinion Before Return Of Verdict
    282.2.5 Temporary Discharge Of Alternate: Continuing Admonition

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RATIONALE: Because the verdict must be the common product of all twelve jurors, the jurors must begin deliberations anew when an alternate is substituted after deliberations have begun.

POINTS AND AUTHORITIES: When an alternate juror is substituted during deliberations, the jurors should be instructed to disregard the earlier deliberations. (See People v. Cain (CA 1995) 10 C4th 1, 64-65 [40 CR2d 481]; see also U.S. v. Quiroz-Cortez (5th Cir. 1992) 960 F2d 418, 420; Opinion of the Justices (NH 1993) 623 A2d 1334, 1336; State v. Lipsky (NJ 1978) 395 A2d 555, 558; Commonwealth v. Saunders (PA 1996) 686 A2d 25, 30.) The instruction to begin deliberations anew is required because the defendant has a right to a verdict reached "only after full participation of all jurors who ultimately return the verdict." (State v. Cheek (KS 1997) 936 P2d 749, 758.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.12; 7.13].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [8. Replacement Of Juror With Alternate].

See also Manual On Recurring Problems In Criminal Trials [9. Substitution Of Alternate After Deliberations Have Begun].

    Since it has been necessary to substitute an alternate, you must set aside and disregard all past deliberations and begin deliberating anew.  Each original juror must set aside and disregard the earlier deliberations as if they had not taken place.

[See IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 231 [Substitution Of Juror After Deliberation Begins] (Idaho Law Foundation, Inc., 1995).]

    Members of the jury:

    A juror has been replaced by an alternate juror. You must not consider this fact for any purpose.

    The parties have you attempt to reach a verdict only after full participation of all twelve jurors who return the verdict.

    This right may be assured only if you start over with your deliberations from the beginning.

    Therefore, each remaining original juror must set aside and disregard all the prior deliberations as if they had not taken place.

    You shall now start over with your deliberations and follow all the instructions previously given.

[See generally People v. Cain (CA 1995) 10 C4th 1, 64-65 [40 CR2d 481]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.51 [Substitution Of Juror After Deliberations Began] (West, 6th Ed. 1996).]

    An alternate juror has been selected to take the place of juror _______ (name or number of excused juror). Because of this change, you must disregard all of your past deliberations and begin your deliberations again, just as if you were now entering the juryroom for the first time.  In beginning your deliberations again, eliminate any impact that juror ________ may have had on your deliberations.  Consider the evidence in the context of full and complete deliberations with the new member of your jury. 

[See generally State v. Lipsky (NJ 1978) 395 A2d 555 [conviction reversed for failure to give the above charge]; see also NEW JERSEY MODEL JURY CHARGES - CRIMINAL [Criminal Final Charge (2/24/97)] p. 26 (New Jersey ICLE 4th ed. 1997).]

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POINTS AND AUTHORITIES: When an alternate juror is substituted during deliberations, the jurors should be instructed to disregard the earlier deliberations. (See FORECITE National™ 282.2.1 [Substitute Of Alternate Juror: Deliberations Must Start Over].) The instruction to begin deliberations anew is required because the defendant has a right to a verdict reached "only after full participation of all jurors who ultimately return the verdict." (State v. Cheek (KS 1997) 936 P2d 749, 758.)

    However, a special problem is presented when the substitution occurs after a partial verdict has been rendered. In fact, it has been suggested that the problem is so difficult that substitution should not be permitted. (See People v. Aikens (CA 1983) 207 CA3d 209, 215-20 [254 CR 30] dissent [danger of undue influence is so high that no further deliberation should occur]; State v. Miley (OH 1992) 603 NE2d 1070, 1076 [substitution of a juror, after a partial verdict has been returned, for the purpose of continuing deliberations in order to reach a final verdict on the remaining count was plain error in violation of federal constitutional right to trial by jury].) If substitution is permitted, a strong cautionary instruction should be given. For example, in People v. Thomas (CA 1990) 218 CA3d 1477, 1488 [267 CR 865], the court suggested that the standard instruction should be supplemented with a "strong admonition" to both the regular jurors and alternates that they are to "consider the facts unconstrained by any prior determination."

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.12; 7.13].

PRACTICE NOTE: In light of the danger that the jury will be unable to disregard the prior verdict it may be appropriate to request a mistrial rather than to allow deliberations to continue.

See Manual On Recurring Problems In Criminal Trials [8. Replacement Of Juror With Alternate].

See also Manual On Recurring Problems In Criminal Trials [9. Substitution Of Alternate After Deliberations Have Begun].

*To be added to instruction regarding new deliberations after substitution of alternate:

    You must also disregard the prior verdict(s) and deliberations upon which they were founded in deliberating upon the remaining unresolved verdict(s).

[Source: FORECITE National™.]

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RATIONALE: The alternate jurors may not understand that their duty not to discuss the case continues even after the regular jurors have begun their deliberations.

POINTS AND AUTHORITIES: CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 42.30 [Instruction To Alternate Jurors] p. 996-97 (New York Office of Court Administration, 1983).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.6].

See Manual On Recurring Problems In Criminal Trials [8. Replacement Of Juror With Alternate].

See also Manual On Recurring Problems In Criminal Trials [9. Substitution Of Alternate After Deliberations Have Begun].

    The alternate jurors must not discuss this case among themselves. The alternates are also admonished not to read anything about the case, or to permit anyone to discuss the case with them or in their presence. Also, alternate jurors must not form or express any opinion about the case.

[See CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 42.30 [Instruction To Alternate Jurors] (New York Office of Court Administration, 1983).]

    The alternate jurors are still bound by the admonition not to converse with other jurors or alternates or with anyone else about the case. As alternate jurors you are also still bound by the admonition not to form or express any opinion about the case unless you are substituted in for one of the 12 jurors now deliberating on the case. This also means that you are not to think about how you would vote if you were deliberating with the other jurors.

[See CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.53 [Admonition To Alternate Jurors] (West, 6th Ed. 1996).]

VOLUME 13 - CHAPTER 282

RATIONALE: Even if an alternate juror is discharged and the jury is still deliberating, it would be inappropriate for the alternate juror to discuss the case with anyone or to reveal how the alternate juror would have voted. Should such information get back to the deliberating jury, it could be highly prejudicial.

POINTS AND AUTHORITIES: Any communication between the alternate jurors and regular jurors during deliberations is potentially prejudicial. (See generally State v. Cuzick (WA 1974) 524 P2d 457, 458 [presence of alternate juror in juryroom during deliberations was reversible error]; FORECITE National™ 282.3.1 [Alternate Jurors: Presence During Deliberations As Error].) Therefore, a cautionary admonition to not discuss the case should be given to alternate jurors even if they are being excused. (See e.g., WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.69 [Alternate Jurors-When Alternate Juror Is Discharged] (West, 2nd ed. 1994).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.6].

See Manual On Recurring Problems In Criminal Trials [8. Replacement Of Juror With Alternate].

See also Manual On Recurring Problems In Criminal Trials [9. Substitution Of Alternate After Deliberations Have Begun].

    Even though you are discharged, you must continue to abide by the admonition not to discuss the case with anyone until after the entire jury has been discharged.  In particular, do not tell anyone how you would have voted until the jury has been discharged.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.69 [Alternate Jurors-When Alternate Juror Is Discharged] (West, 2nd ed. 1994).]

    Juror _____________, you were selected to serve in the event of the excusal of a member of the panel. It is now clear that your services will not be needed and that you may be excused.  However, I admonish you not to discuss this case or tell anyone how you would have voted until after the jury is discharged. 

[See OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 413.80 [Alternate Juror] (Anderson, 2001).]

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RATIONALE: The alternate jurors may need special instruction so they understand that their temporary discharge does not terminate the admonition not to discuss the case, etc.

POINTS AND AUTHORITIES: See e.g., State v. Lipsky (NJ 1978) 395 A2d 555, 558 [court erred in failing to give specific instructions to the two alternates not to discuss the case between themselves or with others].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.6].

See Manual On Recurring Problems In Criminal Trials [8. Replacement Of Juror With Alternate].

See also Manual On Recurring Problems In Criminal Trials [9. Substitution Of Alternate After Deliberations Have Begun].

    Alternate jurors who do not replace a regular juror may be temporarily excused after the jury begins deliberations.  However, because an alternate juror may be recalled at any time to replace a regular juror, it is important that the alternate who is temporarily excused avoid any influence or publicity that may affect his or her ability to remain impartial.

    Before excusing you, [Mr.] [Ms.] _____, I need to remind you of the admonition  [repeat separation admonition or remind alternate juror that he/she is still bound by separation admonition].

    Keep your mind free from outside influences so that you will remain impartial in case you are recalled.

    You are now temporarily excused from this case.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.69.01 [Alternate Jurors-When Alternate Juror Is Temporarily Excused] (West, 2nd ed. 1994).]

    As alternate jurors you are not excused at this time. You will be kept in a separate location in case it becomes necessary to substitute one or more of you in place of one or more of the regular jurors. Do not discuss the case among yourselves or with other persons. If it becomes necessary to substitute any of you I will give you a further instructions at that time. 

[See NEW JERSEY MODEL JURY CHARGES - CRIMINAL [Criminal Final Charge (2/24/97)] p. 25 (New Jersey ICLE 4th ed. 1997).]