THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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 VOLUME 13 - CHAPTER 282
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282.3 Alternate Jurors: Presence During Deliberations

    282.3.1 Alternate Jurors: Presence During Deliberations As Error
    282.3.2 Presence Of Alternates During Deliberations: Personal Waiver Of Defendant
    282.3.3 Alternate Jurors: Should Not Be Present For Proceedings In Response To Juror Inquiries During Deliberations

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
 Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 13 - CHAPTER 282

    282.3.1    Alternate Jurors: Presence During Deliberations As Error

PRACTICE NOTE: It is error, but not necessarily reversible per se, to allow an alternate juror in the juryroom during deliberations. (See U.S. v. Olano (1993) 507 US 725, 736 [113 SCt 1770; 123 LEd2d 508]; see also U.S. v. Bendek (8th Cir. 1998) 146 F3d 1326, 1328; Davies v. State (AR 1998) 977 SW2d 900, 903; State v. Cuzik (WA 1974) 524 P2d 457, 459; but see U.S. v. Myers (4th Cir. 2002) 280 F3d 407, 412-413 [alternate juror participating in deliberations and casting of a 13th vote for conviction did not require reversal under the plain-error standard of Olano].)

    However, in Manning v. Huffman (6th Cir. 2001) 269 F3d 720 prejudice was presumed upon a showing that an alternate juror participated in the deliberations.

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].

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 VOLUME 13 - CHAPTER 282

    282.3.2    Presence Of Alternate Jurors During Deliberations: Personal Waiver Of Defendant

PRACTICE NOTE:  In Manning v. Huffman (6th Cir. 2001) 269 F3d 720, the defendant was prejudiced by the alternate jurors’ participation in deliberations where the trial court permitted two alternate jurors to remain on the jury during deliberations, in case any regular juror had to be excused before a verdict was reached. Trial counsel agreed to the procedure and represented that the defendant also agreed, but this did not waive the error because there was no indication in the record that the defendant was apprised of his rights or that he personally agreed to this procedure.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 13 - CHAPTER 282

    282.3.3    Alternate Jurors: Should Not Be Present For Proceedings In Response To Juror Inquiries During Deliberations

PRACTICE NOTE: It may be inappropriate for the alternate jurors to be present during the discussion of any notes or inquiries by the jury during deliberations. This is so because if the alternate juror is substituted the jury is required to begin deliberations anew. (See NCJIC 282.2.1 [Substitute Of Alternate Juror: Deliberations Must Start Over].) Therefore, it would be improper for the new juror to have any knowledge of the prior deliberations.

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].