Post-Submission Substitution of Alternate Jurors in Federal Rules of Criminal Procedure 23(b) and 24(c) (From Criminal Law Review, P 351-373, 1988, James G Carr, ed. -- See NCJ-114710)

• NCJ Number: 114718
• Author(s): J G Grunat
• Date Published: 1988
• Length: 23 pages
• Sale Source: Clark Boardman Company, Ltd
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: Reprinted from 55 Fordham Law Review 861 (1987).

Annotation

The problems of mistrials due to discharge of incapacitated or no longer qualified jurors are addressed in Federal Rules of Criminal Procedure 23(b) and 24(c).

Abstract

Rule 24(c) provides for the replacement of a regular juror by an alternate juror prior to the time the jury retires to consider its verdict. Once the jury retires, alternate jurors must be discharged. If a regular juror must be discharged after submission of the case to the jury, the court is faced with a dilemma about how to proceed. As originally adopted, Rule 23(b) provided a limited solution to this dilemma: If both the prosecution and defense agreed, with the court's approval, a valid verdict could be returned by the remaining jurors. In 1983, the U.S. Supreme Court and Congress ammended Rule 23(b) to permit the court, in its discretion, to proceed with the remaining 11 jurors. Despite this, many Federal courts continue to improvise their own solutions. Some permit post-submission substitution, some use sit-in alternates, while others keep alternates sequestered until the regular jury reaches a verdict. Courts have been split as to whether these violations require a reversal in all cases. It is argued that the defendant's substantial rights are affected whenever the improvised procedure involves post-submission personal contact between alternate and regular jurors. In some cases, reversal should be required. When no such contact occurs the procedure is no more than a harmless error. 150 footnotes.