In Sharper Focus: Substituting an Alternate Juror During Deliberations in Non-Captial Cases

In State v. Gunnell, the trial court granted a mistrial in a non-capital  murder case because during deliberations one of the jurors brought into the jury room independent research she had done on the internet on the definition of involuntary manslaughter.

At oral argument Justice O’Donnell asked why an alternate juror hadn’t been selected to replace that juror, to save the trial.  Gunnell’s trial took place in October 2007.  At that time Crim. R. 24 G(1), which deals with alternate jurors in non-capital cases, read

“Except in capital cases, an alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” 

 An amendment effective July 1 2008 removed that sentence and added this language:

“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. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.” 

Student contributor: Jason Persinger

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