Suppose a juror falls ill during the second day of deliberations following a two-week trial and is unable to continue her service. What are the trial court’s options?
A. Replace the juror with an alternate juror.
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B. Declare a mistrial.
C. Either A or B, in the trial court’s discretion.
Today, the answer is B. In October, the answer changes.
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Current law. G.S. 15A-1215(a) provides that a judge in a criminal jury trial may allow the seating of one or more alternate jurors. Alternate jurors are sworn and seated near regular jurors. They must have the same opportunity as regular jurors to see and hear the proceedings, must attend the trial at all times, must follow all the orders and admonitions of the trial judge, and must be kept with the jury whenever the jury is ordered kept together. If a juror dies, becomes incapacitated or disqualified, or is discharged for any other reason before the case is submitted to the jury, the alternate juror becomes a juror and serves as part of the regular trial panel. If an alternate juror has not been seated as a regular juror by the time the case is submitted to the jury, the juror must be discharged.
In a capital case, the trial judge must permit the selection of at least two alternate jurors. G.S. 15A-1215(b). These alternate jurors must be retained during the deliberations of the jury on the issue of guilt or innocence, though they may not participate in the deliberations. An alternate juror may replace a regular juror who is discharged following the return of a guilty verdict but before deliberations begin in a separate sentencing proceeding to determine aggravating factors. G.S. 15A-1340.16(a1).
Structural error. Replacing a regular juror with an alternate juror after deliberations have begun is structural error that requires a new trial, see State v. Hardin, 161 N.C. App. 530 (2003), or, if it occurs in the sentencing phase of a capital case, a new sentencing proceeding, see State v. Bunning, 345 N.C. 253 (1997). North Carolina’s appellate courts have relied on both the state constitution and the state statutes in reaching this determination. The court in Bunning set aside a jury verdict reached after an alternate juror replaced a regular juror in capital sentencing deliberations. The Court reasoned that “Article I, Section 24 of the North Carolina Constitution, which guarantees the right to trial by jury, contemplates no more or less than a jury of twelve persons,” and concluded that the verdict below was reached by more than twelve persons since both the excused juror and alternate juror participated. Id. at 256. The Court explained that because the excused juror participated in deliberations for half a day, it had to assume that she made “some contribution” to the verdict. Id. The alternate juror did not have the benefit of the discussion that occurred before he joined the jury; thus, the Court determined he did not fully participate in reaching a verdict. The Court then proceeded to analyze the relevant statutes and concluded that the General Assembly did not intend for an alternate juror to be substituted after trial began.
The Court in Hardin relied on Bunning in concluding that the defendant was entitled to a new trial because an alternate juror was substituted after deliberations began. See Hardin, 161 N.C. App. at 533. The defendant’s failure to object to the substitution of the alternate juror did not affect the Court’s conclusion that the trial was fundamentally flawed because the Court held the verdict was reached by an improperly constituted jury.
S.L. 2021-94 (H 522). Effective October 1, 2021, for jurors and alternative jurors selected on or after that date, the statutory rules have changed. S.L. 2021-94 rewrites G.S. 15A-1215(a) to permit an alternate juror to replace a regular juror after deliberations have begun. Alternate jurors are no longer to be discharged when the case is submitted to the jury; instead, they are discharged at the same time as the original jury. The trial court must ensure that alternate jurors do not discuss the case with anyone until they either replace a regular juror or are discharged. If an alternate juror replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.
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Amendments to G.S. 15A-1340.16(a1) result in a similar rule for alternate jurors in capital sentencing proceedings. There too, an alternate juror may replace a juror after deliberations have begun. When that occurs, the court must instruct the jury to begin its deliberations anew.
Finally, G.S. 20-179(a1)(3) (which governs sentencing hearings for determining aggravating factors for misdemeanor DWI) is amended to permit the substitution of an alternate juror after deliberations have begun and requires the court to instruct the jury to begin its deliberations anew.
Constitutional concerns. I mentioned earlier that the Bunning Court relied in part on the state constitution in determining that it was structural error to substitute an alternate juror after deliberations had begun. The Court reasoned that “eleven jurors fully participated in reaching a verdict, and two jurors [the first regular juror who was discharged after a half day of deliberations and the alternate juror who was subsequently added] participated partially in reaching a verdict.” 346 N.C. at 256. The amended provisions discussed above ameliorate that concern to some degree because they require the trial court instruct the reconstituted jury to begin its deliberations anew. Indeed, this is the approach adopted by Rule 24(c) of the Federal Rules of Criminal Procedure, which permits an alternate juror to replace a regular juror after deliberations have begun, but requires the trial court to instruct the jury to start over with its deliberations. Even if one accepts the effectiveness of such an instruction when an alternate juror becomes a regular juror after only a few hours of deliberation, cf. State v. Lehman, 321 N.W.2d 212, 222 (noting that even with an instruction “‘it still seems likely that the continuing jurors would be influenced by the earlier deliberations and that the new juror would be somewhat intimidated by the others by virtue of being a newcomer to the deliberations’”), it is debatable whether it would ensure the full participation of all jurors when an alternate joins the jury after several days of deliberation, see id. at 220 (1982) (noting that “[i]f deliberations have progressed to the point where the eleven regular jurors are in substantial agreement, the alternate juror may find it difficult to persuade and convince the eleven who have already come to an understanding”). The federal rules provide trial judges with another option in such a circumstance: A federal trial judge may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror. See Fed. R. Crim. P. 23(b)(3).
Notwithstanding the aforementioned concerns, federal courts have time and again determined that the substitution of an alternate juror after deliberations have begun does not violate the Constitution, so long as the judge instructs the reconstituted jury to begin its deliberations anew. See Claudio v. Snyder, 68 F.3d 1573, 1575-76 (3d Cir. 1995) (collecting cases). And several other states, including Hawaii, Louisiana, Michigan, and New Jersey, allow replacement by alternate jurors after deliberations begin. In October, North Carolina will join their ranks. And the answer to the question posed at the outset of this post will be A.
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