Jury - Alternates

United States v. Olano, 507 U.S. 725 (1993)

The trial court erred in allowing alternates to sit in during the jury’s deliberations without obtaining the defendant’s consent to this procedure. The consent of the defendant’s counsel is not sufficient. However, contrary to the Ninth Circuit’s decision, the Court held that the error was not plain error requiring reversal of the conviction. The defendants were unable to show prejudice from the alternates’ presence in the jury room.

United States v. Mendoza, 510 F.3d 749 (7th Cir. 2007)

Rule 24 does not permit the trial judge to choose alternates from among a jury of fourteen people who heard the evidence. The alternates must be designated at the time of jury selection and must be chosen sequentially from the jury pool after the jurors are chosen.

United States v. Delgado, 350 F.3d 520 (6th Cir. 2003)

The trial court’s method of choosing a jury was not permitted by the federal rules. The judge required the attorneys to exercise all their strikes resulting in a jury of 14 jurors. Then, just prior to deliberations, the two alternates were chosen. This random designation of alternates violates Rule 24.

United States v. Beard, 161 F.3d 1190 (9th Cir. 1998)

Just before deliberations began, the judge became aware of discord between two jurors. After deliberations began and the alternates were discharged, the two jurors’ animosity increased and the judge decided to excuse them both. This was an acceptable procedure. However, the trial court erred in substituting in two alternates. Even though the judge instructed the jury to begin deliberations again and select a foreman again, Rule 24(c) only allows the substitution of alternates if the defendant consents.

United States v. Acevedo, 141 F.3d 1421 (11th Cir. 1998)

Through oversight, the alternates were permitted to retire to the jury room with the jury and actually deliberated with them. After one hour of deliberations, all 14 jurors reached a unanimous verdict of guilty – one of the alternates served as the foreman. When the verdict form was returned and the judge realized what had happened, he required the 12 actual jurors to begin their deliberations again, which they did, returning a verdict in five minutes. The Eleventh Circuit affirmed the conviction. Though there was manifest error, it did not prejudice the final verdict of the jury.

United States v. Bendek, 146 F.3d 1326 (11th Cir. 1998)

The defendants, the prosecutor and the judge all agreed that the jury would begin deliberating with 13 jurors (the 12 jurors plus the alternate) because of the necessity of one of the jurors leaving the next day. The plan envisioned the jury deliberating with 13 jurors and if all 13 agreed on a verdict, that would conclude the case on the first day of deliberations. If, however, the deliberations lasted longer, the juror who was required to leave would be permitted to leave and that would leave 12 jurors. Because all parties agreed with this procedure, there was no basis for setting aside the conviction (which occurred on the first day, with all 13 jurors voting to convict).

United States v. Ottersburg, 76 F.3d 137 (7th Cir. 1996)

Two alternates were permitted to deliberate with the jury and were actually asked to sign the verdict form. Even under the standard of United States v. Olano, 507 U.S. 725 (1993), this constituted plain error, necessitating reversal of the conviction, even though the defendant never objected.

United States v. Ullah, 976 F.2d 509 (9th Cir. 1992)

A trial judge may not permit a non-unanimous verdict, even in exceptional circumstances, and even if the defendant acquiesces. Moreover, it is reversible error to permit alternates to participate in the deliberations.

United States v. Donato, 99 F.3d 426 (D.C.Cir. 1996)

Just prior to the commencement of deliberations, the judge asked the jury if there was any juror who was sick, or otherwise unable to continue. One juror indicated that she had to teach a course in Boise, Idaho and was leaving Monday night (this was Thursday afternoon). Without further inquiry, the district judge excused the juror and replaced her with an alternate. This was error. Pursuant to Rule 24(c), a juror may be excused only if there is a finding that a juror is unable or disqualified to perform her duties. The court made no findings that the juror was unable or disqualified.