Rules of Criminal Procedure – Comment Period Closed May 1, 2016

Rule 18 The proposed amendment replaces the current language on alternate jurors.  The language is borrowed from the federal rules.  The primary motivation behind the change is to eliminate the requirement that alternate jurors be discharged when the jury retires to deliberate.

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6 thoughts on “Rules of Criminal Procedure – Comment Period Closed May 1, 2016
  1. Samuel D. McVey

    Strongly support this amendment. Since alternate jurors can be given standard admonitions when the other jurors retire to deliberate, having them available in the event of discharge of a deliberating juror can prevent mistrials without prejudice to the parties.

  2. James Blanch

    This is a good change, and I strongly support it. My only concern is that the proposed amendment appears to delete (without replacing) the language explaining the effect of empaneling alternate jurors on the number of peremptory challenges each side receives. I doubt this was the intent of the Committee. If it wasn’t, perhaps the best way to fix the problem is to insert a sentence into Rule 18(d), which generally addresses the number of peremptory challenges, stating that each side gets an additional peremptory challenge for each alternate juror empaneled. The other option would be to put the language back into Rule 18(g), but I think it makes more sense in 18(d).

  3. Robert Hilder

    Support, with one suggested further amendment. More than once I came to the end of a trial and counsel jointly asked that the court discharge one of the first 8 jurors, rather than either of the alternates. The reasons in every case were sound. After one three week trial all counsel, and the court (me) were disgusted by the attitude and inattention of a particular juror. We never saw “misconduct” that would warrant discharge, but the juror’s conduct seriously undermined the confidence of counsel and parties that the juror would consider the case (which involved three deaths) with anything like the care and commitment of the remaining jurors. It is my experience that when all counsel agree to such a substitution, justice is served by allowing a departure from the rigidity of the present and proposed rule.

  4. Judge Derek P. Pullan

    Submitted this comment (or something very close to it) yesterday and I do not see that it was posted:

    This proposed amendment undermines the right to jury trial and should be rejected.

    The idea that deliberations can “begin anew” is a fiction. Jury deliberations are complex and nuanced. A juror who has been absent from part of the deliberative process can never be placed in the same position as a juror who was there from the beginning. When a juror enters deliberations late, the minds of other jurors can be entrenched from having participated in prior discussions. The late juror’s views and opinions are likely to be afforded less less weight by other jurors. Issues raised by the late juror will be dismissed with the explanation: “We’ve already talked about that and decided differently.” In my view, this is not the kind of deliberation contemplated by the right to jury trial.

    1. Gary L. Chrystler

      I agree with Judge Pullan 100%. Mere convenience should never be allowed to undermine the right to a fair jury trial.

  5. Craig L. Barlow

    I generally support the amendment. The prior rule required discharge of alternates once the jury began deliberations. If there was a problem with a juror after that, the remedies were mistrial or a stipulation of counsel to proceed with fewer than the original number of jurors. After a long and complex trial, having only those two options seemed to defeat the purpose of alternates. Judge Pullan’s suggestion about a more flexible standard for removing a juror has merit, but perhaps could be addressed in a separate rule.