Considering the Presence Of Alternate Jurors During Jury Deliberations

Seventh Circuit concludes that absent any showing that an "alternate juror participated in deliberations," no indication that the substantial rights of the defendant had been made; case underscores a pending open issue on how to establish the record of participation of an alternate juror without violating FRE 606(b) generally bars any inquiry concerning the validity of the verdict, in United States v. Dill, _ F.3d _ (7th Cir. April 4, 2012) (No. 12-1733)

Alternate jurors serve an essential role in the jury system and may be needed for a verdict to be reached. In criminal cases, alternate jurors are permitted under Fed. R. Crim. P. 24(c), which provides in pertinent part:

(2) Procedure.

(A) Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

(B) Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

(3) Retaining Alternate Jurors. 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.

What role do alternate jurors serve when they have not been selected and the jury begins its deliberations? The Seventh Circuit recently considered a case in which an alternate juror was permitted to be present during jury deliberations.

Lower Court Proceedings

In the case, defendant Dill was charged and convicted on drug and firearm offenses following a traffic stop. As the circuit framed the issue presented was whether “the district court committed reversible error when it allowed an alternate juror to be present in the jury deliberation room.” Dill, _ F.3d at _. The trial court proposed that the alternate juror be permitted to be present during jury deliberations with an instruction not to deliberate. The parties did not object but the government noted the practice was not typically allowed. The trial court provided the following instruction:

Alternate juror, you are permitted to be present in the jury room during deliberation. However, you may not participate in deliberations or render a vote on the verdict unless you are called upon to replace a regular member of the panel, and any replacement will be done here in open court.

Dill, _ F.3d at _. However, this instruction was not included in the final set provided to the jury. After “[a] little over an hour later,” the jury convicted the defendant as charged. On appeal, he contended a new trial was required by the presence of the alternate juror during deliberations.

Circuit Analysis

The Seventh Circuit reviewed the issue for plain error since no objection had been raised at trial, and found none. In particular, the circuit concluded: “Though the parties agree that the rule prohibits alternates from deliberating with the regular jury, Dill has offered no evidence to suggest that the alternate juror participated in deliberations.” Dill, _ F.3d at _.

The case was largely controlled by United States v. Olano, 507 U.S. 725 (1993), the landmark plain error case which involved similar facts. Under the four-part plain error standard, the complaining party bears the burden to show that (1) error resulted; (2) that was plain; (3) that affected "substantial rights"; and (4) given the permissive nature of plain error relief, the reviewing court has discretion to redress the error if it concludes the error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732-37. In Olano, the issue presented was "whether the presence of alternate jurors during jury deliberations was a 'plain error' that the Court of Appeals was authorized to correct." Olano, 507 U.S. at 727. The Supreme Court concluded that the presence of two alternate jurors, who were instructed not to participate in the deliberations, did not result in plain error as it did not affect the substantial rights of the defendants.

The Seventh Circuit assumed, without deciding, that the presence of the alternate constituted plain error. However, the circuit, similar to the Court in Olano, held that in the absence of any participation by the alternate juror, the defendant had not met his burden to show his substantial rights were affected, the third element of the plain error test. As the circuit explained:

Here, the district court verbally instructed all of the jurors, including the alternate, that the alternate could not engage in deliberations, and this instruction occurred right before the jury retired to deliberate. We generally presume that jurors and alternates follow the court’s instructions, and we do not see any reason to question their adherence to the court’s oral instructions in this case. So Dill has failed to establish that the alternate juror’s presence in the deliberation room affected his substantial rights and the outcome of the proceedings.

Dill, _ F.3d at _ (citation omitted).

Open Issue To Consider

The case raises an interesting proof issue which was not necessary to address given the absence of any record that the juror participated in the deliberations. FRE 606(b) generally bars any inquiry concerning the validity of the verdict. As the rule provides:

During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

So how does one establish that an alternate participated in the deliberations without transgressing FRE 606(b)? In Olano, the Supreme Court noted this open issue:

Respondents have made no specific showing that the alternate jurors in this case either participated in the jury’s deliberations or “chilled” deliberation by the regular jurors. We need not decide whether testimony on this score by the alternate jurors or the regular jurors, through affidavits or at a Remmer [v. United States, 347 U. S. 227 (1954) (remanding for hearing to determine impact of FBI investigation on juror conduct)]-like hearing, would violate Federal Rule of Evidence 606(b), ... or whether the courts of appeals have authority to remand for Remmer-like hearings on plain-error review. Respondents have never requested a hearing, and thus the record before us contains no direct evidence that the alternate jurors influenced the verdict. On this record, we are not persuaded that the instant violation of Rule 24(c) was actually prejudicial.

Olano, 507 U.S. at 739-40 (citation omitted). This issue, which presents a different case, remains open today.

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