Question: Can A Juror Be Replaced Once Deliberations Have Begun?
Answer: Yes, But Only In Extreme Cases.
A jury trial commenced in August 2013. About 2 hours after the jury began to deliberate, the trial court received a note that said “We are at a standstill. We are 11 out of 12 guilty. The court told the jurors to continue to deliberate and try to reach a verdict. About an hour later another note to the court said, “Still at a standstill. Nothing will change his mind.” A later communication was that the holdout juror “will not talk and seems to be falling asleep at times. We cannot deliberate if he will not talk to us and he told us he does not want to talk.” The court noted the State had indicated it thought a male juror was starting to fall asleep during closing argument. The State confirmed it noticed the juror might have been sleeping but it “couldn’t be sure if he was closing his eyes to listen.” It told the court, “we need to switch this juror in seat number one out with an alternate to make sure we have a juror who’s heard all the evidence, who’s heard all the deliberations and replace the juror who is refusing to deliberate.” The court declined to do so at that time, then called the jury foreperson into the courtroom. The foreperson, said the juror would not deliberate: “He was talking at the beginning, but within probably the last hour has not said a single word to us. We cannot deliberate with him,” and he “was dozing off.” Wright’s counsel asked the foreperson “he just wouldn’t change his mind after people were trying to sway him?” The foreperson responded, “Correct, and he did make probably 3 or 4 comments that he will make up his mind just so he could go home.” The court then said, “if it were just an issue of someone who disagrees with the other jurors, we of course—we wouldn’t replace that person,” but the juror “has stopped deliberating. It’s one thing to stick to your guns, it’s another to refuse to participate in the cooperative effort of deliberation.” The court granted the State’s motion. It replaced Juror with an alternate, and Wright was then found guilty.
Trial Rule 47 provides: “Alternate jurors … shall replace jurors who, prior to the time the jury returns its verdict, become or are found to be unable or disqualified to perform their duties.” Removing an impartial juror who has voted to acquit based on the evidence presented at trial and on the juror’s life experiences “gravely imperils” a defendant. A trial court has broad discretion to remove a juror before deliberations begin, but removing a dissenting juror after that point implicates the defendant’s right to a unanimous verdict and the defendant’s right to a jury trial. Once deliberations have begun, discharge of a juror is warranted only in the most extreme situations where it can be shown that the removal of the juror (1) is necessary for the integrity of the process, (2) does not prejudice the deliberations of the rest of the panel, and (3) does not impair the party’s right to a trial by jury. A failure to agree, however unreasonable, is a ground for mistrial, not removal of the obstacle to unanimity. That a juror may not be removed because he or she disagrees with the other jurors as to the merits of a case requires no citation. Removal of a juror for misconduct requires more than a refusal to negotiate. If there is a showing of physical confrontation or attempts to intimidate, then removal may be permissible.
In the case before us, “the trial judge went to exemplary lengths to try to follow appropriate procedures,” but it is apparent from the record that Juror 356 was an impartial juror who has voted to acquit based upon the evidence presented at trial, who should not have been dismissed. We cannot find dismissal of Juror 356 was justified on the ground he would have found Wright not guilty because he believed the victim lied. His behavior does not fall within the category of “the most extreme situations where it can be shown that the removal of the juror (1) is necessary for the integrity of the process, (2) does not prejudice the deliberations of the rest of the panel, and (3) does not impair the party’s right to a trial by jury. Replacement of Juror 356 was error. 12 N.E.3d 314