Excusing Jurors and Alternates

Once a jury is sworn, the question changes from who may sit to who may leave. Rule 47(c) answers it in one sentence: during trial or deliberation, the court may excuse a juror for good cause.¹ The rule has three working parts. Its timing language reaches both the trial and the deliberations, so the power survives the moment the jury retires. Its standard is good cause, the only limit the rule states. Its verb, may, leaves the decision to the court.

The rule sits at the back end of a process whose front end is governed elsewhere. The selection statute requires random selection from a fair cross-section of the community and fixes disqualifications, exemptions, excuses, and exclusions by objective criteria.² Those criteria, together with the parties' challenges, operate on the way in. Rule 47(c) operates on the way out, after the jury has been seated and something goes wrong. The good-cause standard keeps the two stages distinct, because a court that could excuse a sworn juror for any reason could reshape a jury that selection had already produced.

Why Excusal Is the Only Exit

The rule matters beyond a single juror because of how Rule 48(a) uses it. That rule requires a jury to begin with at least 6 and no more than 12 members, and it provides that each juror must participate in the verdict unless excused under Rule 47(c).³ Read together, those clauses have two consequences. First, excusal for good cause is the only route by which a sworn juror leaves the group that decides, so a juror who has not been excused takes part in the verdict. Second, the court cannot hold some seated jurors in reserve, because every seated juror is a deliberating juror from the start.

A court that expects to lose a juror or two handles the risk by seating more than six. Federal courts normally do this so that, if some jurors have to leave, at least six remain at the time of verdict. If fewer than six remain, the court must declare a mistrial unless both parties agree to continue.⁴ The extra jurors are ordinary jurors. They hear all of the evidence, and if no one leaves, they all deliberate.

Why Federal Civil Practice Has No Alternates

An alternate is a juror seated in addition to the regular jury in case a juror is dismissed during the trial.⁵ Many accounts of how a jury is assembled describe a clerk summoning the needed number of jurors plus two alternates, who take their seats in the jury box.⁶ In most states the court orders up to six alternates after the regular jury has been selected. Under Rule 48, federal civil practice no longer uses them.⁷ The overseated federal jury does the alternate's job another way: a departure is absorbed by the jurors who remain, with no one new to bring up to speed.

The instinct carried over from state practice is to seat extra jurors as alternates and discharge them at the close of the evidence if no one fell ill. In a federal civil trial that discharge fails, because every juror not excused for good cause deliberates, whatever the order in which jurors were seated.

The Criminal Contrast

The federal criminal rules take the opposite course. Under Federal Rule of Criminal Procedure 24(c), the court may impanel up to six alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties. Each side also receives additional peremptory challenges that may be used only to remove alternate jurors.⁸ The alternate system therefore adds its own round of striking and puts replacement jurors in the box. The civil design avoids both. No one new ever joins, so the group that finishes is always a subset of the group that began. The next unit turns to what those remaining jurors must do to return a valid verdict.