Concept
Alternate Jurors
Impartial jury and Batson challenges
Alternate Jurors
Rule 24(c) allows the court to select alternate jurors along with the regular jury, so that the trial can go on with a full panel if a juror becomes unable to perform or is disqualified.1 Alternates must have the same qualifications as the other jurors and be selected and sworn in the same manner, which keeps the verdict in the hands of a properly chosen jury and spares the parties a mistrial and a second round of selection when a seat falls vacant midway through trial.2 The rule's working parts are taken in order below: how alternates are impaneled, how they replace regular jurors and when they are released, and how additional peremptory challenges are allotted for them.
Impaneling Alternates
Rule 24(c)(1) lets the court impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.3 To impanel jurors is to select and swear them for service, so the rule gives the court power to seat a small reserve group alongside the regular jury at the outset of the trial. These alternate jurors are standbys, and each takes a regular juror's seat only if that seat falls vacant. The rule exists so that a trial which loses a juror midway can continue with a full panel and without a mistrial.
The trigger for using an alternate has two branches, and either one is enough. A juror is unable to perform when something keeps the juror from serving even though the juror remains eligible, such as an illness or an emergency that removes the juror from the courtroom. A juror is disqualified when the juror turns out to lack a qualification that service requires. The rule treats the two situations alike because the trial faces the same problem in each: a seat is empty and the panel is short. Two words in the text also set the scale of the court's authority. The verb may leaves the decision to use alternates with the court, so no party can demand them as of right. The phrase up to 6 sets a ceiling and gives no fixed number, so the court can impanel two, four, or six according to how long the trial will run and how likely it is that a juror will drop out. The ceiling also bounds the cost of the reserve panel, since every alternate must be examined and sworn like a regular juror and each additional one lengthens selection.
The ceiling is where students most often slip. A court that expects a very long trial and wants seven alternates cannot have them, because the rule authorizes up to six and a longer trial does not raise that limit.4
Rule 24(c)(2)(A) adds the condition that makes the reserve panel trustworthy: alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.5 The condition serves interchangeability. When an alternate replaces a juror, that person becomes one of the people deciding guilt, and the defendant's right to an impartial jury attaches to that seat as fully as it attaches to any other. If alternates were held to a lower standard, or came through a quicker process with less questioning, the substitution would put a juror on the panel who never passed the screening the departing juror passed. A single standard and a single procedure mean that the examination of prospective jurors, the oath, and the qualifications for service apply to the reserve jurors just as they apply to the regular ones. Whoever steps in has therefore been vetted in advance, and the substitution cannot weaken the panel at the moment it happens. The number of peremptory challenges available when alternates are chosen is governed by a separate provision, taken up later in this chapter.
The two halves of Rule 24(c) therefore divide the work between them. Paragraph (c)(1) answers when and how many, allowing the court to impanel alternates, up to six, for jurors who are unable or disqualified. Paragraph (c)(2)(A) answers who, requiring that every alternate be a juror in every respect except that of being seated first. The next section turns to the order in which alternates replace regular jurors and to the point at which unused alternates are released.
Replacing and Retaining Alternates
Once alternates have been impaneled, two questions remain about how they enter the case: which alternate fills a vacancy, and what becomes of the alternates when the jury retires to deliberate. Rule 24(c)(2)(B) answers the first. Alternate jurors replace jurors in the same sequence in which the alternates were selected, and an alternate who replaces a juror has the same authority as the other jurors.8 The order is therefore fixed by the order of selection, and the court has no occasion to choose among the alternates when a seat opens. If a juror is excused and several alternates are waiting, the one chosen first is the one who sits.
The reason for the fixed order lies in when it is set. The sequence is established at the moment the alternates are chosen, before anyone knows which regular juror will later fall ill or be disqualified. A rule that left the choice to the court or the parties at the time of the vacancy would give a side an incentive to prefer whichever alternate looked friendlier once the departing juror was known, and it would force the court to justify its pick. Tying replacement to an order set in advance removes that temptation at the source. The second clause of the rule does separate work. Because a replacing alternate holds the same authority as the other jurors, the substitute is a full juror, and nothing the substitute does in the jury room counts for less than what the departed juror would have done. That equality is earned by the requirement, taught in the last section, that alternates have the same qualifications and be selected and sworn in the same manner as any other juror. The rule can give alternates full authority because they have passed the same screening.
Rule 24(c)(3) addresses the second question, what happens to alternates after the jury retires. The court may retain alternate jurors after the jury retires to deliberate.9 The verb is may, so keeping the reserve panel available during deliberations is the court's choice and no party can demand it. The practical reason is that a jury room can lose a member as easily as a courtroom can. A juror who falls ill after the jury has retired leaves the panel short, and a court that has already discharged every alternate has nothing to fill the seat. Retaining one or more alternates keeps a qualified substitute within reach during the period when the jury is out.
A retained alternate occupies an awkward position, because that person has no vote yet may be called on to take one. The rule resolves the problem by placing a duty on the court: it must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged.10 Two features of the text matter. The word must makes the duty mandatory, and the word anyone carves out no exception, so the restriction reaches the deliberating jurors as well as outsiders. The reason is easy to reconstruct. An alternate who talks with the deliberating jurors would influence a verdict without holding a vote, and an alternate who talks with outsiders could absorb information that was never admitted at trial. Because a replacing alternate steps into a seat with full authority, either kind of contamination would carry straight into the verdict. The restriction ends in one of two ways, either by replacement, which makes the alternate a juror, or by discharge.
The last piece of the rule covers what happens when the replacement actually occurs. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.11 Deliberation is a conversation in which positions form, are challenged, and shift. The newcomer heard none of it. Without a restart, that person would be asked to vote on conclusions reached in discussions the newcomer never joined, and the verdict would reflect the reasoning of only part of the jury. A fresh start gives the replacement the same chance to persuade and be persuaded that every other juror had, so the verdict can claim to be the product of the full jury. The trigger is timing. An alternate who takes a seat before deliberations have begun misses no discussion, so this provision requires no restart instruction in that situation.
Students most often go wrong by treating the restart as optional or by assuming that a short briefing satisfies it. The instruction goes to the whole jury and requires that it begin its deliberations anew, so bringing the newcomer up to date on the earlier discussion does not satisfy it.
The two paragraphs of the rule are now complete. Paragraph (c)(2)(B) fixes who replaces a juror and with what authority, and paragraph (c)(3) governs how alternates are held and how the jury restarts when one joins mid-deliberation. The remaining question is how many peremptory challenges each side receives when the alternates themselves are chosen, which the next section takes up.
Peremptory Challenges for Alternates
The last piece of Rule 24(c) concerns how the reserve panel is screened. Rule 24(c)(4) entitles each side to a stated number of additional peremptory challenges directed at prospective alternate jurors, and it confines those challenges to one use: they may be used only to remove alternate jurors.14 The word additional matters, because these challenges sit on top of the allotment Rule 24(b) gives for the regular jury and take nothing from it. A separate allotment follows from how the regular numbers were set. The Rule 24(b) figures of 3, 6, 10, and 20 were sized for the main panel, and an alternate who later replaces a juror votes with the same authority as any other juror, so each side has good reason to screen the reserve panel with care. If that screening drew on the regular allotment, every strike spent on a reserve juror would be a strike unavailable against the main jury, and each side would have to ration one purpose against the other.
The number of additional challenges depends on how many alternates the court impanels, and it rises in three steps:
- One additional challenge when one or two alternates are impaneled.15
- Two additional challenges when three or four alternates are impaneled.16
- Three additional challenges when five or six alternates are impaneled.17
The scale is a step function and gives no challenge per alternate, so even when six alternates are impaneled each side can remove only three prospective alternates by peremptory strike. The top tier also stops where the court's own authority stops, since the court may impanel no more than six alternates.18 Because the count turns on how many alternates are impaneled, the court's decision under Rule 24(c)(1) also fixes each side's additional strikes.
The limiting sentence does most of the work in this rule. Because the additional challenges may be used only against alternates, a side cannot spend one on a prospective member of the regular jury, even after it has exhausted every regular strike and sees an unwelcome juror it would like to remove.19 The functional reason is that the extra challenges exist to give alternate screening its own budget. Once a challenge could move from the reserve panel to the main panel, the budget would no longer be separate, and the side would be back to rationing the same strikes between the two groups. The limit also means an additional challenge has no value outside the alternate selection, so a side that does not need to strike an alternate gains nothing elsewhere from holding one.
The limit also removes a temptation. Rule 24(b) sets each side's strikes against the regular jury at deliberately chosen numbers, and those strikes shape who sits on the main panel. If alternate challenges could be used against regular jurors, the size of the reserve panel would become a lever on the composition of the main jury: a court that impaneled six alternates instead of two would hand each side two more strikes against the regular panel. A party would then have a reason to press the court for a larger reserve panel just to obtain more strikes, even though the party had no concern about losing a juror. Confining the extra challenges to alternates removes that reason at the source, and the court's choice about how many alternates to impanel cannot alter the balance of strikes against the regular jury.
Students go wrong on this rule by reading the extra challenges as a general increase in a side's strikes, or by assuming that each alternate carries its own challenge. Both readings contradict the text, which grants a scaled number of additional challenges and allows them only to remove alternate jurors.20 When an exam stem reports a side spending an alternate-round challenge on someone bound for the regular jury, the answer is that the challenge was unavailable for that purpose. When a stem asks how many extra challenges follow from a stated number of alternates, run the one-two-three scale.