Also known as: alternate juror
Written by attorneys — see sources below.
A juror impaneled in a criminal trial to replace any seated juror who becomes unable to perform or is disqualified from performing duties. The alternate must possess the same qualifications and be selected and sworn in the same manner as regular jurors. Replacement occurs in the sequence the alternates were chosen, and the alternate assumes full authority upon seating.
Anthony Arnold stands trial in federal court on billing fraud charges. After opening statements, Juror 6 reports severe illness and inability to concentrate. The court excuses Juror 6 for good cause and seats the first alternate, who was selected and sworn identically to the original panel members.
A federal grand jury is investigating insurance fraud. On the third day of testimony, Juror 6 receives a mandatory hurricane evacuation order and must depart immediately. The court excuses the juror permanently and replaces her with the next alternate in selection sequence, allowing the proceeding to continue without delay.
Andrew Avery and a codefendant proceed to trial on savings-and-loan kickback charges. The parties agree to seat fourteen jurors with two alternates identified before deliberations. When a seated juror is excused after the jury retires, the first alternate joins the deliberations under the court's instructions to begin anew.
In 1986, Guy W. Olano, Jr., and Raymond M. Gray were indicted in the Western District of Washington on multiple federal charges for their participation in a loan kickback scheme while serving on the board of a savings and loan association. Their joint jury trial with five codefendants commenced in March 1987. All parties agreed that fourteen jurors would be selected, with the two alternates identified before deliberations began. On May 26, 1987, shortly before the end of the three-month trial, the district court suggested allowing the two alternate jurors to attend deliberations without participating. The court raised the matter again the next day in an exchange with Gray's counsel. On May 28, the final day of trial, counsel for defendant Davy Hilling gave an affirmative response that all fourteen could deliberate, with instructions that the alternates not participate; Olano's and Gray's counsel were present and did not object. The district court instructed the jurors that the alternates would attend deliberations but must not participate. One alternate was excused during deliberations at his own request, while the other remained until the jury returned its verdict. Both Olano and Gray were convicted. Olano and Gray appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit reversed certain counts for insufficient evidence and then considered the presence of alternate jurors during deliberations under Federal Rule of Criminal Procedure 24(c). Because no objection had been made at trial, the court applied a plain error standard, held that the violation was inherently prejudicial, and reversed the remaining convictions. The Supreme Court granted certiorari to clarify the standard for plain error review by the courts of appeals under Rule 52(b).
View caseAlexis Archer enters plea negotiations in a federal criminal case. The parties discuss whether an alternate may remain with the jury during deliberations. Counsel agrees to permit the alternate to observe without participating, treating the arrangement as a valid waiver of any discharge requirement.
Aaron Adams challenges his conviction on collateral review after a state trial in which an alternate replaced a juror. The reviewing court examines whether the federal alternate-juror procedures apply retroactively to the state proceeding under established retroactivity doctrine.
Arthur Abrams stands trial on felony charges. During voir dire the court selects alternates alongside regular jurors. Each side exercises the additional peremptory challenges allotted specifically for striking prospective alternates before the panel is sworn.
A court may substitute an alternate when a seated juror becomes unable to perform or is disqualified. Illness, mandatory evacuation orders, and other good-cause circumstances qualify. Substitution preserves the twelve-person jury without requiring party consent or a mistrial.
Supporting sources
No. The court holds authority to excuse a juror and seat an alternate without obtaining consent from either side. An objection by defense counsel does not block substitution when the juror cannot continue.
Supporting sources
A federal court may impanel up to six alternates. The rule sets an upper limit rather than a required minimum, and two or four alternates suffice when the need arises.
Supporting sources
The court must instruct the jury to begin deliberations anew. The alternate receives the same authority as the other jurors once seated.
Supporting sources
Each side receives a specified number of additional peremptory challenges that may be used only against prospective alternates. These challenges are separate from those allotted for regular jurors.
Supporting sources
…plus the number of allowable peremptory challenges. Rule 9.36. Since the offense charged in this case was a felony, and an alternate juror was called, the prosecutor was entitled to six peremptory challenges, and defense counsel to nine. Rule 9.40. : See, e. g. , Strauder v. West Virginia , 100 U. S. 303 (1880);…