Reform’s Hidden ImpactIn 1995, the Arizona Supreme Courtadopted multiple jury reforms containedin Jurors: The Power of 12, a report thatderived from the Court’s Committee onMore Effective Use of Juries. According toour Supreme Court, the “changesstem[ed] from an ongoing national debateover whether the nation’s centuries-oldjury system need[ed] updating in order tocontinue to play an effective role in civiland criminal trials.”1

The Power of 12 recommended morethan 55 changes to the jury system. Only

a handful of those were the subject of

vigorous debate; for example, hotly con-tested were juror questions and jury delib-erations during trial before the case is sub-mitted to the jury.

But one of the less controversial recom-mendations—the mid-deliberation substi-tution of jurors—deserved more attention.

As a result of The Power of 12, the crim-inal rules were amended to provide that ifan already deliberating juror becameunable to serve, an alternate could be sub-stituted and join the jury as long as delib-erations begin “anew.” In other words, thejury, under the new rules, could be“reconstituted” if a deliberating juror wasexcused because of “inability or disqualifi-cation” to serve.

The amendment seems innocuous andpractical enough on its face. For theunwary and unprepared trial counsel, how-ever, juror substitution presents an unfa-miliar challenge.

Safeguarding JusticeFrom an administrative perspective, substi-tution is pragmatic because it is designedto conserve limited judicial resources. Butto make it more than a crapshoot for the

accused, trial counsel must employ strategyand protect the record for appeal. The coreissue is what minimum procedural safe-guards should be used when a juror is sub-stituted to prevent prejudice to theaccused?Rule 18.5(h) creates a procedure for thetrial court to reconstitute the jury. Defensecounsel must play a role in ensuring thatthe process is fair and that the trial courtadequately instructs the jury on beginningdeliberations anew.

As one of its goals, the 1995 juryreforms aimed to reduce mistrials, whichsome commentators argue are on the risenationally. In reaction, some jurisdictionshave considered non-unanimous verdicts.

A less drastic alternative is to give theinitially selected jury the maximum oppor-tunity to reach a verdict by recalling analternate. To accomplish this, the trialcourt instructs alternate jurors, once a juryis set to deliberate, to continue to followthe admonition until the jury reaches a ver-dict, even though the individual alternateis temporarily released to go home or towork.

As Rule 18.5(h), ARIZ.R.CRIM.P., putsit, “Upon being … excused, [the alternate]shall be instructed to continue to observethe admonition until informed that a ver-dict has been returned.” If a deliberatingjuror becomes sick, fails to appear or forsome other reason can no longer deliber-ate, the trial court may choose from the“alternates in the order previously desig-nated … to join deliberations.”Furthermore, Rule 18.5(h) provides that

To make

it more than

a crapshoot for

the accused, trial

counsel must employ

strategy and protect

the record for appeal.

W W W. A Z B A R . O R G

n the movie 12 Angry Men, one conscientious juror, portrayed by acting great Henry Fonda,is resolute to prevent a rushed, perhaps racist, verdict, by 11 other jurors. Ultimately, he pre-vents a decision by expediency and triumphs over the morally jaded laziness of his fellowjurors.The Fonda character epitomizes the ideal juror, who, throughout the deliberation process,

refuses to be intimidated. What about a juror, however, who joins deliberations in the middle—the substituted juror? That scenario is now possible, and indeed has happened.

I

“if an alternate joins the deliberations, thejury shall be instructed to begin delibera-tions anew.”

It has been established, in a number ofjurisdictions, that the substitution of analternate juror for an original juror is con-stitutionally permissible after deliberationshave started when there is good cause andthe jury has been adequately instructed tobegin deliberations anew.2 The rationalefor substitution hinges on the principlethat there is no right to the originaljurors—or to a particular jury.

Unfortunately, Rule 18.5 does not pro-vide a comment covering the mechanics ofjuror substitution. All that exists to guidethe trial court is the bare-bones rule. How,when and to what extent the court deter-mines that the admonition has been fol-lowed by the alternate juror or jurors, andwhat constitutes sufficient instruction tobegin anew, is an ad lib affair. As is oftenthe case when a procedure is open to dis-cretionary interpretation, the results areuneven.

Odd Juror OutThink back to Twelve Angry Men. When analternate juror is substituted into a groupof jurors who already have started thedeliberative process, some jurors alreadywill have formed opinions regarding guiltor innocence. The substituted juror maynot have a fair opportunity to express herviews and try to persuade others. The newjuror also will be unaware of the dynamicsthat have formed between the jurors.

Even more problematic is that the sub-

stituted juror will not have heard what wassaid by the juror who was replaced. It isalso possible that the juror who calls insick, for example, feigned illness to get outof the pressure of making a decision inheated deliberations. In other words, it isobvious that the deliberations of anunchanging group of 12 is not equivalentto the deliberations of a group of 11 whoare later joined, in the middle of theirdeliberations, by a “new” 12th person.

And what did the alternate do betweenthe time she was released and the time shewas called back to duty? Did she read thenewspaper or discuss the case with familyor friends?

Cautionary InstructionsInadequateAlthough formalized juror substitutionbecame part of the process in 1995, theissue was not addressed on appeal untilabout three years later in State v. Guytan.3

Because of grisly facts, it was not an idealcase to establish a bright line rule, but as

the court of appeals wrote, “no [previous]Arizona opinion addressed the methodolo-gy of substituting a juror after delibera-tions had begun.” The Guytan court artic-ulated that the fundamental issue raised ina juror substitution is the efficacy of cau-tionary instructions to safeguard againstprejudice. What exactly the court envi-sioned as adequate or sufficient, however,was cloudy. No precise test, standard orpresumption was prescribed.

Although a juror was substituted inGuytan, the court of appeals affirmedGuytan’s first-degree murder conviction.On the second day of trial, one of the 12jurors simply did not appear. The trialcourt called one of two alternate jurors athome and asked her to return to the court-house to rejoin the jury.

Defense counsel did not ask to voir direthe juror and waived the client’s presencefor the proceedings The accused, in fact,may never have known that a juror hadbeen substituted. In an added twist, thetrial court actually informed the remaining

17F E B R U A R Y 2 0 0 2 A R I Z O N A AT T O R N E YW W W. A Z B A R . O R G

SUBSTITUTEJURORS: the

weakestlink BY CHRISTOPHER JOHNS

18 A R I Z O N A AT T O R N E Y F E B R U A R Y 2 0 0 2

jurors ex parte about the substitution and then relayedwhat it had said back to counsel.

On appeal, the court of appeals chided the lawyers forwaiving the client’s presence and the court for convers-ing with the jury ex parte. But the court held that thetrial court provided sufficient direction to the jury toconstitute the functional equivalent of the instructionrequired by the rule.

Since Guytan, no published opinion has directlyaddressed the issue.4 A recent memorandum decision,however, epitomizes the sticky issues inherent in juror sub-stitution and the paucity of appellate analysis on the issue.

Are Jurors Following Instructions?In State v. Michael Rocha5 (not for publication), theaccused was charged with aggravated assault. On the sec-ond day of deliberations, a juror went to the law library tocopy some of the jury instructions he heard the courtrecite the day before. On learning of the juror’s actions,and after a short hearing, the trial court replaced the jurorwith an alternate who was reached by phone at home.

The judge instructed the jury that the alternate wouldjoin them and simply told the 11 remaining jurors that shewould become a member of the jury “and what I’d askyou to do is to resume deliberations with [the alternate] asthe juror and start as if you were starting from square oneand include [the alternate] in your deliberations.” Thecourt never addressed the “reconstituted” jury. Althoughprecisely when the substituted juror arrived and rejoinedthe jury was unknown, about two hours later, defensecounsel asked the court to determine whether the substi-tuted juror had followed the admonition. The trial courtrefused.

The court of appeals affirmed. It explained thatalthough it is “good practice,” the law does not requirethe court to see if the alternate observed the admonition.In addition, the court observed that counsel’s late requestconstituted waiver. Furthermore, the court held that thetrial court’s use of the term “square one,” challenged asinsufficient on appeal, was clear enough to explain tojurors the legal nuances of how to proceed.

Of course, unless the questions is posed, no one knowswhether a juror has talked with relatives, read a newspaperaccount of the proceedings or spread her whole experienceover a cyberspace chat room soliciting opinions on theclient’s guilt or innocence.

Although Division One disagreed, an instruction like“start from square one” seems fundamentally inadequate.The accused’s rights have not been protected. Given thepressure exerted upon jurors to reach a verdict duringdeliberations, especially lengthy ones, the decision ignoresthe hostility and rancor that can accompany deliberations.Is it realistic to expect that the court’s short explanation

20 A R I Z O N A AT T O R N E Y F E B R U A R Y 2 0 0 2 W W W. A Z B A R . O R G

was adequate to allow the substitute jurorto hold her own in emotionally chargeddeliberations?6

Other Courts SpeakThe accused is entitled to an unbiased jurythat renders a verdict only on the basis ofevidence presented in court, not extrane-ous material by an alternate who has notfollowed the admonition.

Probably the most instructive opinionfrom another jurisdiction is that of theColorado Supreme Court in People v.Burnett.7 It holds that substituting a jurorafter deliberations start creates a rebuttablepresumption of prejudice to the accused.That presumption is only overcome if thetrial court takes extraordinary precautionsto diminish prejudice. The precautionsmay include ensuring that the substitutedjuror has not been tainted (did she followthe admonition?), asking the remainingjurors whether they can disregard theirprevious deliberations and clearly explain-ing that the reconstituted jury must begindeliberations anew.

New Jersey has crafted an instructionthat trial counsel should request in such asituation.Alternate juror empaneled after deliber-ations have begunAs you know, Juror # __ has been excusedfrom the jury. An alternate juror has beenappointed to take his/her place. As of thismoment, as a new jury, you are to start yourdeliberations over again. The parties have aright to a verdict reached by # __ jurors whohave had full opportunity to participate indeliberations from start to finish. The alter-nate juror is now entering the jury room withno knowledge of any deliberations that mayhave already have taken place. The remain-ing jurors must disregard whatever may haveoccurred and anything which may have beensaid in the jury room since you entered thatroom after listening to my charge. You are togive no weight to any opinion which Juror #(dismissed juror) may have previouslyexpressed in the jury room before he/she wasexcused. Together, as a new jury, you shallconsider the evidence all over again as youconduct full and complete deliberations,until you have reached your verdict.8

Steps To FollowThe following are additional considera-tions for trial counsel.• If the trial court contacts a juror for sub-

stitution, make a record on when andhow the court selected the alternatejuror—if there was more than one jurorcontact—and what was said.

• Immediately ask to voir dire the alter-nate juror or to have the court examinethe juror to be substituted as towhether she followed the admonition.

• Ask the court to voir dire the jury toensure that they can set aside their priordeliberations. Some jurors honestlymay be unable to do so.

• Make sure your client is there for all ofthe juror substitution proceedings. Donot waive her presence, and object ifthe court proceeds without your client.Your client’s right to be present is pro-tected by both the Sixth Amendmentto the U.S. Constitution and by art. II,§ 24 of the Arizona Constitution.Moreover, Rule 19.2, ARIZ.R.CRIM.P.,provides that your client “has the rightto be present at every stage of the trial,including the impaneling of the jury,the giving of additional instructionspursuant to Rule 22, and the return ofthe verdict” (emphasis added). Whenjurors are told to begin deliberationsanew, the trial court is instructingthem.

• Consider the impact of already settledjuror questions during deliberations.One of the previous questions may havecreated reasonable doubt in your sub-stitute juror’s mind. The other jurorsknow what questions were asked, butyour alternate may not. Ask the trialcourt to address the issue with a reme-dial instruction or additional argument.

• Request the New Jersey instruction orcraft something similar to it. Make thecourt rule on your instruction. If thecourt refuses to give your instruction,argue that the trial court has insuffi-ciently offset the prejudice to yourclient of a mid-deliberation juror sub-stitution.

• Be aware that there are some other

alternatives to consider. For example,A.R.S. § 21-102(E) provides that theparties in a criminal case “before a ver-dict is returned [may] consent to trythe case with or receive a verdict con-curred in by a lesser number of jurors”than required. This alternative requiresconsent by both parties, as well as thetrial court.In Twelve Angry Men, jurors almost

come to blows. One juror, a naturalizedcitizen, tells the others, “We have a respon-sibility. This I have always thought aremarkable thing about democracy, thatwe are—what is the word—‘notified, bymail to come down to the place to decideon the guilt or innocence of a man we havenever heard of before.’” He goes on to say,“We have nothing to gain or lose by ourverdict. This is one of the reasons we arestrong. We should not make it a personalthing.”

We may depict justice symbolically asblind, but that is usually not the case. Thesubstitution of a juror without adequateinstructions may be the weakest link to afair criminal trial.

Christopher Johns practices law in Phoenixfor the Maricopa County Public Defender’sOffice, Appellate Division. He may bereached at johns@mail.maricopa.gov

endnotes1. See No. R-94-0031 (Ariz., filed Oct. 24, 1995).2. 75 AM.JUR.2d, Trial § 1699.3. State v. Guytan, 968 P.2d 587 (Ariz. Ct. App.

1998) (review denied, Dec. 7, 1998).4. But see State v. Martinez, 6 P.3d 310 (Ariz. Ct.

App. 2000) (the court held that deliberationshad not ended, hence substitution under Rule18.5(h) was proper).

5. Memorandum decision, 1 CA-CR 99-0944(App. Div. 1, Nov. 17, 2000), review denied,March 20, 2001.

6. See American Bar Association, Criminal JusticeTrial by Jury Standards § 15-2.9 commentaryat 176 (3rd ed. 1996); see also The ProprietyUnder Statute or Court Rule of SubstitutingState Trial Jurors With Alternate After Case hasbeen Submitted to the Jury, 88 A.L.R. 4th 711.

7. 775 P.2d 583 (Colo. 1989).8. See State v. Corsaro, 107 N.J. 339 (1987); State

v. Czachor, 82 N.J. 392 (1980).