Fully Informed Jury Association

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Function of Juries & Jury Nullification & Myths and Misconceptions | 27 May 2014

-Jury Myths and Misconceptions: Once Deliberations Begin, Can a Juror Be Removed?


Jury BoxThis is the first in a recurring series of responses to myths, misconceptions, and misstatements about jury issues, including jury nullification. There are no lawyers on FIJA’s staff or board of directors, and FIJA does not provide legal advice. These observations are provided for educational purposes and do not in any way constitute legal advice.

Q: Once deliberations begin, can a juror be removed?
A: Yes, jurors can be removed as late as during deliberations for certain reasons.
Judging from a recent thread on the crowd-sourced Yahoo! Answers website, it is a common misconception that once deliberations begin, the jury is set. This is simply not true. Jurors CAN be removed from the jury and replaced—even as late as during deliberations—for various reasons. For this reason, judges will often also provide that two or three alternate jurors be selected during voir dire along with the initial jury, to be substituted in as regular jurors if one or more of the original jurors are removed.

For example, if a juror becomes ill and cannot continue, the judge may substitute an alternate juror in to take that person’s place. If it comes to light that a juror has been tainted, such as by having an interested party talking to him or her before court convenes for the day, the judge may decide (often after interviewing the juror to find out how this transpired, what was discussed, and what effect it has on the case) to replace him or her with an alternate. In some cases, deliberations can go forward even without alternates, with a jury smaller than twelve delivering the verdict.

And, yes, a juror may be removed if the judge learns that he or she is intending to exercise jury nullification. Consider the 1997 ruling in United States v. Thomas:

We consider below whether a juror’s intent to convict or acquit regardless of the evidence constitutes a basis for the juror’s removal during the course of deliberations under Rule 23(b).   We also consider what constitutes sufficient evidence of that intent in light of the limitations on a presiding judge’s authority to investigate allegations of nullification required by the need to safeguard the secrecy of jury deliberations.   We conclude, inter alia, that-as an obvious violation of a juror’s oath and duty-a refusal to apply the law as set forth by the court constitutes grounds for dismissal under Rule 23(b).   We also conclude that the importance of safeguarding the secrecy of the jury deliberation room, coupled with the need to protect against the dismissal of a juror based on his doubts about the guilt of a criminal defendant, require that a juror be dismissed for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution’s case.

In the original trial, several defendants were charged with various counts of actual possession and distribution and conspiracy to possess and distribute illegal substances. During voir dire, the prosecution attempted to use a peremptory challenge to strike the last remaining potential black juror in a case where all of the defendants were black. The defense raised a Batson challenge– an objection based on the 1986 case of Batson v. Kentucky that the prosecution was not permitted to use a peremptory challenge to strike the juror based solely on race. In response to this challenge, the prosecution cited the juror’s failure to make eye contact with the prosecutor as the reason for the peremptory challenge, but the judge ruled that this was insufficient reason to dismiss. The juror, also known as Juror No. 5, was seated.

In the course of the trial, six of his fellow jurors complained about things he did during court such as squeaking his shoe on the floor, crinkling candy wrappers, etc. as being distracting to them during the trial. After interviewing all of the jurors, including the allegedly distracting juror, the court concluded that the disturbances reported would not interfere with the jurors’ ability to deliberate. After initially considering removing the allegedly distracting juror, the court ultimately retained him and the original jury began deliberations together.

From the ruling:

Although the district court did not specifically inquire into any juror’s position on the merits of the case, at least five of the jurors indicated that Juror No. 5 was unyieldingly in favor of acquittal for all of the defendants. The accounts differed, however, regarding the basis for Juror No. 5’s position. On the one hand, one juror described Juror No. 5 as favoring acquittal because the defendants were his “people,” another suggested that it was because Juror No. 5 thought the defendants were good people, two others stated that Juror No. 5 simply believed that drug dealing is commonplace, and another two jurors indicated that Juror No. 5 favored acquittal because he thought that the defendants had engaged in the alleged criminal activity out of economic necessity. On the other hand, several jurors recounted Juror No. 5 couching his position in terms of the evidence-one juror indicated specifically that Juror No. 5 was discussing the evidence, and four recalled him saying that the evidence, including the testimony of the prosecution’s witnesses, was insufficient or unreliable. As for Juror No. 5, he said nothing in his interview with the court to suggest that he was not making a good faith effort to apply the law as instructed to the facts of the case. On the contrary, he informed the court that he needed “substantive evidence” establishing guilt “beyond a reasonable doubt” in order to convict.

After interviewing the jurors, the judge met in chambers with counsel for the parties. He had the record of the interviews read aloud and permitted counsel to comment on the appropriate course of action. The Government argued that the jurors’ responses indicated that there was “almost a jury nullification issue pattern with [Juror No. 5],” and urged the court to order the juror’s dismissal, while defense counsel unanimously opposed his removal. Having heard argument from counsel, the judge rendered his decision to remove Juror No. 5.

The case went forward with only eleven jurors, and they found the defendants Guilty on most of the counts leveled against them. In this appeal, the defense argued that the judge erred in removing the one juror who was standing between the defendants and that Guilty verdict. The Second Circuit Court of Appeals concluded that while jury nullification is an acceptable reason for a judge to dismiss a juror, that is only the case if “the record leaves no doubt that the juror… was not simply unpersuaded by the Government’s case against the defendants.” It further found that “The court in the instant case thus erred by dismissing Juror No. 5, and permitting the jury of eleven to continue its deliberations, based largely on Juror No. 5’s alleged refusal to follow the court’s instructions on the law, where the record evidence raises the possibility that the juror was attempting to follow the law as instructed, but that he simply remained unpersuaded of the defendants’ guilt.” The convictions were overturned as a result, and the court ordered new trials for the defendants.

Even as late as deliberations, if you as a juror indicate that you will be exercising jury nullification, you can be removed from the jury. This is not an offense that you can be legally punished for, but if you are removed from the jury, the defendant will likely not have another person willing to insist on justice for him or her when a just verdict requires setting aside the law. Imagine how you would feel if you were the defendant in this position and your one fully informed juror was removed to facilitate an easy conviction that would devastate your life and those of others in your family and community as a result. But you, as a juror, cannot be removed for expressing doubt about the government’s case so consider that when you are deliberating with your fellow jurors. This is important to keep in mind when you are deliberating with your fellow jurors, some of whom may be emotionally invested in a Guilty verdict, even to the point of reporting you to the judge to try and get rid of you as an obstacle on the path to conviction.