One of the cornerstones of the U.S. criminal justice system is the constitutional right to a fair trial with an impartial jury. The process of selecting a jury (known as voir dire (vwar deer)) is meant to weed out potential jurors who can’t or won’t be fair.
But even after members of the jury are selected and the trial has started, the judges may decide that it’s necessary to remove a juror because that person is not qualified or able to continue serving. What happens next depends on several factors, including the availability of alternate jurors, the stage of the trial, and the jurisdiction (which federal or state court) where the trial is taking place.
Can a Juror Be Dismissed or Removed After Trial Starts?
Yes. At any point after a criminal trial starts, a judge must remove any juror when it becomes clear that the person is disqualified for any of the “for cause” reasons for disqualifying potential jurors before trial, including:
- bias for or against the defendant
- contact with the defendant, or
- refusal or inability to follow the law.
Sometimes, jurors may not have given honest answers during voir dire. Other times, jurors only realize during the trial or jury deliberations that they have strong feelings or preconceived opinions that make it impossible to be fair, consider the evidence, and apply the law to the facts presented at trial.
What Type of Juror Misconduct Can Result in Disqualification?
Judges may disqualify jurors for misconduct or other actions that impair their ability to perform their duty. Examples of conduct that could interfere with the defendant’s right to a fair trial include:
- Inattention or sleeping. A judge may decide to discharge a juror who falls asleep during trial, especially if that individual slept through significant portions of the proceedings. However, a temporary lapse of attention isn’t a good reason for removal.
- Disobeying court instructions. Jurors could be removed if they don’t follow important instructions from the judge, such as not using cell phones during trial proceedings, avoiding media coverage of the case, or not bringing outside information into the jury room.
- Absence from the courtroom. The judge may have good reason to dismiss a juror who was absent or late for enough time that it got in the way of the proceedings.
- Refusal to deliberate. This can be tricky. Jurors may be removed if they’ve obviously made up their minds ahead of time and simply refuse to engage in jury deliberations—but not because they seem to be relying on faulty logic during deliberations, or they disagree with the rest of the jury about what the evidence shows or how the law should be applied.
A judge may find a juror in contempt of court if their actions were in direct violation of court orders. Some states consider juror misconduct as obstruction of justice. In egregious cases, a juror might be guilty of criminal penalties.
What Happens If a Juror Gets Sick During Trial or Can’t Continue Serving?
Judges may choose to excuse jurors for good cause. For instance, a judge might discharge a juror who’s run into personal circumstances that make it impossible to continue their jury service, such as illness, work conflicts, or a death in the family. Other examples may include a juror suffering from extreme anxiety or stress or economic hardship.
Will the Judge Have a Hearing Before Removing a Juror?
Sometimes. Judges retain a lot of leeway when deciding whether to remove a juror. At the same time, however, there must be factual evidence supporting that decision, as well as a valid legal reason that serves the purpose of preserving the integrity (reliability and soundness) of the judicial process. The reason must be personal and specific to the individual juror being dismissed; it shouldn’t have anything to do with the issues in the case.
Some states require a hearing so that all sides may weigh in on the issue. But a formal hearing may not always be necessary, as long as the judge has made a reasonable effort to find out the facts, and has allowed the lawyers to ask the juror questions.
What Happens After a Juror Is Dismissed From the Trial or Deliberations?
After removing a juror, a judge will move ahead in one of three ways: by replacing the juror, continuing the trial with a smaller jury, or declaring a mistrial.
Replacing a Removed Juror With an Alternate Juror
When juries are first selected, the judge may appoint one or more alternate jurors who will attend the trial and be ready to step in if needed. In cases where alternate jurors are available, judges may then call on an alternate to replace a regular juror who’s been removed. A judge might need to recall the alternate juror if they were initially discharged when the jury retired to deliberate a verdict.
Some states don’t allow the substitution of a juror once the jury has started deliberating the case. Even where it’s allowed, courts generally won’t approve a replacement at this stage unless the judge took adequate steps to ensure that the jury’s ultimate verdict would still be fair. When making that decision, courts will consider several factors, including:
- how long the jury had been deliberating before the juror was removed
- how complex and long the trial was
- whether the judge had instructed the alternate jurors to avoid news and other outside information about the trial, and
- after the alternate is appointed, whether the judge told the jury to start anew with its deliberations.
When Smaller Juries Are Allowed
If no alternate jurors are available, the defendant and the prosecutor may agree to continue the trial with a smaller jury.
Even without the defendant’s agreement, the judge may proceed with a reduced jury if it’s allowed in that jurisdiction. Not all states require a jury of 12 for all crimes. And although 12-member juries are required for federal crimes, a federal judge may allow a jury of 11 people to return a verdict if it has found it necessary to excuse a juror after the start of deliberations. (Fed. R. Crim. P. Rule 23(b) (2023).)
Calling a Mistrial After Juror Removal
After removing a juror, the judge may grant a motion for a mistrial. However, judges are often very reluctant to declare a mistrial, which stops the trial without a verdict and may lead to the prosecutor seeking a new trial. Still, if no alternate jurors are available and continuing with a smaller jury isn’t a legal option, the judge must declare a mistrial.
Speaking With a Lawyer
Talk to your lawyer if you believe that you didn’t get a fair trial because of a juror’s bias or misconduct. You might consider contacting a criminal defense lawyer who handles appeals. A skilled and experienced appellate attorney can evaluate your case and advise you about the potential for an appeal based on the judge’s actions (or inaction) dealing with a juror who may not have been qualified to serve and participate in rendering a verdict.