Chapter 8

Alternate Juror




Section 8.1        Checklist

Section 8.2        Selection of Alternates

Section 8.3        Substitution of Alternate During Trial

Section 8.4        Substitution of Alternate During Deliberations

Section 8.5        Discharge of Alternates

Section 8.6        Law and Practice Notes

Section 8.7        References




Section 8.1 Checklist



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Section 8.2 Selection of Alternates


Alternates are drawn from the venire in the same manner as the trial jury. If alternate jurors are selected, they are to be selected in the same manner, have the same qualifications, and be subject to the same examination and challenges as the principal jurors. State v. White, 706 S.W.2d 280 (Mo. App. 1986). The parties get one additional peremptory strike for each two alternates empaneled. The total number of alternates is unlimited, subject only to the trial court's discretion. Section 494.485, RSMo (2006). A challenge to the seating of an alternate or to the procedure for selecting an alternate must be made before the voir dire begins.


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Section 8.3 Substitution of Alternate During Trial


When to substitute an alternate. If cause for substitution is suggested, act immediately on the question. Grounds for removing a principal juror and substituting an alternate usually arise as follows:



Procedure. When an alternate juror is substituted, make a complete record of the facts and your reasons for removing the principal juror. Remember, the decision on the question of juror substitution is reviewable on appeal. Use much care when removing a principal juror. The necessity of such action must be shown in the record. If possible, obtain the attorneys' consent. Substitution should occur in accordance with the following procedure:



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Section 8.4 Substitution of Alternate During Deliberations


Generally. In State v. Williams, 659 S.W.2d 298 (Mo. App. 1983), the closing argument was concluded before lunch. The alternate juror was dismissed but remained in the building. The jury was sent to lunch and directed to begin deliberations after lunch. One of the 12 principal jurors became ill during the lunch. On the record, the court determined the ill juror had to be excused and brought back the excused alternate. Then, also on the record, the court determined the alternate juror could replace the excused juror. The appellate court held the intent of then Section 494.065, RSMo 1986, did not under the circumstances preclude such a deviation. There was no per se prejudicial violation. The defendant under the court's procedure had the benefit of the full deliberation of 12 qualified and impartial jurors.


Capital and bifurcated jury trial cases. It is now settled that alternates may be retained throughout the entire capital trial, even after the return of a verdict at the guilt phase. State v. Johnson, 968 S.W.2d 123 (Mo. banc 1998). That way, the alternates are available to substitute for a dismissed juror prior to penalty phase deliberations.


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Section 8.5 Discharge of Alternates


The alternate juror never goes to the jury room for the deliberation stage unless a principal juror already has been removed. If all 12 principal jurors are available to begin deliberations, the alternates should then be discharged. Alternates thereafter may not enter the jury room for any purpose. The alternates should be informed of their discharge at the same time the 12 jurors are directed to retire for deliberations.


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Section 8.6 Law and Practice Notes


Review on appeal. A challenge for cause to the selection of an alternate juror, which is denied by the trial court, is not a matter for appeal until and unless the selected alternate becomes a deliberating juror. This rule applies even if the defendant used a peremptory challenge to remove the first selected alternate juror. State v. White, 706 S.W.2d 280 (Mo. App. 1986). Similarly, a party appealing a trial court's substitution of an alternate juror will only succeed if he can demonstrate a resulting prejudice. Id. In a murder trial, a defendant complaining of an alternate substituted for an under-21 juror failed to show he was prejudiced. Williams v. State, 558 S.W.2d 671 (Mo. App. 1977).


Statutes directory. Missouri courts have held the statutory provisions detailing the method in which services of additional or alternate jurors are obtained are directory. Unless a defendant can demonstrate he has been prejudiced or his interests have been adversely affected by the court's failure to follow the statutory provisions, he is not entitled to relief. State v. Friend, 607 S.W.2d 902 (Mo. App. 1980).


Alternate inadvertently allowed to join deliberating jury. If an unsubstituted alternate juror joins a deliberating jury, the alternate juror should be removed when the mistake is discovered. Then the jury should be examined on the record, in open court, with parties and attorneys present to see if any harm resulted. It should be clear the alternate did not influence the jury while he was with them in the jury room. State v. Scrivner, 676 S.W.2d 12 (Mo. App. 1984).


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Section 8.7 References


1.  40 Mo.Dig., Trial key nos. 304 and 305 (1985).

2.  28 Mo.Dig., Jury key no. 149 (2001).

3.  47 Am.Jur.2d, Juries Sections 135, 246-249 (2006).

4.  75B Am.Jur.2d, Trial Sections 1693-1705 (1991).