Jason Bennyhoff
A refresher on how to handle juror disability and alternate jurors
You have spent countless hours preparing for trial. You have reviewed the evidence, met with your witnesses, anticipated every conceivable argument opposing counsel might make, and even bench-briefed them. But then one of the jurors gets arrested mid-trial.1 Now what?
This article is designed to prepare prosecutors for just such a situation by presenting the possible causes for juror disability and the remedies available at the different stages of the trial proceedings with citations to relevant statutes and caselaw. I hope it is helpful.
Juror disability
Generally, not fewer than 12 jurors can render a verdict in a felony case.2 However, in two instances the law allows a trial to proceed with 11 jurors: 1) when the parties consent or 2) regardless of the parties’ consent, where a juror dies or becomes disabled after the trial of a felony case begins but before the charge is read to the jury. In such a case, the remaining jurors may return a verdict.3
The second scenario is modified when a juror dies or becomes disabled after the court’s charge is read to the jury. In that scenario, “the jury shall be discharged, except that on agreement on the record by the defendant, the defendant’s counsel, and the attorney representing the state, 11 members of a jury may render a verdict.”4
I know what dead means, but what about disabled?
The Code of Criminal Procedure does not define the term “disabled.” However, a body of caselaw dealing with juror disability offers an outline of what constitutes a disability.
The determination of whether a juror has become disabled and cannot continue with the trial is within the discretion of the trial court.5 The Court of Criminal Appeals has held that Art. 36.29 requires that a juror “suffer from a ‘physical illness, mental condition, or emotional state that would hinder or inhibit the juror from performing his or her duties as a juror’” to be found disabled.6 A trial court may not dismiss a juror “for reasons related to that juror’s evaluation of the sufficiency of the evidence.”7
Conditions that have been upheld as constituting a disability include Alzheimer’s disease;8 intoxication;9 inability to secure care for special needs children;10 and deaths of family members.11
By contrast, a juror merely knowing the defendant does not constitute a disability.12 For that matter, neither does a juror’s bias or prejudice for or against a defendant.13 Either of these things can ultimately make the juror disabled, but what is critical is not the existence of knowledge of a defendant or prejudice for or against a defendant, but rather the effect these things have on the juror—whether they inhibit him from fully and fairly performing the functions of a juror.14 Even a juror’s arrest during the course of a trial does not necessarily constitute a disability if the juror is able to set that experience aside and continue to fully and fairly perform the functions of a juror.15
A juror’s admission to being unable to follow a given law after being empaneled is not a basis for finding that juror disabled, despite the fact that it would have been a basis for a strike during voir dire.16
What about alternates?
The Code of Criminal Procedure specifies that up to four alternate jurors may be called and impaneled in a felony case, and up to two alternate jurors may be called and impaneled in county court.17 The Code mandates that alternates be used to replace jurors who, “prior to the time the jury renders a verdict on the guilt or innocence of the defendant, and if applicable, the amount of punishment, become or are found to be unable or disqualified to perform their duties or are found by the court on agreement of the parties to have good cause for not performing their duties.”18 The same rules apply to determining a juror’s disability and properly discharging that juror when alternates are available as when there are not alternates available.19
What happens if a juror is wrongly discharged?
When a juror is wrongfully discharged and the trial court mistakenly grants a mistrial without a manifest necessity, the results are dire for the State, as further prosecution will be double-jeopardy barred.20 Where the trial court does not mistakenly grant a mistrial but nonetheless errs in some form by either discharging or failing to discharge a juror, this can still result in a reversal and remand for another trial.21
What if you’re in misdemeanor court? The statutory provisions cited above apply to felony cases rather than misdemeanors. This then begs the question, What is to be done when a juror dies or becomes disabled in a misdemeanor case?
In short, there is no statute answering that question. However, the Court of Criminal Appeals has recognized that “the Code of Criminal Procedure does at least implicitly permit waiver of the right to six jurors in cases tried in county court.”22 The Court of Criminal Appeals has approved of the use of fewer than six jurors in county court where the defendant, court, and State consent, despite there being no statutory authority for this procedure.23
Conclusion
Should a prosecutor come across a case wherein a juror dies or becomes disabled, there is a useful body of statutory and caselaw laying out the procedures to be followed. Referencing these materials should provide a sufficient guide for dealing with such situations, but as oftentimes happens, the unpredictable will occur in trial.
One final word of caution when dealing with these situations: The prosecutor should always be wary of a mistrial and make certain that the trial court has examined and exhausted every alternative. If a mistrial is necessary, the State should ask that a showing of manifest necessity is made clear on the record.24 In particular, prosecutors would do well to remember that where a juror is disabled, the trial court’s first option must be to proceed with 11 jurors rather than to declare a mistrial.25
Endnotes
1 Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999).
2 Tex. Code Crim. Proc. art. 36.29(a).
3 Id; Tex. Gov’t. Code §62.201; Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App. 2002) (en banc).
4 Tex. Code Crim. Proc. art. 36.29(c).
5 Scales v. State, 380 S.W.3d 780, 784 (Tex. Crim. App. 2012).
6 Id at 783 quoting Valdez v. State, 952 S.W.2d 622, 624 (Tex. App.—Houston [14th Dist.] 1997, writ ref’d (other citations omitted).
7 Id at 783.
8 Timmons v. State, 952 S.W.2d 891, 894 (Tex. App.—Dallas 1997, no pet.).
9 Griffin v. State, 486 S.W.2d 948, 951 (Tex. Crim. App. 1972) (juror was arrested for driving while intoxicated during the lunch break, and the Court of Criminal Appeals held that the trial court did not abuse its discretion in finding the juror disabled based on his intoxicated state).
10 Owens v. State, 202 S.W.3d 276, 277 (Tex. App.—Amarillo 2006, pet. ref’d).
11 Ricketts v. State, 89 S.W.3d 312, 318 (Tex. App.—Fort Worth 2002, pet. ref’d).
12 Reyes v. State, 30 S.W.3d 409, 412 (Tex. Crim. App. 2000) (en banc).
13 Id.
14 Id.
15 Brooks, 990 S.W.2d at 286 (trial court’s decision to allow juror to continue to sit on case after being arrested for entering the courthouse with a gun was not an abuse of discretion where the juror said the arrest would not affect his ability to act as a juror).
16 Landrum v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990) (en banc) (trial court abused its discretion when it excused a juror based on his post-empanelment statement that he could not follow the punishment range).
17 Tex. Code Crim. Proc. art. 33.011(a).
18 Tex. Code Crim. Proc. art. 33.011(b).
19 See Scales, 380 S.W3d at 786 (trial court erred when it replaced a juror who would not deliberate with an alternate without ascertaining why the juror would not deliberate).
20 Hill, 90 S.W.3d at 315-16.
21 See, e.g., Landrum, 788 S.W.2d at 579 (case reversed where trial court found juror’s post-empanelment acknowledgement of bias against the law constituted disability); Solis v. State, 946 S.W.2d 591, 593-94 (Tex. App.—Corpus Christi 1997, no pet.) (case reversed where trial court discharged juror as disabled based on post-voir dire burglary of juror’s home).
22 Ex parte Garza, 337 S.W.3d 903, 912 (Tex. Crim. App. 2011) (listing cases approving the use of fewer than six jurors in a misdemeanor case where the defendant consents).
23 Id. at 915 (approving of this procedure in dicta).
24 See id., addressing trial court’s granting of mistrial in misdemeanor case where trial court did not explore and exhaust all available alternatives); Hill, 90 S.W.3d at 315-16 (capital murder prosecution double jeopardy barred where mistrial granted [apparently] based on juror disability where trial court did not consider possibility of proceeding with 11 jurors).
25 Hill, 90 S.W.3d at 315-16.