Alternate jurors do not deliberate unless they are called in to replace a seated juror. In federal criminal trials, the court can keep alternates on standby after the jury retires, but those alternates stay separated from the deliberation room and cannot discuss the case with anyone until they either step in or are discharged.1Cornell Law School. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors So the short answer is standby, not participation, unless something changes.
What Alternates Do Once Deliberations Begin
When the twelve seated jurors retire to deliberate, alternates do not go with them. Under the federal rules, the court has discretion to retain alternates on standby after deliberations begin, which is common in lengthy or complex cases where losing a juror partway through would be costly.1Cornell Law School. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors The alternative is to discharge them at that point.
Retained alternates operate under a strict insulation rule. They cannot discuss the case with anyone until they either replace a juror or are discharged.1Cornell Law School. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors That includes family, friends, and fellow alternates. After weeks of testimony, an alternate has plenty of impressions forming, and the point of the insulation rule is to keep those impressions from being shaped by outside conversation in case the alternate is later called in.
How that standby period looks in practice depends on the court. Some jurisdictions sequester alternates separately from the deliberating jury. Others tell alternates to go about their normal routines and stay reachable by phone. The presiding judge decides based on the trial’s circumstances.
When an Alternate Is Called In
If a seated juror becomes ill, engages in misconduct, or is otherwise disqualified during deliberations, an alternate replaces them following the order in which the alternates were originally selected. The replacement steps in with the same authority as the juror they replaced and votes on the verdict like anyone else.
Deliberations do not just resume where they left off. The court must instruct the reconstituted jury to start deliberations from scratch. The instruction directs jurors to disregard entirely any prior deliberations and consider the evidence freshly, as if the earlier discussions never happened.2Ninth Circuit District & Bankruptcy Courts. Manual of Model Criminal Jury Instructions – 6.30 Resumption of Deliberations After Alternate Juror Is Added The purpose is to protect the replacement juror’s right to participate fully, so they are not walking into a room where eleven people have already made up their minds. Asking jurors to erase hours of prior discussion is a tall order, but the restart instruction exists to give the new voice real weight.
Why Alternates Are Ready to Deliberate If Needed
Alternates can slot into deliberations without missing a beat because they have been doing the same job as everyone else throughout the trial. From opening statements forward, they hear the same evidence, watch the same witnesses, and receive the same instructions. They take the same oath and must meet the same qualifications as any other juror.1Cornell Law School. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors
Many courts deliberately do not tell jurors who among them is an alternate. If a juror knows they will likely be excused before deliberations, they have less reason to stay engaged, which defeats the whole purpose of keeping backups. Federal courts can seat up to six alternates depending on the expected length and complexity of the trial.1Cornell Law School. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors
Federal Civil Trials Work Differently
The standby model is a federal criminal rule. Federal civil trials do not use the “alternate juror” label at all. A 1991 amendment to the Federal Rules of Civil Procedure abolished the formal designation. Civil courts instead seat more jurors than needed at the start of trial, then excuse the extras before deliberations begin. The jury must begin with at least six and no more than twelve members, and every remaining juror participates in the verdict.
The practical effect is that in a federal civil trial there is no standby pool waiting during deliberations at all. If a juror is lost after deliberations start, there is no alternate to bring in. State courts vary: some follow the federal civil model, and others keep traditional alternate designations for both civil and criminal trials.
What Happens If Alternates Run Out
Occasionally a trial burns through its entire alternate pool and still loses another juror. If the jury drops below twelve and no alternates remain, the court has a few options.
Under the federal rules, the parties can agree in writing to let a smaller jury return a verdict. That stipulation can happen at any point before the verdict, and it can set a floor, so the defense might agree to eleven but draw the line at ten. Without a stipulation, the court still has some room. After the jury has retired to deliberate, a judge can permit eleven jurors to return a verdict if the court finds good cause to excuse a juror.3Office of the Law Revision Counsel. Federal Rules of Criminal Procedure Rule 23 – Jury or Nonjury Trial If there is neither a stipulation nor a good-cause finding, the remaining option is a mistrial.
Preventing that outcome is the entire reason alternates exist, which is why judges in long or complex cases push to seat the maximum six. But the alternates themselves stay on the sidelines of deliberation unless one of the twelve seats actually opens up.