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First impression in jury rule issue

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The participation of alternate jurors in discussions of evidence during recesses from trial, as allowed under Indiana Jury Rule 20(a)(8), doesn't violate Indiana statute that prevents alternates from participating in deliberations. The Indiana Court of Appeals ruled on the matter for the first time today.

In Austin C. Witherspoon v. State of Indiana, No. 45A03-0809-CR-466, Austin Witherspoon argued that allowing alternate jurors to discuss a case during a recess is the same as them deliberating the case, which alternates aren't allowed to do in Indiana unless he or she replaces a juror. He also claimed he was denied his constitutional and statutory right to a 12-person jury when the alternates were instructed they could discuss the case.

He objected to a preliminary instruction to the jury that said they were allowed to discuss the evidence among themselves during recess from the trial; he raised the same issue in a motion in limine on the morning of his trial for robbery.

The trial court denied his motions, noting the issue hadn't been addressed by the appellate courts, but the alternates would be allowed to participate in the discussions.

Jury Rule 20(a)(8) was amended effective Jan. 1, 2008, to allow alternates to also discuss the evidence in the jury room during recesses from trial when everyone is present.

"We acknowledge Weatherspoon's argument that during discussions, alternate jurors talk about issues of credibility, highlight and discount certain evidence, and narrow and broaden the issues, all of which may affect the final judgment or verdict, yet these discussions are the very discussions that alternate jurors may not have during deliberations," wrote Judge Nancy Vaidik. "Nevertheless, our Supreme Court has unambiguously made a distinction between discussions and deliberations. We are not at liberty to rewrite the rules promulgated by our Supreme Court."

In regards to Witherspoon's constitutional challenge to the rule, the appellate judges pointed out that there isn't a constitutional limit to the maximum number of jurors and he received the statutory entitlement of a 12-member jury.

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  1. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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