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My practice is about evenly split between state and federal court. This has given me the opportunity to experience some of the differences between their approaches to civil jury trials. One difference is the role of the alternate juror.
Fed. R. Civ. P. 48 provides that “[a] jury must begin with at least 6 and no more than 12 members. . . .” (emphasis added). In my experience, federal judges regularly exercise this discretion and seat a jury of seven or eight. No one is designated as an alternate.
State court judges, in contrast, may seat only six jurors with the option to seat up to three alternates. Unlike their federal counterparts, our state court judges do not have the discretion to seat a seventh or eighth juror.
The trial rules and statute both provide that “the jury shall consist of six (6) members.” Ind. Trial Rule 47(A); Ind. Code §34-36-3-1(a) (emphasis added). Ind. Trial Rule 48 allows the parties to stipulate to fewer than six jurors but provides no discretion to seat a jury of more than six jurors.
The implementation of the trial rules and statute setting the number of jurors predates the adoption of the Indiana Jury Rules. T.R. 47 was last amended on March 1, 1997. T.R. 48 was last updated on August 17, 1983. And Ind. Code §34-36-3-1 was codified in 1998. The Indiana Jury Rules, which were adopted on December 21, 2001, first went into effect on Jan. 1, 2003.
Ind. Jury Rule 16(b) follows (as it must) the trial rules and statute regarding the number of jurors that may be seated. However, the role of the alternate juror has significantly evolved since Trial Rules 47 and 48 were last amended and the jury rules first went into effect.
These amendments raise the question whether the time has come to amend Indiana’s trial rules and statute to adopt the federal approach of allowing trial court judges the discretion to seat at least six jurors.
On Jan. 1, 2005, Ind. Jury Rule 20(a)(8) was amended to allow jurors to ask questions of the witnesses and discuss the testimony and evidence among themselves in the jury room during trial.
When this amendment took effect, former Chief Justice Randall Shepard wrote an article for the Indiana Law Review setting forth the research and analysis taken into consideration before adopting the amendment.
In support of the decision, he commented that: Besides helping jurors to clarify confusing issues of evidence when they occur, and helping jurors to follow the dynamics of trial, allowing jurors to discuss evidence during the trial treats them as they are: intelligent, responsible adults. Because so much of the public’s perception of jury service is built upon anecdotal evidence related by those who have served on juries, treating jurors as capable adults is important not only for promoting a better legal result, but in helping to eliminate the public’s conception of jury service as tedious, belittling, and pointless.
Ind. Jury Rule 20(a)(8) was amended again on Sept. 10, 2007, effective Jan. 1, 2008, to permit alternate jurors to ask questions and discuss the testimony and evidence in the jury room.
While an alternate juror is permitted to participate as a regular juror during trial, he or she may not participate in deliberations. Miller v. State, 702 N.E.2d 1053, 1073 (Ind. 1998).
The Indiana Court of Appeals has maintained the distinction between jury discussions (before the case is submitted to the jury) and jury deliberations (after submission to the jury) finding we “are not at liberty to rewrite the rules promulgated by our Supreme Court,” Rice v. State, 916 N.E.2d 962, 966 (Ind. Ct. App. 2009); Weatherspoon v. State, 912 N.E.2d 437, 440 (Ind. Ct. App. 2009).
Alternate participation in jury deliberations remains potential grounds for a mistrial. Henri v. Curto, 908 N.E.2d 196, 203 (Ind. 2009). The Henri opinion demonstrates the frustration and distraction the discussion/deliberation distinction can cause among jurors.
“[T]he alternate juror communicated with the regular jurors during deliberations by making noises and gestures ‘that suggested she wanted to speak, but had caught herself,’ precipitating other jurors to ‘giggle or snicker.’” Id. For good reason, the supreme court expressed its disapproval with the alternate’s conduct, describing it as “disappointing and immature. . . .” Id.
Yet, the opinion also suggests a juror who had committed to her responsibilities and became frustrated when her ability to discuss the evidence and testimony was withdrawn.
The same principles Shepard cited in support of the 2005 amendment to Ind. Jury Rule 20 begs the question: why not allow a state trial court judge the discretion to seat seven or eight jurors as their federal counterparts do?•
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David J. Beach is a partner in the Hammond office of Eichhorn & Eichhorn and serves on the DTCI Board of Directors. Opinions expressed are those of the author.
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