Blake R. Hills and Brian C. Hills, J.
Irritation, anger, and sometimes even outrage. These are emotions often displayed by alternate jurors when they find out that they have put their lives on hold to pay close attention during a multi-day or multi-week jury trial but do not get to participate in deliberations. They are especially upset when they find out that it was never likely that they would participate in deliberations because, although nobody told them, they were designated as alternate jurors from the very beginning. While some alternate jurors understand that this is just the way the system operates, others leave jury service feeling that the system is unfair, or at least misleading.
More should be done to ensure that alternate jurors have a positive experience and feel satisfied with their service. Decreased juror satisfaction leads to decreased participation in the entire system, which wastes court resources and hampers justice. This problem was shockingly demonstrated in December of 2017 when a mistrial was declared in a child rape case because thirty-six members of the jury pool did not show up for service. See McKenzie Romero, 36 No-Show Jurors Ordered to Appear Before a Judge, deseret news, Dec. 18, 2017, available at https://www.deseretnews.com/article/900005957/36-no-show-jurors-ordered-to-appear-before-a-judge.html.
It is time to reevaluate the manner in which alternate jurors are selected.
In Utah, the selection of alternate jurors is governed by Utah Rule of Criminal Procedure 18 and Utah Rule of Civil Procedure 47. Rule 18 provides: The court shall summon the number of the jurors that are to try the cause plus such an additional number as will allow for any alternates, for all peremptory challenges permitted, and for all challenges for cause granted. At the direction of the judge, the clerk shall call jurors in random order.… If alternate jurors have been selected, the last jurors called shall be the alternates, unless otherwise ordered by the court prior to voir dire.
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The court may impanel alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties. Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.… Alternate jurors replace jurors in the same sequence in which the alternates were selected.
Utah R. Crim. P. 18(a)(1), (g). Similarly, Rule 47 of the Utah Rules of Civil Procedure provides: The court may direct that alternate jurors be impaneled. Alternate jurors, in the order in which they are called, shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be selected at the same time and in the same manner, shall have the same qualifications, shall be subject to the same examination and...