NOTES TO RULE 47
HISTORY: (Amended July 1, 1966; Dec. 1, 1991)
Notes of Advisory Committee on Rules.
Note to Subdivision (a).
This permits a practice found very useful by Federal trial judges. For an example of a state practice in which the examination by the court is supplemented by further inquiry by counsel, see Rule 27 of the Code of Rules for the District Courts of Minnesota, 186 Minn xxxiii (1932), 3 Minn Stat (Mason, Supp 1936) Appendix 4, p 1062.
Note to Subdivision (b).
The provision for an alternate juror is one often found in modern state codes. See NC Code (1935) § 2330(a); Ohio Gen Code Ann (Page, Supp 1926--1935) § 11419-47; Pa Stat Ann (Purdon Supp 1936) Title 17, § 1153; compare USC, Title 28, former § 417a (Alternate jurors in criminal trials); 1 NJ Rev Stat (1937) 2:91A-1, 2:91A-2, 2:91A-3.
Provisions for qualifying, drawing, and challenging of jurors are found in USC, Title 28, former:
§ 411 (Qualifications and exemptions) § 412 (Manner of drawing) § 413 (Apportioned in district) § 415 (Not disqualified because of race or color) § 416 (Venire; service and return) § 417 (Talesmen for petit jurors) § 418 (Special juries) § 423 (Jurors not serve more than once a year) § 424 (Challenges) and DC Code (1930) Title 18, §§ 341--360 (Juries and Jury Commission) and Title 6, § 366 (Peremptory challenges).
Notes of Advisory Committee on 1966 Amendments to Rules.
The revision of this subdivision brings it into line with the amendment of Rule 24(c) of the Federal Rules of Criminal Procedure. That rule previously allowed four alternate jurors, as contrasted with the two allowed in civil cases, and the amendments increase the number to a maximum of six in all cases. The Advisory Committee's Note to amended Criminal Rule 24(c) points to experience demonstrating that four alternates may not be enough in some lengthy criminal trials; and the same may be said of civil trials. The Note adds:
"The words 'or are found to be' are added to the second sentence to make clear that an alternate juror may be called in the situation where it is first discovered during the trial that a juror was unable or disqualified to perform his duties at the time he was sworn."
Notes of Advisory Committee on December 1991 Amendment of Rule.
Subdivision (b).
The former provision for alternate jurors is stricken and the institution of the alternate juror abolished.
The former rule reflected the long-standing assumption that a jury would consist of exactly twelve members. It provided for additional jurors to be used as substitutes for jurors who are for any reason excused or disqualified from service after the commencement of the trial. Additional jurors were traditionally designated at the outset of the trial, and excused at the close of the evidence if they had not been promoted to full service on account of the elimination of one of the original jurors.
The use of alternate jurors has been a source of dissatisfaction with the jury system because of the burden it places on alternates who are required to listen to the evidence but denied the satisfaction of participating in its evaluation.
Subdivision (c).
This provision makes it clear that the court may in appropriate circumstances excuse a juror during the jury deliberations without causing a mistrial. Sickness, family emergency or juror misconduct that might occasion a mistrial are examples of appropriate grounds for excusing a juror. It is not grounds for the dismissal of a juror that the juror refuses to join with fellow jurors in reaching a unanimous verdict.