§ 4106.Alternate jurors

The Committee recommends the revision of CPLR section 4106 to permit the court in its discretion to retain one or more alternate jurors after final submission of the case to ensure availability if needed during deliberation. The proposed amendment of 4106 also addresses the manner in which the retained alternate jurors may be utilized.

Current 4106 provides that after final submission of the case, “the court shall discharge the alternate jurors”. As a consequence, in the event that a juror becomes disabled during deliberations, the court must declare a mistrial unless all parties consent to proceed with a five person jury, which consent is rarely obtained. In cases of several weeks duration, classically commercial, medical malpractice or products liability cases, a mistrial results in a tremendous waste of time and money for the litigants, the attorneys, and the court, and frustration for the remaining jurors who have served throughout a prolonged trial in an effort to render a verdict. There is a continuing disparity among many courts statewide as to the practice regarding alternate jurors.

The Committee also recommends amendment of 4106 to address the manner in which the retained alternate jurors may be utilized by providing that once deliberations have begun, the court may allow an alternate juror to participate in such deliberations only if a regular juror becomes unable to perform the duties of a juror.

The proposed amendment also makes gender-neutral changes. The Committee appreciates the recommendations of Honorable Philip G. Minardo, former Administrative Judge, Richmond County, regarding the amendment of 4106. Judge Minardo made his recommendations on behalf of and with the support of the New York State Association of Supreme Court Justices and the New York City Association of Supreme Court Justices.

(See also Advisory Committee Notes preceding § 4101, under subheading “Number and selection of jurors.”).

This section is former § 449-a with minor changes. The former requirement that prior to calling one or two alternate jurors, the court must have caused an entry to be made in the minutes to the effect that it appeared that the trial was likely to be a protracted one, has been eliminated. The actual calling of the alternate juror or jurors by the court is a sufficient record of the judge’s decision to that effect, and there appears no need for this formal justification.

The former statute required that the alternate juror or jurors be called, examined, challenged and sworn after the regular jury had been empaneled and sworn. This requirement entails a wasteful and unnecessary duplication of effort. This section provides that the alternates shall be called, examined, challenged and sworn at the same time as the regular jurors.

This section rule makes no change in the former provision that the alternate jurors shall be discharged after final submission of the case. In 1952, § 358-a of the Code of Criminal Procedure, which provides for alternate jurors in criminal trials, was amended to provide that the court, if it deems it advisable at the final submission of the case, may direct that one or more court officers, separate and apart from the regular jurors until the jury has agreed upon a verdict. If, during the deliberations of the jury, a juror dies or becomes ill or is otherwise incapacitated, the court may then order him discharged and substitute an alternate, whereupon the jury renews its deliberations with the alternate juror. While such a procedure has merit, it has not been incorporated in this section. It is only in rare situations that the procedure could be used, and it is believed that an alternate juror who enters the jury room after deliberation has begun is not fully qualified to render an intelligent verdict, having missed part of the discussion and consideration which makes up the deliberative process.

An interesting method of utilizing alternate jurors is in effect in some jurisdictions in both criminal and civil cases. If a protracted trial seems likely, the trial is begun with fourteen jurors. If more than twelve remain at the end of the trial, lots are drawn to determine which twelve comprise the jury which deliberates. See Mass Ann Laws c 234, § 26B (1956); Mich Comp Laws §§ 691.421, 768.18 (1948); NJ Stat Ann § 2A:74-2 (1952).

Amendment Notes;

2013. Chapter 204, § 1 amended:

Section by deleting at fig 1 “Unless the court, in its discretion, orders otherwise, one”, at fig 2 “two”, at fig 3 “the”, at fig 4 “, except that after”, at fig 5 “shall discharge the”, at fig 6 “. If”, at fig 7 “for any other reason”, at fig 8 “his duty”, at fig 9 “him to be”, at fig 10 “in the jury box”, at fig 11 “he” and adding the matter in italics.

Add, L 1962, ch 308; amd, L 1972, ch 366, § 1, eff Sept 1, 1972; L 2013, ch 204, § 1, eff Jan 1, 2014.