Jury Instruction After Discharging a Juror

In the context of a criminal trial, there is no clear statutory authority for recalling a previously discharged alternate juror, nor is there a clear statutory prohibition of the practice. Carrillo v. People, 974 P.2d 478 (Colo. 1999). When the parties consent to the substitution, however, the court's authority to make the substitution is not at issue. People v. Patterson, 832 P.2d 1083 (Colo. App. 1992). There is a rebuttable presumption that a criminal defendant's right to a fair trial is prejudiced by reinstating a previously discharged alternate juror. People v. Burnette, 775 P.2d 583 (Colo. 1989). If, however, the trial court takes extraordinary precautions and adequately instructs the jury, that presumption of prejudice may be overcome. Carrillo v. People, supra. The trial court must instruct the reconstituted jury to begin its deliberations anew, and the trial court should inquire of the jurors whether they are capable of disregarding the previous deliberations and any opinions they may have formed, and whether they can be receptive to the replacement juror's views or non-conforming opinions. People v. Burnette, supra.