People v. Burnette

In People v. Burnette, 775 P.2d 583 (Colo. 1989), the Colorado Supreme Court held that recalling a discharged alternate to replace a regular juror after deliberations have begun violated Colorado Rule of Criminal Procedure 24(e), which at that time was identical to the Wyoming Rule at issue here. Id. at 586-87. The Colorado court noted the potential prejudices inherent when substitution of a regular juror occurs in mid-deliberation: The potential for prejudice occasioned by a deviation from the mandatory requirements of Crim.P. 24(e) is great. Where an alternate juror is inserted into a deliberative process in which some jurors may have formed opinions regarding the defendant's guilt or innocence, there is a real danger that the new juror will not have a realistic opportunity to express his views and to persuade others. . . . Moreover, the new juror will not have been part of the dynamics of the prior deliberations, including the interplay of influences among and between jurors, that advanced the other jurors along their paths to a decision. . . . Nor will the new juror have had the benefit of the unavailable juror's views. . . . Finally, a lone juror who cannot in good conscience vote for conviction might be under great pressure to feign illness in order to place the burden of decision on an alternate. (Burnette, 775 P.2d at 588.) While noting that the substitution raises a presumption of prejudice to the defendant's right to a fair trial, the court held that the presumption could be overcome by a showing that the trial court took adequate procedural precautions to obviate the danger of prejudice to the defendant. Id. at 587-88. In its analysis, the Colorado court cited the following safeguards: (1) whether the alternate juror was adequately instructed upon discharge not to discuss the case and avoid extrinsic information about the case that could influence him; (2) whether the alternate was questioned about his activities during the period from his discharge to recall and his present ability to serve on the jury; (3) whether the remaining regular jury members had been instructed to recommence deliberations anew and whether they would be capable of disregarding their previous deliberations and any opinions formed during those deliberations. Id. at 590-91.