Events may occur during the course of a trial which cause one or more parties or the court to raise the issue of removing a sitting juror. Examples of such instances include disclosure by a juror that he or she has developed a fixed opinion prior to the conclusion of the trial and so cannot keep an open mind,138 attempts by a party to communicate with a juror,139 personal problems with a juror’s family,140 exposure of the jury to prejudicial publicity during the trial,141 or the fact that the juror is sleeping through the trial.141.1
Whether or not a juror should be excused during trial is committed to the discretion of the trial judge.142 In exercising that discretion, the trial judge should make a thorough inquiry to establish whether removal of a juror is justified, i.e., whether, notwithstanding the event that raised the issue, the juror can be fair and impartial.143
If a juror must be discharged after the jury has retired for deliberations, in the absence of the parties’ consent to accept the unanimous verdict of the remaining jurors, Delaware’s Constitution requires that the judge declare a mistrial. A juror may not be replaced during deliberations.144
138. Cruz v. State, No. 318, 1991, slip op. at 5-6, Moore, J. (Del. June 4, 1993) (ORDER), disposition reported at 628 A.2d 83 (Del. 1993) (TABLE).
139. Derrickson v. State, 406 A.2d 405, 409-10 (Del. 1979). Note: it is a violation of the ethical rules for a lawyer trying a case to contact or cause another to contact a juror sitting in that case. Del. R. Prof. Cond. 3.l0(b)(1). Further, it is a breach of the ethical rules for any lawyer not connected with a case to communicate with venirepersons or jurors participating in a case about that case. Del. R. Prof. Cond. 3.l0(b)(2).
140. Derrickson v. State, 406 A.2d 405, 410 (Del. 1979).
141. Smith v. State, 317 A.2d 20, 22-23 (Del. 1974).
141.1. State v. Witherspoon, No. 9610003447, Silverman, J. (Del. Super. July 30, 1999), aff’d mem., 781 A.2d 697 (Del. 1999).
142. Derrickson v. State, 406 A.2d 405, 410 (Del. 1979); Cruz v. State, No. 318, 1991, slip op. at 5, Moore, J. (Del. June 4, 1993) (ORDER), disposition reported at 628 A.2d 83 (Del. 1993) (TABLE).
143. See Sudler v. State, 611 A.2d 945, 948 (Del. 1992) (trial court erred in failing to make specific inquiry of jurors who indicated their inability to continue to serve after holiday weekend); Rizzi v. Mason, 799 A.2d 1178, 1185 (Del. Super. 2002), aff’d mem., 845 A.2d 695 (Del. 2004) (fact that juror had been treated by party’s medical expert did not warrant removal when juror stated she would not have any problem remaining fair and impartial).
144. Claudio v. State, 585 A.2d 1278, 1301, 1304-05 (Del. 1991).
© 2010 David L. Finger