An alternate juror is a fully qualified, sworn juror who sits through an entire federal criminal trial ready to step in if one of the regular jurors cannot finish. Alternates are questioned, selected, and sworn under the same rules as everyone else on the panel, and they follow the same conduct rules from the first day of trial. Federal Rule of Criminal Procedure 24(c) lets a judge seat up to six alternates, with the number scaled to the trial’s expected length.1Office of the Law Revision Counsel. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors Whether an alternate ever deliberates depends entirely on what happens to the twelve seated jurors.
How Alternates Are Chosen
Alternates come out of the same voir dire as the main jury. Rule 24(c) requires that they “have the same qualifications and be selected and sworn in the same manner as any other juror.”1Office of the Law Revision Counsel. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors The judge and attorneys ask about background, biases, and any tie to the parties or the case. Candidates who cannot be impartial get struck for cause. Each side also receives additional peremptory challenges reserved for alternate candidates, scaled to the number of alternates being seated, and those extra strikes cannot be used against the main panel.
Once selected, alternates take the same oath and sit in the courtroom where they can see and hear everything the regular jurors do. One detail that surprises many people: the court is not required to tell jurors which of them are alternates. Some judges keep that information private so that every juror stays equally engaged rather than mentally checking out.
What Alternates Do During the Trial
From the moment they are sworn, alternates carry every duty the regular jurors carry. They attend every session, hear all testimony, review exhibits, and listen to closing arguments. Most judges allow note-taking, and alternates should take notes as carefully as anyone else, because a substitution can happen at any point in the trial.
If the jury is sequestered, the alternates are too.
The conduct rules apply identically. You cannot discuss the case with anyone, including your fellow jurors, until and unless you are formally added to deliberations. No online research. No visiting locations tied to the case. No reading or watching media coverage of the trial. A violation can get you removed from the panel and, in serious cases, can create bigger problems for the trial itself.
When an Alternate Steps In
Replacing a seated juror is the judge’s call. The attorneys can raise the issue, but they cannot force it. The reasons fall into two broad categories.
The first is inability to serve. A serious illness, a death in the juror’s immediate family, or a genuine emergency can all justify removal. Judges have wide discretion, but the hardship has to be real, not just inconvenient.
The second is misconduct. A juror who researches the case, visits the scene, talks about the case with someone outside the jury, sleeps through testimony, or reveals a bias that was hidden during selection has breached the oath. Judges treat these violations seriously because one juror’s misconduct can taint an entire verdict.
Before removing a juror, the court typically holds a hearing where both sides can be heard, and the judge makes a formal finding on the record. Alternates are usually called in the order they were selected, so the first alternate chosen fills the first vacancy. The substitution is documented in the trial record.
Substitution After Deliberations Begin
A swap that happens before the jury retires is fairly simple: the alternate takes the empty seat and the trial continues. A swap after deliberations have started is more complicated.
Under Rule 24(c)(3), when an alternate replaces a juror after deliberations have begun, the judge must instruct the reconstituted jury to start deliberations completely over.1Office of the Law Revision Counsel. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors The jury cannot pick up where it left off. Every discussion, every tentative conclusion, and every straw poll from before the alternate joined has to be set aside. The court must also confirm that the alternate did not discuss the case with anyone during the period between when the original jury retired and when the alternate was called in.2Ninth Circuit District and Bankruptcy Courts. Manual of Model Criminal Jury Instructions – 6.30 Resumption of Deliberations After Alternate Juror Is Added
The fresh-start rule protects the defendant’s right to a unanimous verdict from a full panel where every juror participated in the reasoning. Once the new deliberation begins, the alternate has the same voting rights and responsibilities as everyone else on the panel.
Before 2003, alternates were dismissed the moment the jury retired. A 2003 amendment to Rule 24(c) changed that, giving judges the option to retain alternates during deliberations. When a judge does retain alternates, the court must keep them separated from the deliberating jurors and make sure they do not discuss the case with anyone until they either replace a juror or are discharged.
Pay and Job Protection
Alternate jurors are paid the same as regular jurors. In federal court, that is $50 per day of attendance, and if the trial runs longer than ten days, the judge can authorize up to an additional $10 per day for each day beyond the tenth.3Office of the Law Revision Counsel. 28 USC 1871 – Fees Federal jurors also receive travel reimbursement. State court pay varies widely.
Your job is protected while you serve. Under 28 U.S.C. ยง 1875, an employer cannot fire, threaten to fire, or retaliate against you because of federal jury service.4Office of the Law Revision Counsel. 28 USC 1875 – Protection of Jurors Employment A violation can expose the employer to liability for your lost wages, a civil penalty of up to $5,000 per violation, and a court order reinstating you. When you are reinstated, the law treats your jury service as a leave of absence, so your seniority and benefits stay intact. If you bring a claim under this statute, the court will appoint an attorney to represent you if it finds your case has probable merit. Most states have their own versions of these protections, with the specifics and penalties varying by state.
If You Are Never Called In
If no seated juror is excused, the alternate is usually discharged when deliberations begin or when the verdict is returned, depending on the judge. After that, most federal district courts will excuse you from further jury service for at least two years, though each district sets its own policy.5United States Courts. Juror Qualifications, Exemptions, and Excuses
Serving as an alternate can feel thankless. You put in the same time and attention as the jurors who ultimately decide the case, and you may never get to weigh in on the verdict. The role exists because the alternative is worse: without alternates, a single juror’s illness or misconduct can force a mistrial and put everyone back at square one.
A Note on Civil Cases
The formal alternate-juror designation is a federal criminal concept. Federal civil trials work differently. Under Federal Rule of Civil Procedure 48, a civil jury has between 6 and 12 members, all of whom participate unless excused for good cause under Rule 47(c).6Legal Information Institute. Federal Rules of Civil Procedure Rule 48 – Number of Jurors, Verdict, Polling Civil judges typically seat a larger panel and let it shrink; there is no formal alternate. State courts vary, and many maintain alternate procedures in both civil and criminal cases.