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Criminal Procedure – Alternate jurors

By: WISCONSIN LAW JOURNAL STAFF//April 4, 2013//

Criminal Procedure – Alternate jurors

By: WISCONSIN LAW JOURNAL STAFF//April 4, 2013//

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Criminal Procedure – Alternate jurors

Even though it was error to allow an alternate juror to sit in on deliberations, reversal is not required where the defendant failed to object, and the juror did not participate.

“Dill’s specific reliance on United States v. Ottersburg also does not help him since it is factually distinct. In Ottersburg, the district court permitted two alternates to deliberate with a jury for over nine hours, and we agreed that the defendant had shown prejudice. 76 F.3d at 140. But unlike here, the alternates in Ottersburg were ultimately polled along with the jury and acknowledged the verdict as their own, refuting any suggestion that they remained unengaged in deliberations in the jury room the entire time. Id. In this case, the alternate juror was not directly polled to affirm the guilty verdict as in Ottersburg. She also was in the deliberation room for far less time and gave no indication to the court or the parties that she ever participated in deliberations. Moreover, the alternates in Ottersburg were never explicitly instructed to refrain from deliberating with the regular jurors. Here, the district court verbally instructed all of the jurors, including the alternate, that the alternate could not engage in deliberations, and this instruction occurred right before the jury retired to deliberate. We generally presume that jurors and alternates follow the court’s instructions, and we do not see any reason to question their adherence to the court’s oral instructions in this case. See id. So Dill has failed to establish that the alternate juror’s presence in the deliberation room affected his substantial rights and the outcome of the proceedings.”

Affirmed.

12-1733 U.S. v. Dill

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Williams, J.

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