Supreme Court of North Carolina Reverses Court of Appeals, Finds Statute Allowing Judge to Swap in Alternate Juror During Deliberations is Constitutional

Section 15A-1215(a) of the North Carolina Code provides that

The judge may permit the seating of one or more alternate jurors. Alternate jurors must be sworn and seated near the jury with equal opportunity to see and hear the proceedings. They must attend the trial at all times with the jury, and obey all orders and admonitions of the judge. When the jurors are ordered kept together, the alternate jurors must be kept with them. The court should ensure that the alternate jurors do not discuss the case with anyone until that alternate replaces a juror or is discharged. If at any time prior to a verdict being rendered, any juror dies, becomes incapacitated or disqualified, or is discharged for any other reason, an alternate juror becomes a juror, in the order in which selected, and serves in all respects as those selected on the regular trial panel. If an alternate juror replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew. In no event shall more than 12 jurors participate in the jury’s deliberations. Alternate jurors receive the same compensation as other jurors and, unless they become jurors, must be discharged in the same manner and at the same time as the original jury.

Prior to 2021, this statue only allowed the judge to replace a sitting juror with an alternate juror before the jury began deliberations. In 2021, however, state law was amended to add the portion about allowing the judge to swap in an alternate juror during deliberations. This change is similar to the addition of Federal Rule of Criminal Procedure 23(b)(3) in the 1980s. 

But was either change constitutional? That was the question addressed by the Supreme Court of North Carolina in its recent opinion in State v. Chambers, 2025 WL 1479005 (N.C. 2025).

In Chambers, the defendant was charged with first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury.

At 4:44 p.m. on 7 April 2022, the jury retired to commence deliberations. At 4:57 p.m., the jury sent a note to the trial court asking if deliberations would end for the day at 5:15 p.m. The trial court informed the jury that they would be released at 5:15 p.m. unless the jury decided unanimously to stay later. Deliberations resumed at 5:02 p.m. but halted again at 5:11 p.m., when Juror #5 asked to be excused for a medical appointment the next morning. The trial court called and released the jury for the day. The trial court then conducted a colloquy with Juror #5 and ultimately excused him. Having elected to remain absent, defendant was not in the courtroom during the trial court’s discussions with the jury or Juror #5, and he therefore did not raise any objection to the excusal.

Defendant was absent again when the jury reassembled at 9:35 a.m. the next morning. The trial court informed the jury that Juror #5 had been excused and that the first alternate juror would be substituted. The trial court instructed the jury to “restart … deliberations from the beginning. This means that you should disregard entirely any deliberations taken place before the alternate juror was substituted and should consider freshly the evidence as if the previous deliberations had never occurred.” Defendant, being absent, did not object to the substitution of the alternate or the trial court’s instruction. The jury exited the courtroom at 9:38 a.m. and deliberated, asking to review evidence and for clarification on relevant law. At 12:27 p.m., it informed the court that it had reached a verdict. The jury found defendant guilty of both charges, and the trial court sentenced him to life in prison without the possibility of parole for the first-degree murder conviction and 110 to 144 months imprisonment for the assault conviction, to be served consecutively with his life sentence.

The defendant thereafter appealed, contending

that the trial court’s substitution of an alternate juror during deliberations violated his state constitutional right to a twelve-person jury. The Court of Appeals unanimously agreed….Specifically, it reasoned that Article I, Section 24 of the North Carolina Constitution forbids substitution of alternate jurors after deliberations commence because such substitution results in juries of more than twelve persons determining a defendant’s guilt or innocence….Therefore, the Court of Appeals held that by substituting the alternate juror, the verdict was reached by a jury of thirteen people in violation of our state constitution….It further held that N.C.G.S. § 15A-1215(a), which expressly allows for mid-deliberation juror substitution, conflicted with the state constitution and thus could not support a different outcome….The Court of Appeals therefore vacated defendant’s convictions and remanded for a new trial.

The Supreme Court of North Carolina disagreed, concluding as follows:

Looking to subsection 15A-1215(a), we conclude that its unconstitutionality has not been shown beyond a reasonable doubt. Indeed, although it contemplates the substitution of alternative jurors, it provides two critical safeguards that ensure that the twelve-juror threshold remains sacrosanct. Not only does subsection 15A-1215(a) provide that “[i]n no event shall more than [twelve] jurors participate in the jury’s deliberations”; it also requires trial courts to instruct juries to “begin … deliberations anew” if an alternative juror is substituted after jury deliberations have begun. N.C.G.S. § 15A-1215(a) (2023) (emphasis added). This requirement preserves the statute’s constitutionality. When a jury follows the trial court’s instruction and restarts deliberations, as it is presumed to do, see State v. Prevatte, 356 N.C. 178, 254, 570 S.E.2d 440, 482 (2002), there is no longer a risk that the verdict will be rendered by thirteen people. This is because any discussion in which the excused juror participated is disregarded and entirely new deliberations are commenced by the newly-constituted twelve: the original eleven jurors and the substituted alternate. Therefore, the ultimate verdict is rendered by the constitutionally requisite jury of twelve.

-CM