Episode 13: Does an alternate juror’s presence in the jury room during deliberations result in improper communications?

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Episode 13 of The SM JUROR Podcast on Juror Misconduct Law: Does an alternate juror’s presence in the jury room during deliberations result in improper communications?

Martz v. State, No. 13-17-00382-CR, 2018 WL 3655437 (Tex. App. Aug. 2, 2018).

Summary: Nilgün Aykent Zahour & SM JUROR analyze the juror misconduct issues in Martz v. State, No. 13-17-00382-CR, 2018 WL 3655437 (Tex. App. Aug. 2, 2018).  The issues we’re going to discuss are whether an alternate juror’s presence in the jury room during deliberations amounts to improper communications and juror misconduct, the importance of considering less drastic alternatives before moving for a mistrial and issue preservation.


Hi, this is Nilgün Zahour from SM JUROR and welcome to The SM JUROR Podcast on Juror Misconduct Law where our motto is, “Don’t let juror misconduct taint your verdict.”  We analyze current state and federal juror misconduct cases and provide attorneys with the strategies to identify, preserve and advance juror misconduct issues at trial and on appeal.

And, today in Episode 13, we’re going to be looking at the case of Martz v. State, which is out of Texas. The issues we’re going to discuss are whether an alternate juror’s presence in the jury room during deliberations amounts to improper communications and juror misconduct, the importance of considering less drastic alternatives before moving for a mistrial and issue preservation. Glad you’re listening because the only evidence you want the jury to hear is in the courtroom. Now let’s take a look at Martz v. State.

Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 13 of The SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case Martz v. State, which is out of Texas.

This case was decided on August 2, 2018, and I’ll be sure to put the full citation of the case in our episode notes.  And, if you can, please leave us a review because we want your feedback and want to provide value to our listeners.  And of course, if you were involved in a trial where juror misconduct was an issue, please contact us so we can interview you for our podcast.

Now as you know, once the jury is given their final instructions to deliberate on the case, the alternate jurors are dismissed and go home.  The alternate jurors don’t participate in deliberations because their sole presence at the trial is to substitute for a sitting juror who, for whatever reason, was excused.

In this case, we’re going to tackle the issue of what to do when it’s discovered that an alternate juror was present during jury deliberations.  Here, as the jury came out to announce their verdict, the bailiff noticed that an alternate juror was with the jury and informed the trial court.  Now, at this point, we know nothing else, including whether or not the alternate juror participated or voted in the deliberations.

The trial court took responsibility for its oversight and then took the following actions.  It dismissed the alternate juror and then instructed the jury to go back in the jury room and start over with their deliberations.

Now was this instruction really necessary – I mean the jury deliberated and there was just one extra person – so that’s not a problem, is it?  Yes, it is, because the Texas Constitution says that there has to be a jury of 12.  No more, no less.  Having the alternate juror present during deliberations is like having any unauthorized person there to give their input on a case.

So now that the extra person, the alternate juror, is dismissed, the jury has 12 members, and now they can deliberate and render a verdict. And after they deliberated, they found the defendant guilty of burglary with the intent to commit a felony.  He moved for a mistrial based on juror misconduct that involved improper communications with an outsider – namely the alternate juror.  His motion was denied and then he appealed.

Now as we step back for a moment, we know that the standard of review in juror misconduct cases is an abuse of discretion, so we’re examining whether the trial court’s actions in handling the issue of the alternate juror’s presence in the jury room was an abuse of discretion.  In making that determination, especially when a party moves for a mistrial, which is a drastic remedy, we’re also looking at all the events that surrounded the issue – namely the actions or inactions of the parties and whether there were less drastic alternatives available.

Now relative to a motion for mistrial, I want to point out that a mistrial is the appropriate remedy only in extreme cases where highly prejudicial and incurable errors remain even after less drastic alternatives were explored.  Less drastic alternatives are instructing the jury to cure the problem, or questioning the jury about any prejudice if any instruction doesn’t seem sufficient.

So when we look at the trial court’s actions here, we notice that the trial court first took responsibility for the oversight. The trial court becomes aware of the issue and now fashions a remedy. It ordered that the alternate juror be dismissed and that the jury go back and start their deliberations anew. The trial court is attempting to protect the integrity of any verdict that will be rendered. I also want to point out that we don’t know what the jury’s first verdict was when the presence of the alternate juror was discovered because the verdict had not yet been announced.

Additionally, remember that there are presumptions in place here – namely the presumption that the jury follows the trial court’s instructions.  So the trial court instructed the jury to go back and start deliberations anew, and the presumption is that is what they did.

Now, from a different perspective, let’s look at the actions of the parties upon the discovery of the presence of the alternate juror.  Neither party moved to question the alternate before the alternate was dismissed about whether he or she participated in deliberations and what occurred.  Additionally, neither party moved to have the jury questioned about the alternate’s presence in the jury room.

And if you’re thinking that the trial court had the responsibility of questioning the alternate and the jury members, that’s not correct because you have to remember that it’s the party’s burden of proof – here, the defendant’s burden of proof, to prove that there were improper communications and juror misconduct. So the defendant should have moved to have the alternate and the jury questioned about the alternate’s presence during deliberations.  Neither party moved to do so.  Instead, the defendant moved for the drastic remedy of a mistrial and he was denied.

The appellate court affirmed the ruling, finding that on the record, there was no evidence of any improper communication by or with the alternate juror, again pointing out that it was the defendant’s burden of proof to present evidence of juror misconduct.  The appellate court went on to say that the defendant forfeited his argument by not seeking a less drastic remedy than a motion for mistrial.  Here, the questioning of the alternate or the jurors could have cured the problem and preserved the issue on the record.

Now, I want to step back again, relative to a motion to question the alternate juror or the jury about whether the alternate participated in the deliberations.  It’s important to remember that what transpires in the jury room during deliberations is private, so no one can present testimony or affidavits from jurors about what occurred during that time.  The exception, however, is if there is some exposure to extraneous information or evidence.  Here, actually, the extraneous factor is the presence of the alternate juror.  Since we know that the alternate juror was present, that alternate could have been asked if he or she voted in favor of whatever verdict the jury was going to announce.  It would also be important to ascertain whether the alternate made any comments during deliberations about the evidence or the defendant’s guilt or even the jury instructions.  If the alternate did, then it would be necessary to ask the jury members if the alternate’s comments affected how they voted on the issue of defendant’s guilt.

It could have been as easy as finding out that the alternate did not say anything and did not vote.  But, we don’t know because the defendant never moved to have the alternate or the jury questioned and the trial court already dismissed the alternate.

Now when we’re talking about issue preservation, the important factor is that the defendant should have moved the trial court to question the alternate or the jury members about the alternate’s presence during deliberations.  In the course of the hearing on that motion, there would have been discussions about why the motion would have been denied, or if it was granted, how the questioning would be done.  These issues would have been discussed on the record and would be a part of the record.  If the questioning of the alternate or the jury would have been untenable, then maybe the more serious remedy of a mistrial would have been explored.  But, we’ll never know.

Now the appellate did note that there’s no requirement to move sequentially from a less drastic to more serious remedy, but it wasn’t going to disturb the trial court’s ruling on the motion for mistrial when a less drastic remedy was available, but not pursued by the complaining party.

Simply put, the issue just was not explored or preserved, and it was the defendant’s burden of proof to provide evidence in the record of any improper communication.  So, under these circumstances, let’s take a quick look at strategies that we can follow on what to do if encountered with the discovery that an alternate juror was present during deliberations:

First, move to question the alternate on the record to determine whether the alternate participated in deliberations.  Specific questions would be whether the alternate voted in rendering the verdict, and whether the alternate made any comments during deliberations about the evidence, the defendant’s guilt, the jury instructions or anything else.

Now on a side note, I want to point out that the alternate’s participation could be verbal or non-verbal, such as the raising or non-raising of the hand to take a vote. So be sure to ask these types of questions as well.

Now relative to the alternate being questioned, remember that the trial court assesses the credibility of the witnesses, so your motion to question the jury members may or may not granted if you’re only questioning them for credibility determinations.  The basis for wanting to question the jury members is to ascertain if and how the alternate’s participation in deliberations affected each juror’s individual verdict.  What’s important is to build the record and get the rulings in the record to attempt to demonstrate that the trial court’s chosen path in handling the alternate’s presence in the jury room was an abuse of discretion.

Be mindful of other available options to handle the situation – such as what happened here, like the trial court dismissing the alternate and instructing the jury to start their deliberations anew.  If you don’t like this remedy, you have to demonstrate to the reviewing court that the trial court’s method of handling the situation was an abuse of discretion.  Keeping that in mind, remember that just because you don’t like the remedy that the trial court took, doesn’t mean that it was an abuse of discretion.

And finally, in terms of prejudice, move to discover what the first verdict was (while the alternate was present).  This can either be done by moving to put that document in the record on appeal as an exhibit or questioning the alternate juror and/or jury members about what their first verdict was. That verdict form would have the signatures of the jury, and possibly the alternate, if the alternate participated. Your motion may or may not be granted, but again, it’s important to make the motion and get the ruling.  Perhaps the first verdict was that the defendant was not guilty.  This type of fact may possibly help on the issue of prejudice when the next verdict is announced as guilty.

And that’s it for our analysis of the juror misconduct issues in this case.  If you like what you hear and want more, please subscribe to our podcast and leave us a review.

 And also check out our latest CLE on juror misconduct called: “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events,” and use the code “podcast25”, that’s podcast two-five, for $25 off our regular CLE price exclusively for our podcast listeners.  This CLE is accredited and/or approved for 1.5 general credit hours in 30 states and I’ll put the link to the registration page in our episode notes.

That’s it for today. This is Nilgün Zahour from SM JUROR, and remember, don’t let juror misconduct taint your verdict.  See you next time.


Remember to use the coupon code “podcast25”, exclusively for our podcast listeners, for $25 off our CLE entitled, “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events” which has been accredited & approved for 1.5 general CLE credit hours in 30 states. Click here to register for our CLE. 

Because the ONLY evidence you want the jury to consider … is in the courtroom.


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