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WPI 6.17 Temporarily Excusing Alternate Jurors

6 WAPRAC WPI 6.17Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 6.17 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part I. General Instructions
Chapter 6. Oral Instructions During Trial
WPI 6.17 Temporarily Excusing Alternate Jurors
At the outset of this trial alternate juror[s] were selected to serve in case one of the jurors became unable to serve on the jury. I am now able to temporarily excuse the alternate juror[s] from further service in this case.
[Judge addresses the alternate jurors:] You are now temporarily excused. You are not, however, fully released from this case. You could be recalled for further service if one of the deliberating jurors becomes unable to serve. Accordingly, my previous instructions regarding your activities outside the courtroom still apply to you, and they will continue to apply to you until the full jury has completed its deliberations and has been discharged from the case. To repeat those instructions:
Do not discuss the case with anyone. This applies to your internet and electronic discussions as well—you may not say or write anything about the case via text messages, emails, telephone, internet chat, blogs, or social networking web sites. If your family, friends, or anyone else asks you about the case, or about the people or issues involved in the case, you are to explain that you are not allowed to talk about it.
Do not allow anyone to give you information about the case, including in your electronic communications. If you overhear a discussion or start to receive information about anything related to this case, you must act immediately so that you no longer hear or see it.
Do not read, view, or listen to any report from the newspaper, magazines, social networking web sites, blogs, radio, or television on the subject of this trial. Do not consult dictionaries or other reference materials. Do not conduct any internet research or consult any other outside sources about any information, issues, or people involved in this case. It is important that you keep your mind free of outside influences in the same manner as if you were already one of the jurors deliberating in this case.
You are not to try to find any evidence or do any legal research on your own. Do not inspect the site of any event involved in a case. If your ordinary travel will result in passing or seeing the site of any event involved in this case, do not stop or try to investigate. Again, you must keep your mind clear of anything that is not presented to you in this courtroom.
We will contact you if you are needed further in this case. In case you are not needed further, thank you for your service to this court and to our system of justice. The work that you have done as an alternate juror was necessary for a fair and efficient trial.
If the trial judge elects to temporarily excuse the alternate jurors and keep them subject to recall in case another juror is unable to continue with deliberations, this oral instruction may be used at the time the case is submitted to the jury. If instead the trial judge elects to fully discharge the alternate jurors from all further service in the case, the alternative instruction WPI 6.17.01 (Fully Discharging Alternate Jurors) should be used.
CR 47(b) provides that “[a]n alternate juror who does not replace a regular juror may be discharged or temporarily excused after the jury retires to consider its verdict.” In State v. Cuzick, 11 Wn.App. 539, 524 P.2d 457 (1974), the court held that the failure to discharge the alternate juror upon submission of the case to the jury and the presence of the alternate juror in the jury room during deliberation was reversible error.
If the judge elects not to discharge the alternate juror but only to temporarily excuse the juror, CR 47(b) further provides that “the trial judge shall take appropriate steps to protect such juror from influence, interference or publicity which might affect that juror's ability to remain impartial, and the trial judge may conduct brief voir dire before seating such alternate juror for any trial or deliberations.” The rule further provides that “[i]f the jury has commenced deliberations prior to the replacement of a regular juror with an alternate juror, the jury shall be instructed to disregard all previous deliberations and to begin declarations anew.”
Applying a similar criminal rule, the Court of Appeals held that the appropriate procedure, when it appears that a juror has become “unavailable” during deliberations, is for the trial court to “make a reasonable effort to contact both sides for their input into the court's discretionary decision to excuse and replace an initial juror with an alternate juror.” It was, further, “reversible error of constitutional magnitude to fail to instruct the reconstituted jury on the record that it must disregard all prior deliberations and begin deliberations anew.” State v. Ashcraft, 71 Wn.App. 444, 464, 859 P.2d 60 (1993).
The instruction was revised in 2010 and in 2018 to address in more detail the prohibitions against improper juror communications, especially with regard to electronic communications and information. For further discussion of the development of this pattern instruction, see the Comment to WPI 6.17.01 (Fully Discharging Alternate Jurors).
[Current as of December 2020.]
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