WPI 6.17.01 Fully Discharging Alternate Jurors

This instruction should rarely be used. It should be used only when there is no concern that the alternate jurors will be needed and no concern that the alternate jurors will make inappropriate public comments. If the trial judge does elect to fully discharge any alternate jurors from further service in the case, use this oral instruction at the time the case is submitted to the jury. If the trial judge elects to keep the alternate jurors subject to recall for further service, use alternative instruction WPI 6.17 (Temporarily Excusing Alternate Jurors).

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.” It is reversible error for a trial court to allow an alternate juror to participate in jury deliberations. See Jones v. Sisters of Providence in Washington, Inc., 140 Wn.2d 112, 994 P.2d 838 (2000). See also State v. Cuzick, 11 Wn.App. 539, 524 P.2d 457 (1974) (reversible error in a criminal case for an alternate juror to be present during jury deliberations).

Historically this instruction WPI 6.17.01 has fully discharged jurors from all further service in the case rather than temporarily excusing them subject to a later recall. Because CR 47(b) authorizes judges to choose either of these two options, a separate pattern instruction (WPI 6.17) is provided that temporarily excuses the alternate jurors and keeps them subject to the court's restrictions in case they are eventually needed to participate in the jury's deliberations. Accordingly, trial judges needing to place restrictions on alternate jurors while the jury is deliberating should use WPI 6.17 (Temporarily Excusing Alternate Jurors) instead of this WPI 6.17.01.