Alternate Routes: Circumventing Rule 606(B) When Alternate Jurors Improperly Participate in Deliberations

Abstract

Since the Supreme Court’s landmark plain-error decision in Olano v. United States, an evidentiary issue has plagued federal criminal trials. Though forbidden by Federal Rule of Criminal Procedure 24(c), alternate jurors frequently enter deliberations with regular jurors. Despite the strong likelihood of prejudice, in most jurisdictions any testimony about the deliberations is barred by Federal Rule of Evidence 606(b). As a result, many criminal defendants are unable to present testimony or evidence that could result in a new trial free from undue prejudice. This Article examines the Constitutional context of the Olano decision as well as past and present approaches to this evidentiary issue from federal and state jurisdictions. After discussing these approaches and their various advantages and drawbacks, the Article argues that evidentiary hearings, through Remmer v. United States, provide the best answer to protecting defendants’ rights while respecting the privacy of jurors.