In State v. Harvey, the defendant was found guilty by a Knox County Criminal Court jury of assault, a Class A misdemeanor, and disorderly conduct, a Class C misdemeanor. Because Harvey was denied his constitutional right to a jury trial when the trial court substituted a discharged alternate juror for a disqualified original juror during deliberations, CCA reversed the judgments and remanded the case for a new trial. In this fifty-three (53) page opinion the court finds that defense counsel was right but for all the wrong reasons.
Rule 24(f)(2) addresses methods for selecting alternate jurors. It does not provide a procedure for substituting a juror after deliberations begin. The Supreme Court has said that a permissible procedure is “to discharge the entire panel, declare a mistrial, and continue the cause.” State v. Bobo, 814 S.W.2d 353, (Tenn. 1991). The choice of which option to pursue is a matter for the trial court’s discretion. Also, a defendant may waive his right to a twelve-member jury (or any jury at all) and according to the opinion may "consent to go forward with eleven jurors." See, Tenn. R. Crim. P. 23 & 24, for rules regarding jurors.
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