Juror Substitution and Partial Verdicts

On June 12, 2020 the New Jersey Supreme Court issued a per curiam opinion in the Union County case of State v. Antwan Horton. This opinion was a revision of the original opinion that issued two days earlier. A “per curiam” opinion is one in which the application of the law to the facts is said to be so straightforward that no individual justice has a basis to apply their individual analysis.

The Court held in relevant part: In this appeal, the Court considers whether a trial court may replace a juror after the jury announced that they had reached a partial verdict. The trial court excused and replaced a juror who had a preplanned vacation and who had been part of deliberations after the jury announced that they had reached a partial verdict. The judge did not have the jury return a partial verdict. Instead, the court excused the juror and reconstituted the jury with a replacement juror. The court denied defendant’s motion for a mistrial and defendant’s request to voir dire the jury to determine its ability to begin anew with the replacement juror. The jury reached a unanimous verdict three days later. The Appellate Division affirmed, finding that the trial court did not abuse its discretion.

Under settled law, juror substitution is impermissible if the jury has reached a partial verdict. The proper course is for the trial court to take the partial verdict and declare a mistrial on the open counts. In a case like this, courts cannot know whether the jury will “start anew” with the entry of a substitute juror and discard their views simply because there is a new juror amongst them. Nor can courts know if the new juror will exercise independence or simply go along with the opinions of the existing jurors. Courts cannot know or speculate whether the replacement juror was a full participant in the mutual exchange of ideas. The safest and fairest course is to take a partial verdict, declare a mistrial, and constitute a new jury to hear the remaining counts.

It is surprising that the Appellate Division held in the State’s favor under the circumstances. The phrase “under settled law” and the per curiam nature of the opinion indicates that the issue was clear-cut. The appellate prosecutor likely did an excellent job in convincing the lower court to reach a decision that was ultimately reversed by the New Jersey Supreme Court.