An Inestimable Safeguard Gives Way to Practicality: Eliminating the Juror Who ""Refuses to Deliberate" Under Federal Rule of Criminal Procedure 23(b)(3)

I. INTRODUCTIONAs recent high profile trials have demonstrated, deliberation process, like process for producing legislation or sausage, is best appreciated from a distance. Given virtually unlimited pool from which potential jurors are drawn and random selection process, it should not be surprising that deliberations in particular cases range from inspirational to scandalous. Despite its inherent unpredictability, by enjoys a sacred place in American culture. As United States Supreme Court has written, right to a in a criminal case presents inestimable safeguard against corrupt or prosecutor and against compliant, biased, or judge.1 In a small but significant number of trials, however, this safeguard, in form of an unmovable individual juror can frustrate not only will of overzealous prosecutor and eccentric judge, but alternatively wills of defense counsel, participants (witnesses, defendants, and victims), and vast majority of fellow jurors, necessitating a retrial in an otherwise clear case.Given fabled power of one individual juror to frustrate will of other jurors-celebrated, for example, in 1957 movie classic Twelve Angry Men-most Americans would be surprised to learn that lone holdout juror is dischargeable. In federal court, if a judge determines that there is good cause, holdout juror can be dismissed from jury, even after deliberations have begun, allowing a unanimous verdict of eleven.2This essay discusses application and implications of good cause dismissal under Federal Rule of Criminal Procedure 23(b)(3), specifically with respect to dismissal of a nondeliberating juror.3 The following discussion delineates constitutional limitations on use of this procedure, and describes ways in which courts have, with mixed results, attempted to structure process for eliminating a juror without running afoul of cherished traditions. The analysis highlights tension between ideal of verdicts rendered independently by lay juries, and day-to-day requirements of administration of justice by courts.II. CONSTITUTIONAL LIMITATIONS ON INTERFERENCE WITH JURY deliberaTIONSThe right in criminal cases is enshrined in United States Constitution in two places. The Sixth Amendment requires that the accused shall enjoy right to a speedy and public trial, by an impartial Article III similarly mandates that [t]he Trial of all Crimes, except in cases of Impeachment, shall be by Jury.4 These references are devoid of specifics. Hence, precise contours of right are flexible and have evolved over time.The removal of a juror and a verdict by remainder of implicates two traditionally accepted prerequisites of a trial: (i) that must consist of twelve persons, and (ii) that jury's verdict must be unanimous. The final arbiter of federal constitutional law, United States Supreme Court, has spoken with respect to both of these prerequisites.A. Permissibility of a Jury of Fewer Than Twelve JurorsIn 1970s, Supreme Court grappled with constitutional requirements for minimum number of jurors on a criminal jury. The operative cases arose in challenges to state court criminal petit juries consisting of as few as six jurors.5 Determining scope of jury trial right imposed upon states by Federal Constitution through Fourteenth Amendment, Court in Williams v. Florida6 ruled that a six-person was constitutionally permissible in state court, and, Court announced, in federal court as well.7 The Court found that number of jurors had become fixed at twelve by historical accident, and held that a twelve-person cannot be regarded as an indispensable component of Sixth Amendment. …