This legislative session, the General Assembly amended G.S. 15A-1215(a), effective October 1, 2021, to permit an alternate juror to replace a regular juror after deliberations have begun. S.L. 2021-94 (discussed in more detail here). The North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions has created a new instruction for judges to utilize when substituting an alternate juror after deliberations have begun and has amended the existing closing pattern instruction to ensure that alternate jurors refrain from discussing the case with anyone until they are discharged from service. The revised interim instructions are available here.
Instruction 100.40 is the instruction to use when an alternate juror is substituted after deliberations begin. It directs the jury to begin deliberations anew and to disregard entirely any deliberations taking place before the alternate juror was substituted.
Instruction 101.35, the concluding instruction for criminal juries generally, has been amended to acknowledge that alternate jurors now may be retained for later substitution rather than discharged. The instruction advises that if the court elects to retain alternate jurors, it should remind those jurors that they are not to discuss the case among themselves or with anyone else while sequestered and that all other instructions governing their conduct remain in effect until they are released. (The previous version of the instruction directed judges to excuse the alternate jurors before sending the jury out to deliberate, unless there was a possibility of a second or subsequent phase of the trial.)
The Committee on Pattern Jury Instructions annually publishes a supplement to the full set of instructions. The 2021 supplement was distributed in October. When the committee identifies instructions that are too important to wait for annual distribution, like the instructions noted above, it creates interim instructions.
Thanks to the committee, comprised of Superior Court Judges Don Bridges (chair), Gale Adams, Carla Archie, Allen Baddour, Joe Crosswhite, Karen Eady-Williams, Richard Gottlieb, Chuck Henry, Tom Lock, and Ed Wilson, along with Reporter Alan Woodlief, Senior Associate Dean of the Elon University School of Law, for their diligence in making these instructions immediately available.