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