In a Tennessee criminal trial without a separate sentencing phase, can the trial judge keep alternate jurors on hand to step in if a regular juror has to leave during deliberations?

Plain-English summary

Davidson County Criminal Court Judge Monte D. Watkins asked the AG whether a Tennessee criminal court judge in a non-bifurcated trial could borrow Fed. R. Crim. P. 24(c)'s practice of keeping alternate jurors available after deliberations begin and substituting one in if a regular juror had to be excused. Tenn. R. Crim. P. 24(f)(2) says alternates "shall be discharged when the jury retires to consider its verdict." The federal rule is more permissive. The question was whether a Tennessee trial judge had inherent authority to follow the federal practice instead.

The AG answered no. Two independent reasons. First, the rule itself is mandatory: "shall be discharged" means the discharge happens when the jury retires, full stop, and the Tennessee Supreme Court has held that failure to dismiss alternates timely is error (State v. Rayfield, 507 S.W.3d 682 (Tenn. 2015)). Trial courts have no general "inherent authority" to deviate from the Tennessee Rules of Criminal Procedure. State v. Soller, 181 S.W.3d 645 (Tenn. 2005), confirmed the principle in the plea-agreement context; State v. Gonsales did the same in the sentencing-modification context.

Second, swapping in an alternate after deliberations begin risks a structural constitutional violation under the Tennessee Constitution's right to a jury trial and unanimous verdict (Tenn. Const. art. I, § 6). State v. Bobo, 814 S.W.2d 353 (Tenn. 1991), held that doing so without instructing the jury to begin deliberations anew constituted structural error, and State v. Harvey read Bobo as "counsel[ing] against finding [juror] substitution errors can ever be merely procedural."

The narrow exception identified in the analysis is the bifurcated-trial setting. State v. Hester, 324 S.W.3d 1 (Tenn. 2010), found no error in a bifurcated capital case where the alternate did not participate in guilt-phase deliberations but stepped in before penalty-phase deliberations. That carve-out is structural to the bifurcated-trial design and does not extend to the ordinary single-phase criminal trial that was the subject of the request.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is a non-bifurcated trial?
A: A criminal trial where guilt and any penalty determinations happen in a single phase before the same jury, as opposed to a bifurcated trial (capital cases) where guilt and penalty are decided in separate phases. Tenn. R. Crim. P. 24(f)(2)'s discharge rule applied without exception in non-bifurcated trials at the time of the opinion; Hester recognized a structural carve-out for bifurcated cases.

Q: What does the federal rule allow that Tennessee did not?
A: Fed. R. Crim. P. 24(c) (the federal counterpart) allows the federal court to retain alternates and substitute them in for regular jurors even after deliberations have begun, provided the court instructs the reconstituted jury to begin deliberations anew. Tenn. R. Crim. P. 24(f)(2) is more rigid and required discharge at the retirement of the jury.

Q: What was the constitutional concern?
A: The Tennessee Constitution's jury-trial right (art. I, § 6) includes "the constitutional right to have all issues of fact submitted to the same jury at the same time" (Bobo). Substituting a juror after deliberations had begun, without restarting deliberations from scratch, broke that single-jury, single-deliberation principle. Bobo called the resulting error structural, meaning it was not subject to harmless-error review.

Q: Could a judge work around the rule by stalling the jury's retirement?
A: The opinion did not address sequencing tricks. The cleaner read is that "retirement to consider its verdict" is a recognizable procedural moment, and once it occurs the discharge requirement attaches. A judge attempting to delay the formal retirement to keep alternates in reserve would be operating in a gray zone the opinion did not bless.

Q: What if both parties consent to keeping an alternate?
A: The opinion did not discuss consent. Tennessee precedent on rule deviations (Soller, Gonsales) generally does not treat party consent as creating authority that the rules withhold from the trial court. The structural-error concern from Bobo would also remain.

Q: How should a judge prepare for the risk of mid-trial juror loss?
A: The opinion did not give operational advice. Common practice in Tennessee criminal courts at the time included seating multiple alternates, building in scheduling flexibility before the case is submitted, and timely sequestering or housing arrangements to reduce the chance of juror loss. Once deliberations began with twelve, the case had to finish with those twelve unless the parties agreed to a smaller jury (a separate procedural option).

Background and statutory framework

Tennessee criminal procedure is governed by the Tennessee Rules of Criminal Procedure, adopted by the Tennessee Supreme Court. Rule 24(f)(2) addresses alternate jurors. The 2021 version required that alternates "be discharged when the jury retires to consider its verdict." The Tennessee Supreme Court has treated this rule strictly. In Rayfield, the Court found that failure to dismiss alternates timely was error; in Bobo, the Court treated mid-deliberation substitution coupled with failure to restart deliberations as structural constitutional error.

The Federal Rules took a different path. Fed. R. Crim. P. 24(c), as amended over the years, expressly allows substitution of alternates after deliberations begin so long as the reconstituted jury starts over. The federal rule reflects a policy judgment that the value of avoiding mistrials outweighs the disruption from a fresh round of deliberations. Tennessee's rule reflects a different judgment: tighter control over jury composition once deliberations begin, with the discharge cutoff fixed at jury retirement.

The opinion's reach is narrow but useful. It tells judges that a stretch of "inherent authority" cannot bridge the gap between the two rules, and it warns that doing so risks reversal on structural-error grounds. It also identifies the Hester bifurcated-trial carve-out as a true exception, not a general license.

The deeper background is the structural-error doctrine itself. Under Bobo, errors that infect "the framework within which the trial proceeds" are not subject to harmless-error analysis; they require automatic reversal when properly raised. Composition-of-the-jury errors fall in that category. That doctrinal placement is what gave Bobo its reach and what makes departures from Rule 24(f)(2) particularly risky in single-phase cases.

Citations and references

Rules and constitutional provisions (as of 2021):
- Tenn. R. Crim. P. 24(f)(2) (discharge of alternate jurors)
- Tenn. R. Crim. P. 11 (plea agreements; cited for limit on inherent trial-court authority)
- Tenn. R. Crim. P. 35 (sentence modification; cited for same limit)
- Fed. R. Crim. P. 24(c) (federal rule contrast)
- Tenn. Const. art. I, § 6 (right to trial by jury and unanimous verdict)

Cases:
- State v. Rayfield, 507 S.W.3d 682 (Tenn. 2015) (failure to dismiss alternates timely is error)
- State v. Bobo, 814 S.W.2d 353 (Tenn. 1991) (mid-deliberation substitution without restart = structural error)
- State v. Hester, 324 S.W.3d 1 (Tenn. 2010) (bifurcated capital trial; no error when alternate did not participate in guilt phase but stepped in for penalty)
- State v. Soller, 181 S.W.3d 645 (Tenn. 2005) (no inherent authority to alter plea-agreement terms beyond Rule 11)
- State v. Gonsales, No. E2002-02687-CCA-R3-CD, 2003 WL 22697299 (Tenn. Crim. App. Nov. 14, 2003) (no inherent authority to modify sentence beyond Rule 35)
- State v. Shelton, 851 S.W.2d 134 (Tenn. 1993) (right to trial by jury and unanimous verdict)
- State v. Harvey, No. E2008-01081-CCA-R3-CD, 2010 WL 5550655 (Tenn. Crim. App. Dec. 30, 2010) (juror substitution errors are not "merely procedural")

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2021/op21-08.pdf

Original opinion text

Best-effort reproduction; the linked PDF is authoritative.

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 18, 2021

Opinion No. 21-08

Substitution of Alternate Jurors in Non-Bifurcated Criminal Trials

QUESTION

Rule 24(f) of the Tennessee Rules of Criminal Procedure requires that alternate jurors "be discharged when the jury retires to consider its verdict." However, Rule 24(c) of the Federal Rules of Criminal Procedure allows a court to retain alternate jurors to substitute for regular jurors after deliberations have begun. Does a Tennessee criminal court judge have inherent authority, in a non-bifurcated trial, to follow the Federal Rules of Criminal Procedure for the purposes of retaining alternate jurors after deliberations have started?

OPINION

No. Pursuant to Tenn. R. Crim. P. 24(f)(2), alternate jurors in a non-bifurcated trial must be dismissed once the jury retires to deliberate. Additionally, replacing a juror with an alternate juror after deliberations have begun may be structural constitutional error.

ANALYSIS

The Tennessee Rules of Criminal Procedure allow alternate jurors to replace regular jurors any time before the jury retires to deliberate. Tenn. R. Crim. P. 24(f)(2). However, alternate jurors "shall be discharged when the jury retires to consider its verdict." Id. Retention of alternate jurors after the jury retires to deliberate violates the rule in non-bifurcated trials. State v. Rayfield, 507 S.W.3d 682, 701 (Tenn. 2015); State v. Bobo, 814 S.W.2d 353, 355-56 (Tenn. 1991); c.f. State v. Hester, 324 S.W.3d 1, 64, 67 (Tenn. 2010) (finding no error in a bifurcated capital trial when an alternate juror did not participate in guilt phase deliberations but replaced a juror before penalty phase deliberations).

We have found no cases or statutes that provide inherent authority to trial courts to apply a different rule. On the contrary, the Tennessee Supreme Court has indicated that trial courts do not have authority to adopt procedures different than those set out in the Tennessee Rules of Criminal Procedure. See State v. Soller, 181 S.W.3d 645, 648 (Tenn. 2005) (trial court did not have authority under Tenn. R. Crim. P. 11 to alter the terms of a plea agreement); see also State v. Gonsales, No. E2002-02687-CCA-R3-CD, 2003 WL 22697299, at 5-6 (Tenn. Crim. App. Nov. 14, 2003) (trial court exceeded its authority under Tenn. R. Crim. P. 35 when it modified the defendant's sentence without a request from either party for modification) (no perm. app. filed). Indeed, the Tennessee Supreme Court has explicitly held that failure to timely dismiss alternate jurors under Tenn. R. Crim. App. 24 is error. Rayfield*, 507 S.W.3d at 682.

Additionally, substituting an alternate juror for a regular juror after deliberations begin may violate the state constitution. The Tennessee Constitution guarantees criminal defendants the right to a trial by jury and a unanimous jury verdict. Tenn. Const. art. I, § 6; State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993). That right includes "the constitutional right to have all issues of fact submitted to the same jury at the same time." Bobo, 814 S.W.2d at 356. In Bobo, the Tennessee Supreme Court concluded that substitution of an alternate juror after deliberations had begun coupled with failure to instruct the jury to begin deliberations anew constituted structural constitutional error. Bobo, 814 S.W.2d at 356-58; see also State v. Harvey, No. E2008-01081-CCA-R3-CD, 2010 WL 5550655, at 26 (Tenn. Crim. App Dec. 30, 2010) (observing that the Bobo* court's analysis "counsels against finding [juror] substitution errors can ever be merely procedural") (no perm. app. filed).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

COURTNEY N. ORR
Assistant Attorney General

Requested by:

The Honorable Monte D. Watkins
Davidson County Criminal Court Judge, Division V
408 Second Avenue N., Suite 5140
Nashville, TN 37201-1201