N.C.P.I.—Crim. 100.40

NOTE WELL: The North Carolina Court of Appeals in State

v. Chambers, 292 N.C. App. 459, 898 S.E.2d 86 (2024),

ruled that substituting an alternate juror for one of the

original twelve after deliberations have begun violates the

Constitution and is reversible error. This holding has been

stayed and a petition for discretionary review granted by

the Supreme Court of North Carolina. 901 S.E.2d 774

(2024). If you choose to substitute a juror, use the

following instruction.

[An alternate juror has] [Alternate jurors have] been substituted for the

excused [juror] [jurors].1 You should not speculate about the reason for the

substitution. The law of this State2 grants the defendant the right to a

unanimous verdict reached only after full participation of the twelve jurors

who ultimately return a verdict. That right may only be assured if the jury

begins deliberations anew. Therefore, you must restart your deliberations

from the beginning. This means you should disregard entirely any

deliberations taking place before the alternate [juror was] [jurors were]

substituted, and consider freshly the evidence as if the previous deliberations

had never occurred.

Although starting over may seem frustrating, please do not let it

discourage you. It is important to our system of justice that each juror has a

full and fair opportunity to explore his or her views, and respond to the views

of others so that you may come to a unanimous verdict. All the previous

instructions given to you, including the unanimity requirement for a verdict,

remain in effect. You shall now retire for your deliberations in accordance with

the instructions previously given.

NOTE WELL: If the excused juror was the foreperson, the court

must instruct the jury to select a new foreperson prior to

restarting deliberations.