The U.S. Supreme Court will hear oral arguments this term in Kian v. Florida on whether the Sixth Amendment guarantees a criminal defendant the right to a twelve-member jury. In North Carolina, that question is largely academic, as the North Carolina Supreme Court has long held that the state constitutional right to a jury in criminal cases means a jury of twelve: a less number is not a jury. E.g., State v. Rogers, 162 N.C. 656 (1913). Despite this certainty, several recent opinions address a criminal defendant’s right to a jury trial in state court. This post considers those opinions.
The Jury Right
The right to trial by jury has a long history, predating even its famous – if somewhat ambiguous – iteration in Magna Carta (1215). See John V. Orth, The Past is Never Dead: Magna Carta in North Carolina, 94 N.C. Law Rev. 1635, 1643 (2016). In any event, the founders (following Blackstone) believed the right to trial by jury one of the crowning achievements of the English common law. E.g. State v. Hudson, 280 N.C. 74, 79 (1971) (“a fundamental principle”); Cf. 4 Bl. Com. *343. Indeed, deprivation of the right was one of the grievances cited in the Declaration of Independence. Accordingly, guarantee of trial by jury was included in all of the constitutions of the original states (and every state thereafter), and in the federal constitution even before the Sixth Amendment. See 6 Wayne R. LaFave, Criminal Procedure § 22.1(a) (5th ed. 2025); Cf. U.S. Const. Art. III, § 2.
Under the North Carolina constitution, no person shall be convicted of any crime but by the unanimous verdict of a jury in open court. N.C. Const. Art. I, § 24. As noted above, this means a jury of twelve, and a defendant convicted by fewer is entitled to relief. See State v. Hudson, 280 N.C. 74, 80 (1971). Until the state constitution was amended in 2014, the Supreme Court held that, absent a guilty plea, the defendant may not waive trial by jury, and one convicted in a bench trial was entitled to relief. State v. Cox, 265 N.C. 344, 345 (1965). Since then, a defendant may waive jury trial in accordance with procedures established by statute. State v. Hamer, 377 N.C. 502, 506 (2021) (noncompliance with statute was not per se reversible error); cf. G.S. 15A-1201.
The common law rule was that, if a juror had to be discharged during trial, it was necessary to reconstitute the entire jury and begin again. LaFave, Crim. Pro. § 22.3(e). In the late nineteenth century, states and the federal government passed statutes to provide for alternate jurors. See Wofford v. Woods, 969 F.3d 685, 704 (6th Cir. 2020). North Carolina passed such a statute in 1931. The statute was upheld in State v. Dalton, 206 N.C. 507 (1934), where the Court noted that the law preserved “the essential attributes of trial by jury,” namely number, impartiality, and unanimity. Still, the right to a jury of twelve means an alternate juror may not deliberate with the twelve, as this would result in a jury of thirteen. See State v. Bindyke, 288 N.C. 608, 623 (1975) (presence of alternate in the jury room after case was submitted to panel of twelve was reversible error per se).
Juror Substitution
Jurisdictions are split on whether an alternate juror may replace a regular juror after deliberations have begun. LaFave, Crim. Pro. § 22.3(e). In 2021, the North Carolina legislature amended G.S. 15A-1215(a) to permit the substitution of an alternate juror at any time before a verdict is rendered. G.S. 15A-1215(a). The statute was upheld in State v. Chambers, 387 N.C. 521 (2025), where the Court said the statute provides two critical safeguards: precluding deliberation by more than twelve jurors and requiring the trial court to instruct the jury to begin its deliberations anew. Id. at 526.
In State v. Thomas, 933 S.E.2d 764 (N.C. Aug. 14, 2026), the North Carolina Supreme Court clarified the scope of Chambers. The defendant in Thomas, charged with murder based on a drive-by shooting, was tried by a jury in February 2022. After the jury deliberated for a few hours, the judge excused one juror (based on a prior commitment) and substituted an alternate juror, advised the jury that it would have to start its deliberations over, and recessed the jury for the weekend. The jury ultimately convicted the defendant of second-degree murder, and the defendant appealed.
Upon review, the Supreme Court summarized its holding in Chambers: substitution of an alternate juror after deliberations have begun is constitutional so long as the trial court “complies with the two ‘critical safeguards’ of the statute by (1) substituting the alternate juror only after excusing the sitting juror, and (2) instructing the newly composed jury to begin deliberations anew.” Thomas, 933 S.E.2d at 770. The legitimacy of the juror substitution, the Court said, does not depend on a case-by-case analysis of factors such as how long the prior jury deliberated, how long the new jury deliberated, or what other instructions the trial court provided. Id. at 770; cf. id. at 767. Here, the trial court complied with G.S. 15A-1215(a), and the substitution was therefore constitutional.
The Thirteen Juror
The traditional view is that allowing an alternate juror to accompany the regular jury into deliberations violates the cardinal principle that jury deliberations will remain private and secret. LaFave, Crim. Pro. § 22.3(e); cf. G.S. 15A-1236(a). In United States v. Olano, 507 U.S. 725 (1993), the U.S. Supreme Court (applying Federal Rule 52, not the due process clause) recognized that the presence of an alternate juror during jury deliberations might prejudice a defendant; still, the Court declined to apply a presumption of prejudice to this scenario. Id. at 737. States are, of course, free to interpret their own state constitutions as providing greater protection, as in Bindyke.
The Court of Appeals in State v. Humphry, No. COA25-1051 (N.C. Ct. App. Sept. 2, 2026), addressed whether Chambers changes the rule that the presence of an alternate juror in the jury room during jury deliberations constitutes error per se. The defendant in Humphrey was tried in March 2025 for death by distribution. After delivering the jury instructions, the judge released the jury and one alternate juror to the jury room to select a foreperson. About twenty minutes later, the jury returned to the courtroom and the trial court excused the alternate juror. The trial court then instructed the jury to restart its deliberations. The defendant was convicted and appealed.
Before the Court of Appeals, the defendant argued a violation of his right to a jury of twelve. Humphrey, Slip Op. p. 5. The Court of Appeals agreed. It cited Bindyke for the proposition that an alternate juror’s presence during jury deliberations is reversible error per se. Id. at 7. The Court of Appeals rejected the State’s argument that Chambers overruled Bindyke, explaining that Chambers instead reaffirmed the principle that in no event shall more than twelve jurors participate in deliberations. Id. at 7-8. As for the State’s argument that any prejudice was cured by the trial court’s instruction to begin deliberations anew, the Court of Appeals observed that allowing more than twelve jurors to participate in deliberations violated a critical safeguard recognized by Chambers. Id. at 9. Significantly, despite the substitution, the jury in Chambers never deliberated with thirteen jurors. Id. The Court of Appeals concluded that the defendant was entitled to a new trial. Id. at 10.
Conclusion
An unexpected invocation of the right to trial by jury appears in the Court of Appeals’ recent opinion in State v. Lofton, No. COA25-58 (N.C. Ct. App. Aug. 5, 2026). The court there said that to allow a prosecutor to dismiss charges after a jury returned a conviction would “undermin[e] the important role our juries serve” in our system of government. Lofton, Slip Op. p. 17. The founders probably would not have considered securing a conviction against the caprice or inadvertence of a prosecutor among the interests that the jury trial right was intended to protect. See State v. Holt, 90 N.C. 749, 752 (1884) (“to guard against a spirit of oppression and tyranny on the part of rulers”).
Of most significance to current trial prosecutors, Chambers announced and Thomas reiterated what it called “the special preservation rule” for juror substitution issues. Thomas, 933 S.E.2d at 769. As explained in Chambers, “issues related to the structure of the jury that found defendant guilty [are] preserved notwithstanding defendant’s failure to object at trial.” Chambers, 387 N.C. at 524. And if this rule allowed the court in Thomas to reach the merits of the juror substitution issue, it also allowed the court in Humphrey to find reversible error in the presence of the thirteenth juror despite the defendant’s failure to object at trial. See Humphrey, Slip Op. p. 6. Practically this means that a prosecutor must also be vigilant as to whom the judge allows into the jury room to deliberate. To secure a conviction, in other words, and in lieu of any objection by the defense, the prosecutor must be a guardian of the defendant’s state constitutional right to a jury of twelve.
