730
Opinion of the Court
considered whether the presence of alternate jurors during jury deliberations violated Federal Rule of Criminal Procedure 24(c):
"The court may direct that not more than 6 jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. . . . An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict."
Because respondents had not objected to the alternates' presence, the court applied a "plain error" standard under Rule 52(b). Noting that "[w]e have not previously directly resolved the question of the validity of a verdict when alternate jurors are permitted to be present during the jury's deliberations," the court relied on the "language of Rule 24(c), Rule 23(b), the Advisory Committee Notes to Rule 23, and related Ninth Circuit precedent" to hold that Rule 24(c) barred alternate jurors from attending jury deliberations unless the defendant, on the record, explicitly consented to their attendance. 934 F. 2d, at 1436-1437. The court found that Rule 24(c) was violated in the instant case, because "the district court did not obtain individual waivers from each defendant personally, either orally or in writing." Id., at 1438. It then held that the presence of alternates in violation of Rule 24(c) was "inherently prejudicial" and reversible per se. Ibid.
"We cannot fairly ascertain whether in a given case the alternate jurors followed the district court's prohibition on participation. However, even if they heeded the letter of the court's instructions and remained orally mute throughout, it is entirely possible that their attitudes, conveyed by facial expressions, gestures or the
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