State v. Martinez and the Discretionary Substitution of Jurors under N.D.R.Crim.P. 24(c)(1)

Introduction

In State v. Martinez, 2025 ND 204, the North Dakota Supreme Court addressed an increasingly common trial-management issue: when, and under what constraints, may a trial judge remove a sworn juror and substitute a sworn alternate over the defendant’s objection, after jeopardy has attached? The case arises out of a serious multi-count prosecution, but its lasting significance is procedural and constitutional rather than substantive.

The defendant, Joshua Brock Martinez, was tried on a range of violent and firearms-related offenses, including attempted murder, reckless endangerment with extreme indifference, terrorizing, fleeing a peace officer, violations of a domestic violence protection order, unlawful possession of a firearm, and others. During the trial, one sworn juror (Juror 9) was discovered to have a friendly, preexisting relationship with a relative of the defendant who was present in the gallery. After voir dire-style questioning in open court, the trial judge removed Juror 9 and seated an alternate, over Martinez’s objection.

On appeal, Martinez framed the substitution as a constitutional problem: he argued that once the jury was sworn, his jeopardy had attached and he had a “valued right” to have the trial completed by that specific panel. According to him, the substitution of an empaneled juror without juror misconduct both exceeded the authority granted by N.D.R.Crim.P. 24(c)(1) and violated the Double Jeopardy Clause and his due process rights.

The Supreme Court rejected these arguments. It held that: (1) the substitution of a sworn juror with a sworn alternate does not terminate jeopardy and therefore does not implicate the Double Jeopardy Clause; and (2) the district court did not abuse its discretion in determining that Juror 9 was disqualified under Rule 24(c)(1) in light of his relationship with, and interaction with, the defendant’s relative.

This commentary analyzes the Opinion’s reasoning, situates it within existing precedent, and explores its likely impact on North Dakota criminal practice—especially on the management of jurors and alternates in the age of more fluid social and relational networks.

I. Factual and Procedural Background

A. Charges and Trial

Martinez faced an extensive array of felony charges across two separate criminal cases. The State charged him with:

Two counts of attempted murder;
Three counts of reckless endangerment with extreme indifference;
Terrorizing an adult victim;
Fleeing a peace officer in a vehicle, creating a risk of death or serious bodily injury;
Two counts of violation of a domestic violence protection order;
Unlawful possession of a firearm;
Discharge of a firearm within city limits; and
Refusal to halt.

The district court consolidated the two cases and held a seven-day jury trial in January 2025. The jury returned guilty verdicts on all counts except one reckless endangerment count.

B. Empanelment and the Incident with Juror 9

On the first day of trial, after voir dire, the clerk swore in twelve jurors and two alternate jurors, as authorized by N.D.R.Crim.P. 24(c)(1). All fourteen individuals—regulars and alternates—were fully qualified, accepted, and sworn.

After the first day’s proceedings, Juror 9 was observed greeting, conversing with, and hugging a person in the courtroom gallery. The State later determined that the individual was Jacob Martinez, a relative of the defendant. The trial judge also personally observed Juror 9 being “chummy” with someone in the back of the courtroom, although the judge did not know who the person was at the time.

At the start of the second day of trial, the State brought this interaction to the court’s attention. The judge then questioned Juror 9 on the record. Juror 9 stated:

He knew Jacob Martinez from work;
He did not know Jacob Martinez was related to the defendant until after initiating contact and asking why Jacob was at court; and
Jacob then disclosed that the defendant was his cousin.

Juror 9 affirmed that he could remain fair and impartial. The defense agreed, expressed satisfaction with Juror 9’s responses, and objected to his removal. Martinez himself confirmed that Jacob Martinez was legally his cousin, but described him as “my brother” in a colloquial sense.

C. The District Court’s Decision to Substitute

The State moved to strike Juror 9 and seat an alternate. The district court acknowledged:

It believed Juror 9 had been truthful;
The issue was “an extremely close call;”
The court had noticed the interaction and “had concerns” from the previous day; and
There were only two alternates available, and the trial was expected to last nine days.

After a brief recess, the court decided to remove Juror 9 and substitute an alternate, stating it had “serious concerns over the interaction.” The court dismissed Juror 9, who replied, “Sounds fair enough. I mean, don’t want to take any chances,” to which the court responded, “That is a big part of what’s going through my mind.”

The court did not, in so many words, state, “I find Juror 9 to be disqualified under Rule 24(c)(1),” but it repeatedly referenced its concerns about the juror’s interaction and relationship with a relative of the defendant.

D. Issues on Appeal

On appeal, Martinez advanced two main arguments:

Double jeopardy / valued right to a particular tribunal. He argued that because the jury was already sworn, jeopardy had attached, and he had a constitutional right to have his trial completed by that particular jury. Substituting a juror over his objection allegedly violated the Double Jeopardy Clause.
Exceeding Rule 24(c)(1) authority / abuse of discretion. He argued that the district court exceeded its authority under N.D.R.Crim.P. 24(c)(1), which allows substitution only if a juror is “unable to perform or disqualified from performing” their duties, and that there was no evidence of misconduct or disqualification by Juror 9 sufficient to justify removal.

II. Summary of the Supreme Court’s Opinion

Justice Bahr, writing for a unanimous court, affirmed the criminal judgments. The Court’s holdings can be summarized as follows:

No Double Jeopardy Violation. While jeopardy attaches when the jury is empaneled and sworn, the substitution of a sworn juror with a sworn alternate does not terminate jeopardy and therefore does not implicate the Double Jeopardy Clause. The defendant’s “valued right” to a particular tribunal is not violated where alternates are selected, sworn, and present throughout the trial in the same manner as regular jurors.
Rule 24(c)(1) and Discretion to Remove Jurors. Under N.D.R.Crim.P. 24(c)(1), the district court may empanel up to four alternates and may substitute an alternate for a juror who is “unable to perform or who [is] disqualified from performing their duties.” The Rule is silent on when or how such inability or disqualification is found, so the determination is case-specific and entrusted to the trial court’s discretion.
Abuse-of-Discretion Review and Sufficiency of the Record. The Court adopted an abuse-of-discretion standard for reviewing juror substitution decisions. Although the trial court did not use the term “disqualified,” its statements provided a sufficient record for the Supreme Court to discern that the court had determined Juror 9 was disqualified by virtue of his relationship with, and interaction with, the defendant’s relative.
No Abuse of Discretion in This Case. Given the trial court’s articulated concerns about impartiality and the appearance of fairness arising from Juror 9’s relationship and conduct, the substitution decision was within the range of permissible discretion. Therefore, there was no Rule 24 error, no due process violation, and no reversible prejudice to Martinez.

III. Detailed Analysis

A. Precedents and Authorities Cited

1. Double Jeopardy Framework

The Court anchored its double jeopardy analysis in both North Dakota and federal authority:

State v. Borland, 2021 ND 52, ¶ 5, 956 N.W.2d 412: summarized the basic principle that the Double Jeopardy Clause, along with North Dakota’s constitutional and statutory provisions (U.S. Const. amend. V; N.D. Const. art. I, § 12; N.D.C.C. § 29-01-07), prohibits successive prosecutions and multiple punishments for the same offense. Borland establishes the standard of review for double jeopardy issues as de novo.
City of West Fargo v. Ekstrom, 2020 ND 37, ¶ 9, 938 N.W.2d 915: reaffirmed that in a jury trial, jeopardy attaches when the jury is empaneled and sworn.
State v. Isom, 2018 ND 60, ¶ 12, 907 N.W.2d 340 (quoting Illinois v. Somerville, 410 U.S. 458, 467 (1973)): emphasized that attachment of jeopardy is the beginning—not the end—of the analysis; one must still determine whether a subsequent event terminated the original jeopardy so as to bar retrial.
State v. Voigt, 2007 ND 100, ¶ 13, ¶ 22, 734 N.W.2d 787 (quoting Richardson v. United States, 468 U.S. 317, 325 (1984)): clarified that the Double Jeopardy Clause applies only if there has been an event, such as an acquittal, that terminates the original jeopardy, and that each double jeopardy claim turns on its specific facts.

These cases, together with the federal authorities they invoke, provide the doctrinal backbone for the Court’s conclusion: substitution of a juror for an alternate does not amount to a termination of jeopardy. There is no acquittal, no conviction, no mistrial over the defendant’s objection that bars reprosecution. The trial simply continues with a different, but previously sworn, juror.

2. Juror Substitution and Alternate Jurors

On the specific question of whether substituting a juror raises double jeopardy concerns or undermines the “valued right” to a particular tribunal, the Court looked beyond North Dakota to persuasive authorities:

Sartawi v. Gomez, 32 F.3d 572, 1994 WL 390016 (9th Cir. 1994): held that the replacement of sworn jurors with alternates is not generally an event that terminates jeopardy and therefore does not offend the Double Jeopardy Clause.
United States v. Shinault, 147 F.3d 1266, 1276 (10th Cir. 1998): explained that when alternates are sworn along with the original jury members, substitution avoids double jeopardy problems because the original jeopardy continues.
State v. Cook, 338 Md. 598, 614 (1995): concluded that substitution of an alternate juror did not place the defendant twice in jeopardy because the unity of the original jury was not destroyed; it cited California cases like People v. Johnson, 200 Cal. App. 3d 1553 (1988), and People v. Burgess, 206 Cal. App. 3d 762 (1988), to similar effect.
Secondary sources:
- 21 Am. Jur. 2d Criminal Law § 335 (2025): notes that in jurisdictions providing for alternates, substituting an alternate for a regular juror does not constitute double jeopardy.
- W. J. Dunn, Annotation, Constitutionality and Construction of Statute or Court Rule Relating to Alternate or Additional Jurors or Substitution of Jurors During Trial, 84 A.L.R.2d 1288, § 3(a) (1962): collects cases upholding alternates and substitution against double jeopardy challenges.

By adopting these authorities, the North Dakota Supreme Court firmly aligned itself with the mainstream view: where alternates are properly selected and sworn, their later substitution for regular jurors does not reset or terminate jeopardy and does not violate the defendant’s right to a particular tribunal.

3. Standard of Review and Juror-Removal Discretion

On the question of how to review juror-removal decisions on appeal, the Court again turned to persuasive authority from federal and state courts:

United States v. Picardi, 739 F.3d 1118, 1122 (8th Cir. 2014): appellate courts generally review juror replacement decisions for abuse of discretion.
United States v. De Oleo, 697 F.3d 338, 341–42 (6th Cir. 2012): a district court may replace a juror with an alternate when a juror is unable or disqualified to perform duties; this determination is reviewed for abuse of discretion.
State v. Nyonteh, 24 N.W.3d 271, 282 (Minn. 2025): Minnesota likewise reviews removal of a seated juror for an abuse of discretion.
Hobbs v. United States, 18 A.3d 796, 800 (D.C. 2011): endorses abuse-of-discretion review and stresses that after jeopardy attaches, removal is appropriate only if the juror is unable or disqualified.
Martin-Dorm v. State, 259 Md. App. 676, 691 (2023): holds that a trial judge’s decision to remove a seated juror is discretionary, will not be reversed absent clear abuse or prejudice, and must be assessed case-by-case.
United States v. Carpenter, 140 F.4th 733, 745 (5th Cir. 2025): reiterates that after selection, jurors may be excused only if unable or disqualified to perform duties.

Domestically, the Court also relied on:

Caster v. State, 2019 ND 187, ¶ 6, 931 N.W.2d 233: addresses the appellate approach to missing or conclusory findings, stating that remand is generally required unless the appellate court can discern the rationale from the record. This principle is critical to upholding the district court’s juror-removal decision even though it did not explicitly label Juror 9 as “disqualified.”

Together, these authorities support two key propositions adopted by the Court: (1) juror substitution is reviewed for abuse of discretion; and (2) a trial judge’s removal decision will be upheld if the appellate court can discern a sound basis in the record, even if the trial court’s findings are not perfectly explicit.

B. The Court’s Legal Reasoning

1. Attachment and Non-Termination of Jeopardy

The Court accepted that jeopardy had attached because the jury—including alternates—had been empaneled and sworn. However, it emphasized that attachment of jeopardy is only the starting point of the analysis. Citing Isom and Somerville, the Court reiterated that one must ask whether there has been an event terminating the original jeopardy, such as an acquittal, conviction, or mistrial under conditions that bar retrial.

The Court then reasoned:

The substitution of a juror with an alternate does not terminate the ongoing jeopardy, because the trial continues before a lawfully constituted jury.
There is “unity” of the tribunal where alternates were selected, qualified, and sworn in the same manner as regular jurors and were present for the same evidence and instructions from the outset.
As the Ninth Circuit put it in Sartawi, such substitution does not “trench upon a defendant’s right to have his trial completed by a particular tribunal.”

Significantly, the Court also clarified that under Rule 24, “a jury is not empaneled until all jurors, including any alternates, have been qualified, accepted, and sworn.” This reinforces the notion that alternates are not lesser figures; they are part of the tribunal from the outset. Thus, substitution among members of an already-empaneled and sworn group does not create a “new” tribunal that would implicate double jeopardy.

2. Interpretation of N.D.R.Crim.P. 23(b) and 24(c)

The Court next turned to the North Dakota Rules of Criminal Procedure:

Rule 23(b)(1): In felony cases, a jury consists of twelve qualified jurors unless otherwise provided.
Rule 24(c)(1): The court may empanel up to four alternates to replace any jurors who are “unable to perform or who are disqualified from performing their duties.”
Rule 24(c)(2)(A): Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other jurors.
Rule 24(c)(3) (referenced in footnote): The court may retain alternates after the jury retires to deliberate, so long as alternates do not discuss the case unless they are substituted; if substitution occurs after deliberations start, deliberations must begin anew.

From these provisions, the Court drew several implications:

Alternates are full jurors in waiting: they are qualified, accepted, and sworn under identical standards, and they sit through the entire trial unless discharged.
Substitution is explicitly contemplated as a mechanism to preserve the functioning of the jury when a regular juror is “unable or disqualified” to serve.
The Rules do not define “unable” or “disqualified,” nor do they specify a rigid procedure or timing. That silence reinforces that the trial court must evaluate the circumstances case by case—a conclusion supported by the A.L.R. annotation and Martin-Dorm.

Thus, the Court read Rule 24(c)(1) as granting substantial (but not unbounded) discretion to trial judges to remove jurors and seat alternates where impartiality or the ability to perform duties is credibly in doubt.

3. Abuse-of-Discretion Analysis and the Sufficiency of the Trial Court’s Record

The Court then applied the abuse-of-discretion standard to the district court’s removal of Juror 9. Abuse of discretion occurs when a court acts in an arbitrary, unreasonable, or unconscionable manner, or misinterprets or misapplies the law.

Two issues were central:

Did the district court have a “sound basis” (in the language of Rodriguez, 573 F.2d 330, 332 (5th Cir. 1978)) for removing Juror 9?
Was the record adequate, despite the absence of a precise statement, “I find this juror disqualified”?

On the first point, the Court noted:

Juror 9 had a prior relationship with Jacob Martinez (a relative of the defendant) through work.
He initiated contact with Jacob in the courtroom, greeted him warmly, and hugged him.
The trial judge personally observed the interaction and reported having “serious concerns” about it, including from the previous day.
The trial court believed the juror’s assurances of impartiality but remained uneasy about the interaction’s implications.

The Supreme Court analogized to Martin-Dorm, where a Maryland appellate court upheld the removal of a juror who had social media ties to the defendant’s family. Although there was no overt misconduct, the appearance of partiality and the risk to fairness justified substitution.

On the second point (sufficiency of the record), the Court invoked Caster, which allows appellate courts to uphold a ruling if they can discern the rationale from the record even when findings are conclusory or incomplete. Here, despite the trial court’s failure to explicitly use the word “disqualified,” the Court found it clear that:

The judge considered the juror’s relationship and interaction with the defendant’s relative;
Those facts gave rise to “serious concerns” about the juror’s ability to serve impartially;
Hence, the judge effectively found the juror to be disqualified and appropriately invoked Rule 24(c)(1) to substitute an alternate.

The Court candidly acknowledged that a more explicit finding of disqualification “would have been preferable,” but held that the record was sufficient to support the trial court’s decision and to enable meaningful appellate review.

4. The Sixth Amendment “Valued Right” to a Particular Tribunal

Martinez leaned on a line of cases recognizing that once a jury is sworn, a defendant has a valued right to have his trial completed before that particular tribunal. The Court effectively limited the force of that doctrine by distinguishing between:

The right not to face a new jury (which is the core of the double jeopardy concern); and
The defendant’s preference for specific individuals to remain on the jury (which is not a constitutional guarantee when alternates are properly involved).

By emphasizing that alternates are selected, sworn, and present under the same conditions as regular jurors, the Court concluded that substitution does not create a “new” tribunal. Thus, the “valued right” doctrine does not preclude substitution under Rule 24(c)(1).

C. Impact and Future Implications

1. Clear Endorsement of Juror Substitution as Constitutionally Permissible

The decision cements in North Dakota what has long been the majority approach nationally: properly empaneled alternates may be substituted for regular jurors without:

Violating the Double Jeopardy Clause;
Creating a new “tribunal” for Sixth Amendment purposes; or
Automatically infringing due process.

Practically speaking, this gives trial judges confidence to use Rule 24(c)(1) as intended—to preserve jury integrity and trial continuity when doubt arises about a juror’s impartiality or ability to serve.

2. Emphasis on Early and Full Empanelment of Alternates

The Opinion underscores that:

Alternates must be selected and sworn at the outset;
Jeopardy attaches to the entire panel, including alternates;
Having alternates hear all evidence and instructions is central to avoiding double jeopardy concerns when substitution becomes necessary.

Future trial courts will be well advised to ensure that alternates are integrated into the trial from the beginning and that the record clearly reflects they were sworn and present throughout.

3. Broad, but Reviewable, Trial-Court Discretion on Disqualification

By recognizing that Rule 24(c)(1) is silent on when or how disqualification arises and by endorsing a case-by-case approach, the Court grants substantial discretion to trial judges. At the same time, it sets guardrails:

There must be a “sound basis” for removal, grounded in facts that reasonably call into question impartiality or the ability to serve.
The judge must make a record sufficient to allow meaningful appellate review, even if not formulaic.
Abuse-of-discretion review ensures that arbitrary removals remain reversible.

In practice, this will likely encourage trial judges to:

Conduct on-the-record questioning whenever issues of relationships, contact, or possible bias arise;
Articulate their concerns explicitly, including whether they deem the juror “disqualified” or “unable to perform” duties;
Balance the risks of continuing with a questionable juror against the availability of alternates and the length/complexity of the trial.

4. Special Relevance to Modern Social and Relational Contexts

The scenario in Martinez—a juror’s relationship with a relative of the defendant, and visible friendliness in the courtroom—reflects a broader trend: in smaller communities and in a world of extensive social networks (including social media), the likelihood of juror connections to parties, witnesses, or relatives is increased.

By citing Martin-Dorm (social media ties) and taking a relatively strict view of juror-relational contacts, the Court signals that:

Even absent overt misconduct, relationships and interactions that could reasonably appear to compromise impartiality are legitimate bases for substitution;
The appearance of fairness matters;
Defendants do not have an absolute right to keep a juror who professes impartiality if objective circumstances give the court reason for “serious concerns.”

This may encourage trial courts to take a more proactive role in ferreting out juror-party relationships and to err on the side of substituting an alternate rather than risking a tainted verdict.

5. Defense Strategy and Preservation of Error

For defense counsel, Martinez has several implications:

Objections to juror substitution must be clearly stated and should identify both legal bases (e.g., Rule 24 interpretation, constitutional concerns) and factual grounds (e.g., adequacy of voir dire, lack of demonstrated bias).
Given the Court’s deference to trial courts’ discretionary judgment, future challenges will likely need to show that the removal was arbitrary, unsupported by facts, or that the court misapplied Rule 24.
If a defense believes a juror has been “rehabilitated,” counsel should seek more detailed trial-court findings on impartiality and explicitly ask the court to state whether it finds the juror “unable” or “disqualified.” This creates a more defined record for appellate review.

IV. Complex Concepts Simplified

1. Double Jeopardy and “Attachment” of Jeopardy

The Double Jeopardy Clause (U.S. Const. amend. V) protects a defendant from:

Being tried twice for the same offense after an acquittal;
Being tried twice for the same offense after a conviction; or
Receiving multiple punishments for the same offense.

In a jury trial:

Jeopardy attaches at the moment the jury is empaneled and sworn. From that point onward, the defendant is “in jeopardy” for double jeopardy purposes.
But attachment alone does not bar all later procedural developments. The question becomes whether an “event” has occurred that terminates the original jeopardy (e.g., an acquittal, a final judgment, or a mistrial under circumstances that preclude retrial).

In Martinez, the trial continued without termination; the only change was a substitution within the already-sworn panel. Thus, there was no double jeopardy violation.

2. The “Valued Right” to a Particular Tribunal

Supreme Court precedent recognizes that a defendant has a “valued right to have his trial completed by a particular tribunal.” This is closely tied to the double jeopardy protection against improper mistrials and retrials.

However, Martinez clarifies that this right does not mean:

The defendant is constitutionally entitled to have the same 12 individual people remain for the entire trial regardless of circumstances, or
Any substitution among sworn jurors creates a “new” tribunal.

Instead, the right protects against being forced to start over with a completely new jury after jeopardy attaches, absent sufficient justification. Where alternates are part of the original sworn panel, substituting one for another does not violate that right.

3. Alternate Jurors and Their Role

An alternate juror is:

Selected and questioned during voir dire like regular jurors;
Sworn to follow the law and facts;
Present for the entire trial, hearing all evidence and instructions, unless discharged.

The only difference is that alternates do not participate in deliberations unless called upon to replace a regular juror. Because rules like N.D.R.Crim.P. 24(c)(2)(A) require that alternates have the same qualifications and be selected and sworn in the same manner, they are treated as equal in status and competency to regular jurors.

4. “Disqualified” or “Unable to Perform” Under Rule 24(c)(1)

The terms “unable” and “disqualified” are not defined in Rule 24(c)(1). Broadly:

A juror is unable to perform duties if illness, personal emergency, or similar circumstances prevent attendance or attention to the trial.
A juror is disqualified from performing duties if facts emerge suggesting bias, a conflict of interest, improper contact, or any situation that reasonably undermines impartiality or the appearance of impartiality.

In Martinez, Juror 9 was considered disqualified not because of misconduct per se, but because his relationship with and affectionate interaction toward the defendant’s cousin created a serious concern about impartiality. The court did not need proof of actual bias; the risk and appearance were sufficient.

5. Abuse-of-Discretion Review

When an appellate court reviews for abuse of discretion, it is not asking whether it would have made the same decision as the trial court. It asks whether:

The decision was arbitrary, capricious, or without a rational basis;
The court misinterpreted or misapplied the law; or
The decision fell outside the range of acceptable outcomes given the facts and the law.

Under this deferential standard, even a “close call” like the removal of Juror 9 will be upheld so long as the trial court had a reasonable basis grounded in the record, and properly applied Rule 24(c)(1).

V. Conclusion

State v. Martinez makes a significant procedural contribution to North Dakota criminal law. It clarifies that:

Once alternates are properly selected and sworn along with regular jurors, substitution of an alternate for a regular juror does not terminate jeopardy and does not violate the Double Jeopardy Clause.
Under N.D.R.Crim.P. 24(c)(1), trial courts have discretion—subject to abuse-of-discretion review—to remove jurors who are unable or disqualified from performing their duties, including where a juror’s relationships and in-court interactions raise serious concerns about impartiality or the appearance of fairness.
Although explicit on-the-record findings of “disqualification” are preferable, appellate courts may uphold removals when the trial court’s reasoning can be fairly discerned from the record.

In an era where juror-party connections and social interactions are more easily discovered and more pervasive, Martinez equips North Dakota trial judges with clear authority to protect the integrity of the jury while remaining within constitutional boundaries. It balances the defendant’s rights to a fair and impartial jury and to continuity of the tribunal with the judiciary’s responsibility to ensure that jurors are, and appear to be, unbiased.

As such, Martinez stands as an important precedent on the management of juries and alternates, the scope of trial-court discretion under Rule 24(c)(1), and the proper understanding of double jeopardy in the context of intra-panel juror substitution.