Virginia Code

Va. Code Ann. § 8.01-361 (2026)

New juror may be sworn in place of one disabled; when court may discharge jury

✓ current as of May 2026

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If a juror, after he is sworn, be unable from any cause to perform his duty, the court may, in its discretion, cause another qualified juror to be sworn in his place, and in any case, the court may discharge the jury when it appears that they cannot agree on a verdict or that there is a manifest necessity for such discharge.

Code 1950, § 8-208.23; 1973, c. 439; 1977, c. 617.

Notes of Decisions

Cited in 31 cases (8 in the last 5 years), 1986–2025 · leading case: Commonwealth v. Washington, 559 S.E.2d 636 (Va. 2002).

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Commonwealth v. Washington, 559 S.E.2d 636 (Va. 2002). · cites it 4× “" Code § 8.01-361. "There is no general rule as to what facts and circumstances constitute such a necessity but the trial court is authorized by the statute to exercise its discretion in making the determination according to the circumstances of the case.”

Prieto v. Com., 682 S.E.2d 910 (Va. 2009). · cites it 4× “Denial of Mistrial Based Upon Motion That Jury Was Unable To Agree On A Verdict Hung Jury We first address whether the circuit court abused its discretion in denying Prieto's motion for a mistrial in Prieto I upon receipt of the notes from the jury foreman and Juror D.”

Smith v. Commonwealth, 389 S.E.2d 871 (Va. 1990). · cites it 2× “Under Code § 8.01-361, “in any case, the court may discharge the jury when it appears that .”

Gene Anthony Brown v. Commonwealth of Virginia, 764 S.E.2d 297 (Va. Ct. App. 2014). · cites it 6× “could not weigh the evidence impartially and without distraction. Additionally, appellant argues that even if there was a reasonable doubt regarding M.”

Miller v. Commonwealth, 373 S.E.2d 721 (Va. Ct. App. 1988). · cites it 2× “Code § 8.01-361 provides that “the court may discharge the jury when it appears .”

Robert Daniel King, a/k/a, etc v. Commonwealth, 579 S.E.2d 634 (Va. Ct. App. 2003). · cites it 2× ““If the accused plead not guilty, he may, with his consent and the concurrence of the attorney for the Commonwealth and of the court entered of record, be tried by a smaller number of jurors, or waive a jury.” Va. Const, art.”

Tyler v. Commonwealth, 467 S.E.2d 294 (Va. Ct. App. 1996). · cites it 2× “After twice ordering the jury to deliberate further, the trial court determined that the jury was unable to reach consistent verdicts and discharged the jury.”

Allen v. Commonwealth, 472 S.E.2d 277 (Va. 1996). · cites it 2× “” Code § 8.01-361. That statute must be read in conjunction with Code § 8.”

Humbert v. Commonwealth, 514 S.E.2d 804 (Va. Ct. App. 1999). · cites it 2× “” See also Code § 8.01-361 (permitting court to discharge jury "when it appears that they cannot agree on a verdict or that there is a manifest necessity for such discharge”).”

Brandon v. Commonwealth, 467 S.E.2d 859 (Va. Ct. App. 1996). · cites it 2× “2d 425 (1973); see Code § 8.01-361; Washington v. Commonwealth, 216 Va.”

Colclasure v. Commonwealth, 390 S.E.2d 790 (Va. Ct. App. 1990). · cites it 2× “*203 Code § 8.01-361 provides that the trial court may properly discharge the jury “when it appears .”

Irving v. Commonwealth, 453 S.E.2d 577 (Va. Ct. App. 1995). · cites it 4× “1 Assuming that, under the circumstances of this case, the trial court had discretion to replace a juror who was “unable” to serve, that discretion is not unbridled.”

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