Can a juror withdraw from a jury in a criminal case?

In Cancemi v. People, 18 N.Y. 128 (1858), a leading case on this subject, a juror was withdrawn in pursuance of a stipulation signed by the accused and filed in open court that a verdict might be rendered by eleven jurors and that 'the twelve names now appearing of record as the jury in this cause may remain, so that by the record this cause shall appear to have been tried by twelve jurors. ' The court held this invalidated the trial; the consent of the prisoner being a nullity and the conviction illegal. The court referred to the fact that the state had an interest in the preservation of the liberties and the lives of its citizens and that as a criminal prosecution may result in a forfeiture of the life or the liberty of the accused the consent of the latter 'should not be permitted to extend so far as to work radical changes in great and leading provisions as to the organization of the tribunals or the mode of proceeding prescribed by the Constitution and the laws. ' The opinion points out that consent may in many particulars affect the proceedings; that objections to jurors may be waived; that the court may be substituted for triers to dispose of challenges to jurors; that secondary evidence may be received in place of primary evidence; that admissions of facts may be allowed. 'But, when issue is joined upon an indictment, the trial must be by the tribunal and in the mode which the Constitution and laws provide, without any essential change. The public officer prosecuting for the people has no authority to consent to such a change nor has the defendant.