What is the test for dismissing a juror after a jury has declared it is deadlocked?

United States v. Lamb, 529 F.2d 1153, 1156 (9th Cir.1975) (en banc) (footnote omitted). It should not surprise anyone to learn that the escalating pressures exerted upon jurors to reach a verdict during a week of deliberation often result in hostility and rancor among the members of the jury. This is a price our legal system must gladly pay in exchange for the moral certainty that adheres to the jury's verdict. Cf. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970) ("It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.") (emphasis added). "Whether analyzed as a fifth, sixth, or fourteenth amendment question, a fundamental concern in a case such as this is protecting the deliberative process of the jury. A just result of a trial cannot be reached if there is an inappropriate interference with or intrusion upon the deliberative process." Peek v. Kemp, 746 F.2d 672, 680 (11th Cir.1984).

A jury that has struggled to arrive at a fair and just verdict for five days should not lightly be reconstituted for reasons of judicial convenience or juror comfort. "There can be no doubt that fundamental due process, and the right to a fair and impartial jury, entitles a defendant in a criminal case to be tried by the jury originally selected to determine his guilt or innocence," subject only to a few well-defined exceptions. Peek v. Kemp, 746 F.2d 672, 679 (11th Cir.1984). Due process is no less offended when a court dismisses a juror after the jury announces it is deadlocked without making a reliable determination on the capacity of the current jurors to proceed. Id. at 681. On the record before us, no one can determine whether the juror disqualification decision was valid or merely a means to eliminate a deadlocked jury. More importantly, however, this inquiry, vital to the integrity of the deliberative process, was conducted in the absence of the defendant.