What should a court do when confronted with evidence of racial bias in jury deliberations? At common law, once a case was over a verdict could not be challenged based on evidence of what happened during jury deliberations. This historical rule against the impeachment of jury verdicts is codified in Rule 606(b) of the Federal Rules of Evidence. The rule serves to encourage free and frank communications within the jury room, to prevent the harassment of jurors once a case is over, and to promote respect for and finality of jury verdicts.
Last week in United States v. Peña-Rodriguez the Supreme Court ruled 5-3 that the Constitution requires an exception to this rule when there is evidence of racial bias in jury deliberations. (I first wrote about the case when it was argued last fall, you can find that post here.) Faced with the evidence of such bias, the Court was understandably reluctant to leave the defendant without a remedy. But the implications for the jury system go far beyond this single case.
The Issue in Peña-Rodriguez
A Colorado jury convicted Mr. Peña-Rodriguez of unlawful sexual contact with two young women. After the case was over, two jurors reported to his defense attorney that another juror had demonstrated bias against Hispanics during deliberations. That juror reportedly made several statements demonstrating his prejudices, including that the defendant was likely guilty because Mexican men have a macho attitude and believe they can take whatever they want when it comes to women.
The Colorado courts ruled Peña-Rodriguez could not challenge his conviction based on this evidence. Colorado has a rule similar to Federal Rule 606(b), which prohibits the impeachment of jury verdicts based on evidence of what happened during deliberations. The great majority of states follow this same rule.
Nine states, however, follow a more relaxed standard known as the Iowa rule. These states prohibit inquiry into a juror’s own subjective beliefs following a verdict but do allow scrutiny of things that take place during deliberations, including statements reflecting bias by other jurors.
Confronting Racial Bias in Jury Deliberations
Peña-Rodriguez argued in the Supreme Court that his Sixth Amendment right to a fair trial required that he be allowed to challenge his conviction. In an opinion by Justice Kennedy, the Supreme Court agreed. The Court ruled there must be an exception to the no-impeachment rule when there are allegations of racial bias in jury deliberations.
The Court held, in effect, that race is different. Our country has a long and troubled history involving racial discrimination, including within the justice system itself. In light of that history, it is essential that there be mechanisms to ensure racial bias does not infect jury verdicts. When there is evidence of such bias, there must be a remedy: “When jurors disclose an instance of racial bias as serious as the one involved in this case, the law must not wholly disregard its occurrence.”
It’s true there are other safeguards against biased jurors, including the voir dire process of jury selection. But the Court argued these might not be as effective when it comes to rooting out potential racial animus. Attorneys might be reluctant to press potential jurors about bias out of fear of alienating or offending them. Fellow jurors might be hesitant to report biased conduct that takes place prior to deliberations because it is difficult to accuse a fellow juror of being a bigot.
The Court noted that not every offhand comment or stray remark will justify a hearing challenging the verdict: “For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” The Court said the statements “must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.” Determining whether that threshold is met will be up to the discretion of the trial judge, who may evaluate the evidence in light of the entire case.
Notably, the Court did not spell out exactly what procedures a trial court should follow when presented with such evidence. Nor did it specify what exactly a defendant must show in order to set aside a verdict and obtain a new trial. The question before the Court was simply whether a defendant has the right to raise such a challenge at all. The details of how that is done will be worked out in the lower courts.
The Court concluded:
The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.
The Dissenting Opinions
Justice Thomas dissented. He claimed the historical understanding of the right to a jury trial, as embodied in the Sixth Amendment, did not include the right to impeach a jury’s verdict for any reason. As a result, he argued, even if there were sound policy reasons that might cause a legislature to allow such an inquiry, there was no basis for the Court to find that the Constitution requires it.
Justice Alito also wrote a dissent, joined by Chief Justice Roberts and Justice Thomas. He too claimed the Court’s decision, although well-intentioned, lacked a constitutional foundation. Like Justice Thomas, he argued that historically there was no right to impeach a jury’s verdict and such a right thus could not properly be found in the Sixth Amendment. Congress adopted the traditional no-impeachment policy in Rule 606(b), and the Court had no basis to disturb that policy decision.
Justice Alito argued jury deliberations should be protected because jurors are “ordinary people” who “make decisions the way ordinary people do in their daily lives.” They should not be second-guessed by “trained professionals” who “do not speak the language of ordinary people.” In order to ensure free and frank communications, jury deliberations should be immune from scrutiny even if they occasionally reflect potential improper bias. The law protects other communications, such as those between spouses or attorney and client, even when they include evidence of misconduct. The same should be true, he argued, of jury deliberations.
In addition to agreeing with Justice Thomas’s historical arguments, Justice Alito challenged the majority’s empirical claims that other safeguards in the jury system are inadequate to protect against racial bias. He noted there are many resources discussing how to raise the issue of potential discrimination during voir dire without offending potential jurors. He also said it made little sense to claim a juror might be somehow reluctant to report biased statements prior to deliberations but more willing to report them after the verdict.
Justice Alito noted that although the majority tried to limit its holding, once the no-impeachment rule was breached it would be difficult to limit the rule only to cases involving racial bias.
Opening the Door to the Jury Room
The central dispute in Peña-Rodriguez was not whether the juror’s comments were reprehensible; all agreed that they were. It wasn’t even over whether it would be a good idea to allow the verdict to be impeached. The dispute was simply over who gets to decide: Congress or the Court. The dissenters argued Congress had already made a policy choice by enacting Rule 606(b) and that there was no basis for the Court to intervene. The majority held the Constitution trumps that decision by Congress when racial bias is involved.
The Court’s decision is understandable; it would be difficult for something that calls itself a justice system to provide no remedy at all when confronted with the evidence in this case. But at the same time, bright-line rules do have some advantages. Now that the door to the jury room has been cracked open, a lot of unanswered questions remain.
Justice Alito is correct when he says there is probably no principled way to prevent the Court’s decision from being expanded in the future. As the majority notes, our country’s history with racial discrimination is unique. But when it comes to an individual defendant’s Sixth Amendment right to a fair trial, it is hard to justify a rule that allows challenges to only some types of discrimination. What about juror bias based on the fact that the defendant is a Muslim? Or a woman? Or gay?
The Court held that remedying racial bias in deliberations is necessary in order to prevent “a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.” But surely verdicts that were upheld in the face of other types of discrimination would result in a similar loss of confidence and would require a similar remedy. Logic seems to demand that the Court’s rationale be expanded to other forms of bias in future cases.
Unintended Consequences and Practical Difficulties
The Court’s decision may have additional unintended consequences. The rule against impeachment of verdicts was designed in part to shield jurors from harassment. There may be greater risk now that attorneys will aggressively seek out jurors after a loss to see if there is information to support a challenge. As the Court observed, those contacts will be limited to some degree by state legal and ethical rules governing when parties and their counsel may contact jurors.
There is also a fear that allowing these challenges will simply drive prejudice underground. Perhaps the biased juror will not speak up, where his ideas may be challenged and refuted by the other jurors, but will simply keep his prejudices to himself out of fear of having his statements challenged later. But this assumes a certain baseline of legal knowledge and perhaps is not a realistic concern. It’s hard to know how much the free-flowing discussion among a jury of Justice Alito’s “ordinary people” is influenced by the intricacies of the law on post-verdict challenges.
Practical issues will confront trial courts faced with a challenge to deliberations. The Supreme Court purposely did not spell out exactly how a court should decide whether a defendant deserves a hearing, or when a court should order a new trial. How does a judge determine whether expressions of bias by a single juror had an impermissible impact on the unanimous verdict of twelve? Should evidence of a single racist juror automatically result in a new trial? Is the court to presume the remaining eleven jurors were passive sheep unable to resist? It may be at least as likely that the remaining jurors rejected the improper views and disregarded any further statements by that juror.
The Peña-Rodriguez jury deliberated for twelve hours. Assessing the impact of a handful of biased statements on that entire deliberative process is a daunting challenge for a judge. It may require examining individual jurors one by one. This again implicates the interests about juror harassment and finality of verdicts that justified the rule against impeachment in the first place. Nevertheless, in those (probably rare) cases where this type of evidence emerges, it will now be up to trial courts to undertake that inquiry, with little guidance from the Supreme Court on how to proceed.
Amending Rule 606, and Schools of Constitutional Interpretation
Now that the Court has constitutionalized the right to challenge some deliberations, it would make sense for Congress to amend Federal Rule of Evidence 606(b) to make something like the Iowa rule the federal standard. Challenges to jury verdicts should be allowed if there is evidence of any kind of improper bias or animus during deliberations. It makes little sense to wait for years while lower courts try to sort out whether Peña-Rodriguez requires them to entertain challenges based on other forms of discrimination.
A final side note: in light of the upcoming confirmation hearings for the nomination of Neil Gorsuch to the Supreme Court, the different schools of constitutional interpretation highlighted in Peña-Rodriguez are particularly interesting. With its concluding flourish about a maturing legal system confronting the country’s history of racial discrimination, the majority embraced a “living Constitution,” where constitutional norms grow and adapt to support a developing society. The dissenters, on the other hand, represent a classic textualist or originalist view. They interpret the Constitution strictly based on its text and how it was understood at the time it was adopted.
Judge Gorsuch falls squarely within the originalist school of interpretation, as did the man whose seat he would fill, Justice Scalia. It seems likely that if he had been on the Court, Gorsuch would have sided with the dissenters and it would have been a 5-4 decision. This is one of those areas where replacing Justice Scalia with Justice Gorsuch probably would not result in a significant shift in the balance of the Court.
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