Supreme Court Allows Challenges to Jury Deliberations Based on Evidence of Racial Bias

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.

Scene from 12 Angry Men - Racial Bias in Jury Deliberations

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.

jury room door - what should a court do with evidence of racial bias in jury deliberations

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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One Angry Man: Supreme Court Confronts Racial Bias in Jury Deliberations

Update 3/6/17: Today the Supreme Court ruled 5-3 in the defendant’s favor and held that jury deliberations can be examined when there are allegations of racial bias. I’ll have more details soon in a future post.

In the classic movie “Twelve Angry Men,” jurors file into a jury room to deliberate on the case of a young man charged with stabbing his father to death. Upon a preliminary vote, eleven of the twelve are in favor of a quick guilty verdict. The sole holdout, Juror #8 (played by Henry Fonda) insists they should not rush and that the young man’s fate deserves at least some of their time and consideration. As the deliberations proceed, every other juror eventually comes to agree with #8, as they discover different reasons to have a reasonable doubt. The film ends with the jurors heading back to the courtroom to return a “not guilty” verdict.

Sorry — maybe I should have led this post with, “Spoiler Alert.”

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The Jury Votes in “Twelve Angry Men”

Part of the appeal of “Twelve Angry Men” probably stems from the way it pulls back the curtain on a scene that most of us never see. Jury deliberations take place in secret. Although jurors generally are not prohibited from discussing the deliberations once the case is over, the public usually does not get much information about what goes on behind the jury room door.

The confidential nature of jury deliberations is reflected in a long-standing rule in federal court and in most states providing that information about what was discussed during jury deliberations cannot later be used to question the verdict. In federal court this rule is embodied in Federal Rule of Evidence 606(b), which provides that a juror’s testimony about things discussed or taking place during jury deliberations is not admissible in a later proceeding to challenge the jury’s decision.

Recently the U.S. Supreme Court heard arguments in a fascinating case, Peña- Rodriguez v. Colorado, that tests the limits of this rule when it collides with the compelling societal interest in not allowing racial bias to taint a criminal conviction.

Peña-Rodriguez v. Colorado

The defendant, Miguel Angel Peña-Rodriguez, was accused of groping two teenage girls at the Colorado racetrack where he worked. The girls were inside a restroom when a man they had seen at the racetrack earlier entered and asked them if they wanted to “drink or party.” When they said no, the man turned off the lights and tried to grab the girls. He touched one of them on the buttocks; the other girl felt his hand on her shoulder and moving towards her breast but she was able to push it away.

The girls escaped and ran to their father, who also worked at the racetrack, to tell him about the incident. Based on their description the father believed the man was Peña-Rodriguez, and he notified the authorities. Peña-Rodriguez was later stopped by the police and the girls identified him as their assailant.

The state of Colorado charged Peña-Rodriguez with one felony count of attempted sexual assault on a minor and three misdemeanors. The government’s evidence consisted primarily of the testimony and identifications from the victims. The defense presented alibi testimony from the defendant’s co-worker, who testified that the defendant was with him at the time of the offense. After what appears to have been a lengthy and difficult period of deliberations, the jury found Peña-Rodriguez guilty of the misdemeanors. They could not reach a verdict on the felony count, which was later dismissed.

After trial, two of the jurors spoke with defense counsel. They reported that one of the jurors – identified in the case only as “H.C.” — had expressed bias against the defendant during the jury deliberations. H.C., a former law enforcement officer, reportedly said the defendant was probably guilty because he was Mexican and Mexican men “ take whatever they want.” He said that Mexican men believe they can do whatever they want with women, and that when he was working on patrol, “nine times out of ten” Mexican men were guilty of being sexually aggressive towards women. He also said the defendant’s alibi witness could not be believed because he was “an illegal.” (This was not true; the witness testified that he was a legal resident.)

After obtaining affidavits from the two jurors the defense requested a new trial, arguing that racial animus had tainted the jury’s verdict. But Colorado, like most states, has a rule of evidence essentially identical to Federal Rule 606(b) that prohibits challenges to jury verdicts based on testimony about what happened during deliberations. Based on that rule, the trial court denied the motion. The Colorado Court of Appeals and Colorado Supreme Court affirmed this decision, and the Supreme Court agreed to hear the case.

challenging racial bias in jury deliberations - when can a court look behind the jury room door?

The Rule Against Impeachment of Jury Verdicts

All sides in the case agreed, of course, that H.C.’s comments were reprehensible and have no proper place in jury deliberations. But the issue is whether, once those comments are discovered, a defendant’s Sixth Amendment right to a fair trial requires an exception to the rule against impeaching a verdict based on evidence of what went on during jury deliberations.

The rule dates back more than two centuries and is based on several policy considerations. One concern is that allowing such evidence might inhibit full and frank discussions in the jury room, particularly about sensitive or controversial topics. Jurors should be free to speak their minds without fear that their statements may later become the subject of litigation challenging the verdict and potentially accusing them of misbehavior. The possibility of subsequent proceedings based on deliberations might also make jurors reluctant to return difficult or controversial verdicts.

Another concern is protecting jurors from harassment. If post-verdict litigation based on jury deliberations became routine, attorneys would have an incentive to track down jurors, even weeks or months after a case was concluded, to probe their recollections about deliberations and look for possible ways to get another bite at the apple. It’s true that jurors now sometimes voluntarily remain after a case is over to discuss deliberations informally with counsel – but that’s far different from being subpoenaed, put on the stand, and cross-examined about deliberations weeks or even months after the case is over.

But perhaps the paramount rationale for the rule is verdict finality: there is a public interest in having criminal judgments be final and respected and not subject to potentially endless rounds of challenges and rehearings. Public respect for and confidence in the jury system would be undermined if jury verdicts were routinely subject to attack and litigation long after a case is supposedly over.

There are other safeguards in the system that protect against juror bias. The most important is voir dire, the jury selection process, where attorneys and the judge may ask questions designed to ferret out any potential biases. A primary purpose of voir dire is to screen out at the front end any potential jurors who may be biased or otherwise unable to be impartial. In addition, jury panels are required to represent a fair cross-section of the community, and racial bias in jury selection is prohibited. If there are signs of juror bias during trial or deliberations but prior to a verdict, other jurors or court personnel may bring those matters to the judge’s attention. And the requirement of a unanimous verdict of guilt beyond a reasonable doubt dilutes the ability of any one prejudiced juror to influence the final outcome of the case.

(In this regard, it’s interesting to note that the defense at Peña-Rodriguez’s trial chose not to voir dire the potential jurors about any potential bias against Hispanics – a decision that apparently surprised the trial judge. And the two jurors who later raised concerns about H.C.’s comments did not bring those concerns to the judge’s attention during the jury deliberations, when the judge could have acted on them.)

Relying on these policy rationales and the presence of these other safeguards, the Supreme Court has upheld Rule 606(b) against Sixth Amendment challenges in cases involving significant juror misconduct. For example, in Tanner v. United States the Court refused to allow the defendant to present evidence that a majority of the jurors in his case had been drinking, using drugs, or sleeping during the proceedings. And in Warger v. Shauers, a car accident case, the Court refused to allow evidence that a juror had revealed during deliberations that her daughter had been involved in a very similar accident. Neither Tanner nor Warger, however, involved claims of racial bias.

Should There Be an Exception for Juror Bias Based on Race?

Although there are many sound arguments in favor of the rule against impeachment of verdicts, the public interest also demands that racial animus not be allowed to infect court proceedings. That’s what makes the Peña-Rodriguez case so intriguing. Once the information about Juror H.C.’s statements was discovered, can the criminal justice system allow that verdict to stand and still maintain its legitimacy?

(As an aside, strictly speaking this case is about bias based on ethnicity or national origin, not race. But both sides agreed that for purposes of the defendant’s right to a fair trial this was not a meaningful distinction and used the term “racial bias” throughout the case.)

I think it’s difficult for the justice system to tolerate an outcome that seems so infected by potential bias, and it may well be that the Court will rule in Peña-Rodriguez’s favor. But exactly how the Court resolves the issue will be extremely interesting. The case presents difficult line-drawing questions and raises fears of a number of proverbial slippery slopes.

The most obvious question concerns how to deal with other kinds of bias. At oral argument Peña-Rodriguez’s attorney wasn’t more than a minute into his presentation when Chief Justice Roberts started pressing him on whether a ruling in his favor would mean that future courts also would have to allow challenges to verdicts based on religious bias. Justice Ginsburg posed a hypothetical case involving a car accident where a juror says that all women are terrible drivers and so the woman is probably responsible – would that be subject to challenge as well?

Justices Kagan and Sotomayor in particular seemed willing to argue that “race is different.” They implied the Court could create an exception that encompassed only race and not other forms of bias, given our country’s long struggle against racial discrimination. But the Chief Justice and Justice Alito in particular seemed less inclined to believe that such a line could reasonably be drawn.

I tend to agree that drawing such a line is problematic. Could the justice system really tolerate a rule that said a defendant could challenge a verdict following expressions of racial bias but not a verdict based on a juror’s bias towards the defendant’s religion, gender, or sexual orientation? It’s arguable that allowing inquiry into only certain kinds of bias actually does more to undermine faith in the integrity of the justice system than a simple blanket prohibition against any such inquiries at all.

A rule that “race (or ethnicity) is different” could lead to some bizarre results. Suppose a defendant of Middle Eastern descent is on trial. Presumably, if during deliberations a juror said he believed the defendant was probably guilty because he was an Arab, that verdict could be challenged. But if a juror said that same defendant was probably guilty because he was a Muslim, that statement could not be used to impeach the verdict.

The more you start to think about how to draw the lines, the more you start to see the appeal of the current prophylactic rule that simply prohibits any such inquiries.

Much of the debate in this case also seems to underestimate the importance of the requirements of twelve jurors and a unanimous verdict. There’s a reason we have twelve jurors and require unanimity on proof beyond a reasonable doubt: the ability of any one juror to use improper arguments to sway an entire jury is greatly reduced.

Peña-Rodriguez’s attorneys argued in their brief that, “convicting someone of a crime because of his race tramples our most vital principles of liberty and equality.” No doubt that is true — but it’s not clear that’s what happened. We know that H.C. made racially biased statements, but that is not the same as saying the jury convicted the defendant because of his race. Are we to assume that the other eleven jurors were simply sheep, powerless to resist the influence of H.C.’s odious opinions? Or is it not just as likely that many of the jurors would consider the statements reprehensible and tend to “tune out” H.C. and discount anything further that he said about the merits of the case?

In “Twelve Angry Men” there is a scene where one of the jurors goes on an extended rant demonstrating bias against the defendant and arguing that “these people” are all animals with no morals. The other jurors, rather than being swayed by his arguments, one by one slowly get up, walk away from the juror and ignore him, until he finally falls silent. That’s only Hollywood, but it does effectively demonstrate the limited potential of a single biased juror to sway the unanimous verdict of all twelve. It also highlights the potential difficulty of evaluating the total dynamic of a jury’s deliberations based on a handful of statements taken in isolation.

Peña-Rodriguez’s attorneys would respond that they should at least have a chance to let a judge consider the statements in light of the overall case to determine whether they might have swayed the jury’s verdict. Of course a judge is not in the jury room during deliberations, so his or her ability to assess the impact of any statements may be somewhat limited. The Peña-Rodriguez  jury deliberated for twelve hours – how does the judge assess the impact of a handful of bigoted statements by one juror, short of having a full-blown hearing with all the other jurors testifying?

We could have a rule automatically throwing out any verdict where any discriminatory statements are made during deliberations, without trying to evaluate their impact. This would have the virtue of simplicity, but it’s a bit odd to allow relief only in those cases in which a juror is willing to vocalize his prejudices. Unfortunately, with our polarized society being what it is, it is probably safe to assume that inappropriate bias sometimes exists in jurors who do not admit it. Perhaps it is better simply to rely on the requirement of a unanimous verdict and other safeguards to prevent a biased juror from determining the final outcome, rather than having a rule that would grant one defendant relief over another simply because a juror in one defendant’s case was more blatant about his prejudices.

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In the end, I think it’s going to be hard for the Court to allow Peña-Rodriguez’s conviction to stand in light of what took place during deliberations. And in reality, cases where this kind of evidence surfaces will probably be very rare, so perhaps the concerns about opening the floodgates to potential challenges and juror harassment are misplaced. Maybe the holding can be limited to criminal cases, and only to cases involving claims of racial bias. But I don’t envy the Justices trying to craft a rule that will give defendants like Mr. Peña-Rodriguez a remedy without completely gutting the sound policy against impeaching jury verdicts that has existed since the country’s founding. And if that policy is gutted, the unintended consequences for the jury system could be severe.

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