Guest post by Harmann Singh. Harmann is a first-year student at Harvard Law School and is interested in civil rights and criminal justice reform. He received a B.A. in Math and Economics from Columbia University.
“I think he did it because he’s Mexican, and Mexican men take whatever they want.”[1] –Juror H.C.
Last month, the Supreme Court ruled 5–3 in favor of Miguel Peña-Rodriguez to create an exception to the centuries old juror “non-impeachment” rule[2]—which prohibits post-verdict juror testimony about jury deliberations—for clear statements of racial bias or prejudice that undermine a defendant’s Sixth Amendment right to an impartial jury. In these cases, courts must now allow post-verdict jury testimony as evidence of juror bias in deciding whether to grant a new trial to the defendant.[3]
While the Court’s ruling in Peña will have a tremendous impact for Mr. Peña-Rodriguez and hundreds of other defendants, the decision could also open the door to a fascinating and evolving line of Sixth Amendment jurisprudence. Although the Court limited the exception to the non-impeachment rule to racial bias[4] and set the standard incredibly high,[5] lower courts will still have to decide where and for what biases they will draw the line. As explored below, the courts may struggle to restrict the exception to racial bias alone, as the very policy, precedent, and normative considerations in Peña can be extended to religious, gender, and countless other forms of prejudice. These natural extensions would mandate courts to allow post-verdict juror testimony to assess whether such prejudice in jury deliberations impacted the verdict.
Those looking to expand the scope of the non-impeachment exception may start by latching onto the strong contention of the dissent in Peña that drawing a distinction between race and other forms of bias is difficult, if not impossible.[6] At the beginning of oral arguments, Chief Justice Roberts noted the natural expansion of the exception beyond racial bias: “Well, the next case is going to be religion.”[7] Justices Alito and Ginsberg expressed similar concerns, asking about the extension of the exception to religion, gender, sexual orientation, and political affiliation.[8] Such a progression from racial prejudice to other forms of bias in the context of juries would not be novel. After the Supreme Court created the Batson challenge in 1986, ruling that exclusion of jurors based solely on race was unconstitutional,[9] it took less than a decade to extended this protection to intentional discrimination based on gender.[10]
In Peña, the Court found that in cases of racial prejudice during jury deliberations, an individual’s Sixth Amendment right outweighs the three primarily policy considerations supporting the non-impeachment rule, which are: (1) to promote open and honest jury deliberations, (2) to protect jurors from harassment, and (3) to ensure the finality of the verdict.[11] However, the reasons the Court found these considerations inadequate in Peña can easily extend to other forms of bias.
The objective of promoting open and honest discussions in jury deliberations is already watered down given that jurors can come to the judge about any form of bias before the verdict, and can speak openly to the public and media about the deliberations.[12] This means that I could listen to a juror complain about another sexist, racist, or homophobic juror on television, and then as a non-juror testify about it in court while the actual juror would be barred from testifying.[13] Moreover, jurors may not even be aware of the “precise rules governing the admissibility of their testimony and reviewability of their jury room conduct,” further dampening the objectives of an unassailable non-impeachment rule.[14] The objective of preventing juror harassment is similarly undermined by Attorneys’ existing incentives to harass jurors,[15] and the Court’s decision in Peña will likely not create additional motivation for juror harassment.[16] However, even if the Court’s decision does create perverse incentives, it is unclear whether expanding the exception beyond race would conjunctively expand these added incentives for harassment. Not only does the ABA Model Code of Professional Responsibility already prohibit juror harassment,[17] courts could mitigate any added incentive for harassment caused by expanding the non-impeachment exception beyond race by implementing procedural safeguards—such as time restrictions, limits on soliciting testimony, and required good cause showings—to restrict juror harassment.[18]
Beyond these policy considerations, the Supreme Court in Peña also overcame the precedential hurdle of its prior decision in Tanner, potentially paving the way for expanding the exception to the non-impeachment rule on similar legal grounds. Tanner rejected post-verdict juror testimony aimed to prove that other jurors were under the influence of drugs and alcohol during the trial, and the Court asserted that existing trial procedures adequately protected the defendant’s Sixth Amendment right.[19] However, Tanner was limited to jury competence, not impartiality,[20] and the Peña Court found these procedures inadequate to protect the defendant from racial prejudice. The Court noted that voir dire may not uncover deeply rooted racial bias,[21] that it is difficult to visually observe racial bias or prejudice,[22] and that jury deliberations may be the first and only place where racial prejudice becomes apparent.[23] Sexism, islamophobia, transphobia, and other prejudices can be similarly entrenched and equally difficult to identify before or outside jury deliberations.[24] Lower courts may find it difficult to distinguish and articulate how the Tanner procedures do not protect against racial prejudice but do protect against other biases.
The Court in Peña goes to great lengths to express that racial bias holds a unique place in our law, and that such bias in jury deliberations not only threatens individual proceedings but also affects the administration of justice broadly by undermining trust in the criminal justice system.[25] While race may be the most odious form of discrimination, and while the justice system may need to be particularly aware of racial bias, these arguments do not provide any basis for not extending the exception beyond racial bias. Other forms of prejudice that pervade our country’s conscious and history could naturally lead to a similar undermining of accountability, justice, and trust in the criminal justice system.
The Supreme Court has struggled to define race,[26] and has previously recognized the fluidity between race and nationality.[27] In the coming months and years, lower courts will have to decide whether the Peña exception to the non-impeachment rule encompasses ethnicity or national origin—seemingly natural extensions of race. Peña itself dealt with remarks about Mexican Americans. The majority asserted that race and ethnicity are interchangeable with respect to Hispanics,[28] but Justice Alito questioned whether “it is true with respect to other ethnic groups?”[29] The appellants answered that the correlation is most true for Hispanics,[30] but the majority opinion leaves the door wide open for extending the exception to other ethnicities. In fact, in U.S. v Villar—the lower court opinion most similar to Peña—the First Circuit extended the non-impeachment exception to both racial and ethnic prejudice.[31] This extension would seem to be the logical first step in the potential expansion of the non-impeachment rule beyond racial prejudice.
A perfect jury is not possible, nor is that what the Peña court was striving toward.[32] However, with the decision in Peña, the Court tried to take a step toward the promise of equal treatment under the law. Over the coming decades, the lower courts—and eventually the Supreme Court itself—might just find that to ensure this equal treatment means to provide jurors the opportunity to testify post-verdict about gender, sexual orientation, religious, and other forms of prejudice they witness during deliberations. These courts may channel the spirit of Justice Marshall in his dissent in Tanner: “If we deny them this opportunity, the jury system may survive, but the constitutional guarantee on which it is based will become meaningless.”[33]
[1] Peña-Rodriguez v. Colorado, 15-606, 2017 WL 855760, at 5 (U.S. Mar. 6, 2017).
[2] FED. R. EVID. 606 (“During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations.”).
[3] McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 549 (1984) (holding that a court may grant a new trial if a party presents admissible evidence of juror bias that denies the right to an impartial jury).
[4] Peña-Rodriguez, 137 S. Ct. 855 (“Where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the non-impeachment rule give way in order to permit the trial court to consider evidence of the juror’s statement and any resulting denial of the jury trial guarantee.”).
[5] In Peña, the alleged statements by Juror H.C., “were egregious and unmistakable in their reliance on racial bias.” Id. However, when the egregiousness of bias is less clear, lower courts may struggle to consistently classify a significant motivating factor. “[O]nce it is held that the rules of evidence must be subordinate to the need to admit evidence of Sixth Amendment violations, we do not see how the courts could stop at the ‘most serious’ such violations.” U.S. v. Benally, 546 F.3d 1230, 1241 (10th Cir. 2008). While the Peña court sets a high bar, and while judges have to make this same determination if jurors come forward before the verdict, the Court gave the lower courts “substantial discretion” to determine this standard—which may in itself contribute to a new body of Sixth Amendment jurisprudence. Peña-Rodriguez, 137 S. Ct. 855.
[6] “[I]t is doubtful that there are principled grounds for preventing the expansion of today’s holding.” Peña-Rodriguez at 19 (Alito, J., dissenting).
[7] Transcript of Oral Argument at 4, Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) (No. 15-606).
[8] Id. at 34; Id. at 56.
[9] See Batson v. Kentucky, 476 U.S. 79, 100 (1986).
[10] See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994).
[11] See, e.g., McDonald v. Pless, 238 U.S. 264, 267–68 (1915); Advisory Committee’s Notes on FED. R. EVID. 606(b), 28 U.S.C.App., p. 700.
[12] See Generally, Abraham S. Goldstein, Jury Secrecy and the Media: The Problem of Postverdict Interviews, 1993 U. Ill. L. Rev. 295 (1993).
[13] See U.S. v. Villar, 586 F.3d 76, 87 (1st Cir. 2009) (highlighting that non-jurors can report inappropriate conduct among jurors for deliberations to which they are not privy).
[14] VII. Racist Juror Misconduct During Deliberations, 101 Harv. L. Rev. 1595, 1599 (1988).
[15] The non-impeachment rule currently provides exceptions for “extraneous prejudicial information [that] was improperly brought to the jury’s attention” and “an outside influence [that] was improperly brought to bear on any juror.” FED. R. EVID. 606. Thus, attorneys may have an incentive to harass jurors to determine whether these existing exceptions were implicated during deliberations.
[16] Transcript of Oral Argument at 4, Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) (No. 15-606) (outlining that in the 18 States that have recognized an exception to the non-impeachment rule for racial bias, there was no evidence of increased juror harassment).
[17] See MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.4 (1988).
[18] See U.S. v. Wright, 506 F.3d 1293, 1303 (10th Cir. 2007) (“District courts have ‘wide discretion’ to restrict contact with jurors to protect jurors from ‘fishing expeditions’ by losing attorneys.”) (citing Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986).
[19] Tanner v. U.S., 483 U.S. 107, 108 (1987) (“That right is adequately protected by several aspects of the trial process, including voir dire, the fact that the preverdict conduct of jurors is observable by the court, by counsel, by court personnel, and by other jurors, and by the fact that, as here, the trial court may allow a post-trial evidentiary hearing to impeach the verdict by nonjuror evidence of juror misconduct.”).
[20] U.S. v. Villar, 586 F.3d 76, 85 (1st Cir. 2009) (“Tanner did not address the issue of racial bias but instead involved issues of juror incompetence”).
[21] Niel Vidmar & Valerie P. Hans, American Juries: The Verdict 105 (2007) (“The voir dire process in a courtroom . . . does not allow the deep analysis of people and their likely motives.”). See Generally Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L Rev 1124 (2012).
[22] But See U.S. v. Abcasis, 811 F. Supp. 828, 835 (E.D.N.Y. 1992) (finding that despite the fact that defense counsel was able to observe juror gesturing in a manner that signaled her bias against defendants and making Anti-Semitic comments regarding defendants, the court nevertheless found allegations insufficient without concrete evidence).
[23] Racist Juror Misconduct, supra note 14, at 1599.
[24] See Generally Newton N. Minow & Fred H. Cate, Who Is An Impartial Juror in an Age of Mass Media?, 40 Am. U.L. Rev. 631, 632 (1991); See Also Robert C. Walters et al., Jury of Our Peers: An Unfulfilled Constitutional Promise, 58 SMU L. Rev. 319 (2005).
[25] See Peña-Rodriguez, 137 S. Ct. 855 (2017) (“Racial bias, unlike the behavior in McDonald, Tanner, or Warger, implicated unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.”); Brief of Amici Curiae NAACP Legal Defense & Education Fund, Inc., et al. in Support of Petitioner, Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2016) (No. 15-606), 2016 WL 3563930.
[26] See Khiara M. Bridges, The Dangerous Law of Biological Race, 82 Fordham L. Rev. 21, 24 (2013).
[27] See Generally Hernandez v. State of Tex., 347 U.S. 475, 479 (1954).
[28] See Peña-Rodriguez, 137 S. Ct. 855 (“Petitioner and respondent both refer to race, or to race and ethnicity, in this more expansive sense in their briefs to the Court. This opinion refers to the nature of the bias as racial in keeping with the primary terminology employed by the parties and used in our precedents.”).
[29] Transcript of Oral Argument at 10, Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) (No. 15-606).
[30] Id.
[31] Villar, 586 F.3d at 87.
[32] See Peña-Rodriguez, 137 S. Ct. 855 (“To attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny.”).
[33] Tanner, 483 U.S. at 142 (Marshall, J., dissenting).
