On October 11, the U.S. Supreme Court heard argument in Pena-Rodriguez v. Colorado. This case presents a question about the Sixth Amendment right to an impartial jury. The question is whether a defendant is entitled to use juror testimony to impeach a verdict based on racial bias, notwithstanding a contrary rule of evidence. In this column, I will consider the arguments on either side of this difficult question.
The facts of this case are rather egregious. In a sexual assault prosecution, a juror during deliberations and in various statements expressed the view that the defendant was guilty because, in the juror’s experience, Mexican men feel free to do whatever they want to women (e.g., ““I think he did it because he’s Mexican and Mexican men take whatever they want.”). This juror also indicated that he did not believe the testimony of an alibi witness was credible, because the latter was “an illegal.”
No one claims that the facts here are anything but very disturbing. The Colorado government’s position, and that of the United States, as amicus curiae, is that the state evidence rule (which is similar to the federal one) ought to govern. That rule says that impeaching a verdict through jury testimony is impermissible, with an inapplicable exception where “extraneous prejudicial information” came to the jury’s attention during the trial. This rule, the federal version of which the Supreme Court has applied strictly up until now, protects the secrecy of jury deliberations and prevents harassment of jurors after the fact.
In earlier cases, the Supreme Court has applied the federal version of the Colorado evidence rule to preclude juror testimony to impeach the verdict in a case, Tanner v. United States, in which it turned out that a number jurors were drunk for much of the trial, several used illicit drugs, and one of the jurors sold marijuana to another. The Court has also applied the rule in a case, Warger v. Shauers, in which a juror allegedly lied during voir dire about her impartiality and ability to award damages. These cases—especially Tanner—appear to stand for the proposition that even outrageous behavior in the jury room that threatens the integrity and accuracy of the verdict cannot be the subject of juror testimony to impeach the verdict.
During oral argument in Pena-Rodriguez, Chief Justice Roberts and Justice Alito both expressed a concern about line-drawing. They suggested that if racial bias allows for an inquiry into juror deliberations, it would seem that other types of identity-based bias (such as religious, gender, or sexual orientation) ought to as well. Moreover, these justices proposed, the Sixth Amendment is about jury impartiality, and non-identity-based threats to jury impartiality perhaps ought accordingly to be just as cognizable as those based on race or other identity. After all, the issue is arguably the fairness of the defendant’s trial, not the particular brand of equally harmful unfairness.
Race and Identity as Special
The argument that threats to jury impartiality ought to be considered equivalent, regardless of whether they are racial, gendered, or not identity-based at all, is initially quite appealing. As Justice Alito brought out, learning that a juror flipped a coin to decide a case presents perhaps even more of a challenge to the fairness of the proceedings than does the revelation of a juror’s racial bias.
Nonetheless, the Court has consistently treated racial bias as a uniquely toxic problem in our society, and for good reason. While a non-racial bias may be just as prejudicial to the defendant as a racial bias, the cultural meaning of that bias would not be the same. And cultural meaning matters in the Court’s decision-making about criminal trials.
We know that identity in general and race in particular get special treatment insofar as attorneys may strike jurors for all sorts of benighted reasons, but not for race (and, as the Court later held, not for gender). In the equal protection context, moreover, we have tiers of scrutiny of legislation in which the most exacting demands are made of laws that distinguish between people based on race and a handful of other similar characteristics.
If we were starting from scratch, we might want to say that jury secrecy is important enough to trump all kinds of bias and that, outside of the exceptions listed in the governing rule of evidence, juror testimony simply may not be used to impeach a verdict. Or, alternatively, we might want to say that the Sixth Amendment right to an impartial jury means that any evidence of juror bias of any kind that might threaten the impartiality of deliberations must be admissible to impeach a jury verdict in a criminal case, no matter what the rule of evidence says. But the Court has already indicated that neither of these paths best fits its approach to the Constitution.
The Court has allowed egregious juror conduct to go unremedied when based on non-identity issues, and it has responded strictly when confronting racial classifications. In Warger v. Shauers, the last case to address juror testimony to impeach a verdict, the Court expressly said in a footnote that “[t]here may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged.” Given that the Court had already refused to inquire into a verdict where the jurors were drunk and drugged, we can best understand “extreme” to mean something other than extremely unfair to the defendant. It instead may refer to something that goes beyond the particulars of a given case and implicates larger issues that plague our criminal justice system. Racial bias, of course, is just such an issue, and a verdict that may have resulted from blatant racial prejudice threatens respect for the law and for our institutions in a uniquely harmful way. Whether gender, religion, and sexual orientation act similarly by the Court’s lights remains to be seen. But based on oral argument and the precedents, I tentatively predict the Court will hold that at least where we have evidence of racial bias, the Sixth Amendment demands that parties be able to go behind the verdict and question jurors about that bias.
Very good read