In Peña-Rodriguez v. Colorado, the U.S. Supreme Court held that where a juror relied on racial stereotypes to vote for a conviction, the Sixth Amendment right to an impartial jury precluded application of a rule of evidence that would otherwise have prohibited the use of juror testimony to challenge a verdict. The Court took care to limit this Sixth Amendment exception to the evidence rule, a rule some version of which is contained in the law of every state, the District of Columbia, and the federal system. Only racial bias, because of its detrimental impact on our entire justice system and people’s confidence in that system, would trigger the Sixth Amendment exception. In this column, I want to suggest that the arguments for the narrow exception announced by the Court, in addition to other arguments, support either an extension of the Sixth Amendment exception or a repeal of the rule that would prohibit the use of post-verdict juror testimony to invalidate a verdict.
The Facts of Peña-Rodriguez
A jury in Colorado convicted Peña-Rodriguez of harassment and unlawful sexual contact. After the verdict, two jurors told petitioner’s defense attorney that one of the other jurors had openly expressed anti-Hispanic prejudice during deliberations. According to the two whistleblower jurors, this prejudiced juror indicated that he “believed the defendant was guilty because” in the juror’s experience, Mexican men “believe they could do whatever they wanted with women” and that they physically control women because of a sense of entitlement. Most troublingly, the juror said, “I think he did it because he’s Mexican and Mexican men take whatever they want.” The same juror added that he did not believe the testimony of the alibi witness in the case because the latter was “an illegal,” though the witness in question had testified that he was a legal resident of this country. The two jurors who revealed this information subsequently provided sworn affidavits.
After seeing the affidavits, the trial judge in the case denied Peña-Rodriguez’s motion for a new trial because of Colorado Rule of Evidence 606(b), which generally prohibits jurors from testifying about statements made during deliberations in a proceeding questioning the validity of the verdict (subject to a few narrow exceptions that do not apply here). The Colorado Supreme Court affirmed, relying on two U.S. Supreme Court decisions that ruled against utilizing juror testimony in a proceeding to impeach a verdict, Tanner v. United States and Warger v. Shauers. In Tanner, two jurors revealed that people on the jury were drinking and using drugs during the defendant’s criminal trial, but the jurors were not permitted to testify accordingly. In Warger, a juror exposed the fact that one of the other jurors had lied during voir dire about her ability to be impartial, as revealed in her anti-plaintiff statement during deliberations. Here too, the Supreme Court held that the jurors were not allowed to testify about the misbehaving juror, because of Rule 606(b).
In Peña-Rodriguez, however, the Court said that these earlier cases should not control. This is because “racial discrimination in the jury system pose[s] a particular threat both to the promise of the [Sixth] Amendment and to the integrity of the jury trial” and because “discrimination on the basis of race … ‘is especially pernicious in the administration of justice.’” Unlike the other cases, which had involved “anomalous behavior from a single jury—or juror—gone off course,” “racial bias” is “a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.” In addition to being uniquely destructive and systemically so, racial bias is also distinctive in being difficult to detect during voir dire and likely to be exacerbated by pointed questions aimed at discovering it. The Court concluded that “[a] constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.” Therefore, “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 no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement.”
The Rationale for Rule 606(b) Gives Way
I would not disagree with the Court’s assessment that racial prejudice is uniquely toxic and sometimes requires us to make exceptions to otherwise-valid rules. In the jury system in particular, it seems reasonable to say that we cannot countenance decisions to convict made on the basis of race, and if post-verdict testimony by jurors is necessary to address such decisions, then we should permit the testimony. The problem, I would suggest, is with the rule itself. That is, though racial animus presents an especially compelling reason to set aside the no-impeachment rule, the rationales for applying the rule in other cases are not very persuasive, as we can see in examining them in the majority and dissenting opinions, though both of these opinions stand by the rule.
Full and Free Deliberation
One rationale for the no-impeachment rule is that it “promotes full and vigorous discussion by providing jurors with considerable assurance that after being discharged they will not be summoned to recount their deliberations, and they will not otherwise be harassed or annoyed by litigants seeking to challenge the verdict.” In reality, as the dissent itself highlights (though it is most committed to the no-impeachment rule), “[m]any jurisdictions now have rules that prohibit or restrict post-verdict contact with jurors.” It can continue to be the case that only in the rare event that jurors come forward and seek out defense counsel to make revelations about other jurors’ misconduct can proceedings about such revelations ensue. If litigants are not allowed to approach jurors, whether to annoy and harass them or to interrogate them about deliberations, then jurors can comfortably deliberate without worrying about later harassment.
There is more, of course, to full and free deliberation than the knowledge that one will not be summoned to account for what one has said. People also feel most comfortable deliberating honestly and fully when they know that what they have said will not be repeated. Justice Alito’s dissent develops this point most comprehensively. In his dissent, he compares the no-impeachment rule to privileges for attorney-client, spousal, and clergy-penitent communications. He explains that “avoiding interference with confidential communications of great value has long been thought to justify the loss of important evidence and the effect on our justice system that this loss entails.” Unfortunately, he follows this valid point with an inaccurate statement: “The present case concerns a rule like those just mentioned.”
It is not accurate to compare the no-impeachment rule with the privileges that Justice Alito invokes. This is because in the case of those privileges, either a professional rule of confidentiality (for attorneys and priests) or a custom of privacy (in marriage) already protects the secrecy of the communications at issue, and the privilege simply ensures that the pre-existing privacy protection does not suffer from the lack of a corresponding privilege. If, for instance, there were no attorney-client privilege, then the professional duty of confidentiality that the lawyer owes the client could not be fully realized, because a party could call an attorney to the witness stand to testify about her client’s confidences.
In the case of jurors and the no-impeachment rule, by contrast, there is no post-verdict confidentiality rule that governs the deliberations in which jurors engage. In Colorado, jurors receive an instruction before they are discharged saying “The question may arise whether you may now discuss this case with the lawyers, defendant, or other persons. For your guidance the court instructs you that whether you talk to anyone is entirely your own decision.” Such an approach to the attorney-client relationship would be fatal to it. Imagine if an attorney could discuss whatever a client told her with anyone she wanted, without any professional obligation to do otherwise. In such a case, a privilege in court would be virtually worthless, because any confidences conveyed to the attorney would be in jeopardy long before anyone got to a courtroom.
To the extent that jurors are liberated to speak openly by the knowledge that what they say will remain confidential and private, they have no such knowledge or assurances on which to rely. In each of the cases that came before the Supreme Court, jurors took it upon themselves to talk about misconduct that they observed in the course of deliberations. Though in two of those cases, the Court ultimately ruled that the jurors would not be able to testify about the misconduct, the fact of it was revealed and any future jurors who imagined that their statements would remain a secret would have learned from those cases that jurors are free to talk about what happened during deliberations, even if there could be no impeachment of the verdict through testimony. When jurors worry about how their words might sound in public, they are most likely thinking about friends, family, and strangers hearing what they said rather than a judge hearing about it in a courtroom, considering whether to order a new trial. If we truly wanted to protect jurors’ interest in confidentiality, then we would swear jurors to permanent secrecy about deliberations rather than having a privilege without any confidentiality obligation to go along with it.
In defending a complete ban on post-verdict juror impeachment, Justice Alito’s dissenting opinion suggests that there are four ways of discovering and thus preventing potential bias or other misconduct from coming into the jury room. One is discovery during voir dire, when jurors are questioned before being chosen for a particular jury. A second is the observation of people in court who might detect something amiss, such as jurors sleeping because they are drunk. A third is pre-verdict jury reports of misconduct. And a fourth is post-verdict non-juror evidence of misconduct.
The third of these is especially important in considering the value of the no-impeachment rule. If a juror expresses bias or prejudice during deliberations, another juror can reveal this fact to the judge so long as the jury has not yet reached a verdict. This is, to be sure, a protection against juror misconduct that does not involve anyone testifying after the verdict has come down. However, it also undermines the secrecy that jurors supposedly depend upon no less than does a post-verdict revelation to a court. When Justice Alito says that “the confidentiality of jury deliberations has been closely guarded,” he plainly does not have in mind the revelations that jurors can readily make prior to verdict. Either the prospect of such revelations does nothing to interfere with free and open juror deliberation, in which case neither does the prospect of post-verdict revelations in court, or it does so interfere, in which case one of the “safeguards” that the dissent proposes as a substitute for post-verdict impeachment undermines the very value that the no-impeachment rule is supposed to have.
Both the majority and the Alito dissent in Peña-Rodriguez take the position that the no-impeachment rule is a very important vehicle for protecting jurors from harassment and for liberating jurors to speak freely and openly about their case. Though I agree with the majority’s decision to permit an exception to the no-impeachment rule in cases of racial bias, I disagree with the premise that the no-impeachment rule is otherwise an important protection for jurors. The best protection for jurors against harassment is a rule, which many jurisdictions have, prohibiting litigants from contacting jurors after trial. Because litigants wage public relations wars in addition to the litigation itself, such a rule represents an important safeguard even in the presence of a no-impeachment rule. And to protect free and open communications, we have to do one of two things: We acknowledge that jurors either do not know or do not care whether what they say in deliberations can be repeated outside the jury room, because jurors are not bound by confidentiality post-verdict and are in fact encouraged pre-verdict to report any misconduct happening in the jury room. Or, alternatively, we posit that jurors are now deterred from freely and fully deliberating by the threat to privacy that is posed regardless of any no-impeachment rule, and we swear jurors to post-verdict secrecy and prohibit jurors from telling anyone during the trial about any misconduct that they observe. One way or the other, though, we cannot credit the no-impeachment rule with doing the work that the majority and Justice Alito’s dissent imagine that it does.