Does a rule that prohibits using evidence of a juror’s racial bias violate the Sixth Amendment right to an impartial jury?
After being convicted of unlawful sexual contact and harassment, Miguel Angel Peña Rodriguez obtained juror affidavits stating that, during jury deliberations, one juror made several racially-charged comments that evidenced a personal bias against Hispanics. The court denied Peña Rodriguez’s motion for a new trial and held that the affidavits were inadmissible under Colorado’s “no impeachment” rule, Colorado Rule of Evidence 606(b). Peña Rodriguez claims that allowing the no-impeachment rule to ban evidence of racial bias violates his Sixth Amendment right to an impartial jury. The State of Colorado contends that Rule 606(b) is constitutional because other procedures adequately protect Peña Rodriguez’s Sixth Amendment right to a fair trial. This case allows the Supreme Court to reexamine the reach of Tanner v. United States and Warger v. Shauers, and could have significant consequences on monitoring the effects of racial bias throughout the trial process.
Questions as Framed for the Court by the Parties
May a no-impeachment rule constitutionally bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury?
Miguel Angel Peña Rodriguez worked as a horse keeper at a horse-racing track. . In May of 2007, a man sexually harassed two teenage girls in the women’s restroom of the horse-racing track. The girls later identified Peña Rodriguez as the assailant, and he was charged with attempted sexual assault on a child, unlawful sexual contact, and two counts of harassment.
Before trial, counsel and the court asked venire members, or the panel of prospective jurors, questions to gauge whether each person could be a “fair juror.” Venire members completed questionnaires to assess their ability to be impartial. Several individuals revealed that they were “prejudice[d] at times,” but none of the jurors who were eventually impaneled had revealed any racial bias in answering the questionnaire.
The prosecution focused on the victims’ testimonies, whereas the defense presented one alibi witness, a Hispanic coworker who testified to being with Peña Rodriguez at the time of the crime. After several hours of deliberation and the threat of a hung jury, the jury found the Peña-Rodriguez guilty of the three misdemeanor counts. The jury found Peña Rodriguez guilty of the unlawful sexual contract and harassment charges but could not reach a verdict on the attempted sexual assault charge.
After trial, defense counsel spoke to two jurors who revealed that a juror (“Juror H.C.”) expressed bias against Peña Rodriguez and the defense’s witness “because they were Hispanic.” Defense counsel obtained affidavits from the two jurors that recounted Juror H.C.’s comments, including statements that Peña Rodriguez “did it because he’s Mexican and Mexican men take whatever they want” and “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Juror H.C. also allegedly found the defense’s witness to not be credible because “he was ‘an illegal.’”
Although the trial judge acknowledged an apparent “bias against Mexican men,” the court did not grant a new trial due to Colorado’s no-impeachment rule, which bars investigation into jury deliberations. Peña Rodriguez was sentenced to probation for two years and ordered to register as a sex offender. On appeal, the Colorado Court of Appeals affirmed, stating that Peña Rodriguez’s rights were not violated because he had a chance to ask jurors about racial biases during voir dire but his counsel failed to do so. Peña Rodriguez then appealed to the Colorado Supreme Court which affirmed the lower court’s holding, finding that under the U.S. Supreme Court's decisions in Tanner v. United States, involving testimony of a juror’s intoxication during trial, and Warger v. Shauers, in which a juror had allegedly lied during voir dire, Colorado Rule of Evidence 606(b), which shelters the secrecy of jury deliberations, does not interfere with the Sixth Amendment right to an impartial jury.
Peña Rodriguez then appealed to the Supreme Court of the United States. On April 4, 2016, the Supreme Court of the United States granted certiorari to consider whether the no-impeachment rule may forbid evidence of racial bias that could violate the Sixth Amendment right to an impartial jury.
INADEQUACY OF PROCEDURAL SAFEGUARDS
Peña Rodriguez argues that none of the procedural safeguards relied upon in Tanner v. United States and Warger v. Shauers are reliable in the context of racial bias. Peña Rodriguez claims that pre-verdict observations of the jury do little or nothing to prevent racial bias because racial bias does not generally manifest itself in a physically observable manner, unlike the jurors’ alleged intoxication in Tanner. Similarly, Peña Rodriguez also claims that external evidence is not useful because racial bias during jury deliberations does not leave behind any physical evidence, such as the alcohol receipts hypothesized in Tanner. Next, Peña Rodriguez also argues that pre-verdict juror reports are unreliable for two reasons. First, jurors may recognize a racially-biased statement as offensive and yet be unaware of the gravity of the statement or that it is reportable. Second, many jurors are unlikely to report the objectionable conduct of their fellow jurors due to strong social pressures to be collaborative throughout jury deliberations.
Colorado counters that pre-verdict observations and interactions with jurors can be valuable insights into possible racial bias, like a juror in a federal case who described a group of people in the courtroom as “unsavory” while speaking with a court officer. Colorado also contends that Peña Rodriguez takes an unduly narrow view of external evidence and ignores other potential evidence, such as statements made outside the courthouse or posted on social media. Colorado also argues that pre-verdict juror reports are reliable and disputes both of Peña Rodriguez’s claims. According to Colorado, jurors are likely to know that racial bias is reportable because racially-biased statements are typically socially condemned. Even if most jurors are truly unaware that racially-biased statements during deliberations are reportable, Colorado argues a simple stock instruction could cure this deficiency. Colorado further contends that jurors actually are likely to report racially-biased statements by their fellow jurors and cites a number of cases from across the United States to support this claim.
VOIR DIRE AND SUPPLEMENTAL SAFEGUARDS
Peña Rodriguez also claims that voir dire questioning is not a reliable method for discovering racial bias among jurors. First, Peña Rodriguez argues that trial courts are not constitutionally required to approve questions about racial bias in most circumstances. According to Peña Rodriguez, the courts have significant control over what questions are permissible and are often reluctant to raise the specter of racial discrimination by allowing race-related questions. As an example, Peña Rodriguez references Rosales-Lopez v. United States, which involved a defendant of Mexican descent who was convicted of assisting Mexican aliens illegally to enter the United States. The court had denied the defendant’s requested inquiry into potential racial bias, and the Supreme Court affirmed the denial as a permissible exercise of discretion. Second, Peña Rodriguez notes that it is often a poor strategic decision to ask questions that draw attention to race, especially in cases in which race should not be a relevant factor in the outcome. Third, Peña Rodriguez argues that asking potential jurors about racial bias is ineffective because jurors with prejudiced beliefs will lie when asked directly due to the social stigma of expressing prejudiced beliefs, especially in public settings. Peña Rodriguez concludes by arguing that, because none of these procedural safeguards can reliably protect the right to an impartial jury in this case, Rule 606(b) must bow to the Sixth Amendment and permit impeachment of the jury’s verdict when there is juror evidence of racial bias.
Colorado disagrees and argues that voir dire is a critical and proven safeguard at preventing racial bias from reaching the jury room. First, Colorado argues that under Colorado state law, the parties have an “undisputed” right to ask questions about racial prejudice during voir dire. Second, Colorado responds that attorneys are skilled at asking uncomfortable questions during voir dire and potential jurors expect that the attorneys will ask them such questions. Furthermore, Colorado argues that peremptory challenges facilitate this type of probing questioning by permitting counsel to strike jurors who respond poorly, hesitantly, or take offense. Finally, Colorado contends that trial courts have a number of methods available to encourage honest responses across a number of sensitive topics.
Colorado also argues that other features of the jury system supplement the safeguards outlined in Tanner to help prevent racially-biased juries. Colorado first notes that jury pools must be drawn from a fair cross section of the community and argues that this ensures viewpoint diversity on juries. Colorado further argues that Batson v. Kentucky challenges protect jury deliberations from racial bias caused by discriminatory juror selection. Additionally, Colorado maintains that Colorado’s requirement of unanimous twelve-person juries in criminal cases counters individual bias by promoting group deliberation. Colorado concludes that these procedural safeguards are at least as reliable at preventing racial bias as they are at preventing the kinds of bias in Tanner and Warger, and, therefore, no special exception from Rule 606(b) for evidence of racial bias is required by the Sixth Amendment.
BALANCING JURY INTEGRITY AND JUDICIAL FINALITY
In support of Peña Rodriguez, the Center on the Administration of Criminal Law (“CALC”) argues that eliminating racial biases in jury decision-making outweighs the policy implications for the no-impeachment rule when these policies conflict. A group of law professors from Duke University and other schools (“the law professors”) further argues that courts are particularly attentive to racial biases, as exemplified by the Batson challenge, because “no right ranks higher than the right of the accused to a fair trial.” Moreover, the National Association for the Advancement of Colored People (“NAACP”) maintains that the justice system would be significantly harmed by excluding “explicit evidence of racial discrimination in juries.” .
The United States, supporting Colorado, counters by noting that the legislature is charged with balancing conflicting policy considerations. Furthermore, Indiana and eleven other States (“the states”) maintain that the no-impeachment rule is widely accepted as a foundational aspect of the American jury system, as seen by its historical roots and the subsequent codification by 42 states with few exceptions.
In support of Peña Rodriguez, the law professors argue that any policy interest in judicial finality yields to the public’s interest in the verdict’s integrity. Furthermore, the National Association of Federal Defenders (“NAFD”) contends that courts and Congress have established situations where jury testimony can impeach a verdict, such as mistakes on the verdict form. Alternatively, CALC argues that a jury’s verdict need not be disrupted because the court could offer an extension of time to inquire into the challenged racial bias.
Supporting Colorado, the Colorado District Attorneys’ Council counters that any exception to the no-impeachment rule weakens the public’s faith in the finality of jury verdicts. Additionally, Colorado maintains that the public would lose confidence in the jury system if an exception was created for racial biases but not for other misconduct and that an exception is unnecessary because both jurors and courthouse staff have historically reported biases.
BALANCING JUROR BIAS AND JURY PRIVACY
Professor Cedric Merlin Powell, supporting Peña Rodriguez, claims that any policy argument in favor of jury privacy is lost after trial because jurors may openly discuss deliberations. The NAACP argues that juror harassment will not increase due to the no-impeachment rule exception because courts have established procedures to protect juries from this type of unsolicited contact.. Moreover, the United Mexican States argues that, by denying jurors the chance to testify about explicit racial biases, the justice system normalizes the impact of racial biases in verdicts.
The United States, supporting Colorado, counters that courts should encourage candid jury deliberations where jurors are not preoccupied with being stigmatized by the public. The states further argue that using evidence from jury deliberations harms jurors’ confidence in returning unpopular decisions and incentivizes parties to harass jurors.
In support of Peña Rodriguez, the Constitutional Accountability Center argues that both the Sixth Amendment and the Fourteenth Amendment represent the justice system’s obligation to a “race-blind decision-making in the jury context.” The Hispanic National Bar Association supports this argument by citing cases where convictions were reversed due to racial prejudice in the jury. Finally, the NAACP contends that the safeguards established throughout the justice process, like voir dire, are ineffective in uncovering racial biases because jurors rarely admit any racial biases due to fear of being socially stigmatized .
Supporting Colorado, the United States argues that the Sixth Amendment does not guarantee a right to impeach a verdict when evidence of racially-charged remarks becomes available. The states maintain that voir dire is effective in uncovering juror biases because the extensive, multi-day process discusses sensitive topics, like biases.
In sum, this case allows the Supreme Court to reexamine the breadth of the holdings in Tanner and Warger and consider circumstances that could create exceptions to the no-impeachment rule.
- Robert Barnes, Supreme Court to hear case of alleged racial bias by juror, The Washington Post (Apr. 4, 2017).
- Lyle Denniston, Court to Rule on Challenge to Juror Bias, SCOTUSblog (Apr. 4, 2016).
- Mark Sherman, Justices Asked to Rule That Racial Bias Trumps Jury Secrecy, The Associated Press (Apr. 2, 2016).