Peña Rodriguez v. Colorado

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.