“He Said What?!”: SCOTUS Considers Juror Impeachment for Racist Remarks Made During Deliberations

By: Kyle Weaver[1]

In October 2016, the Supreme Court of the United States heard oral arguments[2] in Pena-Rodriguez v. Colorado;[3] the issue: whether juror testimony about racist remarks made by other jurors during secret deliberations is permitted to overturn a guilty verdict. A layperson’s common sense says “duh,” but both Colorado and federal law say otherwise. Rule 606(b) of the Colorado Rules of Evidence, which mirrors Federal Rule 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.[4]

This rule is commonly referred to as the “no impeachment rule.” Under such, there is a blanket ban on juror testimony, either live or by affidavit. Exceptions to the general prohibition are narrow, and are limited to testimony concerning: “(1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.”[5]

The rule against juror testimony long predates codification in the Federal Rules of Evidence, tracing its roots as far back as Lord Mansfield.[6] The relatively new Federal Rules and their State counterparts strike a careful balance between “freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment” on one hand, and “irregularity and injustice” created by unimpeachable verdicts on the other.[7] Courts in jurisdictions that follow the rule are steadfast in their application of the rule, even in particularly egregious circumstances. For example, in Tanner v. United States, the Supreme Court upheld the Rule and refused to receive juror testimony that several jurors consumed alcohol, marijuana, and cocaine during breaks, and had slept through portions of the trial.[8]

The Pena-Rodriguez case challenges the existing no-impeachment rule, and asks whether a juror’s blatantly racist remarks made during deliberations and given as a reason to find the defendant guilty violate the accused’s Sixth Amendment right to a fair trial.[9] In Pena-Rodriguez the accused, Miguel Angel Pena Rodriguez, allegedly groped two Colorado teenagers in a dark bathroom of a Colorado horse racing track.[10] Pena-Rodriguez was later identified by the victims while Pena-Rodriguez was detained by police for questioning.[11] Nevertheless, Pena-Rodriguez proceeded to trial, arguing that he had been misidentified. After deliberating for a lengthy period and receiving an Allen charge,[12] the jury returned guilty verdicts on three misdemeanor charges but could not reach a consensus on the felony charge. The trial court accepted the three misdemeanor guilty verdicts and declared a mistrial on the felony charge.

Following dismissal of the jury, counsel for Pena-Rodriguez remained in the courthouse and spoke with several jurors who wished to speak about what had occurred during deliberations.[13] Defense counsel obtained affidavits from two jurors after learning that another juror had expressed bias toward Pena-Rodriguez and his alibi witness because both were Hispanic.[14] The juror affidavits revealed several racially biased statements made by Juror H.C., among them:

  • “[The defendant] did it because he’s Mexican and Mexican men take whatever they want.”
  • “[The defendant] was guilty because in [Juror H.C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”
  • “Mexican men [are] physically controlling of women because they have a sense of entitlement and they think they can ‘do whatever they want’ with women.’”
  • “[W]here [Juror H.C. used to patrol], nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”
  • “[T]he alibi witness [wasn’t] credible because, among other things, he was ‘an illegal.’”[15]

After receiving the jurors’ affidavits, the trial court expressed regret about Juror H.C.’s apparent bias toward Mexican men, but nevertheless determined “that the juror’s expression of racial animus could not form the basis of a new trial because Colorado’s no-impeachment rule . . . prohibits inquiry into what happens in the jury room.”[16] Thereafter, both the Colorado Court of Appeals and the Colorado Supreme Court narrowly affirmed the conviction.[17]

On appeal to the Supreme Court of the United States, petitioner Pena-Rodriguez argued Rule 606(b) seriously infringes on his constitutional right to an impartial jury, and that no State interest justifies such interference.[18] Petitioner highlighted that racial animus is odious in all respects, and that barring evidence that racial prejudice infected deliberations left himself and other criminal defendants with no meaningful opportunity to vindicate the right to an impartial jury.[19] Pena-Rodriquez argued that jurors should not be relied upon to bring forth evidence of racial bias during deliberations because most jurors don’t realize such bias is legally impermissible.[20] Petitioner argued, unlike juror intoxication which may have physical manifestations, evidence of racial bias during deliberations may never come to light.[21] Further, Pena-Rodriguez noted that questioning potential jurors during voir dire was unlikely to uncover racial prejudices because voir dire about racial bias is not always permitted, nor are racially biased jurors likely to be forthcoming about the same.[22]

Petitioner next argued “[t]he secrecy of the jury room is not—and has never been—inviolate.”[23] Petitioner explained courts have long admitted juror testimony about misconduct during deliberations, including injections of racial bias, without any appreciable negative side effects.[24] Petitioner highlighted that twenty states presently allow juror testimony regarding racially biased remarks in the jury room, and that only three states (including Colorado) expressly forbid such testimony.[25] Pena-Rodriguez next addressed the traditional policy arguments for prohibiting juror testimony—free and frank discussion, juror harassment, finality, “administrability,” and public confidence in the administration of criminal justice—and argued that each did not justify ignoring juror testimony about racial bias during deliberations.[26] At oral argument, counsel for Petitioner urged the Court to adopt a two part inquiry to determine whether deliberations were tainted by racial bias. Petitioner suggested that the trial court should first hear evidence of what was said during deliberations, and next determine whether there is a reasonable probability that the verdict was infected by racial bias.[27] Counsel contended “It’s very much like what courts do every day when there’s a bad jury instruction.”[28]

The State of Colorado began its oral argument and its brief in opposition, noting “[n]o one disputes that racial bias is reprehensible and has no place in the jury room. The question here is whether one particular method of addressing racial bias among jurors—post-verdict inquiry into jury deliberations—is constitutionally compelled despite wide acceptance of the no-impeachment rule.”[29] The State next argued four procedural safeguards effectively detect and address racial bias among jurors: 1) voir dire; 2) the fair cross-section requirement of the Sixth Amendment; 3) Batson v. Kentucky’s guarantee that jurors are selected on their ability to evaluate the evidence; and, 4) jury size and the requirement of unanimity ensure verdicts are based on the evidence and the law.[30] The State next argued no-impeachment rules serve five vital government interests: 1) concern that post-verdict examination of jurors will inhibit discussion of proper and improper topics alike and prevent full and frank deliberations; 2) the threat to verdict finality; 3) incentive to harass jurors; 4) public confidence in the jury system; and 5) encouraging jury independence.[31] The State concluded, arguing that Colorado and other states have carefully balanced the rule and the competing policy rationales behind it, and that undermining such policy justifications would lead state and federal courts to “draw lines among different types of biases, leading to unfair outcomes among defendants with substantial Sixth Amendment claims that fall outside Petitioner’s rule.”[32]

The Court has a difficult task before it. In this case, it is quite clear that some level of racial bias entered the jury room. Frankly, common sense and notions of fairness would resoundingly answer this question in favor of Pena-Rodriguez. However, the difficulty is that not all cases will be this clear cut. Allowing post-verdict juror impeachment in this case may pave the way for challenges in every criminal case, upsetting the finality of jury verdicts, postponing sentencing, overwhelming state trial and appellate courts, and flooding federal courts with habeas petitions. Moreover, if the Court finds post-verdict juror impeachment for race necessary to a fair trial under the Sixth Amendment, where will the Court draw the line? Subsequent cases may raise the issue of gender, religion, or other biases overheard in the jury room. On the other hand, the Sixth Amendment’s command that every criminal defendant be given a fair and impartial trial must not be taken lightly.

The Court has not indicated when it will release its opinion. To receive the most up to date news and analysis of this case and other pressing legal issues, be sure to “Like” the Cumberland Law Review on Facebook, and closely follow the Cumberland Law Review’s website, www.cumberlandlawreview.com.

[1] Candidate for Juris Doctor 2017, Cumberland School of Law, Samford University, B.S. Finance and Human Resources Management, Florida State University.

[2] A recording and transcript of the arguments can be found at: https://apps.oyez.org/player/#/roberts7/oral_argument_audio/24152.

[3] No. 15-606.

[4] C.R.E. 606(b) (emphasis added).

[5] Id.

[6] See Rule 606(b) Federal Advisory Committee Note.

[7] Id.

[8] 483 U.S. 107 (1987).

[9] The Sixth Amendment provides, in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI.

[10] Brief for Petitioner at 4–5, Pena-Rodriguez v. Colorado, (No. 15-606).

[11] Id. at 5.

[12] Id. at 6. An Allen charge is given to juries that report being deadlocked. The name is derived from Allen v. United States, 164 U.S. 492 (1896) in which the Supreme Court permitted a jury instruction which encouraged jurors in the minority faction to reconsider their views. In this case the court told the jury “It is your duty to consult with one another and to deliberate with a view of reaching a verdict. In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced that it is erroneous.” Brief for Petitioner, at 6.

[13] Id. at 7.

[14] Id. at 7–8.

[15] Id. at 8.

[16] Id. at 9.

[17] Id. at 9-10.

[18] Brief for Petitioner, at 17, 28.

[19] Id. at 18–19.

[20] Id. at 22.

[21] Id.

[22] Id. at 24.

[23] Brief for Petitioner, at 28.

[24] Id. at 29.

[25] Id. at 30.

[26] Id. at 33–45.

[27] MIGUEL ANGEL PENA-RODRIGUEZ, Petitioner v. COLORADO, Respondent

Oral Argument – October 11, 2016, https://apps.oyez.org/player/#/roberts7/oral_argument_audio/24152.

[28] Id.

[29] Brief for Respondent, at 3 Pena-Rodriguez v. Colorado, (No. 15-606).

[30] Id. at 15.

[31] Id. at 18

[32] Id.

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