chevron-down Created with Sketch Beta.
November 30, 2016 Articles

Proving Racial Bias During Juror Deliberations under Rule 606(b): Pena-Rodriguez v. Colorado

The Supreme Court just heard a case and will decide whether a juror can testify about racial animus inside the jury room during deliberations.

By Mark A. Flores – November 30, 2016

The U.S. Supreme Court will decide whether a rule of evidence declaring a juror incompetent to testify regarding jury deliberations in which the juror participated can prevent a juror from testifying as to racial animus inside the jury room. A Colorado jury convicted Miguel Angel Pena-Rodriguez of three misdemeanor sexual assault charges while failing to reach a verdict on a felony count. Following his conviction, Pena-Rodriguez received information that a juror made derogatory comments about Pena-Rodriguez's ethnicity and immigrant status during deliberations. Specifically, the juror made statements about Mexicans and immigrants having a propensity towards committing sex offenses. The Colorado Supreme Court refused, however, to allow Pena-Rodriguez the opportunity to present evidence of racial animus during deliberations. 

The Colorado Supreme Court found that Colorado Rule of Evidence Rule 606(b) required exclusion of the testimony. Rule 606(b), likes its federal counterpart, states as follows:

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.

Colo. R. Evid. 606(b). With limited exceptions, the rule expressly states "[a] juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying." This rule has been referred to as the "no-impeachment" rule. The Supreme Court of the United States granted Pena-Rodriguez's petition for writ of certiorari to determine whether the rule constituted a violation of his Sixth Amendment right to trial by "an impartial jury." U.S. Const., amend VI.

State of Colorado's Argument

The State of Colorado relied heavily on two previous decisions of the U.S. Supreme Court—Tanner v. United States and Warger v. Shauers—where the Court held that current criminal procedures already have safeguards in place to protect against juror misconduct without requiring inquiry into the jury deliberations.

In Tanner v. United States, the Court held that voir dire, observation of the jury during trial by the court and counsel, and the ability of jurors to self-report on their own conduct provide sufficient safeguards from juror misconduct. 483 U.S. 127 (1987). The Court likewise recognized "after the trial a party may seek to impeach the verdict by nonjuror evidence of misconduct." As a result, the Court refused to allow testimony that multiple jurors had potentially been intoxicated during the trial.

 In Warger v. Shauers, the Court again held that Rule 606(b) did not violate the constitution. 135 S.Ct. 521, 528–29 (2014). The Court reaffirmed its holding in Tanner that Rule 606(b) was constitutional. The Court cited all the protections set forth in Tanner and added "[e]ven if jurors lie in voir dire in a way that conceals bias, juror impartiality is adequately assured by the parties' ability to bring to the court's attention any evidence of bias before the verdict is rendered, and to employ nonjuror evidence even after the verdict is rendered."

The State of Colorado likewise argued that the jury's makeup by a "fair cross section of the community," Taylor v. Louisiana, 419 U.S. 522 (1975), the ban of discriminatory preemptory strikes, Batson v. Kentucky, 475 U.S. 87, and the requirement that the jury make a unanimous decision acted as additional safeguards in this instance. Finally, the State of Colorado argued that the ability of the jury to have "full and frank discussions in the jury room," potential issues regarding the finality of verdicts, protection from juror harassment, and the promotion of juror confidence all militated in favor of maintaining the validity of Rule 606(b). Tanner v. United States 483 U.S. at 119–21.

Pena-Rodriguez Argument

Pena-Rodriguez argued that racial bias in the jury room presents unique factors to which the traditional safeguards outlined in Warger and Tanner cannot prevent. Pena-Rodriguez noted that the Sixth Amendment of the U.S. Constitution specifically guarantees the right to trial "by an impartial jury." U.S. Const., amend. VI. As the Supreme Court has previously recognized, "[p]reservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury." Dennis v. United States, 339 U.S. 162, 171–72 (1950).

A criminal defendant such as Pena-Rodriguez, however, has no means to show racial animus through the traditional safeguards set forth in Warger and Tanner that rely on traditional observation methods. For instance, Pena-Rodriguez noted that a defendant in the courtroom cannot observe whether a jury shows racial bias through their conduct in the jury box. Moreover, the likelihood that someone will show their racial tendencies during questioning at voir dire seems equally remote. Finally, Pena-Rodriguez argued the state of Colorado has yet to show any non-juror evidence that could prove racial animus. Pena-Rodriguez also noted that the policy reasons for protecting jurors from harassment, encouraging open and frank discussions, and the finality of decisions do not outweigh the constitutional right to trial by an impartial jury.

Constitution v. Rules of Evidence

The Supreme Court has considered conflicts between court rules and statutes prohibiting the testimony of key witnesses and the constitutional rights of defendants in previous cases. In Washington v. Texas, the Court considered whether a Texas Rule of Criminal Procedure and Texas statute prohibiting a criminal codefendant from testifying on behalf of another defendant could stand given the potential impairment of the defendant's right to present a defense under the Sixth Amendment. 388 U.S. 14 (1967). The Court held that the state's application of this rule constituted an arbitrary denial of "the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense."

In Rock v. Arkansas, the Court considered whether an evidentiary rule prohibiting the admission of hypnotically refreshed testimony violated a criminal defendant's right to testify on her own behalf as part of her defense. 483 U.S. 44 (1987). The defendant in a shooting could not remember the "precise details of the shooting" until the facts were brought out during a hypnosis session. The Supreme Court held that the evidentiary rule banning her testimony violated the defendant's Sixth Amendment rights stating "[j]ust as a state may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony."


The question of whether there is any other way to show racial animus behind closed doors absent an exception to this rule of evidence declaring juror testimony about those deliberations incompetent remains an open one. The briefs have been submitted and the oral arguments have taken place leaving the U.S. Supreme Court to once again balance the constitutional rights of an individual against the rules of evidence in seeking an answer to this question.


Keywords: criminal litigation, racial bias, jury, Supreme Court


Mark Flores is a senior associate with Frost Brown Todd. Flores co-wrote an amicus brief in the case discussed in this article.