May 25, 2017 Articles

Racial Bias and the No-Impeachment Rule

The Supreme Court’s uniform belief that racial bias against a criminal defendant in the jury room can inflict significant harm to the system cannot be ignored.

By Mark A. Flores

“The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general rule of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history.”

—Justice Anthony Kennedy
Peña-Rodriguez v. Colorado, 197 L. Ed. 2d 107, 127 (2017)

Blatant racial animus in the criminal jury room cannot remain protected pursuant to Federal Rule of Evidence 606(b) and other similar state rules of evidence according to a 5–3 decision recently handed down by the U.S. Supreme Court that found such rules violate the Sixth Amendment of the U.S. Constitution. Peña-Rodriguez, 197 L. Ed. 2d at 127. These evidentiary rules, known as “no-impeachment” rules, generally state:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The Court may not receive a juror’s affidavit of evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.

Fed. R. Evid. 606(b).

A Colorado trial court, as affirmed in subsequent Colorado appellate decisions, used a similar “no-impeachment” rule to prevent the use of juror affidavits stating that a juror who served on a panel that convicted a Hispanic man of unlawful sexual contact and harassment showed overt bias based on race or national origin, or both, during deliberations.

According to affidavits, the juror made statements such as “I think he 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.” Peña-Rodriguez, 197 L. Ed. 2d at 116–17. The suspect juror also took issue with Peña-Rodriguez’s alibi witness’s immigration status and national origin. As stated in the same affidavits, the juror questioned the reliability of the alibi witness’s testimony because the witness was “an illegal” despite testimony that the alibi witness was a legal resident of the United States. Id. at 117.

While the justices agreed that the conduct in Peña-Rodriguez exposed the public’s trust in the jury system to great harm, they differed on how to approach the issue because of questions about the protections already in place regarding juror misconduct and the finality of jury verdicts.

The Exclusion of the Affidavits Violated the Sixth Amendment
The majority concluded that the refusal to create an exception to the “no-impeachment” rule in the face of outright racial bias violated Peña-Rodriguez’s Sixth Amendment trial right. Justice Anthony Kennedy, who wrote the majority opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, stated “[i]t must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons” and recognized the country’s “imperative to purge racial prejudice from the administration of justice” as directed by the ratification of the Civil War amendments. Id. at 122. Justice Kennedy noted that racial prejudice in the administration of justice threatens both “the promise of the [Fourteenth] Amendment” and the “integrity of the jury trial” itself, which has required the Supreme Court’s repeated intervention into the judicial system since the end of the Civil War. Id.

Multiple examples of previous interventions to stop “state-sponsored racial discrimination” were discussed in the opinion. Id. at 122–23. As stated by Justice Kennedy,

[b]eginning in 1880, the Court interpreted the Fourteenth Amendment to prohibit the exclusion of jurors on the basis of race. The Court has repeatedly struck down laws and practices that systematically exclude racial minorities from juries. To guard against discrimination in jury selection, the Court has ruled that no litigant may exclude a prospective juror on the basis of race. In an effort to ensure that individuals who sit on juries are free of racial bias, the Court has held that the Constitution at times demands that defendants be permitted to ask questions about racial bias in voir dire.

Id. at 123–24 (citations omitted).

As the majority put it, “[t]he unmistakable principle underlying these precedents is that discrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice.’” Id. at 124 (citation omitted).

Having recognized the Court’s role in “seeking to eliminate racial bias in the jury system,” the majority opinion next determined whether the use of present safeguards like “[v]oir dire at the outset of trial, observation of juror demeanor and conduct during trial, juror reports before the verdict, and nonjuror evidence after trial” sufficed “to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.” Id. Justice Kennedy began by recognizing that the inherent issues associated with racially charged voir direand the stigma of racial bias, which prevents jurors from self-reporting, made these methods “less effective in rooting out racial bias than other kinds of bias.” Id. While “[a]ll forms of improper bias pose challenges to the trial process,” the majority stated, “there is a sound basis to treat racial bias with added precaution.” Id. at 124–25. Thus, “[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.” Id. at 125.

This led to the creation of a test by which a criminal defendant could submit evidence otherwise prohibited by the “no-impeachment” rule to show racial animus tainted the verdict. “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 the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Id. Justice Kennedy quickly noted, however, that not every comment would justify this exception to the “no-impeachment” rule:

For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether the threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.


The majority recognized that local rules of professional ethics and the local courts would still apply in protecting jurors from harassment. Id. at 125–26. Through this exception mandated by the Sixth Amendment, the majority stated, “[t]he Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.” Id. at 126.

Does the Exception Go Too Far in Removing Confidentiality from Juror Deliberations?
The dissent written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justice Clarence Thomas raised concerns about eroding the confidential nature of juror deliberations, regardless of the majority’s “admirable intention of providing justice to one criminal defendant.” Id. at 132 (Alito, J., dissenting). Justice Alito described this exception to the “no-impeachment” rule as a holding that “rules that respecting the privacy of the jury room, as our legal system has done for centuries, violates the Constitution.” Id. The dissent recognized “that even a tincture of racial bias can inflict great damage on [the criminal justice system,] which is dependent on the public trust” but questioned the creation of exceptions to rules meant to safeguard “circumstances in which confidentiality is thought to be essential.” Id. at 131–32

The dissent pointed out that “[r]ules barring the admission of juror testimony to impeach a verdict (so-called ‘no-impeachment rules’) have a long history” pre-dating the Constitution. Id. at 132 According to Justice Alito, Federal Rule of Evidence 606(b) and similar rules across the country were “the epitome of reasoned democratic rulemaking” that “continue to be ‘viewed as both promoting the finality of verdicts and insulating the jury from outside influences.’” Id. at 134-35 (citations omitted). Justice Alito also noted that the Court on two separate occasions refused to create an exception to the no-impeachment rule, despite cases of juror misconduct such as drinking while in the jury box or lying during voir direbecause “no-impeachment rules advance crucial interest” and “the right to trial by an impartial jury is adequately protected by mechanisms other than the use of juror testimony regarding jury deliberations.” Id. at 135–36 The dissent also argued that the protections already in place sufficiently protected criminal defendants from racial bias tainting the jury pool. Id. at 137–40 (discussing protections afforded by “(1) voir dire; (2) observation by the court, counsel, and court personnel; (3) pre-verdict reports by the jurors; and (4) non-juror evidence”).

Further, the dissent questioned the propriety of what it called “[t]he real thrust of the majority opinion . . . that the Constitution is less tolerant of racial bias than other forms of juror misconduct,” a position the dissent found irreconcilable with the “nature of the Sixth Amendment” right to an “impartial jury.” Id. at 140. Noting the difficulty in discerning “a dividing line between different types of juror bias or misconduct, whereby one form of partiality would implicate a party’s Sixth Amendment right while another would not,” Justice Alito laid out the following scenario as illustrative of the dissent’s objections to the majority’s decision:

Imagine two cellmates serving lengthy prison terms. Both were convicted for homicides committed in unrelated barroom fights. At the trial of the first prisoner, a juror, during deliberations, expressed animosity toward the defendant because of his race. At the trial of the second prisoner, a juror, during deliberations, expressed animosity toward the defendant because he was wearing the jersey of a hated football team. In both cases, jurors come forward after the trial and reveal what the biased juror said in the jury room. The Court would say to the first prisoner: “You are entitled to introduce the juror’s testimony, because racial bias is damaging to our society.” To the second, the Court would say: “Even if you did not have an impartial jury, you must stay in prison because sports rivalries are not a major societal issue.”

Id. at 141.

The dissent likewise rejected any argument that the case implicated any concerns under the Equal Protection Clause of the Fourteenth Amendment. Id. at 141–42.

Justice Alito concluded his dissent by raising the specter of potential harms likely to occur as a result of the Court’s holding. First, “‘postverdict scrutiny of juror conduct’ will inhibit ‘full and frank discussion in the jury room.’” Id. at 142. The dissent quoted the Senate Report on Rule 606(b), which states that “[c]ommon fairness requires that absolute privacy be preserved for jurors to engage in the full and free debate necessary to the attainment of just verdicts.” Id. Second, the dissent argues that the holding “will also prompt losing parties and their friends, supporters, and attorneys to contact and seek to question jurors, and this pestering may erode citizens’ willingness to serve on juries.” Id. Finally, the dissent states that “[t]he majority’s approach will also undermine the finality of verdicts.” Id. at 144. While Justice Alito called the majority’s decision “well-intentioned,” he questioned “whether our system of trial by jury can endure this attempt to perfect it.” Id.

While future courts may have to deal with the concerns expressed in the dissent, the Court’s uniform belief that racial bias against a criminal defendant in the jury room can inflict significant harm to the system cannot be ignored. Compare id. at 123 (“Permitting racial prejudice in the jury system damages ‘both the fact and the perception’ of the jury’s role as a ‘vital check against the wrongful exercise of power by the state.’”) with id. at 132 (Alito, J., dissenting) (“[T]he court is surely correct that even a tincture of racial bias can inflict great damage on [the criminal justice system,] which is dependent on the public’s trust.”). No doubt the application of this exception to the no-impeachment rule can serve this interest. That said, “the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution” may be even more important to removing racial bias from the jury room, our government, and our country as a whole.

Mark A. Flores is with Haynes and Boone, LLP, in Fort Worth, Texas.

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Mark A. Flores – May 25, 2017