July 18, 2013 Top Story

Investigating a Juror's Claim of Racial Bias

In rare cases, a trial court may investigate whether racial bias affected a verdict

Jannis E. Goodnow

Under the “no impeachment” rule codified in Federal Rule of Evidence 606(b), what happens in the jury room stays in the jury room—unless there is evidence that the verdict was affected by external influences. The District of Columbia Court of Appeals carved out an exception to this rule, holding that a trial court has discretion to investigate a juror’s allegation that other jurors expressed racial bias during deliberations. Kittle v. United States.

A jury convicted Kittle, an African American, on three felony counts, acquitted him on three counts, and failed to reach a verdict on five other counts. After the verdict, a juror sent the judge a letter stating that deliberations took longer than they should have because “some of us were faced with dealing with some jurors feeling that all ‘blacks’ are guilty regardless.” Upon learning of the letter, Kittle moved for a mistrial or an investigation into juror misconduct. The trial court denied the motion, stating that the juror’s allegation of racial bias did not impugn the verdict, particularly as the jury acquitted Kittle on some counts and failed to agree on others.

Investigating Racial Bias Allowed Only in “Rare, Exceptional” Cases

On appeal, the court examined the no impeachment rule established in Sellars v. United States and codified in Federal Rule of Evidence 606(b), which provides that jurors are not competent to give evidence to impeach a verdict on the basis of “matters which essentially inhere in the verdict itself, as opposed to extraneous influences.” Sellars explains that the rule protects the jury deliberation process by “(1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; [and] (5) maintaining the viability of the jury as a judicial decision-making body.”

The appellate court rejected the defendant’s argument that jurors’ racial bias is extraneous to the verdict, and, thus, the no impeachment rule does not bar evidence of such bias. Rather, the court joined the FirstThirdFifthSeventh, and Tenth Circuits in determining that the no impeachment rule precludes inquiring into the validity of the verdict based on juror testimony regarding racial or ethnic comments made during deliberations, because such comments are internal rather than external influences.

The court further found, however, that “the substantial, countervailing interest of protecting the right to an impartial jury that is untainted by racial or ethnic bias” requires a constitutional exception to the rule that would allow a trial judge to exercise discretion to conduct a hearing to ensure that a juror’s racial or ethnic biases did not impair the defendant’s Fifth Amendment right to due process or Sixth Amendment right to trial by an impartial jury. The court distinguished the “insidiousness of racial or ethnic bias” from other forms of juror misconduct or incompetence and held that trial judges may consider juror testimony in those “rare and exceptional circumstances” in which claims of jurors’ racial or ethnic bias implicate the defendant’s right to trial by an impartial jury. Ultimately, the appellate court agreed with the trial court’s reasoning that the juror’s letter did not warrant further inquiry because, while some jurors’ alleged statements that “blacks are guilty regardless” may have delayed deliberations, there was no indication that those comments had any effect on the verdict itself, especially given that the jury did not find Kittle guilty on eight of the eleven counts against him.

Ruling Balances Jury Process and Defendants’ Rights

Section leaders agree that Kittle’s racial bias exception to the no impeachment rule is required by the United States Constitution. “You have to look under the hood now and then to make sure the jury is functioning as it should,” says D. Grayson Yeargin, Washington, D.C., cochair of the ABA Section of Litigation’s Criminal Litigation Committee.

“This is a step in the right direction in that it protects both the deliberative process and the fairness of the trial,” agrees ReNika Moore, New York, cochair of the Section of Litigation’s Civil Rights Litigation Committee. “To paraphrase Justice Brennan, there’s no such thing as too much justice,” she adds.

More Verdicts May Be Challenged but Not Overturned

The Kittle ruling “will absolutely have an impact on how you poll the jury and will cause defense counsel to raise more questions,” predicts Yeargin, especially because “there is no downside to probing racial issues after the verdict. If you believe there was some racial element in the jury’s decision, you must explore it,” he adds.

The ruling, however, does not make it easy for defense attorneys to challenge a verdict. “There has to be some evidence that not only did a juror hold a racist point of view, but that this point of view had an effect on the jury’s decision,” explains Yeargin. “You would have to do some pretty good lawyering” to convince the trial court that racial bias has tainted a defendant’s right to a fair and impartial jury, according to Erek L. Barron, Bethesda, MD, cochair of the Section’s Criminal Litigation Committee. Moreover, “the abuse-of-discretion standard is extremely difficult to overcome on appeal,” he adds.

The Kittle ruling “will not lead to a sea change,” opines Moore. As a practical matter, this type of juror communication is rare, and “jurors are usually in a rush to leave and don’t want to talk to the attorneys,” notes Barron. Rather, this case illustrates the importance of voir dire to keep those with racial bias off the jury. Otherwise, “it’s an extreme uphill battle” to overturn the verdict, according to Barron.

Jannis E. Goodnow is an associate editor for Litigation News.

Keywords: verdict impeachment, racial bias, impartial jury

Related Resources

  • Kittle v. United States [PDF], No. 09-CF-1586 (D.C. May 16, 2013).
  • Sellars v. United States, 401 A.2d 974 (D.C. 1979).
  • Cases holding that the no impeachment rule excludes post-verdict evidence of jurors' racial bias:

  • First Circuit: U.S. v.Villar , No. 08-1154, (1st Cir. Nov. 10, 2009) (Rule 606 (b)'s no-impeachment rule “precludes any inquiry into the validity of the verdict based on juror testimony regarding racial or ethnic comments made ‘during the course of deliberations,’” but inquiry is allowed to determine whether racial bias in jury deliberations deprived defendant of due process or fair trial).
  • Third Circuit: Williams v. Price 343 F.3d 223 (3rd Cir. 2003) (dicta).
  • Fifth Circuit: Martinez v. Food CityInc. 658 F.2d 369 (5th Cir. 1981) (jurors’ racial bias should be explored in voir dire; jurors cannot competently testify regarding racially biased statements made by jurors during deliberations).
  • Seventh Circuit: Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987) (“We cannot expunge from jury deliberations the subjective opinions of jurors, their attitudinal expositions, or their philosophies;” however, court “must consider whether prejudice pervaded the jury room, whether there is a substantial probability that the alleged racial slur made a difference in the outcome of the trial.”)
  • Tenth Circuit: United States v. Benally [PDF], No. 08-4009 (10th Cir. March 23, 2009) (refusing to make exception to Rule 606(b) for evidence concerning racial bias).

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