Last month's column discussed the issue of racial bias in jury deliberations. This month, we look at the questions regarding whether and how jurors should report such instances of bias to the court. In October, the U.S. Supreme Court heard oral arguments in Peña-Rodriguez v. Colorado, in which Miguel Angel Peña-Rodriguez is appealing a Colorado court decision. The case stems from a 2010 Colorado decision that found Peña-Rodriguez guilty of unlawful sexual contact against two teenage girls. After the verdict, the defense learned that one juror had made numerous ethnic slurs during deliberation, including "he did it because he's Mexican and Mexican men take whatever they want." Peña-Rodriguez claimed that the statements violated his Sixth Amendment right to an impartial jury. However, the Colorado courts rejected that challenge, holding that the statements were inadmissible. Peña-Rodriguez is now appealing to the Supreme Court.
Central to the case is Federal Rule of Evidence 606(b), which prevents jurors from testifying about anything that occurs during deliberation. The rule seeks to encourage open discussion among jurors, reduce jury tampering incentives, promote verdict finality and avoid public scrutiny. The rule has an exception that allows testimony about whether extraneous (i.e., external) prejudicial information was improperly brought to the jury's attention. The crucial distinction is whether racial prejudice is an internal or external matter. The lower courts have had difficulty parsing out Rule 606(b) and issues of racial impartiality in deliberation. Some circuits have held that racial bias is an internal influence to which 606(b)'s exception does not apply. Other circuits have held that racial bias is a matter unrelated to specific issues the jury is called upon to decide and therefore 606(b) is inapplicable.
A 2014 Supreme Court case is also applicable to Peña-Rodriguez: In Warger v. Shauers, the court held that 606(b) is constitutional and parties may bring evidence of bias to the court before (but not after) the verdict is rendered. The court also stated in a footnote that "there may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged." It is important to note that the court has always treated racial animus as the most abhorrent form of bias. Constitutional challenges based on racial discrimination are analyzed under strict scrutiny, while gender discrimination is subject to the less stringent intermediate scrutiny, and laws discriminating based on sexual orientation merely need to pass rational basis scrutiny to be upheld. If racial juror bias is not determined to abridge the jury trial right, it is difficult to see what form of bias would.
If the court decides in Peña-Rodriguez that racial bias does not fit the Warger footnote, defendants will be forced to rely on when the bias was reported as the primary factor for testimony admissibility. This means that another juror needs to report the bias before the verdict or the defendant has no recourse. However, this does not take into account social impact theoryopens in new window and compliance research, which suggest that jurors may be more likely to report biased conduct once they have achieved some time and distance from the act. Juror reporting is akin to whistle-blowing, which has revealed the importance of knowing how and to whom to report wrong-doing. Relying entirely on timing as a safeguard means that while the sanctity of the jury room will be protected, the justice system will allow racial animus and stereotyping to go unchecked and to violate defendants' constitutional rights. However, if the court ensures, possibly through judicial instructions, that jurors know the importance of reporting and when and how to do so, it may be one small step toward fighting injustice.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
