Private deliberations, public protests.

Photographer: Scott Olson/Getty Images

Expose Racism in the Jury Room

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Was there racial bias in the jury rooms of Ferguson, Missouri, and New York's Staten Island? We’ll probably never know -- and if we did, it wouldn’t change the outcome in the cases tied to the deaths of Michael Brown and Eric Garner. According to a 230-year-old rule, courts ordinarily won’t reopen verdicts based on juror testimony about what went on behind closed doors, not even if the evidence would invalidate the verdict. The U.S. Supreme Court strengthened the code of silence yesterday, holding that federal evidence rules bar juror testimony that another juror lied in the jury selection process.

But is jury omertà a good thing? It turns out that its meaning and justification have changed considerably over the centuries. In this age of open government and concern about jury racism, it may be time to reconsider a principle that lets the jury get away with almost anything.

The story of jury secrecy goes back not to the medieval origins of the jury, but to 1785, when Lord Mansfield, perhaps the most influential common-law judge of all time and then the chief justice of the King’s Bench, invented it out of whole cloth. The case before Mansfield, Vaise v. Delaval, demonstrated the inherent danger of relying on an unsupervised jury. The jury decided the case by flipping a coin. After trial, a juror came forward to testify to what had happened.

The arbitrariness of the coin flip is the very opposite of due process of law -- yet Mansfield wouldn't receive the testimony and reopen the verdict. His explanation focused not on the injustice to the parties in the case, but on the vulnerability of the juror. According to Mansfield, the juror, if he testified, would be impeaching the whole jury process. The testifying juror was part of the process. He would therefore be incriminating himself for the misdemeanor of violating the jurors’ oath. Mansfield wouldn’t allow that -- because, at the time, English common law didn’t allow witnesses to testify at their own trials.

This legal principle became obsolete once the ban on testifying in your own defense was lifted. Today, you can’t be forced to testify against yourself, but you can testify at your own trial if you want to. What’s more, no one today would convict one juror because another juror lied or otherwise broke the jury’s rules. So the U.S. courts had to develop new reasons for Mansfield’s rule.

In 1915, in the case McDonald v. Pless, the Supreme Court weighed in with a new explanation. It framed the problem as a balance between the private litigant’s interest in a fair trial and the “public injury which would result if jurors were permitted to testify as to what happened in the jury room.”

But what public injury was that? The court imagined a world where every trial would be followed by an inquiry into what had happened in the jury room “in the hope of discovering something that might invalidate the finding.” In such a world, the court said, “jurors would be harassed” after trial. The jury’s “private deliberation” would be subject to “public investigation.” The result would be “the destruction of all frankness and freedom of discussion and conference.”

In essence, the Supreme Court in 1915 wanted jurors to be left alone to deliberate privately among themselves. But no justice then was much worried about juror bias, much less juror racism. To the contrary, privacy was a code word indicating that bias was sacrosanct.

More egregiously, the court in 1915 also assumed that the public had no independent interest in a fair trial. In its now obsolete worldview, only the individuals involved had a stake in trial fairness.

Yesterday’s Supreme Court decision on the same topic, Warger v. Shauers, involved an interpretation of Federal Rule of Evidence 606(B), which states that juror testimony won’t be allowed about anything that happened in the jury room “during an inquiry into the validity of a verdict.” The rule also lists three exceptional situations in which jury testimony would be allowed: if the jury discussed “extraneous prejudicial information,” if outside influence was brought to bear on the jurors, or if the jurors made a mistake filling out the verdict form.

The contemporary court claimed that the 1915 precedent was intended to promote “the finality of verdicts” and to insulate the jury “from outside influences.” Then it went on to interpret the rule without further discussion of its underlying purposes.

It’s not certain that the 1915 court was primarily interested in either finality or insulation from influence. What it actually said was that jurors would be harassed and that they wouldn’t be able to speak frankly in the privacy of the jury room.

Historical accuracy aside, the modern rationales of finality and insulation need to be viewed critically.

Why should the supposed need for finality outweigh the interest in a fair trial -- an interest we now know is shared by the private parties and the public alike? Sure, some litigants will try to unsettle verdicts by polling jurors about bias. But that is likely to pressure jurors not to express bias in their deliberations -- a result we should welcome, not fear.

As for insulation from outside influence, again the rule of secrecy doesn’t seem to serve its stated purpose. We should want the jury to be influenced by social pressure to be unbiased. We don’t want the jury to be influenced by, say, outside racism. In today’s political environment, however, guaranteed privacy seems more likely to foster jury racism than to protect against it.

The Supreme Court isn’t particularly to blame for the existing rule, which it didn’t write. But we’re all to blame if we don’t update our laws to match new values and circumstances. That includes rethinking the ban on juror testimony about bias. At stake is the public trust in the jury system itself.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net