Jury Room Racism Is Protected. It Shouldn't Be.
Law and tradition say that a jury verdict shouldn't be overturned on the basis of something jurors say in their deliberations, no matter how ignorant or offensive.
But what if there’s strong evidence that the jury deliberations were racially biased? Does the defendant’s right to a fair trial supersede the tradition of letting the verdict stand? The Supreme Court has agreed to hear this fascinating question in a sexual assault case where one juror, a former cop, told the others that Mexican men "do whatever they want" with women.
Odds are that the court will decide that the sanctity of the jury room trumps racial fairness – but it’s far from clear that would be the right result.
Most traditions are invented. What’s fascinating about the tradition of refusing to consider post-trial stories by jurors of their own misconduct is that we know exactly when it was invented, and by whom. The year was 1785 and the inventor was Lord Mansfield, generally considered the greatest common law judge in English legal history, who loved to make up efficient new rules.
In the case of Vaise v. Delaval, the jurors, unable to reach a verdict, had "tossed up" – probably a coin -- and agreed to decide the case based on the toss. Until then, courts had generally considered accounts of juror misbehavior.
Mansfield changed the rule. He argued that the jurors shouldn't be permitted to implicate themselves in the serious crime of breaking their oaths of conduct. If the jury’s misconduct were to be considered, he concluded, "the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some such other means."
The rule probably relied on a then-prevalent doctrine that a witness would not be heard to allege his own wrongdoing. Today we allow testimony against one's own interests, so Mansfield’s original rationale doesn’t apply.
But within a few decades, Mansfield’s rule had taken root for a different, more practical reason: It assures the finality of verdicts. If decisions could be overturned by jurors’ testimony about what happened in the jury room, the incentive to reopen verdicts would be great, and it would be hard to know when, exactly, the result would stick. 1
The Supreme Court relied on the finality rationale in a 1915 case. It repeated it in a 2014 decision, Warger v. Shauers, in which it refused to allow post-trial affidavits showing that a juror had lied during jury selection questioning and told other jurors that her daughter had been in a car accident and that if she'd been sued, "it would have ruined her life."
Federal evidence law, copied by most states, preserves the rule with exceptions for extraneous prejudicial information, improper outside influence or a mistake on the jury form. The extraneous information is usually held to include specific facts about the case, not jurors’ general knowledge – or their personal biases.
The case that the court will hear now, Pena-Rodriguez v. Colorado, involved post-trial testimony that one juror’s racial bias may have affected the verdict. The defendant in the case, Miguel Angel Pena-Rodriguez, was charged with sexual assault for accosting two girls, one under 15, in the bathroom of a horse-racing facility.
According to more than one juror affidavit, one of the jurors, a former law-enforcement officer, told the others that the defendant "did it because he’s Mexican and Mexican men take whatever they want." He made more prejudicial statements in the same vein, adding that an alibi witness shouldn’t be believed because he "was an illegal" -- a claim not supported in the trial record.
The justices of the Colorado Supreme Court all agreed that the juror affidavits were inadmissible. But while the majority considered that the end of the matter, Justice Monica Márquez, joined by two others, did not.
Márquez, a respected judge (I went to law school with her), dissented to say that the Sixth Amendment 2 right to a fair trial, as well as the guarantee of due process, trumped the rule of evidence. She pointed out that in its 2014 opinion, the Supreme Court said in a footnote, "There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged.” This, said Márquez, was exactly such a case.
The fact that the court took the case suggests that it’s at least possible that it thinks Márquez may be right. It seems more likely that the court will rely on finality once more, as it did in 2014. Jurors have all kinds of biases, and allowing testimony about them could indeed threaten the finality of trials.
But the court should consider that the federal rules already allow exceptions from finality for extraneous information. And it should keep in mind that the Mansfield rule doesn’t rest on very strong internal logic. Given these, it makes some sense to treat the constitutional interest in a fair trial as paramount. Jurors may be biased, but if they express overt racism in the jury room, that should be admissible as evidence that their verdict was unconstitutional.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
It’s conceivable that Mansfield had this finality goal in mind himself but used the no-testimony-against-oneself logic to get there.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
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