Tuesday, October 18, 2016

The Importance of Protecting Jury Secrecy

by Sherry F. Colb

In my Verdict column for this week, I discuss the U.S. Supreme Court case of Pena-Rodriguez v. Colorado, which raises the question whether the Sixth Amendment entitles a criminal convict to use juror testimony to impeach a verdict on the basis of racial bias on the jury.  My column addresses the line-drawing question about which sorts of bias--just racial? just identity-based? non-identity based as well?--would justify going behind the verdict and inquiring about jury deliberations.  In this post, I want to suggest that the evidence rules that generally prohibit impeaching a verdict with juror testimony may ultimately be misguided.

The main reason we generally prohibit dissatisfied parties from utilizing juror testimony to impeach a verdict is to protect jury secrecy and prevent the harassment of jurors after a case has been tried.  If jurors had to worry about their words coming back to bite them, they might not be able to deliberate as fully and uninhibitedly as they otherwise would.  This is true, but I would raise two questions about this:  first, do we want jurors to be completely uninhibited in what they say during deliberations?  And second, does a rule against impeaching a verdict with juror testimony truly protect the secrecy of deliberations?

To respond to the first question, it may be less than ideal for jurors to feel that they can say whatever occurs to them during jury deliberations.  If they harbor biases (whether racial or otherwise) and they feel comfortable sharing those biases, then there is a risk that other jurors may feel empowered to give expression to their own biases when they might otherwise have worked hard to avoid doing so. At one point during the oral argument, it was suggested that the ability to impeach the verdict with evidence of racial bias would drive such bias underground (i.e., inhibit jurors from expressing it during deliberations).  Justice Sotomayor had a very interesting response to this concern:
Well, why? Isn't -- you know, there's a lot of talk about political correctness or not. And some people think it's a negative thing, and others think it's a positive thing. But if an individual is harboring racial bias, isn't it better to harbor it than infect everyone else's deliberations on the basis of it?  I mean, if you're not saying every Mexican commits this kind of crime, but you're forced to argue the evidence to convince your jurors, isn't that exactly what we want? Don't we want deliberations on evidence and not deliberations on someone's stereotypes and feelings about the race of a defendant?
The same could be said of other types of bias.  If jurors feel somewhat inhibited about how they conduct themselves during deliberations, they may employ their "best selves" in carrying out their job of figuring out the case rather than giving voice to irrational and invidious ideas that juror secrecy emboldens them to express.  Perhaps "political correctness" in the jury room is not such a bad thing.

Let us now assume for argument's sake, however, that jury secrecy is good and that we want jurors to feel uninhibited during deliberations.  If so, then the rule prohibiting impeachment of a jury verdict will not necessarily be enough to protect jurors' freedom.  After all, when a juror expresses biases or other improper inclinations, other jurors are free to take note of that and to speak to people about it after the trial, even if they are not testifying on behalf of impeaching the verdict.  In Tanner v. United States, for example, jurors came forward and talked about the drunkenness of other jurors, and people learned about it notwithstanding its never coming in to impeach the verdict.  If a juror says something embarrassing or inappropriate, there is nothing to stop fellow jurors from publicizing that fact after the trial.  The rule therefore, rather than truly protecting secrecy, may simply be protecting questionable verdicts from challenges with evidence of bias.

When I teach Evidence, I tell my students that we strictly constrain the sorts of evidence that the jury may hear in the course of the trial, only to completely cloak the jury in secrecy and a kind of immunity once the case is submitted.  Perhaps this is wrong.  Maybe if we worry enough about juror error, bias, and other issues that we carefully design rules of evidence to limit what jurors see and hear, we ought to be willing to inhibit them in the jury room as well.  And even if we prefer not to inhibit them in that way, rules that preclude the impeachment of jury verdicts based on juror testimony will not necessarily give the jurors the freedom that we imagine.  Their fellow jurors, ultimately, can expose bigotry and other misbehavior that takes place in the jury room, whether or not such exposure results in the official impeachment of the verdict at issue.  So the rule may be both undesirable and ineffective in its objectives.


Greg said...

Does removing Jury Secrecy expose the Jury to potential criminal prosecution that the would not previously be?

For instance, I know what Jury Nullification is, and most of the time the actual law in question is not provided to the Jury. In the event I was asked to serve on a Jury I would be seriously tempted to look up the text of the law outside the record.

If I came into the Jury room and said "this is an unjust law" would I be exposing myself to criminal prosecution because someone could easily ask "how would you know, the law isn't in the record?"

On a separate note, juries don't want to be there. Every time you make their job harder, you make it more likely that the Jurors will just go along with the majority rather than actually do their job of considering the evidence. Making their deliberations public and thus requiring that they be very careful about what they say will definitely have a negative effect on the quality of deliberations.

The worst part is that people might start taking positions because their deliberations are public. If there's a racist on the jury, people might be prone to vote against them just to show that they're not a racist, not because they necessarily think that the racist is reaching the wrong conclusion. In a civil suit where one of the litigants is a potential employer for one of the jurors, the juror might be tempted to vote their way (or at least argue strongly for them) in order to secure a potential future job. The risk of these kinds of behaviors is much less if the jurors actions cannot be attributed to them as an individual.

Ultimately, the question becomes if you are more concerned about bad actors behaving badly or about good actors behaving in a way that protects themselves. While I recognize the first concern, I'm unconvinced that the second concern isn't greater.

Joe said...

I'm sympathetic to the Alito position though understand the concern for racism.

The thing is that there are people with racist beliefs out there along with other biases. Many will still be able, especially surrounded by eleven others, to result a fair result in a trial.

The only thing special here from what I can tell is the person was rather out in the open about it. But, even on that level, surely multiple juries had one or more people on it making rank stereotypical comments. I do wonder what the stopping point is. The 9th Circuit made sexual orientation a suspect class. Gender is covered by the "Batson" rule regarding peremptory challenges. Race is the worst, but why stop there?

If the case here is bad enough because the express racist or whatever comments taint the sanctity of the trial process, figure other cases involving different groups would as well. I'm wary about it.

Joe said...

"can expose bigotry and other misbehavior that takes place in the jury room"

That might be good in certain cases but merely citing prejudices of jurors is a rather fine line. Unless it is so blatantly clear the person can't judge the case correctly, which in itself is hard. Something like being drunk or something [e.g., if the person says she knows the defendant and should have been recused] is a less subjective thing so can understand that.

Paul Scott said...

I think a reasonable answer to both OP and Joe with regard to “why stop there” is that we know race plays a huge part in our criminal justice system. Statistics bear this out. A Black person across the board is more likely to be stopped, arrested, indicted and convicted on the same nexus of fact when compared to a Caucasian. This is a serious issue that needs to be corrected and it needs correction at all levels.

When the same evidence exists of systemic -isms with regard to other biases, then those should also be addressed. Right now I am not aware of substantial evidence that women or gays or atheists or left-handed persons are in a similar position. As such I would say losing the benefits of jury secrecy with regard to racial bias is worth it until statistics show that outcomes for Blacks in the criminal justice system are similar to Caucasians.

It is probably a good idea that all jury deliberations are reviewed for this sort of blatant bias. Using software as a screen and review by the sitting judge as a confirmation.

Joe said...

I agree Paul Scott on some level as a matter of scope but we don't just stop there in other cases. For challenges of jurors, e.g., the Supreme Court applied it to gender and one appeals court applied it to sexual orientation.

And, there are other biases in the criminal justice system. Gays still will tell you, more so in the past, that the laws were applied selectively to them. The same would apply in many cases to class -- poor whites in many cases will be selectively treated. In a specific case, this can be a compelling matter since it can cause the verdict to be deemed unjust. This would also arise in civil cases.

Part of my concern too is that we all have biases, including racial in nature to various degrees. Alito's "college" comment on what is PC probably seems harsh but is realistic. Just what is too far there? And, the result will also be people will still have such views, they just won't express them. Unsure if this is overly helpful -- it might be better for the other jurors to hear the racist remarks and determine "huh, I thought he or she had a point, but the conclusions are based on racism, so shouldn't be taken seriously."