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.