Attempting Confidentiality Rules With Non-Professionals

by Sherry F. Colb

In my column for this week, I discuss the case of Peña-Rodriguez v. Colorado, which held that an evidence rule prohibiting jurors from testifying about their deliberations in a hearing to invalidate a verdict (a "no impeachment rule") had to give way to the Sixth Amendment right to an impartial jury in a case in which the jurors would have testified that one of the other jurors endorsed racial stereotypes and indicated, among other things, his view that the criminal defendant was guilty of sexual misconduct because he was Mexican.  In both the majority and dissenting opinions, the Supreme Court exhibits respect for the no-impeachment rule (a version of which exists in every jurisdiction in the United States), a rule which is intended to protect jurors from post-verdict harassment and enable jurors to speak their minds during deliberations without worrying that their statements might later become public.

In my column, I suggest that the no-impeachment rule does not do what the Court believes it does, given that jurors can talk about their deliberations outside of court and thereby give rise to the very chilling effect or harassment that the Court imagines would result only from eliminating the no-impeachment rule.  I  suggest that if we were truly concerned about keeping jury deliberations confidential, then we would require jurors to permanently keep secret everything that happens during jury deliberations.  In this post, I want to consider whether such a rule could actually work.

Imagine that instead of being told not to talk about a case on which they are sitting while the case is still in progress, jurors were instead instructed to keep everything said during deliberations a secret for the rest of their lives.  Unlike attorneys and other professionals who have a deep and abiding commitment to the confidentiality of their client's communications, jurors are by definition lay people rather than "professional jurors" and come to the job of juror with no special commitment to norms of confidentiality.  It is true that we expect jurors to refrain from discussing the case while it is still in progress.  But jurors can easily understand and follow the rationale for this requirement, because it implicates their obligation to decide the case with the other jurors rather than with their friends or other people with whom they might discuss the case.  Permanent confidentiality, on the other hand, seems to have a more attenuated connection with their job as jurors, because their term as jurors will have ended at the point at which they would be expected to fulfill their confidentiality duty.

On top of the weaker apparent link between permanent confidentiality and their job as jurors, members of the jury will likely be very tempted to talk to their significant others, friends, and children about their time as jurors.  After all, they are likely not connected to the justice system in any direct way and jury service would therefore have been a significant and potentially enlightening experience for them. Particularly if one of the other jurors said something shocking or disturbing--the sort of statement that the other juror would most like to be kept confidential-- other jurors will be very tempted to disclose these statements to others and perhaps even to a larger audience, if there is interest on the part of social media or radio or Television in what was said.

Another difference between professionals committed to confidentiality and jurors is that a professional who violates a duty of confidentiality may be disciplined for doing so.  A juror, on the other hand, is probably not going to be punished for failing to keep deliberations a secret.  Given the existing reasons people have for wanting to avoid jury service, it is easy to imagine that hearing that a juror was fined or otherwise penalized for talking about deliberations would add yet another reason to try to provide excuses to stay off a jury.  We cannot truly afford to alienate potential jurors by making their service a potential road to discipline if they do what comes naturally to most people and gossip about their experiences after the fact.

For an analogy, consider the setting of Alcoholics Anonymous.  The idea behind AA is that people can benefit enormously from sharing their struggles with others in a similar situation rather than (or at least in addition to) talking to a professional counselor.  In AA, there is a norm of confidentiality, and people are not supposed to talk to outsiders about what happens at meetings.  Yet despite this norm, it is hard to guarantee that every person who shows up at a meeting will be committed to the confidentiality norm and will be willing to forgo a good story if something comes up at the meeting that is salacious or otherwise interesting.  This is particularly so if a celebrity shows up at a meeting and discloses shocking facts about his or her life.  The gossip value of such information together with the lack of a professional commitment to confidentiality and the diffusion of responsibility with a large group of people combine to make disclosure a definite possibility.  And this is in a context in which, unlike on the jury, people really do make something of a personal commitment to secrecy when they attend meetings.

In short, though the best way to protect jurors' sense that they can speak freely on the jury may be a requirement of confidentiality after the verdict, it is hard to imagine that such a requirement will be observed in practice.  It is just too tempting for jurors to talk about their experiences, and their status as lay persons rather than professionals makes them unlikely to commit to confidentiality with the seriousness associated with professional norms of secrecy.  Any discipline, moreover, that would accompany a breach of the duty of confidentiality would likely deter people (who need no deterrent) from serving on juries in the first place.  Let us hope, then, that jurors feel free to speak openly and thoroughly about the cases before them, notwithstanding the fact that what they say could be revealed by another juror, whether or not the jurisdiction in which they serve has a robust "no-impeachment" rule.