Supreme Court Permits Some Light Into the Black Box of Jury Deliberations

Jury deliberations are the proverbial black box. After passively receiving the law, evidence, and arguments at a trial, the jurors will retire to discuss the case in secret. When they return with a verdict, no explanation will be required for their decision. Afterward, the jurors will normally be instructed that they need discuss the case with no one. The parties are left to wonder how well the jurors understood the governing law, attended to the key evidence, and faithfully attempted to apply the former to the latter.

Occasionally, the public catches some glimpse of what happens inside the black box. But when this happens, the law’s typical response echoes the famous admonition of the Wizard of Oz: “Pay no attention to the man behind the curtain!” This position is reflected in Federal Rule of Evidence 606(b), which generally prohibits jurors from testifying about their deliberations and thought processes when the validity of a verdict is challenged.

Although it seems perfectly sensible to discourage losing litigants from harassing jurors in the hope of uncovering errors, it is not so clear that the system benefits when judges are required to turn a blind eye to substantial evidence that a jury’s decisionmaking went off the rails. 

 

Consider, for instance, Tanner v. United States, 483 U.S. 107 (1987), in which the Supreme Court decided that a trial judge properly disregarded evidence from two jurors that several of their fellows had been drinking alcohol and consuming drugs throughout the trial. In so doing, the Court turned aside the defendant’s effort to carve an exception into Rule 606(b) for evidence of juror intoxication, questioning whether “the jury system could survive such efforts to perfect it.” Merely addressing the effects on jurors of consuming cocaine, marijuana, and pitchers of beer over lunch hardly strikes me as an effort to “perfect” the jury system, but such has been the resistance of the Court to opening the black box that even minimal assurances of due process have been sacrificed.

Finally, though, a limit to this resistance has been reached. Earlier this month, in Pena-Rodriguez v. Colorado, the Court decided that the Constitution may override Rule 606(b) (and analogous state laws) when racial bias has infected a verdict. More specifically, the Court held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that [Rule 606(b)] give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of [the right to an unbiased jury].”

Pena-Rodriguez himself was convicted by a jury of unlawful sexual contact and harassment based on his interactions with two teenage girls. After the trial, two jurors approached the defendant’s lawyer with information about a number of statements made by another juror, which seemed to indicate bias against Pena-Rodriguez. For instance, the juror allegedly said, “I think he did it because he’s Mexican and Mexican men take whatever they want.” However, after being informed of these statements, the trial judge refused to order a new trial in light of Colorado’s version of Rule 606(b).

In overturning the lower court’s decision, the Supreme Court distinguished both Tanner and another precedent, Warger v. Shauers, which had precluded consideration of a juror’s pro-defendant bias in a civil case. The Court emphasized the troubling history of racial discrimination in the American jury trial:

[R]acial bias [is] a familiar and recurring evil that, if left unaddressed, would risk systematic injury to the administration of justice. This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.

It is not hard to grant the premise—racial bias plainly does have a history that is different from any other type of bias in our legal system—but the Court’s efforts to distinguish Tanner and Warger nonetheless seem strained to me. The Court conceded, “All forms of improper bias pose challenges to the trial process.” Yet, the Court insisted, a constitutional rule is only appropriate in the racial-bias context because addressing only this type of bias “is necessary to prevent a systemic loss of confidence in jury verdicts.” But is that true? Are there not also potentially significant losses of confidence from many other types of juror misconduct, including intoxication (Tanner) and pro-defendant bias (Warger)?

In Pena-Rodriguez, the Court made clear that its decision does not give counsel a general right to examine jurors about their racial views after a verdict has been rendered; the holding seems limited to circumstances in which jurors voluntarily reveal statements indicating racial bias. But, in those circumstances, a little light may now be shown into the black box.

That initial step taken, the Court might do well to reconsider Tanner and Warger, and empower trial judges to address other sorts of serious post-verdict allegations of bias and misconduct, either as a matter of constitutional law or as a matter of interpretation of the rather opaque language of Rule 606(b). Better still, the Rule itself might be amended—probably a good idea anyway in light of Pena-Rodriguez—to establish clearer, broader exceptions to the general prohibition on the use of juror testimony to attack the validity of verdicts.