Bias and Secrecy in the Jury Room

Bias and Secrecy in the Jury Room

Jillian Smith*

The demand for secrecy in jury deliberations has been held as a standard of the utmost importance for centuries:

Early notions that the jury should deliberate in secret were linked to the conception of the jury as an enigmatic, divinely inspired body. . . . [A]ny inquiry into the work of the jury would have been as “impious” as questioning the judgments of God. The jury, like the ordeals of water and fire that it replaced, was supposed to reach a verdict mysteriously.

Alison Markovitz, Jury Secrecy During Deliberations, 110 Yale L. J. 1493, 1505 (2001). In United States v. Thomas, the court asserted that “[t]he jury as we know it is supposed to reach its decisions in the mystery and security of secrecy; objections to the secrecy of jury deliberations are nothing less than objections to the jury system itself.” 116 F.3d 606, 619 (2nd Cir. 1997).

Lord Mansfield’s 1785 decision in Vaise v. Delaval first held that jurors would not be able to testify as to what was said and what transpired during deliberations for the purpose of impeaching a verdict. Paul Jeffrey Wallin, To Impeach or Not to Impeach, 4 Pepp. L. Rev. 343, 343 (1977). In that case, the jurors had reached their decision by a game of chance. Id. Despite the impropriety of the method, jurors were not called to recount the incident and the verdict stood. Id.

This common law rule of secrecy is codified in the Federal Rules of Evidence, which provide: “During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations . . . .” Fed. R. Evid. 606(b)(1). This rule is followed even when the behavior of the jurors is well beyond the line of what is socially acceptable. Famously, in Tanner v. United States, the Court did not allow jury testimony regarding the use of drugs and alcohol by many of the jurors throughout the duration of the trial. 483 U.S. 107, 107 (1987). More recently, the Court barred affidavits from a jury regarding the revelation during deliberation that one of the jurors had lied during voir dire. Warger v. Shauers, 135 S. Ct. 521, 525 (2014).

Jury verdicts have been largely impenetrable despite accusations of juror misconduct during deliberations. In the majority of state and federal courts, defense lawyers must rely on the pre-trial voir dire process to avoid a biased jury. Lyle Denniston, Race Bias in the Jury Room: What’s the Solution?, Const. Daily (Oct. 14, 2016), 10/race-bias-in-the-jury-room-whats-the-solution/. Most types of alleged juror prejudices have not been allowed as evidence to impeach a verdict. There are several states, however, which have allowed post-verdict juror testimony in cases where racial bias was alleged. See id.

The question of whether racially-biased statements made during jury deliberation may be used as evidence of an unfair trial was brought before the Supreme Court on October 11, 2016 in the case of Pena-Rodriguez v. Colorado. Nicholas Datlowe, Jury Room ‘Black Box’ Broken Open at Supreme Court, Bloomberg BNA (Oct. 13, 2016), Defendant Miguel Angel Pena-Rodriguez was convicted by a jury in 2010 of inappropriately touching teenage girls. Transcript of Oral Argument, Pena-Rodriguez v. Colorado (No. 15-606), 2016 WL 5920142 (Oct. 11, 2016).

After the verdict was delivered, multiple jurors came forward and said that one of their fellow jurors, a former police officer, had made racially charged statements during deliberations. See id. That juror allegedly said that the defendant was guilty “because he’s Mexican and Mexican men take whatever they want,” and have “a sense of entitlement to do what they wish with women.” Id. The same juror also said that “nine times out of ten, Mexican men were guilty of being aggressive toward women and young girls” based on his experience in law enforcement. Id. Attorneys for Pena-Rodriguez argued that those statements made in the jury room violated their client’s right to a fair trial under the Sixth Amendment. See id.

The Supreme Court agreed that racial bias in jury deliberations is a concern that cannot be overlooked. Adam Liptak, Supreme Court Weighs Bias and Secrecy in Jury Deliberations, N.Y. Times (Oct. 11, 2016), Justice Sonia Sotomayor said, “I always thought the most pernicious and odious discrimination in our law is based on race.” Id. However, some of the justices worried that allowing an exception for evidence regarding racial bias in jury deliberations may open the floodgates for questions regarding many other types of bias as well. AP Staff, Supreme Court Seems Favorable to Colorado Defendant Claiming Jury Race Bias, Denver Post (Oct. 11, 2016, 11:00 AM), Concerns were raised that widespread claims of juror discrimination based on sex, religious or political affiliation, or sexual orientation would follow if evidence of racial bias were allowed. See id.

Since the implementation of the Equal Protection Clause of the Fourteenth Amendment in 1868, the characteristics protected by anti-discrimination laws have expanded gradually to include not only race, but also other traits including national origin, sex, age, religion, disability, familial status, or sexual orientation. See Facts About Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, and Gender Identity, U.S. Equal Emp. Opportunity Comm’n,, (last visited Dec. 22, 2016). Several pieces of important anti-discrimination legislation have their roots in combatting the extreme and overt racial policies that existed throughout much of the history of the United States. The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act (Civil Rights Act of 1968) were all enacted with the primary intention of eliminating racial discrimination, but were also extended to include other protected classes. See Civil Rights Act, History,, (last visited Dec. 22, 2016).

The argument that allowing allegations of racial bias to penetrate the almighty secrecy of jury deliberations would lead to letting in evidence of other types of biases is not unfounded. There are many types of people who are likely to be on the receiving end of prejudice and are in need of legal protection based on an inherent trait that they have. Historically, laws that are enacted with the intention of protecting racial minorities have also been extended to many other protected classes. See id. The possibility of extending rights to other protected classes should not deter the Court from eliminating racial bias where it can. During oral arguments in Pena-Rodriguez, Justice Stephen Breyer said, “We’re trying to create a fairer system in general and one that will be perceived as such, and there race is a special problem.” Liptak, supra.

Although protecting jury deliberations has been a top priority since the inception of the American legal system, much of the population is aware that racial bias is pervasive in our criminal justice system. See Andrew Kahn & Chris Kirk, What It’s Like to Be Black in the Criminal Justice System, Slate (Aug. 9, 2015, 12:11 PM), From the aggressive and sometimes deadly arrests that have become so common in our nightly news to the less-publicized, but also devastating, differences in sentencing practices, it has become clear that racial minorities are not being treated the same as their white counterparts when dealing with the law. See id.

As Americans, we must ask ourselves which is more important: ensuring basic fairness in our legal system or upholding the traditions on which that system was founded? For some the answer is undoubtedly tradition. Recently, however, the American public has become increasingly aware of the racial disparities that still permeate our society in which every person is supposed to be treated equally. Catherine E. Shoichet, Is Racism on the Rise? More in U.S. Say It’s a ‘Big Problem,’ CNN/KFF Poll Finds, CNN (Nov. 25, 2015, 7:34 AM),

As awareness of racial discrimination has increased, minority and white citizens alike are now publicly proclaiming that they will no longer tolerate racial, or any other type, of discrimination. See id. Equality amongst citizens has once again taken the main stage in American culture. See id. There was concern expressed during oral argument of Pena-Rodriguez that removing the secrecy of jury deliberations when racial bias is alleged would open the doors for all types of discrimination claims that would overburden the courts. See AP Staff, supra. This has not been the case, however, in the eighteen states that do allow for such evidence. See id.

Lacking support that such claims would become too much for the courts to handle, the absolute protection of secrecy in jury deliberations has perhaps become an outdated tradition. We as a people have become more aware of and more averse to the ongoing extreme racial bias in the American justice system. See McLaughlin, supra. If we are truly committed to leveling the playing field as much as possible, we must attack every instance of racial discrimination in the legal system that we can. The fact that extending anti-discrimination laws and rulings to those that may experience prejudice based on reasons other than race should not be a deterrent from doing what is right, especially when it is unlikely to significantly burden the courts. If we are going to practice what we preach and live in an equal society, we must be willing to break with tradition when it is necessary for fairness. Whether the Supreme Court agrees remains to be seen. A decision in Pena-Rodriguez v. Colorado is expected by spring 2017. See AP Staff, supra.

* Jillian Smith is a second-year law student at the University of Baltimore School of Law, where she is a Royal Shannonhouse Scholar and staff editor for Law Review. In addition, she was a Law Scholar for Criminal Law during the fall semester of 2016.

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