PENA-RODRIGUEZ v. COLORADO
No. 15-606
SUPREME COURT OF THE UNITED STATES
Argued October 11, 2016—Decided March 6, 2017
580 U. S. ____ (2017)
CERTIORARI TO THE SUPREME COURT OF COLORADO
OCTOBER TERM, 2016
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 (1906).
SUPREME COURT OF THE UNITED STATES
Syllabus
PENA-RODRIGUEZ v. COLORADO
CERTIORARI TO THE SUPREME COURT OF COLORADO
No. 15-606. Argued October 11, 2016—Decided March 6, 2017
A Colorado jury convicted petitioner Peña-Rodriguez of harassment and unlawful sexual contact. Following the discharge of the jury, two jurors told defense counsel that, during deliberations, Juror H. C. had expressed anti-Hispanic bias toward petitioner and petitioner‘s alibi witness. Counsel, with the trial court‘s supervision, obtained affidavits from the two jurors describing a number of biased statements by H. C. The court acknowledged H. C.‘s apparent bias but denied petitioner‘s motion for a new trial on the ground that
Held: Where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror‘s statement and any resulting denial of the jury trial guarantee. Pp. 6-21.
(a) At common law jurors were forbidden to impeach their verdict, either by affidavit or live testimony. Some American jurisdictions adopted a more flexible version of the no-impeachment bar, known as the “Iowa rule,” which prevented jurors from testifying only about their own subjective beliefs, thoughts, or motives during deliberations. An alternative approach, later referred to as the federal ap-
The common-law development of the rule reached a milestone in 1975 when Congress adopted
(b) Some version of the no-impeachment rule is followed in every State and the District of Columbia, most of which follow the Federal Rule. At least 16 jurisdictions have recognized an exception for juror testimony about racial bias in deliberations. Three Federal Courts of Appeals have also held or suggested there is a constitutional exception for evidence of racial bias.
In addressing the common-law no-impeachment rule, this Court noted the possibility of an exception in the “gravest and most important cases.” United States v. Reid, supra, at 366; McDonald v. Pless, supra, at 269. The Court has addressed the question whether the Constitution mandates an exception to
(c) The imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments. “[T]he central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.” McLaughlin v. Florida, 379 U. S. 184, 192 (1964). Time and again, this Court has enforced the Constitution‘s guarantee against state-sponsored racial discrimination in the jury system. The Court has interpreted the Fourteenth Amendment to prohibit the exclusion of jurors based on race, Strauder v. West Virginia, 100 U. S. 303, 305-309 (1880); struck down laws and practices that systematically exclude racial minorities from juries, see, e.g., Neal v. Delaware, 103 U. S. 370 (1881); ruled that no litigant may exclude a prospective juror based on race, see, e.g., Batson v. Kentucky, 476 U. S. 79 (1986); and held that defendants may at times be entitled to ask about racial bias during voir dire, see, e.g., Ham v. South Carolina, 409 U. S. 524 (1973). The unmistakable principle of these precedents is that discrimination on the basis of race, “odious in all aspects, is especially pernicious in the administration of justice,” Rose v. Mitchell, 443 U. S. 545, 555 (1979), damaging “both the fact and the perception” of the jury‘s role as “a vital check against the wrongful exercise of power by the State,” Powers v. Ohio, 499 U. S. 400, 411 (1991). Pp. 13-15.
(d) This case lies at the intersection of the Court‘s decisions endorsing the no-impeachment rule and those seeking to eliminate racial bias in the jury system. Those lines of precedent need not conflict. Racial bias, unlike the behavior in McDonald, Tanner, or Warger, implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice. It is also distinct in a pragmatic sense, for the Tanner safeguards may be less effective in rooting out racial bias. But while all forms of improper bias pose challenges to the trial process, there is a sound basis to treat racial bias with added precaution. A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after a verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right. Pp. 15-17.
(e) Before the no-impeachment bar can be set aside to allow further judicial inquiry, there must be a threshold showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury‘s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror‘s vote
The practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel‘s post-trial contact with jurors. The experience of those jurisdictions that have already recognized a racial-bias exception to the no-impeachment rule, and the experience of courts going forward, will inform the proper exercise of trial judge discretion. The Court need not address what procedures a trial court must follow when confronted with a motion for a new trial based on juror testimony of racial bias or the appropriate standard for determining when such evidence is sufficient to require that the verdict be set aside and a new trial be granted. Standard and existing safeguards may also help prevent racial bias in jury deliberations, including careful voir dire and a trial court‘s instructions to jurors about their duty to review the evidence, deliberate together, and reach a verdict in a fair and impartial way, free from bias of any kind. Pp. 17-21.
350 P. 3d 287, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 15-606
MIGUEL ANGEL PENA-RODRIGUEZ, PETITIONER v. COLORADO
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO
[March 6, 2017]
JUSTICE KENNEDY delivered the opinion of the Court.
The jury is a central foundation of our justice system and our democracy. Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries, has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people.
In the era of our Nation‘s founding, the right to a jury trial already had existed and evolved for centuries, through and alongside the common law. The jury was considered a fundamental safeguard of individual liberty. See The Federalist No. 83, p. 451 (B. Warner ed. 1818) (A. Hamilton). The right to a jury trial in criminal cases was part of the Constitution as first drawn, and it was restated in the Sixth Amendment.
Like all human institutions, the jury system has its flaws, yet experience shows that fair and impartial verdicts can be reached if the jury follows the court‘s instructions and undertakes deliberations that are honest, candid, robust, and based on common sense. A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations. This principle, itself centuries old, is often referred to as the no-impeachment rule. The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.
I
State prosecutors in Colorado brought criminal charges against petitioner, Miguel Angel Peña-Rodriguez, based on the following allegations. In 2007, in the bathroom of a Colorado horse-racing facility, a man sexually assaulted two teenage sisters. The girls told their father and identified the man as an employee of the racetrack. The police located and arrested petitioner. Each girl separately identified petitioner as the man who had assaulted her.
The State charged petitioner with harassment, unlawful sexual contact, and attempted sexual assault on a child. Before the jury was empaneled, members of the venire were repeatedly asked whether they believed that they could be fair and impartial in the case. A written questionnaire asked if there was “anything about you that you feel would make it difficult for you to be a fair juror.” App.
After a 3-day trial, the jury found petitioner guilty of unlawful sexual contact and harassment, but it failed to reach a verdict on the attempted sexual assault charge. When the jury was discharged, the court gave them this instruction, as mandated by Colorado law:
“The question may arise whether you may now discuss this case with the lawyers, defendant, or other persons. For your guidance the court instructs you that whether you talk to anyone is entirely your own decision. If any person persists in discussing the case over your objection, or becomes critical of your service either before or after any discussion has begun, please report it to me.” Id., at 85–86.
Following the discharge of the jury, petitioner‘s counsel entered the jury room to discuss the trial with the jurors. As the room was emptying, two jurors remained to speak with counsel in private. They stated that, during deliberations, another juror had expressed anti-Hispanic bias toward petitioner and petitioner‘s alibi witness. Petitioner‘s counsel reported this to the court and, with the court‘s supervision, obtained sworn affidavits from the two jurors.
The affidavits by the two jurors described a number of biased statements made by another juror, identified as Juror H. C. According to the two jurors, H. C. told the other jurors that he “believed the defendant was guilty because, in [H. C.‘s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to
After reviewing the affidavits, the trial court acknowledged H. C.‘s apparent bias. But the court denied petitioner‘s motion for a new trial, noting that “[t]he actual deliberations that occur among the jurors are protected from inquiry under [Colorado Rule of Evidence] 606(b).” Id., at 90. Like its federal counterpart, Colorado‘s
“(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury‘s deliberations or to the effect of anything upon his or any other juror‘s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, (2) whether any out-
side influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror‘s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.” Colo. Rule Evid. 606(b) (2016) .
The verdict deemed final, petitioner was sentenced to two years’ probation and was required to register as a sex offender. A divided panel of the Colorado Court of Appeals affirmed petitioner‘s conviction, agreeing that H. C.‘s alleged statements did not fall within an exception to
The Colorado Supreme Court affirmed by a vote of 4 to 3. 350 P. 3d 287 (2015). The prevailing opinion relied on two decisions of this Court rejecting constitutional challenges to the federal no-impeachment rule as applied to evidence of juror misconduct or bias. See Tanner v. United States, 483 U. S. 107 (1987); Warger v. Shauers, 574 U. S. 40 (2014). After reviewing those precedents, the court could find no “dividing line between different types of juror bias or misconduct,” and thus no basis for permitting impeachment of the verdicts in petitioner‘s trial, notwithstanding H. C.‘s apparent racial bias. 350 P. 3d, at 293. This Court granted certiorari to decide whether there is a constitutional exception to the no-impeachment rule for instances of racial bias. 578 U. S. ____ (2016).
Juror H. C.‘s bias was based on petitioner‘s Hispanic identity, which the Court in prior cases has referred to as ethnicity, and that may be an instructive term here. See, e.g., Hernandez v. New York, 500 U. S. 352, 355 (1991) (plurality opinion). Yet we have also used the language of race when discussing the relevant constitutional principles in cases involving Hispanic persons. See, e.g., ibid.; Fisher v. University of Tex. at Austin, 570 U. S. 297 (2013); Rosales-Lopez v. United States, 451 U. S. 182, 189–190 (1981) (plurality opinion). Petitioner and respondent both refer to race, or to race and ethnicity, in this more expansive sense in their briefs to the Court. This opinion refers to the nature of the bias as racial in keeping with the primary terminology employed by the parties and used in our precedents.
II
A
At common law jurors were forbidden to impeach their verdict, either by affidavit or live testimony. This rule originated in Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B. 1785). There, Lord Mansfield excluded juror testimony that the jury had decided the case through a game of chance. The Mansfield rule, as it came to be known, prohibited jurors, after the verdict was entered, from testifying either about their subjective mental processes or about objective events that occurred during deliberations.
American courts adopted the Mansfield rule as a matter of common law, though not in every detail. Some jurisdictions adopted a different, more flexible version of the no-impeachment bar known as the “Iowa rule.” Under that rule, jurors were prevented only from testifying about their own subjective beliefs, thoughts, or motives during deliberations. See Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195 (1866). Jurors could, however, testify about objective facts and events occurring during deliberations, in part because other jurors could corroborate that testimony.
An alternative approach, later referred to as the federal approach, stayed closer to the original Mansfield rule. See Warger, supra, at ____ (slip op., at 5). Under this version of the rule, the no-impeachment bar permitted an exception only for testimony about events extraneous to the deliber-
This Court‘s early decisions did not establish a clear preference for a particular version of the no-impeachment rule. In United States v. Reid, 12 How. 361 (1852), the Court appeared open to the admission of juror testimony that the jurors had consulted newspapers during deliberations, but in the end it barred the evidence because the newspapers “had not the slightest influence” on the verdict. Id., at 366. The Reid Court warned that juror testimony “ought always to be received with great caution.” Ibid. Yet it added an important admonition: “cases might arise in which it would be impossible to refuse” juror testimony “without violating the plainest principles of justice.” Ibid.
In a following case the Court required the admission of juror affidavits stating that the jury consulted information that was not in evidence, including a prejudicial newspaper article. Mattox v. United States, 146 U. S. 140, 151 (1892). The Court suggested, furthermore, that the admission of juror testimony might be governed by a more flexible rule, one permitting jury testimony even where it did not involve consultation of prejudicial extraneous information. Id., at 148-149; see also Hyde v. United States, 225 U. S. 347, 382-384 (1912) (stating that the more flexible Iowa rule “should apply,” but excluding evidence that the jury reached the verdict by trading certain defendants’ acquittals for others’ convictions).
Later, however, the Court rejected the more lenient Iowa rule. In McDonald v. Pless, 238 U. S. 264 (1915), the Court affirmed the exclusion of juror testimony about objective events in the jury room. There, the jury allegedly had calculated a damages award by averaging the numerical submissions of each member. Id., at 265–266. As the Court explained, admitting that evidence would
The common-law development of the no-impeachment rule reached a milestone in 1975, when Congress adopted the Federal Rules of Evidence, including
The version of the rule that Congress adopted was “no accident.” Warger, 574 U. S., at ____ (slip op., at 7). The Advisory Committee at first drafted a rule reflecting the Iowa approach, prohibiting admission of juror testimony only as it related to jurors’ mental processes in reaching a verdict. The Department of Justice, however, expressed concern over the preliminary rule. The Advisory Committee then drafted the more stringent version now in effect, prohibiting all juror testimony, with exceptions only where the jury had considered prejudicial extraneous evidence or was subject to other outside influence. Rules of Evidence for United States Courts and Magistrates, 56 F. R. D. 183, 265 (1972). The Court adopted this second version and transmitted it to Congress.
The House favored the Iowa approach, but the Senate expressed concern that it did not sufficiently address the public policy interest in the finality of verdicts. S. Rep. No. 93-1277, pp. 13–14 (1974). Siding with the Senate, the Conference Committee adopted, Congress enacted, and the President signed the Court‘s proposed rule. The sub-
The current version of
“(1) Prohibited Testimony or Other Evidence. 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; the effect of anything on that juror‘s or another juror‘s vote; or any juror‘s mental processes concerning the verdict or indictment. The court may not receive a juror‘s affidavit or evidence of a juror‘s statement on these matters.
“(2) Exceptions. A juror may testify about whether:
“(A) extraneous prejudicial information was improperly brought to the jury‘s attention;
“(B) an outside influence was improperly brought to bear on any juror; or
“(C) a mistake was made in entering the verdict on the verdict form.”
This version of the no-impeachment rule has substantial merit. It promotes full and vigorous discussion by providing jurors with considerable assurance that after being discharged they will not be summoned to recount their deliberations, and they will not otherwise be harassed or annoyed by litigants seeking to challenge the verdict. The rule gives stability and finality to verdicts.
B
Some version of the no-impeachment rule is followed in every State and the District of Columbia. Variations make classification imprecise, but, as a general matter, it appears that 42 jurisdictions follow the Federal Rule, while 9 follow the Iowa Rule. Within both classifications there is a diversity of approaches. Nine jurisdictions that
The federal courts, for their part, are governed by
C
In addressing the scope of the common-law no-impeachment rule before
In its first case, Tanner, 483 U. S. 107, the Court rejected a Sixth Amendment exception for evidence that some jurors were under the influence of drugs and alcohol during the trial. Id., at 125. Central to the Court‘s reasoning were the “long-recognized and very substantial concerns” supporting “the protection of jury deliberations from intrusive inquiry.” Id., at 127. The Tanner Court echoed McDonald‘s concern that, if attorneys could use juror testimony to attack verdicts, jurors would be “harassed and beset by the defeated party,” thus destroying “all frankness and freedom of discussion and conference.” 483 U. S., at 120 (quoting McDonald, supra, at 267-268). The Court was concerned, moreover, that attempts to impeach a verdict would “disrupt the finality of the process” and undermine both “jurors’ willingness to return an unpopular verdict” and “the community‘s trust in a system that relies on the decisions of laypeople.” 483 U. S., at 120–121.
The Tanner Court outlined existing, significant safeguards for the defendant‘s right to an impartial and competent jury beyond post-trial juror testimony. At the outset of the trial process, voir dire provides an opportunity for the court and counsel to examine members of the venire for impartiality. As a trial proceeds, the court, counsel, and court personnel have some opportunity to
The second case to consider the general issue presented here was Warger, 574 U. S. 40. The Court again rejected the argument that, in the circumstances there, the jury trial right required an exception to the no-impeachment rule. Warger involved a civil case where, after the verdict was entered, the losing party sought to proffer evidence that the jury forewoman had failed to disclose prodefendant bias during voir dire. As in Tanner, the Court put substantial reliance on existing safeguards for a fair trial. The Court stated: “Even if jurors lie in voir dire in a way that conceals bias, juror impartiality is adequately assured by the parties’ ability to bring to the court‘s attention any evidence of bias before the verdict is rendered, and to employ nonjuror evidence even after the verdict is rendered.” 574 U. S., at ____ (slip op., at 10).
In Warger, however, the Court did reiterate that the no-impeachment rule may admit exceptions. As in Reid and McDonald, the Court warned of “juror bias so extreme that, almost by definition, the jury trial right has been abridged.” 574 U. S., at ____, n. 3 (slip op., at 10–11, n. 3). “If and when such a case arises,” the Court indicated it would “consider whether the usual safeguards are or are not sufficient to protect the integrity of the process.” Ibid.
The recognition in Warger that there may be extreme cases where the jury trial right requires an exception to
III
It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons. This imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments.
“[T]he central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.” McLaughlin v. Florida, 379 U. S. 184, 192 (1964). In the years before and after the ratification of the Fourteenth Amendment, it became clear that racial discrimination in the jury system posed a particular threat both to the promise of the Amendment and to the integrity of the jury trial. “Almost immediately after the Civil War, the South began a practice that would continue for many decades: All-white juries punished black defendants particularly harshly, while simultaneously refusing to punish violence by whites, including Ku Klux Klan members, against blacks and Republicans.” Forman, Juries and Race in the Nineteenth Century, 113 Yale L. J. 895, 909–910 (2004). To take one example, just in the years 1865 and 1866, all-white juries in Texas decided a total of 500 prosecutions of white defendants
The duty to confront racial animus in the justice system is not the legislature‘s alone. Time and again, this Court has been called upon to enforce the Constitution‘s guarantee against state-sponsored racial discrimination in the jury system. Beginning in 1880, the Court interpreted the Fourteenth Amendment to prohibit the exclusion of jurors on the basis of race. Strauder v. West Virginia, 100 U. S. 303, 305-309 (1880). The Court has repeatedly struck down laws and practices that systematically exclude racial minorities from juries. See, e.g., Neal v. Delaware, 103 U. S. 370 (1881); Hollins v. Oklahoma, 295 U. S. 394 (1935) (per curiam); Avery v. Georgia, 345 U. S. 559 (1953); Hernandez v. Texas, 347 U. S. 475 (1954); Castaneda v. Partida, 430 U. S. 482 (1977). To guard against discrimination in jury selection, the Court has ruled that no litigant may exclude a prospective juror on the basis of race. Batson v. Kentucky, 476 U. S. 79 (1986); Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v. McCollum, 505 U. S. 42 (1992). In an effort to ensure that individuals who sit on juries are free of racial bias, the Court has held that the Constitution at times demands that defendants be permitted to ask questions about racial bias during voir dire. Ham v. South Carolina, 409 U. S. 524 (1973); Rosales-Lopez, 451 U. S. 182; Turner v. Murray, 476 U. S. 28 (1986).
IV
A
This case lies at the intersection of the Court‘s decisions endorsing the no-impeachment rule and its decisions seeking to eliminate racial bias in the jury system. The two lines of precedent, however, need not conflict.
Racial bias of the kind alleged in this case differs in critical ways from the compromise verdict in McDonald, the drug and alcohol abuse in Tanner, or the prodefendant bias in Warger. The behavior in those cases is troubling and unacceptable, but each involved anomalous behavior from a single jury—or juror—gone off course. Jurors are presumed to follow their oath, cf. Penry v. Johnson, 532 U. S. 782, 799 (2001), and neither history nor common experience show that the jury system is rife with mischief of these or similar kinds. To attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. “It is not at all clear . . . that the jury system could survive such efforts to perfect it.” Tanner, 483 U. S., at 120.
The same cannot be said about racial bias, a familiar and recurring evil that, if left unaddressed, would risk
Racial bias is distinct in a pragmatic sense as well. In past cases this Court has relied on other safeguards to protect the right to an impartial jury. Some of those safeguards, to be sure, can disclose racial bias. Voir dire at the outset of trial, observation of juror demeanor and conduct during trial, juror reports before the verdict, and nonjuror evidence after trial are important mechanisms for discovering bias. Yet their operation may be compromised, or they may prove insufficient. For instance, this Court has noted the dilemma faced by trial court judges and counsel in deciding whether to explore potential racial bias at voir dire. See Rosales-Lopez, supra; Ristaino v. Ross, 424 U. S. 589 (1976). Generic questions about juror impartiality may not expose specific attitudes or biases that can poison jury deliberations. Yet more pointed questions “could well exacerbate whatever prejudice might exist without substantially aiding in exposing it.” Rosales-Lopez, supra, at 195 (Rehnquist, J., concurring in result).
The stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the course of juror deliberations. It is one thing to accuse a fellow juror of having a personal experience that improperly influences her consideration of the case, as would have been required in Warger. It is quite another to call her a bigot.
The recognition that certain of the Tanner safeguards may be less effective in rooting out racial bias than other
B
For the reasons explained above, the Court now holds 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
Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury‘s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror‘s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.
The practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel‘s post-trial contact with jurors. See 27 C. Wright & V. Gold, Federal Practice and Proce- dure: Evidence §6076, pp. 580–583 (2d ed. 2007) (Wright); see also Variations of ABA Model Rules of Professional Conduct, Rule 3.5 (Sept. 15, 2016) (overview of state ethics rules); 2 Jurywork Systematic Techniques §13:18 (2016–2017) (overview of Federal District Court rules). These limits seek to provide jurors some protection when they return to their daily affairs after the verdict has been entered. But while a juror can always tell counsel they do not wish to discuss the case, jurors in some instances may come forward of their own accord.
That is what happened here. In this case the alleged statements by a juror were egregious and unmistakable in their reliance on racial bias. Not only did juror H. C. deploy a dangerous racial stereotype to conclude petitioner was guilty and his alibi witness should not be believed, but he also encouraged other jurors to join him in convicting on that basis.
Petitioner‘s counsel did not seek out the two jurors’ allegations of racial bias. Pursuant to Colorado‘s mandatory jury instruction, the trial court had set limits on juror contact and encouraged jurors to inform the court if anyone harassed them about their role in the case. Similar limits on juror contact can be found in other jurisdictions that recognize a racial-bias exception. See, e.g., Fla. Standard Jury Instrs. in Crim. Cases No. 4.2 (West 2016) (“Although you are at liberty to speak with anyone about your deliberations, you are also at liberty to refuse to speak to anyone“); Mass. Office of Jury Comm‘r, Trial Juror‘s Handbook (Dec. 2015) (“You are not required to speak with anyone once the trial is over. . . . If anyone tries to learn this confidential information from you, or if you feel harassed or embarrassed in any way, you should report it to the court . . . immediately“); N. J. Crim. Model Jury Charges, Non 2C Charges, Dismissal of Jury (2014) (“It will be up to each of you to decide whether to speak about your service as a juror“).
While the trial court concluded that Colorado‘s
C
As the preceding discussion makes clear, the Court relies on the experiences of the 17 jurisdictions that have recognized a racial-bias exception to the no-impeachment rule—some for over half a century—with no signs of an increase in juror harassment or a loss of juror willingness to engage in searching and candid deliberations.
The experience of these jurisdictions, and the experience of the courts going forward, will inform the proper exercise of trial judge discretion in these and related matters. This case does not ask, and the Court need not address, what procedures a trial court must follow when confronted with a motion for a new trial based on juror testimony of racial
D
It is proper to observe as well that there are standard and existing processes designed to prevent racial bias in jury deliberations. The advantages of careful voir dire have already been noted. And other safeguards deserve mention.
Trial courts, often at the outset of the case and again in their final jury instructions, explain the jurors’ duty to review the evidence and reach a verdict in a fair and impartial way, free from bias of any kind. Some instructions are framed by trial judges based on their own learning and experience. Model jury instructions likely take into account these continuing developments and are common across jurisdictions. See, e.g., 1A K. O‘Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal §10:01, p. 22 (6th ed. 2008) (“Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way“). Instructions may emphasize the group dynamic of deliberations by urging jurors to share their questions and conclusions with their colleagues. See, e.g., id., §20:01, at 841 (“It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so without violence to individual judgment“).
Probing and thoughtful deliberation improves the likeli-
*
*
*
The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court‘s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.
The judgment of the Supreme Court of Colorado is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Codified Exceptions in Addition to Those Enumerated in Fed. Rule Evid. 606(b)
See
Judicially Recognized Exceptions for Evidence of Racial Bias
See State v. Santiago, 245 Conn. 301, 323-340, 715 A. 2d 1, 14-22 (1998); Kittle v. United States, 65 A. 3d 1144, 1154-1556 (D. C. 2013); Fisher v. State, 690 A. 2d 917, 919-921, and n. 4 (Del. 1996) (Appendix to opinion), Powell v. Allstate Ins. Co., 652 So. 2d 354, 357–358 (Fla. 1995); Spencer v. State, 260 Ga. 640, 643-644, 398 S. E. 2d 179, 184-185 (1990); State v. Jackson, 81 Haw. 39, 48-49, 912 P. 2d 71, 80–81 (1996); Commonwealth v. Laguer, 410 Mass. 89, 97–98, 571 N. E. 2d 371, 376 (1991); State v. Callender, 297 N. W. 2d 744, 746 (Minn. 1980); Fleshner v. Pepose Vision Inst., P. C., 304 S. W. 3d 81, 87-90 (Mo. 2010); State v. Levitt, 36 N. J. 266, 271–273, 176 A. 2d 465, 467-468 (1961); People v. Rukaj, 123 App. Div. 2d 277, 280-281, 506 N. Y. S. 2d 677, 679-680 (1986); State v. Hidanovic, 2008 ND 66, ¶¶21-26, 747 N. W. 2d 463, 472-474; State v. Brown, 62 A. 3d 1099, 1110 (R. I. 2013); State v. Hunter, 320 S. C. 85, 88, 463 S. E. 2d 314, 316 (1995); Seattle v. Jackson, 70 Wash. 2d 733, 738, 425 P. 2d 385, 389 (1967); After Hour Welding, Inc. v. Laneil Management Co., 108 Wis. 2d 734, 739–740, 324 N. W. 2d 686, 690 (1982).
JUSTICE THOMAS, dissenting.
The Court today holds that the
I
The
The
II
The common-law right to a jury trial did not, however, guarantee a defendant the right to impeach a jury verdict with juror testimony about juror misconduct, including “a principal species of [juror] misbehaviour“—“notorious partiality.” 3 Blackstone 388. Although partiality was a ground for setting aside a jury verdict, ibid., the English common-law rule at the time the
At the time of the founding, the States took mixed approaches to this issue. See Cluggage v. Swan, 4 Binn. 150, 156 (Pa. 1811) (opinion of Yeates, J.) (“The opinions of American judges . . . have greatly differed on the point in question“); Bishop v. Georgia, 9 Ga. 121, 126 (1850) (describing the common law in 1776 on this question as “in a transition state“). Many States followed Lord Mansfield‘s no-impeachment rule and refused to receive juror affidavits. See, e.g., Brewster v. Thompson, 1 N. J. L. 32 (1790) (per curiam); Robbins v. Windover, 2 Tyl. 11, 14 (Vt. 1802); Taylor v. Giger, 3 Ky. 586, 597-598 (1808); Price v. McIlvain, 2 Tread. 503, 504 (S. C. 1815); Tyler v. Stevens, 4 N. H. 116, 117 (1827); 1 Z. Swift, A Digest of the Laws of the State of Connecticut 775 (1822) (“In England, and in the courts of the United States, jurors are not permitted to be witnesses respecting the misconduct of the jury . . . and this is, most unquestionably, the correct principle“). Some States, however, permitted juror affidavits about juror misconduct. See, e.g., Crawford v. State, 10 Tenn. 60, 68 (1821); Cochran v. Street, 1 Va. 79, 81 (1792). And others initially permitted such evidence but quickly reversed course. Compare, e.g., Smith v. Cheetham, 3 Cai. R. 57, 59–60 (N. Y. 1805) (opinion of Livingston, J.) (permitting juror testimony), with Dana v. Tucker, 4 Johns. 487, 488-489 (N. Y. 1809) (per curiam) (overturning Cheetham); compare also Bradley‘s Lessee v. Bradley, 4 Dall. 112 (Pa. 1792) (permitting juror affidavits), with, e.g., Cluggage, supra, at 156–158 (opinion of Yeates, J.) (explaining that Bradley was incorrectly reported and rejecting affidavits); compare also Talmadge v. Northrop, 1 Root 522 (Conn. 1793) (admitting juror testimony), with State v. Freeman, 5 Conn. 348, 350-352 (1824) (“The opinion of almost the whole legal world is adverse to the reception of the testimony in question; and, in my opinion, on invincible foundations“).
By the time the
The Court today acknowledges that the States “adopted the Mansfield rule as a matter of common law,” ante, at 6, but ascribes no significance to that fact. I would hold that it is dispositive. Our common-law history does not establish that—in either 1791 (when the
*
*
*
Perhaps good reasons exist to curtail or abandon the no-impeachment rule. Some States have done so, see Appendix to majority opinion, ante, and others have not. Ulti-
I respectfully dissent.
JUSTICE ALITO, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.
Our legal system has many rules that restrict the admission of evidence of statements made under circumstances in which confidentiality is thought to be essential. Statements made to an attorney in obtaining legal advice, statements to a treating physician, and statements made to a spouse or member of the clergy are familiar examples. See Trammel v. United States, 445 U. S. 40, 51 (1980). Even if a criminal defendant whose constitutional rights are at stake has a critical need to obtain and introduce evidence of such statements, long-established rules stand in the way. The goal of avoiding interference with confidential communications of great value has long been thought to justify the loss of important evidence and the effect on our justice system that this loss entails.
The present case concerns a rule like those just mentioned, namely, the age-old rule against attempting to overturn or “impeach” a jury‘s verdict by offering statements made by jurors during the course of deliberations. For centuries, it has been the judgment of experienced judges, trial attorneys, scholars, and lawmakers that allowing jurors to testify after a trial about what took place in the jury room would undermine the system of trial by jury that is integral to our legal system.
When jurors retire to deliberate, however, they enter a space that is not regulated in the same way. Jurors are ordinary people. They are expected to speak, debate, argue, and make decisions the way ordinary people do in their daily lives. Our Constitution places great value on this way of thinking, speaking, and deciding. The jury trial right protects parties in court cases from being judged by a special class of trained professionals who do not speak the language of ordinary people and may not understand or appreciate the way ordinary people live their lives. To protect that right, the door to the jury room has been locked, and the confidentiality of jury deliberations has been closely guarded.
Today, with the admirable intention of providing justice for one criminal defendant, the Court not only pries open the door; it rules that respecting the privacy of the jury room, as our legal system has done for centuries, violates the Constitution. This is a startling development, and although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today‘s holding.
The Court justifies its decision on the ground that the nature of the confidential communication at issue in this particular case—a clear expression of what the Court terms racial bias1—is uniquely harmful to our criminal
Suppose that a prosecution witness gives devastating but false testimony against a defendant, and suppose that the witness‘s motivation is racial bias. Suppose that the witness admits this to his attorney, his spouse, and a member of the clergy. Suppose that the defendant, threatened with conviction for a serious crime and a lengthy term of imprisonment, seeks to compel the attorney, the spouse, or the member of the clergy to testify about the witness‘s admissions. Even though the constitutional rights of the defendant hang in the balance, the defendant‘s efforts to obtain the testimony would fail. The Court provides no good reason why the result in this case should not be the same.
I
Rules barring the admission of juror testimony to impeach a verdict (so-called “no-impeachment rules“) have a long history. Indeed, they pre-date the ratification of the Constitution. They are typically traced back to Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B. 1785), in which Lord Mansfield declined to consider an affidavit from two jurors who claimed that the jury had reached its verdict by lot. See Warger v. Shauers, 574 U. S. 409, 413 (2014). Lord Mansfield‘s approach “soon took root in the United States,” ibid., and “[b]y the beginning of [the 20th] century, if not earlier, the near-universal and firmly established common-law rule in the
In McDonald v. Pless, 238 U. S. 264 (1915), this Court adopted a strict no-impeachment rule for cases in federal court. McDonald involved allegations that the jury had entered a quotient verdict—that is, that it had calculated a damages award by taking the average of the jurors’ suggestions. Id., at 265-266. The Court held that evidence of this misconduct could not be used. Id., at 269. It applied what it said was “unquestionably the general rule, that the losing party cannot, in order to secure a new trial, use the testimony of jurors to impeach their verdict.” Ibid. The Court recognized that the defendant had a powerful interest in demonstrating that the jury had “adopted an arbitrary and unjust method in arriving at their verdict.” Id., at 267. “But,” the Court warned, “let it once be established that verdicts . . . can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding.” Ibid. This would lead to “harass[ment]” of jurors and “the destruction of all frankness and freedom of discussion and conference.” Id., at 267-268. Ultimately, even though the no-impeachment rule “may often exclude the only possible evidence of misconduct,” relaxing the rule “would open the door to the most pernicious arts and tampering with jurors.” Id., at 268 (internal quotation marks omitted).
The firm no-impeachment approach taken in McDonald came to be known as “the federal rule.” This approach categorically bars testimony about jury deliberations, except where it is offered to demonstrate that the jury was
Some jurisdictions, notably Iowa, adopted a more permissive rule. Under the Iowa rule, jurors were generally permitted to testify about any subject except their “subjective intentions and thought processes in reaching a verdict.” Warger, supra, at 413. Accordingly, the Iowa rule allowed jurors to “testify as to events or conditions which might have improperly influenced the verdict, even if these took place during deliberations within the jury room.” 27 Wright & Gold §6071, at 432.
Debate between proponents of the federal rule and the Iowa rule emerged during the framing and adoption of
An early draft of the Advisory Committee on the Federal Rules of Evidence included a version of the Iowa rule, 51 F. R. D. 315, 387–388 (1971). That draft was forcefully criticized, however,3 and the Committee ultimately pro-
Initially, the House rejected this Court‘s version of
As this summary shows, the process that culminated in the adoption of
Colorado considered this same question, made the same judgment as the participants in the federal process, and adopted a very similar rule. In doing so, it joined the overwhelming majority of States. Ante, at 9. In the great majority of jurisdictions, strong no-impeachment rules continue to be “viewed as both promoting the finality of verdicts and insulating the jury from outside influences.”
II
A
Recognizing the importance of
The Tanner petitioners were convicted of committing mail fraud and conspiring to defraud the United States. 483 U. S., at 109–110, 112–113. After the trial, two jurors came forward with disturbing stories of juror misconduct. One claimed that several jurors “consumed alcohol during lunch breaks . . . causing them to sleep through the afternoons.” Id., at 113. The second added that jurors also smoked marijuana and ingested cocaine during the trial. Id., at 115–116. This Court held that evidence of this bacchanalia could properly be excluded under
The Court noted that “[s]ubstantial policy considerations support the common-law rule against the admission of jury testimony to impeach a verdict.” Id., at 119. While there is “little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior,” the Court observed, it is “not at all clear . . . that the jury system could survive such efforts to perfect it.” Id., at 120. Allowing such post-verdict inquiries would “seriously disrupt the finality of the process.” Ibid. It would also undermine “full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community‘s trust in a system that relies on the decisions of laypeople.” Id., at 120–121.
The Tanner petitioners, of course, had a
The Court identified four mechanisms that protect defendants’
Warger involved a negligence suit arising from a motorcycle crash. 574 U. S., at ___ (slip op., at 1). During voir dire, the individual who eventually became the jury‘s foreperson said that she could decide the case fairly and impartially. Id., at ___ (slip op., at 2). After the jury returned a verdict in favor of the defendant, one of the jurors came forward with evidence that called into question the truthfulness of the foreperson‘s responses during voir dire. According to this juror, the foreperson revealed during the deliberations that her daughter had once caused a deadly car crash, and the foreperson expressed the belief that a lawsuit would have ruined her daughter‘s life. Ibid.
Tanner and Warger fit neatly into this Court‘s broader jurisprudence concerning the constitutionality of evidence rules. As the Court has explained, “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” Holmes v. South Carolina, 547 U. S. 319, 324 (2006) (internal quotation marks and alteration omitted). Thus, evidence rules of this sort have been invalidated only if they “serve no legitimate purpose or are disproportionate to the ends that they are asserted to promote.” Id., at 326. Tanner and Warger recognized that
Today, for the first time, the Court creates a constitutional exception to no-impeachment rules. Specifically, the Court holds that no-impeachment rules violate the
Tanner and Warger rested on two basic propositions. First, no-impeachment rules advance crucial interests. Second, the right to trial by an impartial jury is adequately protected by mechanisms other than the use of juror testimony regarding jury deliberations. The first of these propositions applies regardless of the nature of the juror misconduct, and the Court does not argue otherwise. Instead, it contends that, in cases involving racially biased jurors, the Tanner safeguards are less effective and the defendant‘s
B
As noted above, Tanner identified four “aspects of the trial process” that protect a defendant‘s
1
First, the Court contends that the effectiveness of voir dire is questionable in cases involving racial bias because
The suggestion that voir dire is ineffective in unearthing bias runs counter to decisions of this Court holding that voir dire on the subject of race is constitutionally required in some cases, mandated as a matter of federal supervisory authority in others, and typically advisable in any case
In any event, the critical point for present purposes is that the effectiveness of voir dire is a debatable empirical proposition. Its assessment should be addressed in the process of developing federal and state evidence rules. Federal and state rulemakers can try a variety of approaches, and they can make changes in response to the insights provided by experience and research. The approach taken by today‘s majority—imposing a federal constitutional rule on the entire country—prevents experimentation and makes change exceedingly hard.10
The majority also argues—even more cursorily—that “racial bias may make it difficult for a juror to report inappropriate statements during the course of juror deliberations.” Ante, at 16. This is so, we are told, because it is difficult to “call [another juror] a bigot.” Ibid.
Since the Court‘s decision mandates the admission of the testimony of one juror about a statement made by another juror during deliberations, what the Court must mean in making this argument is that jurors are less willing to report biased comments by fellow jurors prior to the beginning of deliberations (while they are still sitting with the biased juror) than they are after the verdict is announced and the jurors have gone home. But this is also a questionable empirical assessment, and the Court‘s seat-of-the-pants judgment is no better than that of those with the responsibility of drafting and adopting federal and state evidence rules. There is no question that jurors do report biased comments made by fellow jurors prior to the beginning of deliberations. See, e.g., United States v. McClinton, 135 F. 3d 1178, 1184–1185 (CA7 1998); United States v. Heller, 785 F. 2d 1524, 1525–1529 (CA11 1986); Tavares v. Holbrook, 779 F. 2d 1, 1–3 (CA1 1985) (Breyer, J.); see Brief for Respondent 31–32, n. 10; Brief for United States as Amicus Curiae 31. And the Court marshals no evidence that such pre-deliberation reporting is rarer than the post-verdict variety.
Even if there is something to the distinction that the Court makes between pre- and post-verdict reporting, it is debatable whether the difference is significant enough to merit different treatment. This is especially so because post-verdict reporting is both more disruptive and may be the result of extraneous influences. A juror who is ini
In short, the Court provides no good reason to depart from the calculus made in Tanner and Warger. Indeed, the majority itself uses hedged language and appears to recognize that this “pragmatic” argument is something of a makeweight. Ante, at 16–17 (noting that the argument is “not dispositive“); ante, at 16 (stating that the operation of the safeguards “may be compromised, or they may prove insufficient“).
III
A
The real thrust of the majority opinion is that the Constitution is less tolerant of racial bias than other forms of juror misconduct, but it is hard to square this argument with the nature of the
Nor has the Court found any decision of this Court suggesting that the
It is undoubtedly true that “racial bias implicates unique historical, constitutional, and institutional concerns.” Ante, at 16. But it is hard to see what that has to do with the scope of an individual criminal defendant‘s
Imagine two cellmates serving lengthy prison terms. Both were convicted for homicides committed in unrelated barroom fights. At the trial of the first prisoner, a juror, during deliberations, expressed animosity toward the defendant because of his race. At the trial of the second prisoner, a juror, during deliberations, expressed animosity toward the defendant because he was wearing the jersey of a hated football team. In both cases, jurors come forward after the trial and reveal what the biased juror said in the jury room. The Court would say to the first prisoner: “You are entitled to introduce the jurors’ testimony, because racial bias is damaging to our society.” To the second, the Court would say: “Even if you did not have an impartial jury, you must stay in prison because sports rivalries are not a major societal issue.”
This disparate treatment is unsupportable under the
B
Recasting this as an equal protection case would not provide a ground for limiting the holding to cases involving racial bias. At a minimum, cases involving bias based on any suspect classification—such as national origin13 or
Attempting to limit the damage worked by its decision, the Court says that only “clear” expressions of bias must be admitted, ante, at 17, but judging whether a statement is sufficiently “clear” will often not be easy. Suppose that the allegedly biased juror in this case never made reference to Pena-Rodriguez‘s race or national origin but said that he had a lot of experience with “this macho type” and knew that men of this kind felt that they could get their way with women. Suppose that other jurors testified that they were certain that “this macho type” was meant to refer to Mexican or Hispanic men. Many other similarly suggestive statements can easily be imagined, and under today‘s decision it will be difficult for judges to discern the dividing line between those that are “clear[ly]” based on racial or ethnic bias and those that are at least somewhat ambiguous.
IV
Today‘s decision—especially if it is expanded in the ways that seem likely—will invite the harms that no-impeachment rules were designed to prevent.
First, as the Court explained in Tanner, “postverdict scrutiny of juror conduct” will inhibit “full and frank dis
Today‘s ruling will also prompt losing parties and their friends, supporters, and attorneys to contact and seek to question jurors, and this pestering may erode citizens’ willingness to serve on juries. Many jurisdictions now have rules that prohibit or restrict post-verdict contact with jurors, but whether those rules will survive today‘s decision is an open question—as is the effect of this decision on privilege rules such as those noted at the outset of this opinion.15
Where post-verdict approaches are permitted or occur,
The majority‘s approach will also undermine the finality of verdicts. “Public policy requires a finality to litigation.” S. Rep., at 14. And accusations of juror bias—which may be “raised for the first time days, weeks, or months after the verdict“—can “seriously disrupt the finality of the process.” Tanner, supra, at 120. This threatens to “degrad[e] the prominence of the trial itself” and to send the message that juror misconduct need not be dealt with promptly. Engle v. Isaac, 456 U. S. 107, 127 (1982). See H. R. Conf. Rep. No. 93–1597, at 8 (“The Conferees believe that jurors should be encouraged to be conscientious in promptly reporting to the court misconduct that occurs during jury deliberations“).
The Court itself acknowledges that strict no-impeachment rules “promot[e] full and vigorous discussion,” protect jurors from “be[ing] harassed or annoyed by litigants seeking to challenge the verdict,” and “giv[e] stability and finality to verdicts.” Ante, at 9. By the majority‘s own logic, then, imposing exceptions on no-impeachment rules will tend to defeat full and vigorous discussion, expose jurors to harassment, and deprive verdicts of stability.
The Court‘s only response is that some jurisdictions already make an exception for racial bias, and the Court
In short, the majority barely bothers to engage with the policy issues implicated by no-impeachment rules. But even if it had carefully grappled with those issues, it still would have no basis for exalting its own judgment over that of the many expert policymakers who have endorsed broad no-impeachment rules.
V
The Court‘s decision is well-intentioned. It seeks to remedy a flaw in the jury trial system, but as this Court said some years ago, it is questionable whether our system of trial by jury can endure this attempt to perfect it. Tanner, 483 U. S., at 120.
I respectfully dissent.