[Editor’s note: Today’s post was written by Alyson Grine and Emily Coward. Until last year, Alyson was the Defender Educator at the School of Government. She is now an Assistant Professor of Law at NCCU, but she continues to work with the School of Government’s Indigent Defense Education team on the NC Racial Equity Network. Emily is a Research Attorney with the Indigent Defense Education team at the School of Government.]
Summary: In its March 6 opinion in Pena-Rodriguez v. Colorado, the U.S. Supreme Court carved out an exception to the “no impeachment” rule for cases in which a juror makes a clear statement that he or she relied on racial bias in voting to convict a criminal defendant. In such cases, the evidentiary rule preventing the court from hearing juror testimony about statements made during deliberations must give way so that the court may consider whether the alleged racial bias violated the defendant’s Sixth Amendment right to a fair trial. We may be opening ourselves up to accusations that we are seeking to extend our moment in the spotlight by blogging about this case: as mentioned in last week’s News Roundup, the manual we co-authored, Raising Issues of Race in North Carolina Criminal Cases, was cited by Justice Alito in his dissenting opinion. However, as this opinion marks the beginning of a new chapter in the centuries old “no impeachment” rule, it’s important for North Carolina practitioners to understand its implications.
Facts and Procedural History: Petitioner Pena-Rodriguez worked at a horse racing track. One evening, he allegedly entered the bathroom in a barn while two teenaged girls were inside and sexually assaulted them. The state of Colorado charged petitioner with harassment, unlawful sexual contact, and attempted sexual assault on a child.
The jury found petitioner guilty of unlawful sexual contact and harassment. After the jury was discharged, petitioner’s lawyer entered the jury room to see if any of the jurors would be willing to discuss the case. Two jurors revealed that during deliberations, another juror, a former law enforcement officer with the initials H.C., had made a number of anti-Hispanic statements about petitioner and his alibi witness. For example, according to the two jurors, H.C. said, “‘I think [petitioner] did it because he’s Mexican and Mexican men take whatever they want.’” Slip op. at 4.
Defense counsel obtained affidavits from the two jurors who had disclosed H.C.’s statements, presented the affidavits to the trial judge, and moved for a new trial. However, the trial judge denied the motion on the ground that “deliberations that occur among the jurors are protected from inquiry under [Colorado Rule of Evidence] 606(b).” Slip op. at 4. A divided panel of the Colorado Court of Appeals affirmed, and the Colorado Supreme Court affirmed in a 4-3 vote.
The Rule: Like Federal Rule of Evidence 606(b), Colorado Rule of Evidence 606(b) is a “no-impeachment rule.” Generally, no-impeachment rules prevent attorneys from trying to overturn the jury’s verdict by offering testimony from jurors about what was said during deliberations. For centuries, such rules have served to protect the finality of jury verdicts and insulate jurors from questions about who said what in the jury room. Colorado’s no-impeachment rule follows the federal rule, which prohibits jurors from testifying about any statements or incidents during deliberations with narrow exceptions where the jury considered extraneous prejudicial information, was subjected to outside influences, or made a mistake on the verdict form.
Issue and Holding: For the first time, the US Supreme Court addressed “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.” Slip. op. at 2. The Court held that the Sixth Amendment requires an exception to the no-impeachment rule in these circumstances, allowing the trial court to consider a juror’s testimony and any resulting denial of the jury trial guarantee. Id. at 17. If the court determines that the defendant was denied his Sixth Amendment right to a fair jury trial because the jury’s decision was tainted by racial bias, the court may grant a motion for a new trial and set aside the verdict. Id. at 20.
Analysis: Since the adoption of the Federal Rules of Evidence in 1975, the Supreme Court has considered whether to make an exception to the 606(b) no-impeachment rule to protect the Sixth Amendment trial right in two cases, and declined to do so in both. First, in Tanner v. U.S., 483 U.S. 107 (1987), two jurors revealed after the trial that other jurors were intoxicated during the trial. The Court refused to allow post-verdict inquiry and identified four safeguards that were already in place to protect a defendant’s Sixth Amendment rights: 1) jurors can be examined during voir dire, 2) jurors can be observed during trial by court actors, 3) jurors can observe each other and report inappropriate behavior to the judge before they render a verdict, and 4) after the trial, counsel may offer evidence of misconduct by jurors, other than testimony of jurors. Id. at 127. The second case, Warger v. Shauers, 574 U.S. ___ , 135 S. Ct. 521 (2014), involved a motorcycle crash. After the verdict, jurors disclosed that the foreperson made misrepresentations during voir dire, saying she could be fair and impartial when, in fact, she was opposed to lawsuits like the one in question because her daughter had once caused a deadly car crash. The Court held that even where jurors lie during voir dire, the right to an impartial jury can still be protected via Tanner safeguards 3. and 4.
The Court distinguished the present case from Tanner and Warger, concluding essentially that race is different. According to the majority, allowing a conviction based on racial bias to stand “would risk systemic injury to the administration of justice.” Slip op. at 15-16. The Sixth Amendment interests are profound where racial bias is at play, as it “implicates unique historical, constitutional, and institutional concerns.” Id. at 16. Additionally, the Court stated that the Tanner safeguards might prove inadequate in the context of racial bias. For example, jurors may be reluctant to report racially biased statements made by other jurors before a verdict is reached; an act that would essentially entail interrupting deliberations to tell the judge that another juror is making racist comments. The majority questioned whether exploring racial bias during voir dire is effective; observing that generic questions might not expose biases while pointed questions might exacerbate prejudice. Justice Alito expressed a different view in his dissent, described below.
North Carolina’s No-Impeachment Rule: North Carolina’s no impeachment rule in Rule of Evidence 606(b) is similar to Colorado’s in all relevant respects. Even before the state adopted Rule 606(b), North Carolina courts recognized the common law rule requiring that evidence of juror misconduct “must come from a source other than the jury.” Cummings v. Ortega, 365 N.C. 262, 272 (2011). Consistent with the Colorado Supreme Court’s observation in Pena-Rodriguez, North Carolina has never observed a “dividing line between different types of juror bias or misconduct,” and therefore has never recognized an exception to the rule in cases where a juror states during deliberations that he or she is relying on racial bias in his or her determination of guilt. Pena-Rodriguez v. Colorado, 350 P. 3d 287, 293 (2015). Following the court’s ruling in Pena-Rodriguez v. Colorado, of course, North Carolina courts must now recognize this exception.
Missed Opportunity to Explore Racial Bias during Voir Dire: Based on the court’s description of jury selection in this case, it does not appear that defense counsel thoroughly explored issues of racial bias during voir dire. Instead, the defense attorney relied on general questions about potential jurors’ ability to be fair, which jury experts find unlikely to evoke frank discussions of bias. This area of inquiry may have been neglected if the circumstances of the crime did not suggest that race or ethnicity were explicitly at issue in the case. However, some implicit bias experts caution that trials without salient racial issues actually may be more likely to result in judgments tainted by bias, as jurors may not be consciously monitoring their behavior for signs of prejudice. It was for this reason that we suggested in Raising Issues of Race in North Carolina Criminal Cases that attorneys “should devise a plan for addressing issues of race in all cases in which race may potentially be a factor, not only those in which race appears to have played a role in the commission, investigation, or prosecution of the offense.” (Section 8.2B: Strategies for Addressing Race).
Significance of Justice Alito’s Dissent: The dissent authored by Justice Alito and joined by Chief Justice Roberts and Justice Thomas expressed concerns about violating the confidentiality of jury deliberations. Alito, J., dissenting, slip op. at 2 (stating that the Court’s holding “pries open the door” of the jury room). Justice Alito asserted that the safeguards set out in Tanner are adequate to protect a defendant’s Sixth Amendment rights, including when a juror is motivated by racial bias. In particular, voir dire was identified as an effective mechanism for revealing racial prejudice. Justice Alito observed that not only do attorneys have tools such as questionnaires and individual questioning, but they can also avail themselves of practice guides “replete with advice on conducting effective voir dire on the subject of race.” Alito, J., dissenting, slip op. at 12. In footnote 8, Raising Issues of Race in North Carolina Criminal Cases is provided as an example of a manual that provides strategies and sample questions.
Although Justice Alito dissented from the majority opinion, his analysis normalizes the topic of racial bias as a legitimate area of questioning when selecting a jury. Justice Alito cites US Supreme Court decisions for the proposition 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 if a defendant requests it.” Alito, J., dissenting, slip op. at 13-14 (emphasis added). Justice Alito recognizes social science research suggesting that, rather than reinforcing prejudice, making race salient may cause bias to recede. Alito, J., dissenting, fn 9 (citing authorities).
In training attorneys across North Carolina, we’ve heard stories from attorneys that they sometimes have been stopped by trial judges when they attempted to discuss race with potential jurors. Justice Alito’s dissent in this case clarifies that racial bias is an appropriate area of inquiry and an important safeguard of the right to a fair trial. Alito, J., dissenting, slip op. at 13-14.
Inspirational Quotes: The majority opinion is full of poetic testaments to the principles of equality, dignity, and the vital role of the jury in democratizing the justice system. We’ll leave you with a few of the most memorable:
- “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.” Slip op. at 13.
- “The jury is a central foundation of our justice system and our democracy. . . . The jury is a tangible implementation of the principle that the law comes from the people.” at 1.
- “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.” at 16.