When faced with the confrontation between two universal, long-standing judicial principles, courts must often decide what happens when an unstoppable force meets an immovable object. At times, fundamental beliefs inherent in the criminal justice system are placed in tension with one another, with the inevitable result that one thought-to-be irrefutable maxim must yield to what the court sees as the more important principle in the case at issue. The recent Supreme Court decision in Pena-Rodriguez v. Colorado can be described in such terms.
The constitutional guarantee of an impartial jury in all criminal trials has long been considered a necessary component of a fair and functioning justice system.
Throughout the history of American criminal justice, racial prejudice has jeopardized this guarantee and stripped minority defendants of their right to an impartial trial, decided solely on the evidence presented. As Justice Blackmun aptly stated in his oft-quoted opinion in Rose v. Mitchell, “Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.”
Partiality in the jury room is as toxic to a criminal trial as any flaw one can imagine.
Yet the unimpeachability of jury deliberations has also come to represent a fundamental aspect of the American criminal justice system. Long embodied in common law doctrines protecting the sanctity of the jury room, the prohibition against jurors testifying about deliberations has been codified in the Federal Rules of Evidence
and similar state rules.
In general, during any inquiry into the validity of a verdict, a juror may not testify about what occurred during deliberations.
Known colloquially as the jury “no-impeachment rule,” Rule 606(b) and state counterparts have been recognized as serving a number of critical functions,
including: (1) protecting the very existence of the jury system by preventing inquiry into an unmanageable number of cases;
(2) ensuring certainty and finality of verdicts;
(3) guaranteeing the secrecy and privacy needed to encourage jurors to hold open debates during deliberations;
and (4) preventing abuse of the system, both by losing parties and by jurors themselves.
In Pena-Rodriguez, the Supreme Court confronted the conflict between these two axiomatic concepts: In the face of the no-impeachment rule, how should a court respond when a juror brings forth evidence of one of the most “odious” forms of partiality—racial bias—in the jury room? After long rejecting invitations to do so, the Court in Pena-Rodriguez recognized an explicit, constitutional exception to the ban on jurors impeaching their verdict when confronted with clear evidence of racial bias by one or more jurors during deliberations in a criminal trial.
Cabining the decision to cover instances of exclusively racial bias, Justice Kennedy noted that “racial bias implicates unique historical, constitutional, and institutional concerns.”
However, commentators and judges alike have questioned whether this limitation is practically possible.
With the door to the jury room now cracked open, perhaps the Court’s attempt to limit its holding to racial bias will prove futile.
Indeed, jurisdictions that had established similar racial-bias exceptions before the Court’s decision have not necessarily limited these exceptions in such a way in practice.
While the Pena-Rodriguez decision, by virtue of its constitutional grounding, rendered the racial-bias exception applicable nationwide, a variety of jurisdictions—notably many states—had already deemed their respective no-impeachment rules susceptible to such an exception.
As Justice Brandeis famously noted, a prominent virtue of the American federal system is the degree to which it allows states to conduct social and policy experiments “without risk to the rest of the country”;
in essence, states may serve as “laboratories of democracy.”
For present purposes, the question is what states’ experiences with their own bias exceptions can teach us about the extent to which the newly minted Pena-Rodriguez exception will remain limited to race—and whether it should. Thus, if states have failed to limit their bias exceptions strictly to racial bias, why then would we expect the nationwide exception to follow a different trajectory? And further, to the extent states have gone beyond race, does the reasoning behind such expansion provide any coherent normative or pragmatic rationale for why the nationwide Pena-Rodriguez exception should follow suit? Essentially, to what extent have states served as “laboratories of equal justice”?
While state experience is indeed instructive and the primary focus of this Note, such experience need not provide the sole justification for any subsequent expansion beyond race. In fact, the majority’s reasoning in Pena-Rodriguez rendered the seemingly narrowly crafted exception susceptible to a slippery-slope progression to other types of bias beyond race.
While subsequent jurisprudence appears not to have yet slid down this slope, early signs indicate that courts’ brakes may soon falter.
Further, outside the context of the no-impeachment rule, the Court’s jurisprudence in other doctrinal areas—most notably the Court’s line of cases following its decision in Batson v. Kentucky
—may indicate that the natural progression is for limited exceptions to expand to cover far more than initially intended.
Taken together, the evidence appears to be clear: Courts are likely to—and have good reason to—apply the Pena-Rodriguez exception to biases beyond race in jury deliberations.
Extrapolating from state experience, this Note comprehensively addresses whether the Pena-Rodriguez exception for racial bias in jury deliberations will expand beyond race to other forms of bias—and whether such a result should concern us.
This Note concludes that the exception will likely expand to include other types of bias that may threaten a defendant’s right to an impartial jury—and that such an expansion beyond race is both normatively and pragmatically sound. This Note also concludes that any weakening of the no-impeachment rule caused by such expansion will likely be limited by procedural barriers and can be further cabined by constraining any expansion to bias based on suspect classifications receiving heightened scrutiny under the Fourteenth Amendment. Part I provides a brief history of the no-impeachment rule, describes certain jurisdictions’ willingness to carve out exceptions to the rule for instances of bias, and concludes by discussing the Court’s decision in Pena-Rodriguez. Section II.A looks to the jurisdictions in which a bias exception had already existed before Pena-Rodriguez to determine whether these exceptions have expanded beyond race to date. Section II.B examines the related doctrinal area of voir dire peremptory strikes to determine whether the expansion of a race-only Batson exception to other types of prejudice can shed light on Pena-Rodriguez’s potential evolution. Part III uses the states’ experiences with these exceptions and the Court’s own past experience under Batson to demonstrate that Pena-Rodriguez’s narrow exception is likely to, and should, expand beyond race. Part III further suggests that, in addition to procedural barriers, incorporation of Fourteenth Amendment principles can ensure the no-impeachment rule continues to serve its purpose as a safeguard of the jury system.
I. The History of the No-Impeachment Rule and a Crack in the Facade: From England to Pena-Rodriguez
While the fundamental right to an impartial jury has a long and storied history,
the traditional evidentiary ban on jurors impeaching their own verdicts has also existed for several centuries, dating back to 1785 England and Lord Mansfield’s decision in Vaise v. Delaval.
The “Mansfield Rule”—essentially a blanket ban on post-verdict juror testimony—dominated jurisprudence for the next 100 years
and was transplanted in large part into American common law.
States began to imprint their own variations on the Mansfield Rule, and while the Supreme Court never firmly established support for any one articulation, it came to acknowledge a general rule preventing jurors from testifying about deliberations.
Federal standardization emerged in 1975 with the adoption of Federal Rule of Evidence 606(b), establishing a uniform approach for federal courts—in both criminal and civil trials
—and a template for state evidentiary codes.
The no-impeachment rule long remained largely inviolable, especially at the Supreme Court level, with courts repeatedly thwarting attempts to recognize exceptions for certain forms of juror misconduct that allegedly threatened the guarantee of an impartial jury. Besides limited incursions for external influences,
nearly all attempts to weaken the rule on a national level had failed. However, across state and federal jurisdictions, some courts began to retreat from the unyielding nature of the traditional rule. Finally, the Supreme Court joined these jurisdictions in Pena-Rodriguez.
Part I tracks this progression. Section I.A describes the history of the no-impeachment rule, from English common law through the adoption of Federal Rule 606(b). Section I.B discusses the Supreme Court’s initial rejection of any constitutional exceptions to the rule. Section I.C examines how states and lower federal courts created their own exceptions to the no-impeachment bar for instances of bias, despite the Supreme Court’s reluctance to do so. Section I.D details the Supreme Court’s eventual acceptance of a constitutional exception for evidence of racial bias in jury deliberations in Pena-Rodriguez.
A. From Common Law to Codification: The No-Impeachment Rule Through the Years
1. British Invasion: From English to American Common Law. — English common law prior to 1785 “routinely” allowed post-trial juror testimony regarding juror misconduct,
although, as the Supreme Court has noted, “always with great caution.”
Lord Mansfield based his change of course on the belief that jurors could not be reliable witnesses against themselves and thus should not be allowed to impeach their own verdicts.
As a result, in Vaise v. Delaval, he refused to admit juror affidavits alleging that the jury had decided the all-important guilt-or-innocence question on the basis of a coin flip.
Lord Mansfield’s holding prohibited jurors from testifying about both their “subjective mental processes” and “objective events that occurred during deliberations.”
The “Mansfield Rule” was thus born and the foundation for the modern no-impeachment rule laid.
While largely adopted into American common law in full, the Mansfield Rule soon came under attack, with rejections and variations sprouting up in several states.
United States v. Reid
is largely seen as the initial blow to the Mansfield Rule.
In this 1851 decision, the Supreme Court did not overrule the traditional rule but recognized that “cases might arise in which it would be impossible to refuse [juror testimony] without violating the plainest principles of justice.”
The Iowa Supreme Court soon followed the fissure opened by Reid, introducing its own rule in opposition to the Mansfield Rule. The “Iowa Rule,” as announced in Wright v. Illinois & Mississippi Telegraph Co.,
was considered both a “more flexible version of the no-impeachment bar”
and an “express[ ] reject[ion] [of] the Mansfield Rule.”
Instead of adhering to the absolute ban on post-verdict juror testimony, the Iowa court demarcated the boundary of permissible and impermissible juror testimony based on its content. On the permissible side of the divide lay “overt acts”:
a party or attorney improperly approaching a juror, witnesses discussing the case outside of court and in the presence of jurors, or a game of chance or improper quotient deciding the verdict.
On the impermissible side was “evidence of the ‘mental processes of jurors.’”
In an important and lasting characterization of inadmissible juror testimony, the Iowa court deemed the mental processes of the jury to be those that “essentially inhere in the verdict itself.”
Under the Iowa Rule, jurors were allowed to impeach their own verdicts only under limited circumstances, although more frequently and for a broader array of purposes than under the Mansfield Rule. In the wake of the Iowa Rule, state courts began to establish their own interpretations of the no-impeachment rule, with some adhering closely to the strict limitations of the Mansfield Rule and others following the more lenient approach of the Iowa Rule.
Perhaps in response to the nonuniformity of lower court approaches, the Supreme Court decided to wade into the burgeoning debate on the proper scope of the rule. The Court first confronted this issue in 1892 in Mattox v. United States, a capital murder case in which several jurors, post-verdict, alleged that a juror had brought a newspaper containing sensational details of the case into the jury room and that a bailiff had made improper comments to jurors regarding the defendant’s past behavior.
The Court, relying on a variation of the Iowa Rule developed in Massachusetts,
established an exception to the general rule, according to which jurors could impeach their verdicts post-trial by providing evidence of “external causes tending to disturb the exercise of deliberate and unbiased judgment.”
Thus, the Supreme Court recognized the precursor to the “extraneous prejudicial information” and the “improper outside influences” exceptions codified in Rule 606(b).
However, several questions remained in the wake of Mattox.
The Court next endeavored to clarify its position on permissible exceptions to the general no-impeachment rule in McDonald v. Pless.
The McDonald Court framed the question as a choice between “redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room.”
Citing numerous rationales as justification for the no-impeachment rule,
the Court determined that the risk of a private injury must yield to the overwhelming public policy concerns with allowing a broad intrusion into jury deliberations.
The Court thus stated that outside the “gravest and most important cases” in which excluding a juror’s testimony might “violat[e] the plainest principles of justice,” the general rule is that the losing party cannot “use the testimony of jurors to impeach their verdict.”
Here, in the final case before the passage of Rule 606(b), the Court reinforced a less flexible version of the no-impeachment rule than that implied in Reid and Mattox,
concluding that doing otherwise might lead to undesirable consequences that could be disastrous for the judicial system.
This approach, known as the “federal rule,” while modified in some jurisdictions, controlled in federal courts until the passage of Federal Rule of Evidence 606(b).
2. Codification: Rule 606(b) and Similar State Rules. — Given that the Court’s last case interpreting the no-impeachment rule prior to adoption of the Federal Rules of Evidence recognized very limited exceptions, one might expect Congress’s codification to include a similarly restrictive interpretation. And while that is indeed what transpired, the legislative history surrounding the adoption of Rule 606(b) evinces a more complicated picture, highlighting that Congress could have adopted a rule with more flexible exceptions, akin to the Court’s Mattox decision.
Rule 606(b)’s initial draft was actually closer to the Iowa Rule than the Mansfield Rule and would have barred testimony regarding only a juror’s mental or emotional state.
Under such a rule, courts likely would have admitted evidence of “improper jury room conduct,” including outward expressions of bias.
However, the Senate rejected this lenient version of the rule out of concern for its negative policy consequences.
Instead, Congress adopted a more stringent version—which included only two limited exceptions for evidence of extraneous prejudicial information and outside influence, alongside a broad exclusion of post-verdict juror testimony—under which juror bias was not admissible.
Today, Rule 606(b) reads nearly identically to the initial 1975 version:
(b) During an Inquiry into the Validity of a Verdict or Indictment
(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.
States were quick to follow federal codification, and today, most states have no-impeachment rules that closely mirror Rule 606(b):
Of the forty-two states with state evidentiary codes modeled on the Federal Rules of Evidence, twenty-five have adopted rules that either are substantially similar to F.R.E. 606(b) or have even stronger bars against juror testimony. Six states have rules that are substantially similar to F.R.E. 606(b) but also specify one other area of misconduct to which jurors may testify. Seven states have no statutory rules analogous to F.R.E. 606(b). Arizona has a rule identical to F.R.E. 606(b), but only applies it to civil actions. Florida, Hawaii, and Nevada are the only states with F.R.E.-based evidentiary codes that have codified rules substantially different from F.R.E. 606(b).
For nearly four decades after the passage of Rule 606(b), most federal courts, including the Supreme Court, seemed to adhere to the Senate’s preferred inflexible version of the no-impeachment rule. Despite calls to carve out exceptions to this rigid rule, the Supreme Court continued to treat Rule 606(b) and the broader no-impeachment rule as impervious to bias or misconduct exceptions.
B. Tanner and Warger: Rule 606(b) Withstands Attack in the Supreme Court
Pena-Rodriguez was not the first time petitioners had asked the Supreme Court to recognize an exception to the no-impeachment rule, though it was the first time the Court answered that request in the affirmative. Before Pena-Rodriguez, the Court had adhered to the restrictive interpretation preferred by the Senate and had rejected two attempts to force the rule to yield to defendants’ challenges.
In Tanner v. United States, the Court refused to acknowledge an exception to Rule 606(b) when the petitioners produced evidence demonstrating that some jurors were under the influence of drugs and alcohol during the trial.
Justice O’Connor began by rejecting the contention that juror testimony purporting to establish evidence of such improper activity was admissible under Rule 606(b). Instead, relying on the distinction between internal and external influences, the Tanner Court found the evidence of jurors’ drug and alcohol use to be inadmissible as internal to the deliberations.
The petitioners also raised Sixth Amendment claims.
In rejecting the petitioners’ contention that their Sixth Amendment right to a fair trial before an impartial and competent jury required consideration of the juror testimony, the Court relied on existing safeguards within the jury trial system that would insulate defendants from incompetence or bias during juror deliberations.
The Court stressed the combination of: (1) voir dire, as a preliminary method of discerning juror bias or ineptitude; (2) jurors’ ability to come forward with allegations of inappropriate behavior during trial; (3) attorneys’ or trial judges’ ability to observe potential misconduct during trial; and (4) even post-trial, parties’ ability to use evidence other than juror testimony to impeach the verdict.
With these safeguards in place, the Supreme Court chose to defer to the “long-recognized and very substantial concerns support[ing] the protection of jury deliberations from intrusive inquiry,” deeming an overriding Sixth Amendment exception unnecessary and inappropriate.
In Warger v. Shauers, the Court again relied significantly on existing safeguards within the trial process in refusing to acknowledge an exception to Rule 606(b).
In a negligence suit for damages following a motorcycle accident, the Court addressed whether Rule 606(b) precludes a party from using juror testimony to prove that another juror had not been completely honest during voir dire, resulting in alleged bias during deliberations.
The Court relied on the language and legislative history of Rule 606(b), evincing Congress’s intent to adopt the federal approach, under which juror testimony was not admissible to prove dishonesty during voir dire.
Noting the Tanner safeguards, the Court further held that there were no constitutional issues with precluding such evidence despite the Constitution’s guarantee of an impartial jury.
But, importantly, the Court echoed Reid in recognizing that “[t]here may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged.”
While it took the Court only another three years to find such a case in Pena-Rodriguez, many other jurisdictions had long recognized this reality and had taken affirmative steps to address the situation.
C. Go Your Own Way: State and Lower Federal Court Recognition of Bias Exceptions to the No-Impeachment Rule Before Pena-Rodriguez
While the Supreme Court continued to reject challenges to Rule 606(b), some states and lower federal courts opted instead to take a different approach in areas left undecided, notably for instances of racial bias in deliberations. Several states had long recognized the need for their no-impeachment rules to conform to fundamental requirements of fairness in jury trials, and even in the federal system, certain districts and circuits took a more lenient view of Rule 606(b) than the Supreme Court to allow for juror impeachment in rare instances of bias during deliberations.
1. State Exceptions Predating Pena-Rodriguez. — State courts have adopted different views of the no-impeachment rule, reflected both in how states have codified the common law rule—if they have at all—and in how courts have reacted to challenges to their respective rules. As the Supreme Court noted, at the time of the Pena-Rodriguez decision, at least sixteen states had recognized exceptions to their no-impeachment rules in cases of explicit racial bias in jury deliberations,
in both civil and criminal contexts.
The Court’s estimation, though supported by various amici,
appears to be too low, as it excludes states in which such exceptions may exist but for certain reasons were not included in the total count.
While some commentators believed there to be “little dissent from the proposition” that Rule 606(b) and similar state rules precluded impeaching verdicts when confronted with evidence of racial bias,
a state-by-state analysis appears to demonstrate otherwise. The underlying reasoning, scope, and explicitness of such state exceptions has varied, but, indisputably, many states deemed bias exceptions to the no-impeachment rule necessary before the Supreme Court mandated as much nationwide. Thus, states have proven fertile grounds for experimentation: Jurisdictions’ willingness to peel back the veil of secrecy imposed on jury deliberations before the Supreme Court saw fit to do so encouraged the Court that such a move would not destroy the jury trial system and, if anything, would serve to bolster the promise of a fair and impartial criminal justice system.
2. The Circuit Split Preceding Pena-Rodriguez. — At the time of the Pena-Rodriguez decision, a circuit split had developed on racial-bias exceptions to the no-impeachment bar, with ample scholarship drawing attention to the uneven treatment in lower federal courts.
Tanner, which dealt with allegations of unqualified jurors, importantly left open the question as to whether evidence of bias in jury deliberations must be admitted, notwithstanding Rule 606(b).
The split between the circuits that had addressed the issue was largely even, with three circuits either explicitly recognizing or suggesting an amenability to an exception for instances of racial bias, and three circuits either explicitly declining to recognize such an exception or suggesting its impropriety.
As in the various states recognizing racial-bias exceptions, the lower federal courts acknowledging or expressing an amenability to exceptions used different legal justifications and announced such exceptions with varying levels of explicitness. In dicta in United States v. Henley, the Ninth Circuit deemed racial prejudice to be a mental bias unrelated to any issue a juror may be asked to determine and thus found racial bias “generally not subject to Rule 606(b)’s prohibitions against juror testimony.”
While Henley ultimately did not adjudicate this issue in the specific context of juror deliberations, the Ninth Circuit gave Rule 606(b) a much narrower scope than any other federal court to date.
Other circuits—and districts
—relied explicitly on constitutional principles when discussing racial-bias exceptions. The Seventh Circuit, while failing to create an explicit exception and rejecting the attempt to impeach the verdict in the case at hand, recognized that constitutional principles might require an exception to the no-impeachment bar.
In so doing, the court stated that the no-impeachment rule “cannot be applied in such an unfair manner as to deny due process” and that “further review may be necessary . . . to discover the extremely rare abuse that could exist even after the court has applied the rule and determined the evidence incompetent.”
The First Circuit was the only circuit to explicitly create a constitutional exception to the no-impeachment rule for evidence of racial bias, holding in United States v. Villar that a defendant’s constitutional rights to due process and an impartial jury require an exception to Rule 606(b) for cases in which racial or ethnic bias tainted jury deliberations.
While acknowledging the policy concerns associated with impeaching verdicts, the court held that “there are certain rare and exceptional cases involving racial or ethnic prejudice that require hearing jury testimony to determine whether a defendant received a fair trial under the Sixth Amendment.”
A precursor to Pena-Rodriguez, Villar held the Tanner safeguards inadequate to protect against racial bias in deliberations, with the Villar court acknowledging the existence of “a constitutional outer limit” to Rule 606(b).
D. Pena-Rodriguez: Constitutional Concerns Trump the No-Impeachment Bar
For years, both within the judicial system and in scholarly circles, many in the legal community urged the Supreme Court to recognize an exception to Rule 606(b) for certain forms of juror misconduct, including racial bias.
These calls became more pronounced after Tanner and Warger, especially in light of the varying approaches taken by lower courts.
After years of explicitly declaring that Rule 606(b) and the no-impeachment bar need not yield to constitutional considerations, finally, the Court answered the call in Pena-Rodriguez.
In 2007, a man sexually assaulted two teenage sisters at a Colorado horse-racing facility. The girls identified Miguel Angel Peña-Rodriguez as the assailant, and the State tried Peña-Rodriguez on several charges.
Before trial, each member of the jury venire was asked several times if he or she could be fair and impartial in this case, to which none of the empaneled jurors expressed any reservations.
After the jury convicted Peña-Rodriguez of unlawful sexual contact and harassment, two jurors voluntarily relayed to defense counsel that a different juror (H.C.) had expressed anti-Hispanic bias toward Peña-Rodriguez and the defense’s alibi witness.
According to the jurors’ affidavits, H.C. stated that “Mexican men had a bravado that caused them to believe they could do whatever they wanted with women,” and, “I think he did it because he’s Mexican and Mexican men take whatever they want.”
H.C. also questioned the defense’s alibi witness because he was “an illegal.”
The trial court acknowledged H.C.’s bias but denied Peña-Rodriguez’s motion for a new trial, holding that the Colorado counterpart to Federal Rule 606(b)
prohibited jurors from testifying as to statements made during deliberations when inquiring into the validity of a verdict.
A divided panel of the Colorado Court of Appeals affirmed, and the Colorado Supreme Court affirmed by one vote, largely in reliance on Tanner and Warger.
The Supreme Court of the United States agreed to hear the case. In announcing the majority opinion, Justice Kennedy provided an extensive history of the no-impeachment rule, recognized the existence of racial-bias exceptions in several jurisdictions, and ultimately explained that the Court had to determine whether “the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.”
Highlighting the distinct and particularly damaging role racial discrimination has played in America, Justice Kennedy reaffirmed the compelling need to confront racial animus in the justice system.
The Court’s characterization of the prejudice at issue in the trial as racial, rather than ethnic, was particularly important; Kennedy focused heavily on the Court’s important role in “purg[ing] racial prejudice from the administration of justice” after the enactment of the Civil War Amendments to prevent discriminatory practices against African Americans in the jury system.
Thus, the designation of the bias as racial allowed the Court to situate its opinion within its past efforts to combat racial discrimination against African Americans, despite the fact that the defendant was Hispanic.
Despite building up to a seemingly inevitable confrontation between the two lines of precedent, Kennedy asserted that these doctrinal strands need not conflict. Instead, Kennedy argued that racial bias is significantly different from the other types of improper conduct the Court had confronted in its cases on the no-impeachment rule, as such bias risks “systemic injury to the administration of justice,” “implicates unique historical, constitutional, and institutional concerns,” and may not be adequately safeguarded against by the existing structural components relied on by Tanner and Warger.
The Court ultimately held that:
[W]here 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 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.
The Court made notable attempts to cabin its holding to egregious cases in which a “clear statement” demonstrates “overt racial bias” and “cast[s] serious doubt on the fairness and impartiality” of the deliberations and verdict.
In attempting to prevent badgering of jurors post-verdict, Kennedy emphasized that the jurors in this case came forward voluntarily, implying that this is the preferred method of disclosure of racially biased statements during deliberations.
The Court provided limited procedural guidance to lower courts, leaving much to the “substantial discretion of the trial court in light of all the circumstances.”
However, the Court relied in large part on the jurisdictions that had already recognized a racial-bias exception to the no-impeachment rule, both in reaching its holding and in guiding subsequent development.
Justices Thomas and Alito dissented.
Alito’s dissent, joined by the Chief Justice and Justice Thomas, warned that there are unlikely to be any “principled grounds for preventing the expansion of [the Court’s] holding.”
Alito challenged the majority’s conclusion on both of its purported grounds—that the Tanner safeguards are ineffective in combating racial bias and that Sixth Amendment interests are heightened in the face of racial bias
—but ultimately concluded that “[t]he real thrust of the majority opinion” is that racial bias is simply more violative of the Constitution than other forms of juror bias or misconduct.
Alito identified the primary issue with the majority’s supposedly limited holding: “What the Sixth Amendment protects is the right to an ‘impartial jury.’ Nothing in the text or history of the Amendment or in the inherent nature of the jury trial right suggests that the extent of the protection provided . . . depends on the nature of a jury’s partiality or bias.”
After providing a lengthy hypothetical in which he attempted to highlight the irrationality of drawing a distinction between racial bias and other types of bias—using an intentionally absurd bias based on sports-team preferences to illustrate his point—Alito succinctly summarized his concerns, stating: “If the Sixth Amendment requires the admission of juror testimony about statements or conduct during deliberations that show one type of juror partiality, then statements or conduct showing any type of partiality should be treated the same way.”
Alito also noted that while the majority phrased its holding in Sixth Amendment terms, recharacterizing it as an equal protection case would similarly raise issues of expansion, since equal protection doctrine does not discriminate between suspect classifications.
In essence, Alito argued that while racial bias is a disfavored and dangerous form of partiality threatening to the justice system, so too are gender bias and religious bias, and so on. Invoking the same fears of systemic harm to the jury system that guided the McDonald Court,
Alito concluded that, while well-intentioned, the Court’s decision threatens the very existence of the jury trial system.
While perhaps hyperbolic at points, Justice Alito’s dissent raised valid questions and concerns: Without a sound doctrinal underpinning through which the Court can limit the exception to race alone, just how expansive might this exception become—and how much of the no-impeachment rule will remain?
II. Expansion Beyond Race: State Jurisprudence and Other Doctrinal Areas
Pena-Rodriguez, groundbreaking as it may have been, was a relatively barebones decision that avoided meaningful engagement with the many procedural and doctrinal issues created by subjecting the no-impeachment rule to a constitutional racial-bias exception in criminal cases. In the short time since the decision, lower courts have already begun to grapple with some of these major open questions, including: the threshold showing sufficient to warrant an inquiry into claims of racial bias;
the showing necessary for granting a new trial;
whether Pena-Rodriguez’s holding should extend to civil cases;
the appropriate standard of review for appeals of claims brought under Pena-Rodriguez;
and whether Pena-Rodriguez serves as authority for anything beyond the importance of striking racial prejudice from the criminal justice system.
Organizations responsible for drafting and amending evidentiary codes with codified no-impeachment rules—including the federal Advisory Committee on Rules of Evidence—are also struggling to codify Pena-Rodriguez’s holding in a way that accurately reflects the current exception while acknowledging that judicial application of the holding may modify its scope.
While no changes have yet been made to the Federal Rules of Evidence, some states have already amended their respective rules to reflect the Pena-Rodriguez holding and, in so doing, have likely impacted subsequent case law in those jurisdictions.
As important as the procedural questions are,
for present purposes, they are relevant only to the extent that their resolution may impact the potential progression of the exception beyond race.
In the months following Pena-Rodriguez, the legal community immediately began to question whether the holding would remain limited to race.
In fact, Justice Alito paved the way for such questions in his dissent.
The concerns that led the Supreme Court to reject all prior attempts to carve out exceptions to the no-impeachment bar are now all the more pertinent, for litigants have already attempted to broaden the narrow exception from race to other protected categories like sexual orientation
—and if Justice Alito is to be believed, carve-outs for frivolous biases like sports-team fandom are not far behind.
The Supreme Court itself had the opportunity to weigh in on such attempted expansion involving alleged sexual-orientation bias in a death penalty case but did not grant the petition for certiorari.
Elsewhere, litigants challenging verdicts on grounds of impermissible, nonracial juror bias have begun relying on Pena-Rodriguez as the legal justification.
In fact, one defendant-appellant went so far as to argue that Pena-Rodriguez explicitly did not limit the exception to racial bias, instead arguing that Pena-Rodriguez stands for the proposition that impeachment should be allowed “if the constitutional rights violation is egregious enough.”
While these litigants have not had any meaningful success to date,
there is no reason to believe that the attempts will subside any time soon.
Prior to determining whether expansion should occur, two sources are likely to provide especially helpful guidance in determining whether and to what extent the racial-bias exception recognized by Pena-Rodriguez could expand beyond race. Most importantly, in reaching its decision, the Court explicitly relied on states that had already recognized bias exceptions prior to Pena-Rodriguez;
analyzing what actually transpired in those states after the initial exception—and before the Pena-Rodriguez decision—can help shed light on potential doctrinal development. Yet one need not rely entirely on other jurisdictions’ respective experiences, as this is not the first time the Court has drawn an initially race-limited exception to a practice or rule. In the related field of peremptory strikes during voir dire, the Court in Batson v. Kentucky created an exception to the general rule permitting such strikes for any reason by prohibiting strikes made on the basis of race.
With these sources in mind, section II.A examines in greater detail states’ specific exceptions to their respective no-impeachment rules, assessing the extent of any development beyond the initial exception recognized in each state before Pena-Rodriguez. To supplement the lessons from states’ jurisprudence, section II.B looks to the Court’s experience in the Batson line of cases to discern how the doctrinal development of Pena-Rodriguez might unfold.
A. Why Stop There?: Beyond Race in the States
1. The Nature of the State Exception. — The Supreme Court oversimplified state jurisprudence when it claimed that at least sixteen jurisdictions had recognized exceptions to the no-impeachment bar similar to that recognized in Pena-Rodriguez.
Courts have based exceptions on different legal grounds, leading to varied doctrinal development.
Distinguishing jurisdictions that relied on constitutional grounds—primarily the Sixth Amendment, but also in some cases due process or equal protection—from those that attempted to fit racial bias within existing, codified exceptions is particularly relevant, given that the Pena-Rodriguez Court saw fit to announce the new rule as an explicit constitutional exception.
Several jurisdictions have construed their state counterparts to Rule 606(b) to be sufficiently malleable to include racial bias within statutory exceptions, avoiding the need to resort to constitutional principles in creating a bias exception. Some states have deemed evidence of racial bias to fall within the “extraneous evidence” exception to Rule 606(b) and similarly structured state statutes,
while others have categorized bias as falling within the “outside influence” exception.
In jurisdictions with no-impeachment rules differing from the Federal Rule, states have at times deemed impermissible bias to fall within exceptions specific to their state rules, considering such statements to be “overt acts” or to not “inhere in the verdict.”
However, the vast majority of states that have recognized bias exceptions to the no-impeachment bar have done so through calls to overarching constitutional ideals of fair, impartial trials under the Sixth Amendment, or similar state constitutional protections, and the principles of due process and equal protection. In Delaware, for instance, the state’s highest court determined that excluding a juror’s testimony of racial bias during deliberations “would nullify the enforcement of [the defendant’s] basic right to a trial by an impartial jury of twelve who will decide the case free of improper racial implications.”
Relying more overtly on due process and equal protection considerations, states like Georgia have held that “the rule of juror incompetency ‘cannot be applied in such an unfair manner as to deny due process.’”
These and other states have thus found that courts must consider evidence of racial bias in jury deliberations—even though such bias is technically excluded by Rule 606(b) and similar state evidentiary rules—in order to satisfy fundamental constitutional guarantees.
To the extent that the Court relied on the states in reaching its decision, such reliance may have been at least partially misplaced for jurisdictions whose bias exceptions were not grounded in constitutional principles.
Further, even for states with constitutional racial-bias exceptions, most state courts’ holdings appear to have been limited to instances of racial bias solely because that happened to be the type of bias in the case at issue. In only one jurisdiction did the court’s reasoning resemble the Supreme Court’s in Pena-Rodriguez, identifying racial bias as a “familiar and recurring evil”
that is so conceptually distinct from other forms of bias or misconduct as to warrant a constitutional exception.
For nearly all other jurisdictions, the danger of racial bias was its effect on the specific trial and the harm imposed on the specific defendant, not the impact on the criminal justice system as a whole. Legal reasoning, however, is not the only important basis for distinguishing the state exceptions.
2. The Scope of and Expansion Beyond the Initial State Exception. — In examining the extent of expansion beyond race in states that had already recognized bias exceptions to the no-impeachment rule, one must first examine the scope of the initial exceptions recognized. By lumping all state exceptions into a single metric—“racial”-bias exceptions—the Court ignored the varying scope of juror bias covered by the state exceptions.
Many state courts did indeed couch such exceptions explicitly in terms of “racial bias” or “racial prejudice.”
However, despite the Court’s morphing of ethnicity into race in Pena-Rodriguez,
several courts recognized an exception that, by its terms, refers to either ethnic bias alone or to racial and ethnic bias.
Such a distinction may be important in cases in which the bias alleged is not against a Hispanic individual, as race and ethnicity are doctrinally less easily interchanged in other contexts.
Moreover, at least four jurisdictions created exceptions in matters of first impression for other types of bias—either in addition to racial bias or, in some instances, instead of racial bias.
Both Missouri and New Jersey announced their initial exceptions in cases involving anti-Semitic bias; in Missouri, the court couched its exception in terms of “ethnic or religious bias or prejudice,”
whereas in New Jersey, the court spoke only in terms of religious bias.
In these and other such cases, courts found no basis to ground the exceptions in any history of racial discrimination and instead relied solely on the need to combat the effect of bias on the jury trial guarantee.
While litigation beyond the “benchmark case”
in each jurisdiction
has been limited,
in several jurisdictions, litigants have attempted to broaden the initial exception.
On one end of the spectrum, there are a few jurisdictions in which no cases have cited the benchmark case for any proposition related to jury deliberations or the no-impeachment rule.
Elsewhere, jurisdictions recognizing bias exceptions based explicitly on race have not expanded the initial exception to cover other types of bias beyond race.
And while other jurisdictions appear to have cabined the exception to the form or forms of bias recognized in the benchmark case, these jurisdictions’ initial exceptions seemingly covered a broad enough array of bias in the first instance that expansion may not be necessary. For example, Wisconsin phrased its initial exception in terms of bias based on race, religion, gender, or national origin, covering four of the most prominent suspect classifications.
In several jurisdictions, however, states have either explicitly expanded their initial exception to other types of juror bias or have at least expressed a willingness to do so. In three jurisdictions, courts have reasoned that the initial exception is sufficiently broad to encompass—or is based on constitutional principles that do encompass—the other type of juror bias at issue.
The benchmark Florida case, Powell v. Allstate Insurance Co., dealt explicitly with racial bias, yet the opinion seemed to imply that racial, ethnic, or religious bias would fall under an exception.
Initially, however, Florida courts refused to expand beyond race, with one court stating that “Powell carefully limited its holding to overt acts of racial prejudice during jury deliberations,” cautioning that the holding not be read as a “wholesale retreat from the traditional rule.”
However, the Florida Supreme Court shortly thereafter stated that Powell “appears to have established that a juror who spreads sentiments of racial, ethnic, religious, or gender bias, fatally infects the deliberation process in a unique and especially opprobrious way.”
Similarly, the Missouri Court of Appeals interpreted the Missouri Supreme Court’s holding in Fleshner v. Pepose Vision Institute, P.C.—which recognized an exception for ethnic and religious bias
—to extend to “statements that reflected a juror was biased based on gender or other constitutionally impermissible ground.”
And in New Jersey, the expansion seemed to occur in the opposite direction, as the original exception to the no-impeachment rule covered religious prejudice
but was expanded to allow jurors to impeach the verdict based on evidence of “bigotry,”
interpreted to cover both religious and racial bias.
Finally, in at least three jurisdictions, while courts refused to expand the exception in the cases before them, they did so largely due to weak evidence rather than an aversion to expansion and thus did not foreclose the possibility of expansion in appropriate cases.
In both Massachusetts and Washington, lower courts seemed to imply that an exception to the no-impeachment rule may be appropriate in cases of sexual-orientation bias. In Massachusetts, the initial exception covered only ethnic bias,
although later cases took this to include both racial and ethnic bias.
In Commonwealth v. Delp, while the Massachusetts Appeals Court ultimately did not allow a juror alleging “homosexual bias” to impeach the verdict, the court grounded its ruling in the view that the trial judge could reasonably have deemed the juror to be having second thoughts rather than harboring true bias.
The court’s discussion strongly implied that, were the evidence of “homosexual bias” credible, such evidence would have been admissible to impeach the verdict.
So too in Washington, where the Washington Court of Appeals rejected a defendant’s attempt to impeach the verdict based on statements regarding sexual orientation but seemed to hold that the statements would have been admissible had they demonstrated actual sexual-orientation bias.
In the jurisdictions whose exceptions cover more than just racial bias—either from the outset or due to subsequent expansion—there is no reason to believe that Pena-Rodriguez will cause a shrinking in such coverage. Yet even in jurisdictions for which Pena-Rodriguez represents the first constitutional exception to the no-impeachment rule, the experience of jurisdictions with more expansive coverage indicates that unless courts continue to share Justice Kennedy’s belief in the unique stature of racial discrimination, the exception to the no-impeachment bar may ultimately envelop bias beyond that based on race.
B. Batson and Progeny: A Case Study for Pena-Rodriguez’s Progression?
While state experience is instructive in examining the actual progression of exceptions to the no-impeachment rule, curious observers need look no further than the Supreme Court’s own jurisprudence in a related doctrinal realm to determine how progression of the limited racial-bias exception might—and perhaps should—transpire. The Court is no stranger to adopting exceptions to general rules to combat racial discrimination and ensure the guarantees of the Sixth Amendment, even when the doctrinal underpinnings have no mechanism for distinguishing between different types of prejudice.
Of particular relevance for this Note is the creation of the Batson challenge to racially discriminatory peremptory strikes during voir dire.
Tracking the progression of this initially race-limited constitutional principle to other forms of discrimination may provide important clues for the likely path of the Pena-Rodriguez exception.
1. Batson Challenges: From Race to Gender and Beyond. — The peremptory challenge, in which a party may remove a juror during voir dire without cause, has long been held necessary and useful to ensure the Sixth Amendment jury trial guarantee—much like the no-impeachment rule. By allowing parties to strike certain jurors for whom cause cannot be shown but who the party reasonably believes will nonetheless be biased, peremptory strikes serve as a vital means of protecting the right to an impartial jury.
Much like the no-impeachment rule, however, this long-standing norm
was held subservient to constitutional principles of equality under the law.
In Batson v. Kentucky, the Supreme Court held that the Equal Protection Clause prevents the prosecution from exercising a peremptory challenge solely on account of the juror’s race or the belief that black jurors as a group will be unable to impartially consider the case against a black defendant.
As in Pena-Rodriguez, the Court stressed both the need to strike racial prejudice from the administration of justice
—drawing on its past efforts to combat racial discrimination
—and the fundamental nature of the jury trial guarantee, under which defendants have a right to be tried upon the evidence alone without any consideration of race.
Providing far more procedural guidance than in Pena-Rodriguez, the Court dictated that a defendant must first make a prima facie showing of purposeful discrimination by the prosecution, after which the burden shifts to the government to provide a race-neutral justification for striking the particular juror.
The trial court must then determine whether, in light of all the circumstances, the defendant has made a proper showing of purposeful discrimination.
Litigants quickly jumped on the opportunity to expand the scope of Batson to cover far more than racial discrimination. Initially, expansion pertained more to the party raising the challenge and the context in which the challenge was raised than to the nature of the underlying discrimination alleged.
However, only eight years after Batson, the Court in J.E.B. v. Alabama extended its reasoning to cover allegations of gender bias in peremptory challenges.
Citing the extensive history of sex discrimination and pernicious gender stereotypes, the Court rejected the argument that “gross generalizations that would be deemed impermissible if made on the basis of race are somehow permissible when made on the basis of gender.”
While the Supreme Court has—for the time being—limited the expansion of Batson challenges to allegations of only racial, ethnic,
and gender discrimination, lower federal courts and state courts have seized on the Court’s reasoning in Batson and J.E.B. to allow Batson challenges in the context of other suspect classifications under equal protection doctrine, including sexual orientation,
and skin color.
As summarized succinctly by the Second Circuit, the maxim that a defendant has a right to be tried by jurors selected pursuant to nondiscriminatory criteria is not limited to discrimination on the basis of race, with litigants and jurors alike possessing a “general equal protection right to ‘jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.’”
Much as courts and commentators claimed that a constitutional bias exception would do irreparable damage to the traditional no-impeachment rule, in the wake of Batson and J.E.B., many in the legal community believed that the Supreme Court had dealt the fatal blow to a vital aspect of the jury trial system.
Despite these concerns, peremptory challenges have remained a vital aspect of jury trial practice, with all jurisdictions continuing to allow peremptory challenges and prosecutors and defense counsel continuing to employ such strikes on a regular basis.
While procedural issues inherent in the structure of the Batson challenge have prevented Batson’s spread beyond race from eliminating or crippling the peremptory challenge, they have also served to significantly limit the effectiveness of the Batson regime—and, thus, a party’s ability to effectuate the very right created by the Batson Court.
The Supreme Court’s interpretation of the second and third stages of the Batson framework
has rendered it particularly difficult for a party to bring a successful Batson challenge, as trial courts readily accept any seemingly genuine, race-neutral justification during voir dire.
Thus, Batson’s procedural development has served as a limiting principle, even as the challenge itself has been extended to cover a wider array of discrimination.
2. Reasons to Believe Pena-Rodriguez Will Follow a Similar Course. — Despite what appears to be a direct analogy between Batson and Pena-Rodriguez, differences between the cases may distinguish their respective doctrinal progressions. The primary distinction is the constitutional source of the Court’s holdings: In Batson, the Court explicitly relied on the Equal Protection Clause of the Fourteenth Amendment, whereas
in Pena-Rodriguez, the Court, at least nominally, relied on the Sixth Amendment.
The Court’s jurisprudence is different under each constitutional provision: The Fourteenth Amendment is a traditional source for combatting discrimination against minority groups, while the Sixth Amendment has less of an explicit history as such a tool.
Further, as an equal protection case, Batson and its progeny may have a built-in limiting principle, as only a small subset of classifications receive heightened scrutiny under the Equal Protection Clause.
On the other hand, if grounded in the Sixth Amendment, Pena-Rodriguez may not have a similar limiting principle inherent in its legal underpinning, as there is no categorization of classes under the Sixth Amendment.
Neither the Sixth Amendment itself nor Sixth Amendment jurisprudence distinguishes between types of bias: Anything that threatens a defendant’s right to an impartial trial theoretically offends the Sixth Amendment.
While the differences between Batson and Pena-Rodriguez are important, there are significant reasons to believe that the similarities are more compelling. In both cases, the Court decided that constitutional principles required an exception to long-standing and universally supported norms. The Court grounded both decisions in the need to combat a long and pervasive history of racial discrimination in the criminal justice system and the especially pernicious effect discrimination has had on black defendants.
And in both instances, the Court’s holding, whether explicitly under the Sixth Amendment or the Equal Protection Clause, could apply with equal force to forms of discrimination or bias other than that based on race.
Even the primary distinction between the cases may be simply formalistic, for as commentators have noted—building on an observation in Justice Alito’s dissent—Pena-Rodriguez may be an “Equal Protection holding under the mask of the Sixth Amendment.”
To the extent that courts—including the Supreme Court—are willing to adopt this view and recharacterize Pena-Rodriguez as an equal protection case, either explicitly or implicitly, Batson and its progeny are even more telling for Pena-Rodriguez’s expansion beyond race.
Lower courts appear to have already begun such a fusing or recharacterization in early cases applying Pena-Rodriguez. Several federal courts have cited Pena-Rodriguez for Fourteenth Amendment propositions,
while others have noted that Pena-Rodriguez is best classified as part of a line of Equal Protection Clause cases “entirely in the service of eliminating racial bias in determining culpability.”
Further, courts’ potential readiness to extend Pena-Rodriguez to civil cases only confirms that courts may not be willing to view Pena-Rodriguez as a pure Sixth Amendment holding, as the Sixth Amendment by its terms applies only in criminal cases.
At the very least, these subsequent cases demonstrate that Pena-Rodriguez should not be considered a straightforward Sixth Amendment case.
Even if Pena-Rodriguez does retain its formal characterization as a Sixth Amendment holding, both Pena-Rodriguez and Batson hew closely to the border of the Fourteenth and Sixth Amendments, with Pena-Rodriguez perhaps even fusing the two sources into one broad constitutional narrative.
The Court’s express language in Pena-Rodriguez and J.E.B. tracks quite closely, despite the nominal difference in constitutional bases.
Beyond linguistics, prior to Batson, litigants brought challenges to racially discriminatory peremptory strikes under the fair cross-section requirement of the Sixth Amendment, fearing that the Equal Protection Clause was too difficult to satisfy.
And the Pena-Rodriguez Court, in supporting its latest effort to eradicate racial prejudice from the criminal justice system, cited to a string of cases upon which it builds, nearly all of which are based entirely or at least partially on the Fourteenth Amendment.
In arguing that Batson should not be extended to classifications beyond race, scholars relied on the long history of discrimination against African Americans, distinctions between racial and other classifications, and the harm such extension would cause to a critical feature of jury trials.
This reasoning mirrors Justice Kennedy’s in Pena-Rodriguez, and it is likely to be seized upon by lower courts seeking to cabin the Pena-Rodriguez exception to race.
In both the Supreme Court and lower courts across the nation, however, this reasoning has been rejected, with courts extending Batson’s reasoning about the long and evil history of racial discrimination to discrimination on the basis of other classifications.
Thus, perhaps the most reasonable expectation is that Pena-Rodriguez will proceed in a similar manner to Batson, expanding beyond race, slowly at the national level, but more expansively within lower courts, with its practical implications limited by procedural safeguards.
III. Go West, Young Man: Expansion Is Coming
In each of its meetings since the Court’s decision in Pena-Rodriguez, the Advisory Committee on Rules of Evidence has considered the case’s implications and what steps to take to conform Federal Rule 606(b) to the new racial-bias exception to the no-impeachment rule.
Although the constitutional nature of the Pena-Rodriguez exception means any change to Rule 606(b) is merely functional,
and Rule 606(b) has no application to the states, the Committee’s wrangling with the codification of Pena-Rodriguez demonstrates some of the pressing issues that similar state organizations—and courts—are facing in the wake of Pena-Rodriguez. After considering three explicit amendments to Rule 606(b), the Committee has thus far chosen only to monitor future cases, fearing that any amendment could “suggest expected expansion and potentially contribute to it.”
While the Committee’s hesitance to codify any explicit exception to Rule 606(b) is understandable given the likelihood of required subsequent amendments, in the meantime, courts must determine how to apply the Pena-Rodriguez exception in new contexts. Part III offers a prediction and provides some guidance for how these cases should play out in the wake of Pena-Rodriguez.
Drawing upon the analysis in Part II, Part III argues that the experiences of other jurisdictions with existing bias exceptions, supplemented by the Supreme Court’s own experience under Batson, suggest that the narrow exception recognized in Pena-Rodriguez is highly unlikely to remain cabined to instances of racial bias. Section III.A summarizes the strongest evidence favoring expansion and argues that, if and when it addresses the issue, the Supreme Court should approve such expansion. Section III.B argues that procedural issues will serve as a limiting principle on Pena-Rodriguez’s progression. Section III.C provides a doctrinal solution to further ensure that bias exceptions remain exceptions and do not ultimately swallow the rule.
A. All Engines Go: Why Expansion Is Likely—and Acceptable
1. The Seeming Inevitability of Expansion. — Despite the Supreme Court’s forceful argument that racial discrimination is unique, this view is unlikely to prevent the Pena-Rodriguez exception from expanding beyond race in states and lower federal courts. The Advisory Committee seemed to acknowledge as much in rejecting a proposal to amend Rule 606(b) by codifying the specific holding of Pena-Rodriguez, which would have limited the codified exception to racial bias.
Within jurisdictions that had already recognized bias exceptions broader than that recognized by the Supreme Court, Pena-Rodriguez is unlikely to abrogate those decisions and cause courts to revert to a narrower interpretation of their own exceptions, especially given the varying legal justifications upon which such exceptions have been based.
Having relied on these jurisdictions’ experiences in justifying its nationwide exception, the Supreme Court may have in fact bolstered these courts’ belief that the no-impeachment rule must yield to constitutional principles of fundamental fairness, equal protection, and impartial juries. To the extent that these states rely on Pena-Rodriguez in allowing jurors to impeach the verdict upon evidence of bias beyond race, this may implicitly expand the scope of the Court’s holding by intimating that Pena-Rodriguez itself permits impeachment for nonracial bias. As bodies of case law citing to Pena-Rodriguez build, whether intentionally or not, the case may come to stand for a proposition much broader than that intended by the Supreme Court.
A similar progression beyond race is also likely in jurisdictions in which the Pena-Rodriguez decision represents the initial exception to the no-impeachment rule. Interestingly, in Virginia, a state in which no such exception existed before Pena-Rodriguez, the legislature itself expanded beyond race in codifying the Pena-Rodriguez exception, allowing impeachment in cases of racial or national-origin bias.
Few jurisdictions relied on the special history of racial bias in America as the primary justification for creating an exception to the no-impeachment bar before Pena-Rodriguez,
and even those that did felt comfortable applying the principles from the initial racial-bias exception to cover other forms of prejudice.
While no federal court has yet relied on Pena-Rodriguez to allow impeachment in a case involving nonracial juror bias,
in discussing Pena-Rodriguez, lower federal courts have spoken more freely. The Eastern District of California stated that Pena-Rodriguez was inapplicable in a case because there was “no evidence of racial, religious, or other prejudice,”
and the Third Circuit cited Pena-Rodriguez for the proposition that “the administration of justice includes ensuring a defendant is tried by an impartial jury free from racial or ethnic bias.”
With lower federal courts suggesting a willingness to find Pena-Rodriguez applicable in situations beyond that first contemplated by the Supreme Court, the question appears to be when, not if, one such court explicitly allows impeachment under Pena-Rodriguez in a case involving nonracial bias.
Whether the exception is grounded in the Sixth Amendment or the Equal Protection Clause, courts will not have a strong doctrinal underpinning for limiting the exception to instances of racial bias.
And if courts are willing to recharacterize Pena-Rodriguez as an equal protection holding, then a Batson-like progression is an even more direct analogue for the post-Pena-Rodriguez exception.
Just as courts, including the Supreme Court, have concluded that Batson’s reasoning applies with equal force to other forms of discrimination, courts can be expected to similarly extend the reasoning relied on in Pena-Rodriguez.
Even if lower courts are willing to accede to the view that racial bias deserves special treatment because of its entrenched nature in American criminal justice, other impermissible biases have also long plagued the judicial system.
2. Keep Calm and Expand On: Why Expansion Is Preferred. — As the racial-bias exception expands beyond race in some jurisdictions, others are likely to hew closely to the Court’s admonition that race is special
and refuse to expand beyond race, leading to a likely split across jurisdictions.
If such a situation arises, the Supreme Court should affirm the expansion of the exception to bias beyond race. From a normative perspective, prioritizing race over other classifications is inconsistent with the overarching promise of the criminal justice system that every defendant is entitled to a fair trial, free from bias or prejudice, regardless of his or her demographic characteristics.
To offer relief to a defendant discriminated against on the basis of race but deny such relief when the discrimination is based on gender cannot meaningfully advance the Sixth Amendment’s mission.
Pragmatically, expansion beyond race would avoid a number of muddled distinctions and place the exception on firmer doctrinal ground. Applying Pena-Rodriguez to other forms of bias avoids any issues that may arise in arguing that the rationales underlying the decision do not apply equally to other forms of discrimination.
Expansion beyond race also avoids reliance on the rationale that racial bias is of a different kind
than other forms of bias, an argument that may require “flexibility in constitutional reasoning.”
While there is minimal dissent from the proposition that racism is a particularly pernicious evil in America, there is little in modern jurisprudence—especially under the Sixth Amendment—to support the position that racial animus should receive greater legal scrutiny than similarly offensive and dangerous forms of bias.
Refusing to expand beyond race would also involve difficult distinctions between racial, ethnic, national-origin, and religious bias, entangling the Court in linguistic and sociological acrobatics that may appear disingenuous at best and dishonest at worst. State court experience with bias exceptions and the Supreme Court’s own experience in other contexts have demonstrated that the distinction between race and other forms of bias or prejudice is complex and can often be too thin to ascertain a meaningful difference.
In Pena-Rodriguez itself, the Court was able to ground the exception in the history of the Civil War Amendments and post–Civil War jurisprudence only by classifying the bias as racial, while it could have just as appropriately been deemed ethnic or national-origin bias given the juror’s specific statements about the defendant’s Mexican heritage.
While prejudice against Hispanics has a long pedigree, such prejudice is presumably not what Kennedy and the majority had in mind when expounding the especially pernicious role racial bias has played in American history.
B. The Impact of Practical and Procedural Barriers to Claims Brought Under Pena-Rodriguez
Even if expansion beyond race is foreseeable and welcome, there are a number of procedural barriers that will likely prevent the exception from swallowing the no-impeachment rule.
In many states, parties are barred from actively seeking out jurors after a verdict, rendering it difficult for a defendant to gain access to the information necessary to litigate a claim under Pena-Rodriguez.
While there is no federal rule barring post-verdict juror contact, a large number of district courts have adopted local rules imposing limitations on attorney post-verdict contact with jurors.
To the extent a district is not subject to such a rule, the relevant circuit court may have imposed a similar limitation by judicial decree.
Rules curtailing post-verdict contact with jurors not only ensure the sanctity of the no-impeachment rule but also serve some of the central policy goals animating the staunch defense of the no-impeachment rule: By protecting jurors from potential harassment after a verdict has been rendered, these rules ensure jurors can feel comfortable engaging in full and open debates during deliberations.
When defense counsel circumvents state or local court rules in contacting jurors post-verdict, courts can and will reject defendants’ attempts to impeach the verdict in reliance on tarnished juror testimony.
Thus, in most instances, defendants will not be permitted to contact jurors unless a juror voluntarily comes forward with allegations of bias, as in Pena-Rodriguez, or defendant’s counsel receives permission from the court.
This will effectively prevent defendants from engaging in “fishing expeditions” seeking out instances of bias based on pure conjecture or chance.
Further, while the Supreme Court left much up to the discretion of lower courts, the Court’s limited guidance on the threshold showing of bias required to warrant impeachment,
and lower courts’ subsequent interpretation of this standard, demonstrates that the standard has been set quite high. Thus far, lower courts have taken seriously the Court’s mandate that there be “statements exhibiting overt racial bias”; when statements of alleged racial bias do not rise to a level similar to that in Pena-Rodriguez, courts have rejected efforts to impeach the verdict, claiming that the statements qualify as mere “offhand comment[s]” or do not “cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdicts.”
Even for parties that do receive a hearing, courts have required defendants to show that the bias in question actually played a role in causing the juror to convict
—in essence creating a prejudice requirement akin to the Supreme Court’s standards in other areas of criminal law.
So far, courts have rejected impeachment efforts in cases in which jurors allegedly made statements reflecting racial bias against individual jurors, rather than a defendant or witness, even when the court finds that the statements were overtly racist.
Thus, the procedures relied on by courts applying Pena-Rodriguez can ensure that the no-impeachment rule remains a vital part of the jury system despite expansion to biases beyond race.
To the extent that existing procedural safeguards are insufficient or state and lower federal courts fail to enact sufficiently heightened standards in the practical execution of the Pena-Rodriguez exception,
there are a number of additional procedural requirements that state or federal institutions can install to protect both jurors and the existence of the no-impeachment rule.
The limited number of cases attempting to rely on bias exceptions in jurisdictions that recognized such exceptions before Pena-Rodriguez further indicates that practical barriers are likely to limit any damaging effects on the no-impeachment rule and the jury trial system as a whole. Despite the prevalence of concerns that an exception to the no-impeachment bar for instances of juror bias would lead to a dismantling of the jury system or a “barrage of postverdict scrutiny of juror conduct,”
convicted defendants have raised very few post-verdict claims of juror impartiality in an attempt to impeach the verdict.
Even in jurisdictions with long-standing, broad exceptions, few litigants have attempted to impeach the verdict by using juror testimony to prove instances of juror bias.
In a promising sign for the vitality of the jury trial system and the no-impeachment rule, exceptions appear to remain infrequently relied upon, regardless of their initial scope or subsequent expansion.
Thus, just as the procedural accompaniments to Batson—notably the willingness of trial courts to accept almost any race-neutral explanation
—have served to limit Batson’s weakening of the peremptory challenge, Pena-Rodriguez’s procedural mechanisms—especially the difficulty in making a threshold showing of racial bias
—are likely to limit the Pena-Rodriguez exception’s infringement on the no-impeachment rule. However, whereas procedural issues have rendered Batson much less effective outside of the capital context,
the procedural issues with Pena-Rodriguez are unlikely to similarly render it a nullity. As discussed supra section II.B.1, critics of the Batson regime allege that, along with ensuring the continued vibrancy of the peremptory challenge, structural issues in the Batson regime have ensured that discrimination also remains vibrant in the selection of petit juries.
Whereas in the Batson context prosecutors are capable of creating post hoc, pretextual justifications for impermissible peremptory strikes, clear statements of racial bias are just that: clear.
To the extent a defendant is able to access evidence of a juror’s overt expression of racial bias—such as those in Pena-Rodriguez itself—these statements will likely be too damning for any alternative explanation to suffice.
Further, whereas the context in which the Batson strike arises—voir dire—involves repeat players familiar with the law, jurors are often one-time players without the foresight or knowledge to effectively disguise their bias. Thus, while there are certainly hurdles for a defendant to overcome in the Pena-Rodriguez context, there is no equivalent, easily accessed escape hatch to avoid effectuation of the Pena-Rodriguez right; as a result, expansion beyond race will be cabined, yet not in such a way as to ultimately negate the existence of the exception.
C. The Usual Suspects: Incorporating or Adopting Equal Protection Doctrine
To avoid relying solely on expected procedural developments, courts should adopt a doctrinal solution to constrain expansion of the bias exception, thereby ensuring that the no-impeachment rule remains a safeguard for the jury trial system. The Pena-Rodriguez Court clearly stated that the no-impeachment rule continues to serve vital interests,
and while an argument can be made for abandoning the no-impeachment rule entirely to fully effectuate the Sixth Amendment’s promise,
such a proposal does not seem to have any widespread support.
As a result, while organizations like the Advisory Committee can choose to simply observe the progression of Pena-Rodriguez case law before enacting any new amendments to the no-impeachment rule, courts must make certain decisions about the proper scope of any subsequent expansion of the exception.
While procedural limitations are likely to serve as a sufficient limiting factor, courts should nonetheless doctrinally limit expansion of the racial-bias exception. Only when the juror bias at issue would require heightened scrutiny under the Equal Protection Clause should the no-impeachment rule yield to the guarantee of an impartial jury.
To the extent that Pena-Rodriguez is really an equal protection holding masked by the Sixth Amendment or a fusion of the two constitutional sources,
such a limiting principle is a natural fit under the Court’s jurisprudence. Using constitutionally suspect classifications as the outer limit for expansion of the Pena-Rodriguez exception provides a judicially manageable limiting principle and ensures that bias of only the most serious kind will be admissible to impeach a jury verdict.
Even if the exception retains its grounding in the Sixth Amendment, other suspect classifications under the Fourteenth Amendment share many of the same attributes that led the Court to require the no-impeachment rule to give way to evidence of racial bias; thus, other suspect classifications also likely require different treatment than the forms of juror misconduct in cases like Tanner and Warger.
Further, the Court does not need to recharacterize its holding as an equal protection case or outwardly rely on an equal protection framework in order to rely on this built-in limitation under the Fourteenth Amendment—it can do so implicitly, as the Court has done in other contexts. Although the Court has come to address claims of jury nonrepresentativeness primarily under the Sixth Amendment fair cross-section requirement, the Court had previously addressed such claims under the Equal Protection Clause, and still does so in some cases.
While the modern analysis is thus grounded in the Sixth Amendment and need not map onto the Fourteenth Amendment’s definition of “cognizable groups,” in practice, the Court has adhered to the relevant classifications under the Equal Protection Clause.
If the driving force behind Pena-Rodriguez is the elimination of discrimination in criminal trials, then the exception to the no-impeachment rule may be based on the Sixth Amendment as a matter of constitutional necessity,
but a focus on Fourteenth Amendment classes is both logical and administrable.
The Advisory Committee’s third and final proposal was to include a generic exception to allow testimony whenever “required by the constitution.”
Although deemed the superior of the three proposals due to its ability to adapt to any future expansion by the Court, the Committee ultimately rejected the proposal, fearing it may be interpreted to advocate for such expansion.
Given the evidence of likely expansion available to date, this constitutional exception is perhaps the Advisory Committee’s best bet. Whether suggested by the Committee or not, expansion appears likely. Despite the Court’s reliance on the unique nature of racial discrimination in America, few jurisdictions believe this to be a sound limiting principle, nor has this principle withstood pressure in other doctrinal areas. Both state experience with bias exceptions to the no-impeachment rule and the Court’s own experience with Batson and related cases suggest expansion is coming. Significant pragmatic and normative reasons support such expansion. In conjunction with the development of procedural limitations, adopting Fourteenth Amendment principles will allow the Pena-Rodriguez exception to grow to encompass bias based on other suspect classifications under the Equal Protection Clause without destroying the no-impeachment rule.