Most states and the federal government have a rule of evidence generally prohibiting the introduction of juror testimony regarding statements made during deliberations when offered to challenge the jury’s verdict. Known colloquially as “no impeachment” rules, they are typically codified as Rule 606(b); in some states, they are a matter of common law.
The question presented is whether a “no impeachment” rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury?
As noted on SCOTUSblog today, the State of Colorado prosecuted Pena-Rodriguez, who is Mexican, for sexually harassing 2 teenage girls. He was convicted of 3 misdemeanors, sentenced to 2 years of probation, and ordered to register as a sex offender. After the trial, two jurors told defense lawyers that another juror had made racist comments during deliberations. The juror said things like “Pena-Rodriguez did it because he’s Mexican” and “Mexican men take whatever they want;” Mexican men have “a bravado that caused them to believe they could do whatever they wanted with women;” and Mexican men are “physically controlling of women.” The same juror described a Hispanic alibi witness as not credible because he is “an illegal.” The defendant sought a new trial on the grounds that he had been denied his constitutional right to an impartial jury. The Colorado Supreme Court rejected the claim, holding that the “no impeachment” rule barred courts from considering juror testimony of racial bias during deliberations.
Colorado is in the minority on this issue. See Pena-Rodriguez’s cert. petition at 10-16, which describes the split among state and federal courts. Wisconsin and the 7th Circuit adhere to the majority view that the “no impeachment” rule cannot bar evidence of racial bias offered to show violations of the right to an impartial jury. See Shillcutt v. Gagnon, 827 F.2d 1155, 1158-59 (7th Cir. 1987); State v. Shillcutt, 119 Wis. 2d 788, 350 N.W.2d 686 (1984)(acknowledging that, despite §906.06(2), it could possibly offend fundamental fairness to ignore an offer of proof that showed a substantial likelihood that a criminal defendant was prejudiced by the influence of racial bias in the jury room). Click here for a fuller explanation of Wisconsin’s rule.
The last time SCOTUS addressed the “no impeachment” rule was in Warger v. Shauers, 135 S.Ct. 521 (2014), which held that FRE 606(b) barred evidence to support a claim that a juror had lied during voir dire. Tanner v. U.S., 483 U.S. 107 (1987) similarly held that a court could not consider affidavits alleging that: (1) a juror was biased because her daughter had been in an accident like the one at issue in that case, and (2) some jurors were intoxicated during deliberations. Neither of those cases involved claims of racial bias.