EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, November 11, 2009

(Not) Dismissed With Prejudice: First Circuit Finds Judges Have Discretion To Allow Jury Impeachment Based Upon Allegations Of Juror Racial Bias

Last year, in United States v. Benally, 546 F.3d 1230 (10th Cir. 2008), the Tenth Circuit found that Federal Rule of Evidence 606(b) precluded a juror from impeaching the jury's verdict based upon allegations that the verdict was tainted by racial bias against Native Americans. I wrote about Benally in several posts on this blog (hereherehereherehere, and here), wrote an article inspired by the case, and submitted an amicus brief in support of Benally's petition for writ of certiorari to the Supreme Court (which the Supreme Court will soon hear). My argument is that application of Rule 606(b) to exclude jurors from impeaching their verdicts based upon allegations of juror racial, religious, or other bias violates the right to present a defense recognized in cases such as Chambers v. Mississippi, 410 U.S. 284 (1973), which found that courts cannot apply rules of evidence "mechanistically to defeat the ends of justice." As I note in the article and in the brief, the right to present a defense fits well with cases such as Benally because in McDonald v. Pless, 238 U.S. 264 (1915), the case laying the groundwork for Rule 606(b), the Supreme Court found that jury impeachment is not generally warranted but "recognize[d] that it would not be safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice.'" My argument is that juror racism is one of those instances. According to its opinion yesterday in United States v. Villar, 2009 WL 3738787 (1st Cir. 2009), the First Circuit agrees.

In Villar, after a jury trial, Richard Villar, a Hispanic man, was convicted of bank robberyHours later, defense counsel received an e-mal from one of the jurors disclosing that during deliberations another juror said, “I guess we're profiling but they cause all the trouble." Defense counsel subsequently filed a motion for a court inquiry into the validity of the verdict, but the district judge denied the motion, finding that he had no discretion to allow jury impeachment pursuant to Federal Rule of Evidence 606(b), which states in relevant part that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

Upon Villar's appeal, the First Circuit affirmed, finding it persuasive that "most courts have concluded that juror testimony about race-related statements made by deliberating jurors does not fall within either the 'extraneous prejudicial information' or the 'outside influence' exceptions of Rule 606(b), but does fall squarely within Rule 606(b)'s prohibition of post-verdict juror testimony."  

This was not, though, the end of the court's inquiry. Instead, the Court cited Pless for the proposition that "it would not be safe to lay down any inflexible [anti-jury impeachment] rule because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice.'" The court then found that the alleged racist comment by the juror in the case before it was one of those instances.

As I did in my article and brief, the court contrasted a case involving alleged juror racism with the Supreme Court's opinion in Tanner v. United States, 483 U.S. 107 (1987), in which the Supreme Court found that the application of Rule 606(b) to allegations of jurors getting drunk, getting high, and sleeping during trial did not violate the Sixth Amendment right to a competent jury. The First Circuit found that allegations of juror racial bias are fundamentally different because they implicate the stronger Sixth Amendment right to an impartial jury and sided with those courts which "have recognized that Rule 606(b) should not be applied dogmatically where there is a possibility of juror bias during deliberations that would violate a defendant's Sixth Amendment rights."

In my opinion, the First Circuit's opinion was compelling, and it was clearly a direct rebuke to the Tenth Circuit's opinion in Benally. The First Circuit noted that in Tanner, the Supreme Court precluded jury impeachment because, inter alia, it found that “several aspects of the trial process” can protect the Sixth Amendment right to a competent jury such as "voir dire, observations of the jury by counsel and the court during trial, opportunities for jurors to report inappropriate juror behavior prior to rendering a verdict, and the admissibility of non-juror testimony as to wrongdoing." The First Circuit then noted that the Tenth Circuit in Benally found that these same aspects protected the Sixth Amendment right to an impartial jury.

The First Circuit rejected this argument, concluding that

While the issue is difficult and close, we believe that the rule against juror impeachment cannot be applied so inflexibly as to bar juror testimony in those rare and grave cases where claims of racial or ethnic bias during jury deliberations implicate a defendant's right to due process and an impartial jury. In our view, the four protections relied on by the Tanner Court do not provide adequate safeguards in the context of racially and ethnically biased comments made during deliberations. While individual pre-trial voir dire of the jurors can help to disclose prejudice, it has shortcomings because some jurors may be reluctant to admit racial bias.[FN5]

[FN5]....As the trial judge in this case pointed out based on his many years of dealing with jury trials, many defense attorneys have sound tactical reasons for not proposing specific voir dire questions regarding racial or ethnic bias because it might be viewed as insulting to jurors or as raising an issue defense counsel does not want to highlight. As the government pointed out, voir dire using questions about race or ethnicity may not work to a defendant's benefit where one of the robbers was described as Hispanic.

In addition, visual observations of the jury by counsel and the court during trial are unlikely to identify jurors harboring racial or ethnic bias. Likewise, non-jurors are more likely to report inappropriate conduct-such as alcohol or drug use-among jurors than racial statements uttered during deliberations to which they are not privy.

The First Circuit thus "conclude[d] that the district court here did have the discretion to inquire into the validity of the verdict by hearing juror testimony to determine whether ethnically biased statements were made during jury deliberations and, if so, whether there is a substantial probability that any such comments made a difference in the outcome of the trial." Becayse "[t]he experienced trial judge in this case suggested that he might have conducted such an inquiry if he had possessed the discretion to do so," the First Circuit remanded for proceedings consistent with its opinion. It is my strong hope that the United States Supreme Court soon reaches a similar conclusion.



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