EvidenceProf Blog

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

Thursday, November 10, 2011

Article Of Interest: Jessica West's 12 Racist Men: Post-Verdict Evidence of Juror Bias

Federal Rule of Evidence 606(b) provides 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. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Many (myself included) have tried to argue that there should be an exception to Rule 606(b), whether constitutional or otherwise, in cases of jurors expressing racial, religious, or other bias during deliberations. Advocates, however, usually run into a brick wall. That wall? Justice O'Connor's opinion in Tanner v. United States, 483 U.S. 107 (1987). Tanner is the paradigmatic case of jurors gone wild: Jurors got drunk during the deliberations. They used drugs. They sold drugs. They slept. And they couldn't testify to any of it after the verdict was entered pursuant to Rule 606(b).

When the defendants claimed that application of Rule 606(b) to preclude such testimony violated their Sixth Amendment right to an unimpaired jury, Justice O'Connor's retort was that this right was

protected by several aspects of the trial process. The suitability of an individual for the responsibility of jury service, of course, is examined during voir dire. Moreover, during the trial the jury is observable by the court, by counsel, and by court personnel....Moreover, jurors are observable by each other, and may report inappropriate juror behavior to the court before they render a verdict....Finally, after the trial a party may seek to impeach the verdict by nonjuror evidence of misconduct

Jessica West, a Visiting Researcher at Yale Law School, uses Justice O'Connor's retort as the launching point for her terrific recent article, 12 Racist Men: Post-Verdict Evidence of Juror Bias, 27 Harv. J. on Racial & Ethnic Just. 165 (2011) (forthcoming). West's objective is two-fold: She seeks to reveal why the mechanisms listed by Justice O'Connor are currently inadequate and explain how they can be recalibrated to achieve front-end justice given that Tanner seems to preclude peering behind the curtain on deliberations after a verdict has been entered. Or, as she describes it, while the mechanisms listed by Justice O'Connor

contain the potential to preempt many instances of juror bias or misconduct, these mechanisms have failed to deliver on the promise of providing adequate protections from racial bias in the deliberative process. As a result, claims of deliberative bias have proliferated while courts and litigants have struggled with the limitations imposed by Rule 606(b). Rather than discard the evidentiary rule, however, another possibility is to address the deficiencies in the pre-deliberative process, in an effort to achieve the promise set out in Tanner.

In Section II of the article, West

•traces the history of Rule 606(b), beginning with Vaise v. Delaval, continuing with early Supreme Court cases such as Mattox v. United States and McDonald v. Pless, and concuding with the competing House and Senate versions of the Rule;

•notes the interests protected by Rule 606(b), such as facilitating open debate during deliberations, ensuring the finality of verdicts, and securing the privacy of jurors; and

•engages in a detailed discussion of Tanner and the contemporary interpretation of the Rule.

In Section III, West then 

•ticks off several disturbing examples of juror bias during deliberations;

•catalogues the various attempts that courts have made to allow for the introduction of evidence of such bias under either an evidentiary exception or a Constitutional trump; and

•cautions that a broad exception to Rule 606(b) might cause more problems than its solves.

Section IV is then the heart of the article, in which West assesses the existing pretrial mechanisms Justice O'Connor flagged as protecting the Sixth Amendment right to an unimpaired jury and explains how they could be bolstered.

Voir Dire

West notes that even in cases in which courts allow inquiry during vior dire into the racial, religious, and other biases of jurors, "courts and litigants ineffectively utilize voir dire to discern the existence of juror bias." Indeed, "the procedures used during voir dire and the psychological atmosphere in which it takes place are virtually guaranteed to inhibit rather than facilitate [juror] self-disclosure." The solution?:

According to empirical studies, in order for jurors to disclose meaningful information on biases, voir dire must "facilitate juror self-disclosure." This type of voir dire requires moving beyond the rudimentary, sterile, one-way, demographic-focused set of questions that currently substitute for real juror inquiry on bias. Instead, all participants, lawyers, courts, and jurors must encourage the engagement of jurors in dialogue regarding prejudice and bias in an unhurried, relaxed, and non-judgmental environment. When conducted effectively, voir dire can assist jurors in making meaningful self-disclosures as to their biases.

And, as West points out, such voir dire has the potential not only to weed out biased jurors but also to "'influence prospective jurors by reminding them of the importance of rendering judgments free from prejudice.'"

Jury Instructions

West laments that pattern jury instructions do not, inter alia, "expressly instruct jurors that, though racial and other biases may be socially pervasive, biases must be set aside in the determination of the matter before them and that an awareness and discussion of the potential for bias can help them avoid bias." A major problem with this omission is the fact that "[s]tudies indicate that judicial instructions can impact whether or not jurors exhibit racial bias during deliberations."

Thus, West proposes a jury instruction on this issue as well as the ingenious idea for an instruction regarding 

the existence of the Rule 606(b) evidentiary prohibition and that evidence of jury deliberations, statements, or processes is not admissible.Not onl ywould an instruction along these lines promote the goal of juror deliberative candor by informing jurors that their deliberations will be secret, such an instruction also would encourage jurors to report concerns about misconduct prior to deliberations since jurors would be aware of the prohibition on the post-verdict admission of the evidence.

Jury Diversity

West observes that, inter alia, "the presence of minority group jurors 'may inhibit majority group members from expressing prejudice, especially if the defendant is from the same group as the minority group jurors.'" And yet, she identifies two significant hindrances to diverse juries: (1) jury venires that are less diverse than the populations from which they draw; and (2) the disproportionate use of peremptory challenges to strike minority jurors. With regard to (1), West offers solutions such as "drawing jury pool information from multiple sources rather than solely from lists of voters or drivers and implementing better procedures to track and enforce jury summonses." And with regard to (2), West notes, inter alia, that "[m]ethods of reducing juror bias discussed elsewhere in this Article have the added beneficial consequence of reducing the discriminatory use of peremptory challenges."

Proving That Jurors Lied During Voir Dire

West concludes by contending that even if all of the above procedures are adopted, there will still be cases in which biased jurors fall through the judicial cracks. And in those cases, West proposes a limited exception to Rule 606(b) which would "allow a juror to testify about 'whether, during voir dire or other questioning under oath, a juror misrepresented a material bias.'"


Of course, this last suggestion by West is exactly the type of back end quality control that courts have been reluctant to endorse (see, e.g., here). But that reluctance is precisely why I think that West's piece is so important. The pages of law reviews have been filled with attempts by authors trying to circumnavigate their way around Justice O'Connor's reasoning in TannerWest's article is the first that I have seen which embraces Justice O'Connor's logic and seeks to improve the mechanisms she identifies as bulwarks against an impaired jury.

I asked West what led her to write the article, and she responded:

I am a new teacher having been a litigator for the last 18 years. I taught at the University of Denver last year and this year am at Yale as a Visiting Researcher (and at Vermont Law School teaching part-time). While a litigator I handled a number of capital cases at trial, on appeal and in post-conviction proceedings. I had a client whose death sentence was overturned based on post-verdict evidence of juror (non-racial) misconduct and I worked extensively with Rule 606(b) in that context.  More generally, as a litigator of capital and non-capital cases, I developed a belief that improved trial mechanisms had the potential to greatly improve outcomes and to reduce appellate and post-conviction litigation.  Unfortunately, trial court culture and pressures often work to prevent the implementation of such measures.  

Currently, I am looking at the criminal prosecution of protesters and, specifically, at the exclusion from trials of evidence of the motivations underlying the defendants' actions.



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This was addressed in the interesting case of Commonwealth v. McCowen, 458 Mass. 461 (2010). I teach the case at the beginning of my course using the Fisher book.

Posted by: Rick Underwood | Nov 15, 2011 11:08:24 AM

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