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Is Evidence of Juror Bias in Deliberations Admissible? Supreme Court to Decide

What happens in the jury room, stays in the jury room. Except when it doesn’t. Earlier this month, the Supreme Court agreed to hear the appeal of a Colorado man whose counsel learned, after the guilty verdict was rendered, that one of the jurors had made statements in deliberation that the defendant must be guilty and his alibi witness could not be trusted, because both men were Hispanic. The case, Peña-Rodriguez v. Colorado, pits two fundamental aspects of jury trials against each other: the inadmissibility of evidence about what was said or done during jury deliberations versus the right to a fair trial by unbiased jurors. The Supreme Court’s ruling could open up jury verdicts to possible challenge when those verdicts appear to be the result of racial or other bias.

Jury Deliberations – Not a Secret, but not Admissible

Jury in a courtroom

Strictly speaking, jury deliberations are not always secret. In fact, a common feature of jury trials in many jurisdictions is the post-verdict interview, where lawyers seize the opportunity to discuss the case directly with the recently discharged jurors before they leave the courthouse. These interviews can be an incredibly valuable tool for trial lawyers. They can reveal which arguments resonate and which don’t, for appeal and potential retrial.  They can serve as a gut check for even the most seasoned trial lawyer, and they can provide helpful critiques for younger lawyCoers developing their trial presentation skills. But, with very limited exceptions, statements made by a juror after she has been discharged cannot be used as evidence to try to upset the verdict.

Federal Rule of Evidence 606 says that courts considering whether to overturn a jury verdict may not hear live testimony from a juror, nor receive a juror’s affidavit or any other evidence of a juror’s statements, on anything that was said or done during jury deliberations. There are a few exceptions, such as when a juror testifies that information that was not in evidence was given to the jury (like Henry Fonda pulling out the second knife in 12 Angry Men) or that there has been some sort of improper outside influence used against a juror (like the mob’s threat to kill Demi Moore’s son in The Juror). But other than in very narrow circumstances, it doesn’t matter what a juror reports happened during deliberations; it can’t be used to overturn the verdict.

Peña-Rodriguez – If Bias Comes out After Trial, Can You Do Anything About it?

In granting certiorari in Peña-Rodriguez, the Supreme Court appears to be entertaining the possibility of opening up another exception to this evidentiary rule.  Miguel Peña-Rodriguez was convicted of three misdemeanor counts for the alleged sexual harassment and groping of two teenage girls at a horse track where he worked. The defense maintained that the case was one of mistaken identity. Somebody had assaulted the girls, they argued, but it wasn’t Peña-Rodriguez because he had been in a barn in a different part of the track facility during the attack. An alibi witness produced by the defense corroborated the defendant’s story.

After the verdict, Peña-Rodriguez’s lawyer was told by two of the jurors that another juror allegedly made racist statements during deliberations regarding the defendant’s guilt and impugning the credibility of his alibi witness, including:

  • “I think he did it because he’s Mexican and Mexican men take whatever they want.”

  • “Mexican men [have] a bravado that cause[] them to believe they could do whatever they wanted with women.”

  • “[N]ine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”

  • “[T]he alibi witness [wasn’t] credible because, among other things, he was an illegal.”

After defense counsel learned of these statements and others like them, the defense obtained sworn affidavits from both jurors and moved for a new trial. The trial court denied the motion, under Colorado’s analogue to FRE 606, because the jurors’ testimony could not serve as a basis for overturning the verdict. This holding was affirmed on appeal, ultimately by the Colorado Supreme Court. Peña-Rodriguez’s lawyers sought review from the U.S. Supreme Court, challenging the state evidentiary rule under the Sixth Amendment (applicable to state law under the Fourteenth Amendment). The Supreme Court accepted cert earlier this month.

What to Watch for – Balancing of Two Fundamental Tenets of Jury Trials

The Supreme Court must decide whether the Constitutional right to an impartial jury trumps the exclusionary rule of evidence. At issue is the balance between the need for finality of jury verdicts, on the one hand, and the right to a fair trial, on the other. Overlaying this balancing is the additional concern — clearly on the minds of the Colorado Supreme Court justices when they denied Peña‑Rodriguez’s appeal — that the lawyers on the losing side of a jury trial might harass and coerce jurors in an attempt to drum up a basis for overturning the verdict. Of course, any ancillary proceeding involving evidence from the jury deliberations would also presumably require cross-examination of the jurors to probe the jurors’ credibility and reliability.

While the Supreme Court’s decision will likely focus on the narrow issue of racial prejudice in criminal trials, it has the potential of shifting this balance more broadly and opening up, just a tiny bit more, the shroud surrounding the jury room.

© 2022 Proskauer Rose LLP. National Law Review, Volume VI, Number 112
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About this Author

Shawn Ledingham, Securities Attorney, Proskauer Rose Law Firm
Associate

Shawn S. Ledingham, Jr. is an Associate in the Litigation Department, and a member of the Sports Law and Insurance Recovery & Counseling Groups, resident in the Los Angeles office.

Shawn has substantial experience in and knowledge of the sports industry, with a particular focus on antitrust claims and intraleague relationships. Shortly after joining Proskauer, where he previously worked as a Summer Associate, he represented Major League Baseball in its investigation into Frank McCourt’s ownership of the Los Angeles Dodgers, as well as in the subsequent Dodgers bankruptcy. Shawn...

310-284-5659
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