Pena-Rodriguez v. Colorado

(Slip Opinion) OCTOBER TERM, 2016 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

PENA-RODRIGUEZ v. COLORADO

CERTIORARI TO THE SUPREME COURT OF COLORADO

No. 15–606. Argued October 11, 2016—Decided March 6, 2017

A Colorado jury convicted petitioner Peña-Rodriguez of harassment and

unlawful sexual contact. Following the discharge of the jury, two ju­

rors told defense counsel that, during deliberations, Juror H. C. had

expressed anti-Hispanic bias toward petitioner and petitioner’s alibi

witness. Counsel, with the trial court’s supervision, obtained affida­

vits from the two jurors describing a number of biased statements by

H. C. The court acknowledged H. C.’s apparent bias but denied peti­

tioner’s motion for a new trial on the ground that Colorado Rule of

Evidence 606(b) generally prohibits a juror from testifying as to

statements made during deliberations in a proceeding inquiring into

the validity of the verdict. The Colorado Court of Appeals affirmed,

agreeing that H. C.’s alleged statements did not fall within an excep­

tion to Rule 606(b). The Colorado Supreme Court also affirmed, rely­

ing on Tanner v. United States, 483 U. S. 107, and Warger v. Shauers,

574 U. S. ___, both of which rejected constitutional challenges to the

federal no-impeachment rule as applied to evidence of juror miscon­

duct or bias.

Held: Where a juror makes a clear statement indicating that he or she

relied on racial stereotypes or animus to convict a criminal defend­

ant, 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 guar­

antee. Pp. 6–21.

(a) At common law jurors were forbidden to impeach their verdict,

either by affidavit or live testimony. Some American jurisdictions

adopted a more flexible version of the no-impeachment bar, known as

the “Iowa rule,” which prevented jurors from testifying only about

their own subjective beliefs, thoughts, or motives during delibera­

tions. An alternative approach, later referred to as the federal ap­

2 PENA-RODRIGUEZ v. COLORADO

Syllabus

proach, permitted an exception only for events extraneous to the de­

liberative process. This Court’s early decisions did not establish a

clear preference for a particular version of the no-impeachment rule,

appearing open to the Iowa rule in United States v. Reid, 12 How.

361, and Mattox v. United States, 146 U. S. 140, but rejecting that

approach in McDonald v. Pless, 238 U. S. 264.

The common-law development of the rule reached a milestone in

1975 when Congress adopted Federal Rule of Evidence 606(b), which

sets out a broad no-impeachment rule, with only limited exceptions.

This version of the no-impeachment rule has substantial merit, pro­

moting full and vigorous discussion by jurors and providing consider­

able assurance that after being discharged they will not be sum­

moned to recount their deliberations or otherwise harassed. The rule

gives stability and finality to verdicts. Pp. 6–9.

(b) Some version of the no-impeachment rule is followed in every

State and the District of Columbia, most of which follow the Federal

Rule. At least 16 jurisdictions have recognized an exception for juror

testimony about racial bias in deliberations. Three Federal Courts of

Appeals have also held or suggested there is a constitutional excep­

tion for evidence of racial bias.

In addressing the common-law no-impeachment rule, this Court

noted the possibility of an exception in the “gravest and most im­

portant cases.” United States v. Reid, supra, at 366; McDonald v.

Pless, supra, at 269. The Court has addressed the question whether

the Constitution mandates an exception to Rule 606(b) just twice, re­

jecting an exception each time. In Tanner, where the evidence

showed that some jurors were under the influence of drugs and alco­

hol during the trial, the Court identified “long-recognized and very

substantial concerns” supporting the no-impeachment rule. 483

U. S., at 127. The Court also outlined existing, significant safeguards

for the defendant’s right to an impartial and competent jury beyond

post-trial juror testimony: members of the venire can be examined for

impartiality during voir dire; juror misconduct may be observed the

court, counsel, and court personnel during the trial; and jurors them­

selves can report misconduct to the court before a verdict is rendered.

In Warger, a civil case where the evidence indicated that the jury

forewoman failed to disclose a prodefendant bias during voir dire, the

Court again put substantial reliance on existing safeguards for a fair

trial. But the Court also warned, as in Reid and McDonald, that the

no-impeachment rule may admit of exceptions for “juror bias so ex­

treme that, almost by definition, the jury trial right has been

abridged.” 574 U. S., at ___–___, n. 3. Reid, McDonald, and Warger

left open the question here: whether the Constitution requires an ex­

ception to the no-impeachment rule when a juror’s statements indi­

Cite as: 580 U. S. ____ (2017) 3

Syllabus

cate that racial animus was a significant motivating factor in his or

her finding of guilt. Pp. 9–13.

(c) The imperative to purge racial prejudice from the administra­

tion of justice was given new force and direction by the ratification of

the Civil War Amendments. “[T]he central purpose of the Fourteenth

Amendment was to eliminate racial discrimination emanating from

official sources in the States.” McLaughlin v. Florida, 379 U. S. 184,

192. Time and again, this Court has enforced the Constitution’s

guarantee against state-sponsored racial discrimination in the jury

system. The Court has interpreted the Fourteenth Amendment to

prohibit the exclusion of jurors based on race, Strauder v. West Vir-

ginia, 100 U. S. 303, 305–309; struck down laws and practices that

systematically exclude racial minorities from juries, see, e.g., Neal v.

Delaware, 103 U. S. 370; ruled that no litigant may exclude a pro­

spective juror based on race, see, e.g., Batson v. Kentucky, 476 U. S.

79; and held that defendants may at times be entitled to ask about

racial bias during voir dire, see, e.g., Ham v. South Carolina, 409

U. S. 524. The unmistakable principle of these precedents is that

discrimination on the basis of race, “odious in all aspects, is especially

pernicious in the administration of justice,” Rose v. Mitchell, 443

U. S. 545, 555, damaging “both the fact and the perception” of the ju­

ry’s role as “a vital check against the wrongful exercise of power by

the State,” Powers v. Ohio, 499 U. S. 400, 411. Pp. 13–15.

(d) This case lies at the intersection of the Court’s decisions endors­

ing the no-impeachment rule and those seeking to eliminate racial

bias in the jury system. Those lines of precedent need not conflict.

Racial bias, unlike the behavior in McDonald, Tanner, or Warger,

implicates unique historical, constitutional, and institutional con­

cerns and, if left unaddressed, would risk systemic injury to the ad­

ministration of justice. It is also distinct in a pragmatic sense, for the

Tanner safeguards may be less effective in rooting out racial bias.

But while all forms of improper bias pose challenges to the trial pro­

cess, there is a sound basis to treat racial bias with added precaution.

A constitutional rule that racial bias in the justice system must be

addressed—including, in some instances, after a verdict has been en­

tered—is necessary to prevent a systemic loss of confidence in jury

verdicts, a confidence that is a central premise of the Sixth Amend­

ment trial right. Pp. 15–17.

(e) Before the no-impeachment bar can be set aside to allow further

judicial inquiry, there must be a threshold showing that one or more

jurors made statements exhibiting overt racial bias that cast serious

doubt on the fairness and impartiality of the jury’s deliberations and

resulting verdict. To qualify, the statement must tend to show that

racial animus was a significant motivating factor in the juror’s vote

4 PENA-RODRIGUEZ v. COLORADO

Syllabus

to convict. Whether the threshold showing has been satisfied is

committed to the substantial discretion of the trial court in light of all

the circumstances, including the content and timing of the alleged

statements and the reliability of the proffered evidence.

The practical mechanics of acquiring and presenting such evidence

will no doubt be shaped and guided by state rules of professional eth­

ics and local court rules, both of which often limit counsel’s post-trial

contact with jurors. The experience of those jurisdictions that have

already recognized a racial-bias exception to the no-impeachment

rule, and the experience of courts going forward, will inform the

proper exercise of trial judge discretion. The Court need not address

what procedures a trial court must follow when confronted with a

motion for a new trial based on juror testimony of racial bias or the

appropriate standard for determining when such evidence is suffi­

cient to require that the verdict be set aside and a new trial be grant­

ed. Standard and existing safeguards may also help prevent racial

bias in jury deliberations, including careful voir dire and a trial

court’s instructions to jurors about their duty to review the evidence,

deliberate together, and reach a verdict in a fair and impartial way,

free from bias of any kind. Pp. 17–21.

350 P. 3d 287, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,

BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dis­

senting opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS,

C. J., and THOMAS, J., joined.

Cite as: 580 U. S. ____ (2017) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–606

_________________

MIGUEL ANGEL PENA-RODRIGUEZ, PETITIONER v.

COLORADO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

COLORADO

[March 6, 2017]

JUSTICE KENNEDY delivered the opinion of the Court.

The jury is a central foundation of our justice system

and our democracy. Whatever its imperfections in a par­

ticular case, the jury is a necessary check on governmental

power. The jury, over the centuries, has been an inspired,

trusted, and effective instrument for resolving factual

disputes and determining ultimate questions of guilt or

innocence in criminal cases. Over the long course its

judgments find acceptance in the community, an ac­

ceptance essential to respect for the rule of law. The jury

is a tangible implementation of the principle that the law

comes from the people.

In the era of our Nation’s founding, the right to a jury

trial already had existed and evolved for centuries,

through and alongside the common law. The jury was

considered a fundamental safeguard of individual liberty.

See The Federalist No. 83, p. 451 (B. Warner ed. 1818) (A.

Hamilton). The right to a jury trial in criminal cases was

part of the Constitution as first drawn, and it was restated

in the Sixth Amendment. Art. III, §2, cl. 3; Amdt. 6. By

operation of the Fourteenth Amendment, it is applicable to

2 PENA-RODRIGUEZ v. COLORADO

Opinion of the Court

the States. Duncan v. Louisiana, 391 U. S. 145, 149–150

(1968).

Like all human institutions, the jury system has its

flaws, yet experience shows that fair and impartial ver­

dicts can be reached if the jury follows the court’s instruc­

tions and undertakes deliberations that are honest, can­

did, robust, and based on common sense. A general rule

has evolved to give substantial protection to verdict final­

ity and to assure jurors that, once their verdict has been

entered, it will not later be called into question based on

the comments or conclusions they expressed during delib­

erations. This principle, itself centuries old, is often re­

ferred to as the no-impeachment rule. The instant case

presents the question whether there is an exception to the

no-impeachment rule when, after the jury is discharged, a

juror comes forward with compelling evidence that an-

other juror made clear and explicit statements indicating

that racial animus was a significant motivating factor in

his or her vote to convict.

I

State prosecutors in Colorado brought criminal charges

against petitioner, Miguel Angel Peña-Rodriguez, based on

the following allegations. In 2007, in the bathroom of a

Colorado horse-racing facility, a man sexually assaulted

two teenage sisters. The girls told their father and identi­

fied the man as an employee of the racetrack. The police

located and arrested petitioner. Each girl separately

identified petitioner as the man who had assaulted her.

The State charged petitioner with harassment, unlawful

sexual contact, and attempted sexual assault on a child.

Before the jury was empaneled, members of the venire

were repeatedly asked whether they believed that they

could be fair and impartial in the case. A written ques­

tionnaire asked if there was “anything about you that you

feel would make it difficult for you to be a fair juror.” App.

Cite as: 580 U. S. ____ (2017) 3

Opinion of the Court

14. The court repeated the question to the panel of pro­

spective jurors and encouraged jurors to speak in private

with the court if they had any concerns about their impar­

tiality. Defense counsel likewise asked whether anyone

felt that “this is simply not a good case” for them to be a

fair juror. Id., at 34. None of the empaneled jurors ex­

pressed any reservations based on racial or any other bias.

And none asked to speak with the trial judge.

After a 3-day trial, the jury found petitioner guilty of

unlawful sexual contact and harassment, but it failed to

reach a verdict on the attempted sexual assault charge.

When the jury was discharged, the court gave them this

instruction, as mandated by Colorado law:

“The question may arise whether you may now dis­

cuss this case with the lawyers, defendant, or other

persons. For your guidance the court instructs you

that whether you talk to anyone is entirely your own

decision. . . . If any person persists in discussing the

case over your objection, or becomes critical of your

service either before or after any discussion has be­

gun, please report it to me.” Id., at 85–86.

Following the discharge of the jury, petitioner’s counsel

entered the jury room to discuss the trial with the jurors.

As the room was emptying, two jurors remained to speak

with counsel in private. They stated that, during delibera­

tions, another juror had expressed anti-Hispanic bias

toward petitioner and petitioner’s alibi witness. Petition­

er’s counsel reported this to the court and, with the court’s

supervision, obtained sworn affidavits from the two jurors.

The affidavits by the two jurors described a number of

biased statements made by another juror, identified as

Juror H. C. According to the two jurors, H. C. told the

other jurors that he “believed the defendant was guilty

because, in [H. C.’s] experience as an ex-law enforcement

officer, Mexican men had a bravado that caused them to

4 PENA-RODRIGUEZ v. COLORADO

Opinion of the Court

believe they could do whatever they wanted with women.”

Id., at 110. The jurors reported that H. C. stated his belief

that Mexican men are physically controlling of women

because of their sense of entitlement, and further stated,

“ ‘I think he did it because he’s Mexican and Mexican men

take whatever they want.’ ” Id., at 109. According to the

jurors, H. C. further explained that, in his experience,

“nine times out of ten Mexican men were guilty of being

aggressive toward women and young girls.” Id., at 110.

Finally, the jurors recounted that Juror H. C. said that he

did not find petitioner’s alibi witness credible because,

among other things, the witness was “ ‘an illegal.’ ” Ibid.

(In fact, the witness testified during trial that he was a

legal resident of the United States.)

After reviewing the affidavits, the trial court acknowl­

edged H. C.’s apparent bias. But the court denied peti­

tioner’s motion for a new trial, noting that “[t]he actual

deliberations that occur among the jurors are protected

from inquiry under [Colorado Rule of Evidence] 606(b).”

Id., at 90. Like its federal counterpart, Colorado’s Rule

606(b) generally prohibits a juror from testifying as to any

statement made during deliberations in a proceeding

inquiring into the validity of the verdict. See Fed. Rule

Evid. 606(b). The Colorado Rule reads as follows:

“(b) Inquiry into validity of verdict or indictment.

Upon an inquiry into the validity of a verdict or indict­

ment, a juror may not testify as to any matter or

statement occurring during the course of the jury’s de­

liberations or to the effect of anything upon his or any

other juror’s mind or emotions as influencing him to

assent to or dissent from the verdict or indictment or

concerning his mental processes in connection there­

with. But a juror may testify about (1) whether ex­

traneous prejudicial information was improperly

brought to the jurors’ attention, (2) whether any out­

Cite as: 580 U. S. ____ (2017) 5

Opinion of the Court

side influence was improperly brought to bear upon

any juror, or (3) whether there was a mistake in en­

tering the verdict onto the verdict form. A juror’s affi­

davit or evidence of any statement by the juror may

not be received on a matter about which the juror

would be precluded from testifying.” Colo. Rule Evid.

606(b) (2016).

The verdict deemed final, petitioner was sentenced to

two years’ probation and was required to register as a sex

offender. A divided panel of the Colorado Court of Appeals

affirmed petitioner’s conviction, agreeing that H. C.’s

alleged statements did not fall within an exception to Rule

606(b) and so were inadmissible to undermine the validity

of the verdict. ___ P. 3d ___, 2012 WL 5457362.

The Colorado Supreme Court affirmed by a vote of 4 to

3. 350 P. 3d 287 (2015). The prevailing opinion relied on

two decisions of this Court rejecting constitutional chal­

lenges to the federal no-impeachment rule as applied to

evidence of juror misconduct or bias. See Tanner v. United

States, 483 U. S. 107 (1987); Warger v. Shauers, 574 U. S.

___ (2014). After reviewing those precedents, the court

could find no “dividing line between different types of juror

bias or misconduct,” and thus no basis for permitting

impeachment of the verdicts in petitioner’s trial, notwith­

standing H. C.’s apparent racial bias. 350 P. 3d, at 293.

This Court granted certiorari to decide whether there is a

constitutional exception to the no-impeachment rule for

instances of racial bias. 578 U. S. ___ (2016).

Juror H. C.’s bias was based on petitioner’s Hispanic

identity, which the Court in prior cases has referred to as

ethnicity, and that may be an instructive term here. See,

e.g., Hernandez v. New York, 500 U. S. 352, 355 (1991)

(plurality opinion). Yet we have also used the language of

race when discussing the relevant constitutional principles

in cases involving Hispanic persons. See, e.g., ibid.; Fisher

6 PENA-RODRIGUEZ v. COLORADO

Opinion of the Court

v. University of Tex. at Austin, 570 U. S. ___ (2013);

Rosales-Lopez v. United States, 451 U. S. 182, 189–190

(1981) (plurality opinion). Petitioner and respondent both

refer to race, or to race and ethnicity, in this more expan­

sive sense in their briefs to the Court. This opinion refers

to the nature of the bias as racial in keeping with the

primary terminology employed by the parties and used in

our precedents.

II

A

At common law jurors were forbidden to impeach their

verdict, either by affidavit or live testimony. This rule

originated in Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944

(K. B. 1785). There, Lord Mansfield excluded juror testi­

mony that the jury had decided the case through a game of

chance. The Mansfield rule, as it came to be known, pro­

hibited jurors, after the verdict was entered, from testify­

ing either about their subjective mental processes or about

objective events that occurred during deliberations.

American courts adopted the Mansfield rule as a matter

of common law, though not in every detail. Some jurisdic­

tions adopted a different, more flexible version of the no-

impeachment bar known as the “Iowa rule.” Under that

rule, jurors were prevented only from testifying about

their own subjective beliefs, thoughts, or motives during

deliberations. See Wright v. Illinois & Miss. Tel. Co., 20

Iowa 195 (1866). Jurors could, however, testify about

objective facts and events occurring during deliberations,

in part because other jurors could corroborate that

testimony.

An alternative approach, later referred to as the federal

approach, stayed closer to the original Mansfield rule. See

Warger, supra, at ___ (slip op., at 5). Under this version of

the rule, the no-impeachment bar permitted an exception

only for testimony about events extraneous to the deliber­

Cite as: 580 U. S. ____ (2017) 7

Opinion of the Court

ative process, such as reliance on outside evidence—

newspapers, dictionaries, and the like—or personal inves­

tigation of the facts.

This Court’s early decisions did not establish a clear

preference for a particular version of the no-impeachment

rule. In United States v. Reid, 12 How. 361 (1852), the

Court appeared open to the admission of juror testimony

that the jurors had consulted newspapers during delibera­

tions, but in the end it barred the evidence because the

newspapers “had not the slightest influence” on the ver­

dict. Id., at 366. The Reid Court warned that juror testi­

mony “ought always to be received with great caution.”

Ibid. Yet it added an important admonition: “cases might

arise in which it would be impossible to refuse” juror

testimony “without violating the plainest principles of

justice.” Ibid.

In a following case the Court required the admission of

juror affidavits stating that the jury consulted information

that was not in evidence, including a prejudicial news-

paper article. Mattox v. United States, 146 U. S. 140, 151

(1892). The Court suggested, furthermore, that the ad­

mission of juror testimony might be governed by a more

flexible rule, one permitting jury testimony even where it

did not involve consultation of prejudicial extraneous

information. Id., at 148–149; see also Hyde v. United

States, 225 U. S. 347, 382–384 (1912) (stating that the

more flexible Iowa rule “should apply,” but excluding

evidence that the jury reached the verdict by trading

certain defendants’ acquittals for others’ convictions).

Later, however, the Court rejected the more lenient

Iowa rule. In McDonald v. Pless, 238 U. S. 264 (1915), the

Court affirmed the exclusion of juror testimony about

objective events in the jury room. There, the jury allegedly

had calculated a damages award by averaging the

numerical submissions of each member. Id., at 265–266.

As the Court explained, admitting that evidence would

8 PENA-RODRIGUEZ v. COLORADO

Opinion of the Court

have “dangerous consequences”: “no verdict would be safe”

and the practice would “open the door to the most perni­

cious arts and tampering with jurors.” Id., at 268 (inter­

nal quotation marks omitted). Yet the Court reiterated its

admonition from Reid, again cautioning that the no-

impeachment rule might recognize exceptions “in the

gravest and most important cases” where exclusion of

juror affidavits might well violate “the plainest principles

of justice.” 238 U. S., at 269 (quoting Reid, supra, at 366;

internal quotation marks omitted).

The common-law development of the no-impeachment

rule reached a milestone in 1975, when Congress adopted

the Federal Rules of Evidence, including Rule 606(b).

Congress, like the McDonald Court, rejected the Iowa

rule. Instead it endorsed a broad no-impeachment rule,

with only limited exceptions.

The version of the rule that Congress adopted was “no

accident.” Warger, 574 U. S., at ___ (slip op., at 7). The

Advisory Committee at first drafted a rule reflecting the

Iowa approach, prohibiting admission of juror testimony

only as it related to jurors’ mental processes in reaching a

verdict. The Department of Justice, however, expressed

concern over the preliminary rule. The Advisory Commit­

tee then drafted the more stringent version now in effect,

prohibiting all juror testimony, with exceptions only where

the jury had considered prejudicial extraneous evidence or

was subject to other outside influence. Rules of Evidence

for United States Courts and Magistrates, 56 F. R. D. 183,

265 (1972). The Court adopted this second version and

transmitted it to Congress.

The House favored the Iowa approach, but the Senate

expressed concern that it did not sufficiently address the

public policy interest in the finality of verdicts. S. Rep.

No. 93–1277, pp. 13–14 (1974). Siding with the Senate,

the Conference Committee adopted, Congress enacted, and

the President signed the Court’s proposed rule. The sub­

Cite as: 580 U. S. ____ (2017) 9

Opinion of the Court

stance of the Rule has not changed since 1975, except for a

2006 modification permitting evidence of a clerical mis­

take on the verdict form. See 574 U. S., at ___.

The current version of Rule 606(b) states as follows:

“(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 ju­

ror’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 im­

properly 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.”

This version of the no-impeachment rule has substantial

merit. It promotes full and vigorous discussion by provid­

ing jurors with considerable assurance that after being

discharged they will not be summoned to recount their

deliberations, and they will not otherwise be harassed or

annoyed by litigants seeking to challenge the verdict. The

rule gives stability and finality to verdicts.

B

Some version of the no-impeachment rule is followed in

every State and the District of Columbia. Variations

make classification imprecise, but, as a general matter, it

appears that 42 jurisdictions follow the Federal Rule,

while 9 follow the Iowa Rule. Within both classifications

there is a diversity of approaches. Nine jurisdictions that

10 PENA-RODRIGUEZ v. COLORADO

Opinion of the Court

follow the Federal Rule have codified exceptions other

than those listed in Federal Rule 606(b). See Appendix,

infra. At least 16 jurisdictions, 11 of which follow the

Federal Rule, have recognized an exception to the no-

impeachment bar under the circumstances the Court faces

here: juror testimony that racial bias played a part in

deliberations. Ibid. According to the parties and amici,

only one State other than Colorado has addressed this

issue and declined to recognize an exception for racial

bias. See Commonwealth v. Steele, 599 Pa. 341, 377–379,

961 A. 2d 786, 807–808 (2012).

The federal courts, for their part, are governed by Fed­

eral Rule 606(b), but their interpretations deserve further

comment. Various Courts of Appeals have had occasion to

consider a racial bias exception and have reached different

conclusions. Three have held or suggested there is a

constitutional exception for evidence of racial bias. See

United States v. Villar, 586 F. 3d 76, 87–88 (CA1 2009)

(holding the Constitution demands a racial-bias excep­

tion); United States v. Henley, 238 F. 3d 1111, 1119–1121

(CA9 2001) (finding persuasive arguments in favor of an

exception but not deciding the issue); Shillcutt v. Gagnon,

827 F. 2d 1155, 1158–1160 (CA7 1987) (observing that in

some cases fundamental fairness could require an excep­

tion). One Court of Appeals has declined to find an excep­

tion, reasoning that other safeguards inherent in the trial

process suffice to protect defendants’ constitutional inter­

ests. See United States v. Benally, 546 F. 3d 1230, 1240–

1241 (CA10 2008). Another has suggested as much, hold­

ing in the habeas context that an exception for racial bias

was not clearly established but indicating in dicta that no

such exception exists. See Williams v. Price, 343 F. 3d

223, 237–239 (CA3 2003) (Alito, J.). And one Court of

Appeals has held that evidence of racial bias is excluded

by Rule 606(b), without addressing whether the Constitu­

tion may at times demand an exception. See Martinez v.

Cite as: 580 U. S. ____ (2017) 11

Opinion of the Court

Food City, Inc., 658 F. 2d 369, 373–374 (CA5 1981).

C

In addressing the scope of the common-law no-

impeachment rule before Rule 606(b)’s adoption, the Reid

and McDonald Courts noted the possibility of an exception

to the rule in the “gravest and most important cases.”

Reid, 12 How., at 366; McDonald, 238 U. S., at 269. Yet

since the enactment of Rule 606(b), the Court has ad­

dressed the precise question whether the Constitution

mandates an exception to it in just two instances.

In its first case, Tanner, 483 U. S. 107, the Court rejected

a Sixth Amendment exception for evidence that some

jurors were under the influence of drugs and alcohol dur­

ing the trial. Id., at 125. Central to the Court’s reasoning

were the “long-recognized and very substantial concerns”

supporting “the protection of jury deliberations from in­

trusive inquiry.” Id., at 127. The Tanner Court echoed

McDonald’s concern that, if attorneys could use juror

testimony to attack verdicts, jurors would be “harassed

and beset by the defeated party,” thus destroying “all

frankness and freedom of discussion and conference.” 483

U. S., at 120 (quoting McDonald, supra, at 267–268). The

Court was concerned, moreover, that attempts to impeach

a verdict would “disrupt the finality of the process” and

undermine both “jurors’ willingness to return an unpopu­

lar verdict” and “the community’s trust in a system that

relies on the decisions of laypeople.” 483 U. S., at 120–

121.

The Tanner Court outlined existing, significant safe­

guards for the defendant’s right to an impartial and com­

petent jury beyond post-trial juror testimony. At the

outset of the trial process, voir dire provides an opportun-

ity for the court and counsel to examine members of the

venire for impartiality. As a trial proceeds, the court,

counsel, and court personnel have some opportunity to

12 PENA-RODRIGUEZ v. COLORADO

Opinion of the Court

learn of any juror misconduct. And, before the verdict,

jurors themselves can report misconduct to the court.

These procedures do not undermine the stability of a

verdict once rendered. Even after the trial, evidence of

misconduct other than juror testimony can be used to

attempt to impeach the verdict. Id., at 127. Balancing

these interests and safeguards against the defendant’s

Sixth Amendment interest in that case, the Court affirmed

the exclusion of affidavits pertaining to the jury’s inebri­

ated state. Ibid.

The second case to consider the general issue presented

here was Warger, 574 U. S. ___. The Court again rejected

the argument that, in the circumstances there, the jury

trial right required an exception to the no-impeachment

rule. Warger involved a civil case where, after the verdict

was entered, the losing party sought to proffer evidence

that the jury forewoman had failed to disclose prodefend­

ant bias during voir dire. As in Tanner, the Court put

substantial reliance on existing safeguards for a fair trial.

The Court stated: “Even if jurors lie in voir dire in a way

that conceals bias, juror impartiality is adequately as­

sured by the parties’ ability to bring to the court’s atten­

tion any evidence of bias before the verdict is rendered,

and to employ nonjuror evidence even after the verdict is

rendered.” 574 U. S., at ___ (slip op., at 10).

In Warger, however, the Court did reiterate that the no-

impeachment rule may admit exceptions. As in Reid and

McDonald, the Court warned of “juror bias so extreme

that, almost by definition, the jury trial right has been

abridged.” 574 U. S., at ___–___, n. 3 (slip op., at 10–11,

n. 3). “If and when such a case arises,” the Court indicated

it would “consider whether the usual safeguards are or

are not sufficient to protect the integrity of the process.”

Ibid.

The recognition in Warger that there may be extreme

cases where the jury trial right requires an exception to

Cite as: 580 U. S. ____ (2017) 13

Opinion of the Court

the no-impeachment rule must be interpreted in context

as a guarded, cautious statement. This caution is war­

ranted to avoid formulating an exception that might un­

dermine the jury dynamics and finality interests the no-

impeachment rule seeks to protect. Today, however, the

Court faces the question that Reid, McDonald, and Warger

left open. The Court must decide whether the Constitu­

tion 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.

III

It must become the heritage of our Nation to rise above

racial classifications that are so inconsistent with our

commitment to the equal dignity of all persons. This

imperative to purge racial prejudice from the administra­

tion of justice was given new force and direction by the

ratification of the Civil War Amendments.

“[T]he central purpose of the Fourteenth Amendment

was to eliminate racial discrimination emanating from

official sources in the States.” McLaughlin v. Florida, 379

U. S. 184, 192 (1964). In the years before and after the

ratification of the Fourteenth Amendment, it became clear

that racial discrimination in the jury system posed a

particular threat both to the promise of the Amendment

and to the integrity of the jury trial. “Almost immediately

after the Civil War, the South began a practice that would

continue for many decades: All-white juries punished

black defendants particularly harshly, while simultane­

ously refusing to punish violence by whites, including Ku

Klux Klan members, against blacks and Republicans.”

Forman, Juries and Race in the Nineteenth Century, 113

Yale L. J. 895, 909–910 (2004). To take one example, just

in the years 1865 and 1866, all-white juries in Texas

decided a total of 500 prosecutions of white defendants

14 PENA-RODRIGUEZ v. COLORADO

Opinion of the Court

charged with killing African-Americans. All 500 were

acquitted. Id., at 916. The stark and unapologetic nature

of race-motivated outcomes challenged the American belief

that “the jury was a bulwark of liberty,” id., at 909, and

prompted Congress to pass legislation to integrate the jury

system and to bar persons from eligibility for jury service

if they had conspired to deny the civil rights of African-

Americans, id., at 920–930. Members of Congress stressed

that the legislation was necessary to preserve the right to

a fair trial and to guarantee the equal protection of the

laws. Ibid.

The duty to confront racial animus in the justice system

is not the legislature’s alone. Time and again, this Court

has been called upon to enforce the Constitution’s guaran­

tee against state-sponsored racial discrimination in the

jury system. Beginning in 1880, the Court interpreted the

Fourteenth Amendment to prohibit the exclusion of jurors

on the basis of race. Strauder v. West Virginia, 100 U. S.

303, 305–309 (1880). The Court has repeatedly struck

down laws and practices that systematically exclude racial

minorities from juries. See, e.g., Neal v. Delaware, 103

U. S. 370 (1881); Hollins v. Oklahoma, 295 U. S. 394

(1935) (per curiam); Avery v. Georgia, 345 U. S. 559 (1953);

Hernandez v. Texas, 347 U. S. 475 (1954); Castaneda v.

Partida, 430 U. S. 482 (1977). To guard against discrimi­

nation in jury selection, the Court has ruled that no liti­

gant may exclude a prospective juror on the basis of race.

Batson v. Kentucky, 476 U. S. 79 (1986); Edmonson v.

Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v.

McCollum, 505 U. S. 42 (1992). In an effort to ensure that

individuals who sit on juries are free of racial bias, the

Court has held that the Constitution at times demands

that defendants be permitted to ask questions about racial

bias during voir dire. Ham v. South Carolina, 409 U. S.

524 (1973); Rosales-Lopez, 451 U. S. 182; Turner v. Mur-

ray, 476 U. S. 28 (1986).

Cite as: 580 U. S. ____ (2017) 15

Opinion of the Court

The unmistakable principle underlying these precedents

is that discrimination on the basis of race, “odious in all

aspects, is especially pernicious in the administration of

justice.” Rose v. Mitchell, 443 U. S. 545, 555 (1979). The

jury is to be “a criminal defendant’s fundamental ‘protec­

tion of life and liberty against race or color prejudice.’ ”

McCleskey v. Kemp, 481 U. S. 279, 310 (1987) (quoting

Strauder, supra, at 309). Permitting racial prejudice in

the jury system damages “both the fact and the percep­

tion” of the jury’s role as “a vital check against the wrong­

ful exercise of power by the State.” Powers v. Ohio, 499

U. S. 400, 411 (1991); cf. Aldridge v. United States, 283

U. S. 308, 315 (1931); Buck v. Davis, ante, at 22.

IV

A

This case lies at the intersection of the Court’s decisions

endorsing the no-impeachment rule and its decisions

seeking to eliminate racial bias in the jury system. The

two lines of precedent, however, need not conflict.

Racial bias of the kind alleged in this case differs in

critical ways from the compromise verdict in McDonald,

the drug and alcohol abuse in Tanner, or the pro-

defendant bias in Warger. The behavior in those cases is

troubling and unacceptable, but each involved anomalous

behavior from a single jury—or juror—gone off course.

Jurors are presumed to follow their oath, cf. Penry v.

Johnson, 532 U. S. 782, 799 (2001), and neither history

nor common experience show that the jury system is rife

with mischief of these or similar kinds. To attempt to rid

the jury of every irregularity of this sort would be to ex­

pose it to unrelenting scrutiny. “It is not at all clear . . .

that the jury system could survive such efforts to perfect

it.” Tanner, 483 U. S., at 120.

The same cannot be said about racial bias, a familiar

and recurring evil that, if left unaddressed, would risk

16 PENA-RODRIGUEZ v. COLORADO

Opinion of the Court

systemic injury to the administration of justice. This

Court’s decisions demonstrate that racial bias implicates

unique historical, constitutional, and institutional con­

cerns. An effort to address the most grave and serious

statements of racial bias is not an effort to perfect the

jury but to ensure that our legal system remains capable

of coming ever closer to the promise of equal treat­

ment under the law that is so central to a functioning

democracy.

Racial bias is distinct in a pragmatic sense as well. In

past cases this Court has relied on other safeguards to

protect the right to an impartial jury. Some of those safe­

guards, to be sure, can disclose racial bias. Voir dire at

the outset of trial, observation of juror demeanor and

conduct during trial, juror reports before the verdict, and

nonjuror evidence after trial are important mechanisms

for discovering bias. Yet their operation may be compro­

mised, or they may prove insufficient. For instance, this

Court has noted the dilemma faced by trial court judges

and counsel in deciding whether to explore potential racial

bias at voir dire. See Rosales-Lopez, supra; Ristaino v.

Ross, 424 U. S. 589 (1976). Generic questions about juror

impartiality may not expose specific attitudes or biases

that can poison jury deliberations. Yet more pointed

questions “could well exacerbate whatever prejudice might

exist without substantially aiding in exposing it.” Rosales-

Lopez, supra, at 195 (Rehnquist, J., concurring in result).

The stigma that attends racial bias may make it diffi­

cult for a juror to report inappropriate statements during

the course of juror deliberations. It is one thing to accuse

a fellow juror of having a personal experience that im­

properly influences her consideration of the case, as would

have been required in Warger. It is quite another to call

her a bigot.

The recognition that certain of the Tanner safeguards

may be less effective in rooting out racial bias than other

Cite as: 580 U. S. ____ (2017) 17

Opinion of the Court

kinds of bias is not dispositive. All forms of improper bias

pose challenges to the trial process. But there is a sound

basis to treat racial bias with added precaution. A consti­

tutional rule that racial bias in the justice system must be

addressed—including, in some instances, after the verdict

has been entered—is necessary to prevent a systemic loss

of confidence in jury verdicts, a confidence that is a central

premise of the Sixth Amendment trial right.

B

For the reasons explained above, the Court now holds

that where 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.

Not every offhand comment indicating racial bias or

hostility will justify setting aside the no-impeachment bar

to allow further judicial inquiry. For the inquiry to pro­

ceed, there must be a showing that one or more jurors

made statements exhibiting overt racial bias that cast

serious doubt on the fairness and impartiality of the jury’s

deliberations and resulting verdict. To qualify, the state­

ment must tend to show that racial animus was a signifi­

cant motivating factor in the juror’s vote to convict.

Whether that threshold showing has been satisfied is a

matter committed to the substantial discretion of the trial

court in light of all the circumstances, including the con­

tent and timing of the alleged statements and the reliabil­

ity of the proffered evidence.

The practical mechanics of acquiring and presenting

such evidence will no doubt be shaped and guided by state

rules of professional ethics and local court rules, both of

which often limit counsel’s post-trial contact with jurors.

See 27 C. Wright & V. Gold, Federal Practice and Proce­

18 PENA-RODRIGUEZ v. COLORADO

Opinion of the Court

dure: Evidence §6076, pp. 580–583 (2d ed. 2007) (Wright);

see also Variations of ABA Model Rules of Professional

Conduct, Rule 3.5 (Sept. 15, 2016) (overview of state ethics

rules); 2 Jurywork Systematic Techniques §13:18 (2016–

2017) (overview of Federal District Court rules). These

limits seek to provide jurors some protection when they

return to their daily affairs after the verdict has been

entered. But while a juror can always tell counsel they do

not wish to discuss the case, jurors in some instances may

come forward of their own accord.

That is what happened here. In this case the alleged

statements by a juror were egregious and unmistakable in

their reliance on racial bias. Not only did juror H. C.

deploy a dangerous racial stereotype to conclude petitioner

was guilty and his alibi witness should not be believed,

but he also encouraged other jurors to join him in convict­

ing on that basis.

Petitioner’s counsel did not seek out the two jurors’

allegations of racial bias. Pursuant to Colorado’s manda­

tory jury instruction, the trial court had set limits on juror

contact and encouraged jurors to inform the court if any­

one harassed them about their role in the case. Similar

limits on juror contact can be found in other jurisdictions

that recognize a racial-bias exception. See, e.g., Fla.

Standard Jury Instrs. in Crim. Cases No. 4.2 (West 2016)

(“Although you are at liberty to speak with anyone about

your deliberations, you are also at liberty to refuse to

speak to anyone”); Mass. Office of Jury Comm’r, Trial

Juror’s Handbook (Dec. 2015) (“You are not required to

speak with anyone once the trial is over. . . . If anyone

tries to learn this confidential information from you, or if

you feel harassed or embarrassed in any way, you should

report it to the court . . . immediately”); N. J. Crim. Model

Jury Charges, Non 2C Charges, Dismissal of Jury (2014)

(“It will be up to each of you to decide whether to speak

about your service as a juror”).

Cite as: 580 U. S. ____ (2017) 19

Opinion of the Court

With the understanding that they were under no obliga­

tion to speak out, the jurors approached petitioner’s coun­

sel, within a short time after the verdict, to relay their

concerns about H. C.’s statements. App. 77. A similar

pattern is common in cases involving juror allegations of

racial bias. See, e.g., Villar, 586 F. 3d, at 78 ( juror e­

mailed defense counsel within hours of the verdict); Kittle

v. United States, 65 A. 3d 1144, 1147 (D. C. 2013) ( juror

wrote a letter to the judge the same day the court dis­

charged the jury); Benally, 546 F. 3d, at 1231 ( juror ap­

proached defense counsel the day after the jury announced

its verdict). Pursuant to local court rules, petitioner’s

counsel then sought and received permission from the

court to contact the two jurors and obtain affidavits lim­

ited to recounting the exact statements made by H. C. that

exhibited racial bias.

While the trial court concluded that Colorado’s Rule

606(b) did not permit it even to consider the resulting

affidavits, the Court’s holding today removes that bar.

When jurors disclose an instance of racial bias as serious

as the one involved in this case, the law must not wholly

disregard its occurrence.

C

As the preceding discussion makes clear, the Court

relies on the experiences of the 17 jurisdictions that have

recognized a racial-bias exception to the no-impeachment

rule—some for over half a century—with no signs of an

increase in juror harassment or a loss of juror willingness

to engage in searching and candid deliberations.

The experience of these jurisdictions, and the experience

of the courts going forward, will inform the proper exercise

of trial judge discretion in these and related matters. This

case does not ask, and the Court need not address, what

procedures a trial court must follow when confronted with

a motion for a new trial based on juror testimony of racial

20 PENA-RODRIGUEZ v. COLORADO

Opinion of the Court

bias. See 27 Wright 575–578 (noting a divergence of

authority over the necessity and scope of an evidentiary

hearing on alleged juror misconduct). The Court also does

not decide the appropriate standard for determining when

evidence of racial bias is sufficient to require that the

verdict be set aside and a new trial be granted. Compare,

e.g., Shillcutt, 827 F. 2d, at 1159 (inquiring whether racial

bias “pervaded the jury room”), with, e.g., Henley, 238

F. 3d, at 1120 (“One racist juror would be enough”).

D

It is proper to observe as well that there are standard

and existing processes designed to prevent racial bias in

jury deliberations. The advantages of careful voir dire

have already been noted. And other safeguards deserve

mention.

Trial courts, often at the outset of the case and again in

their final jury instructions, explain the jurors’ duty to

review the evidence and reach a verdict in a fair and

impartial way, free from bias of any kind. Some instruc­

tions are framed by trial judges based on their own learn­

ing and experience. Model jury instructions likely take

into account these continuing developments and are com­

mon across jurisdictions. See, e.g., 1A K. O’Malley, J.

Grenig, & W. Lee, Federal Jury Practice and Instructions,

Criminal §10:01, p. 22 (6th ed. 2008) (“Perform these

duties fairly. Do not let any bias, sympathy or prejudice

that you may feel toward one side or the other influence

your decision in any way”). Instructions may emphasize

the group dynamic of deliberations by urging jurors to

share their questions and conclusions with their col­

leagues. See, e.g., id., §20:01, at 841 (“It is your duty as

jurors to consult with one another and to deliberate with

one another with a view towards reaching an agreement if

you can do so without violence to individual judgment”).

Probing and thoughtful deliberation improves the likeli­

Cite as: 580 U. S. ____ (2017) 21

Opinion of the Court

hood that other jurors can confront the flawed nature of

reasoning that is prompted or influenced by improper

biases, whether racial or otherwise. These dynamics can

help ensure that the exception is limited to rare cases.

* * *

The Nation must continue to make strides to overcome

race-based discrimination. The progress that has already

been made underlies the Court’s insistence that blatant

racial prejudice is antithetical to the functioning of the

jury system and must be confronted in egregious cases like

this one despite the general bar of the no-impeachment

rule. It is the mark of a maturing legal system that it

seeks to understand and to implement the lessons of

history. The Court now seeks to strengthen the broader

principle that society can and must move forward by

achieving the thoughtful, rational dialogue at the founda­

tion of both the jury system and the free society that

sustains our Constitution.

The judgment of the Supreme Court of Colorado is

reversed, and the case is remanded for further proceedings

not inconsistent with this opinion.

It is so ordered.

22 PENA-RODRIGUEZ v. COLORADO

Opinion

Appendix of the of

to opinion Court

the Court

APPENDIX

Codified Exceptions in Addition to Those Enumerated in

Fed. Rule Evid. 606(b)

See Ariz. Rules Crim. Proc. 24.1(c)(3), (d) (2011) (excep­

tion for evidence of misconduct, including verdict by game

of chance or intoxication); Idaho Rule Evid. 606(b) (2016)

(game of chance); Ind. Rule Evid. 606(b)(2)(A) (Burns

2014) (drug or alcohol use); Minn. Rule Evid. 606(b) (2014)

(threats of violence or violent acts); Mont. Rule Evid.

606(b) (2015) (game of chance); N. D. Rule Evid.

606(b)(2)(C) (2016–2017) (same); Tenn. Rule Evid. 606(b)

(2016) (quotient verdict or game of chance); Tex. Rule

Evid. 606(b)(2)(B) (West 2016) (rebutting claim juror was

unqualified); Vt. Rule Evid. 606(b) (Cum. Supp. 2016)

(juror communication with nonjuror); see also 27 C.

Wright & V. Gold, Federal Practice and Procedure: Evi­

dence §6071, p. 447, and n. 66 (2d ed. 2007); id., at 451,

and n. 70; id., at 452, and n. 72.

Judicially Recognized Exceptions for Evidence of Racial

Bias

See State v. Santiago, 245 Conn. 301, 323–340, 715 A.

2d 1, 14–22 (1998); Kittle v. United States, 65 A. 3d 1144,

1154–1556 (D. C. 2013); Fisher v. State, 690 A. 2d 917,

919–921, and n. 4 (Del. 1996) (Appendix to opinion), Pow-

ell v. Allstate Ins. Co., 652 So. 2d 354, 357–358 (Fla. 1995);

Spencer v. State, 260 Ga. 640, 643–644, 398 S. E. 2d 179,

184–185 (1990); State v. Jackson, 81 Haw. 39, 48–49, 912

P. 2d 71, 80–81 (1996); Commonwealth v. Laguer, 410

Mass. 89, 97–98, 571 N. E. 2d 371, 376 (1991); State v.

Callender, 297 N. W. 2d 744, 746 (Minn. 1980); Fleshner v.

Pepose Vision Inst., P. C., 304 S. W. 3d 81, 87–90 (Mo.

Cite as: 580 U. S. ____ (2017) 23

Opinion

Appendix of the of

to opinion Court

the Court

2010); State v. Levitt, 36 N. J. 266, 271–273, 176 A. 2d 465,

467–468 (1961); People v. Rukaj, 123 App. Div. 2d 277,

280–281, 506 N. Y. S. 2d 677, 679–680 (1986); State v.

Hidanovic, 2008 ND 66, ¶¶21–26, 747 N. W. 2d 463, 472–

474; State v. Brown, 62 A. 3d 1099, 1110 (R. I. 2013); State

v. Hunter, 320 S. C. 85, 88, 463 S. E. 2d 314, 316 (1995);

Seattle v. Jackson, 70 Wash. 2d 733, 738, 425 P. 2d 385,

389 (1967); After Hour Welding, Inc. v. Laneil Manage-

ment Co., 108 Wis. 2d 734, 739–740, 324 N. W. 2d 686, 690

(1982).

Cite as: 580 U. S. ____ (2017) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–606

_________________

MIGUEL ANGEL PENA-RODRIGUEZ, PETITIONER v.

COLORADO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

COLORADO

[March 6, 2017]

JUSTICE THOMAS, dissenting.

The Court today holds that the Sixth Amendment re-

quires the States to provide a criminal defendant the

opportunity to impeach a jury’s guilty verdict with juror

testimony about a juror’s alleged racial bias, notwith-

standing a state procedural rule forbidding such testi-

mony. I agree with JUSTICE ALITO that the Court’s decision

is incompatible with the text of the Amendment it pur-

ports to interpret and with our precedents. I write sepa-

rately to explain that the Court’s holding also cannot be

squared with the original understanding of the Sixth or

Fourteenth Amendments.

I

The Sixth Amendment’s protection of the right, “[i]n all

criminal prosecutions,” to a “trial, by an impartial jury,” is

limited to the protections that existed at common law

when the Amendment was ratified. See, e.g., Apprendi v.

New Jersey, 530 U. S. 466, 500, and n. 1 (2000) (THOMAS,

J., concurring); 3 J. Story, Commentaries on the Constitu-

tion of the United States §1773, pp. 652–653 (1833) (Story)

(explaining that “the trial by jury in criminal cases” pro-

tected by the Constitution is the same “great privilege”

that was “a part of that admirable common law” of Eng-

land); cf. 5 St. G. Tucker, Blackstone’s Commentaries 349,

2 PENA-RODRIGUEZ v. COLORADO

THOMAS, J., dissenting

n. 2 (1803). It is therefore “entirely proper to look to the

common law” to ascertain whether the Sixth Amendment

requires the result the Court today reaches. Apprendi,

supra, at 500, n. 1.

The Sixth Amendment’s specific guarantee of impartial-

ity incorporates the common-law understanding of that

term. See, e.g., 3 W. Blackstone, Commentaries on the

Laws of England 365 (1769) (Blackstone) (describing

English trials as “impartially just” because of their “cau-

tion against all partiality and bias” in the jury). The

common law required a juror to have “freedome of mind”

and to be “indifferent as hee stands unsworne.” 1 E. Coke,

First Part of the Institutes of the Laws of England §234, p.

155a (16th ed. 1809); accord, 3 M. Bacon, A New Abridg-

ment of the Law 258 (3d ed. 1768); cf. T. Cooley, A Trea-

tise on the Constitutional Limitations Which Rest Upon

the Legislative Power of the States of the American Union

319 (1868) (“The jury must be indifferent between the

prisoner and the commonwealth”). Impartial jurors could

“have no interest of their own affected, and no personal

bias, or pre-possession, in favor [of] or against either

party.” Pettis v. Warren, 1 Kirby 426, 427 (Conn. Super.

1788).

II

The common-law right to a jury trial did not, however,

guarantee a defendant the right to impeach a jury verdict

with juror testimony about juror misconduct, including “a

principal species of [juror] misbehaviour”—“notorious

partiality.” 3 Blackstone 388. Although partiality was a

ground for setting aside a jury verdict, ibid., the English

common-law rule at the time the Sixth Amendment was

ratified did not allow jurors to supply evidence of that

misconduct. In 1770, Lord Mansfield refused to receive a

juror’s affidavit to impeach a verdict, declaring that such

an affidavit “can’t be read.” Rex v. Almon, 5 Burr. 2687,

Cite as: 580 U. S. ____ (2017) 3

THOMAS, J., dissenting

98 Eng. Rep. 411 (K. B.). And in 1785, Lord Mansfield

solidified the doctrine, holding that “[t]he Court [could not]

receive such an affidavit from any of the jurymen” to prove

that the jury had cast lots to reach a verdict. Vaise v.

Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B.).1

At the time of the founding, the States took mixed ap-

proaches to this issue. See Cluggage v. Swan, 4 Binn. 150,

156 (Pa. 1811) (opinion of Yeates, J.) (“The opinions of

American judges . . . have greatly differed on the point in

question”); Bishop v. Georgia, 9 Ga. 121, 126 (1850) (de-

scribing the common law in 1776 on this question as “in a

transition state”). Many States followed Lord Mansfield’s

no-impeachment rule and refused to receive juror affida-

vits. See, e.g., Brewster v. Thompson, 1 N. J. L. 32 (1790)

(per curiam); Robbins v. Windover, 2 Tyl. 11, 14 (Vt. 1802);

Taylor v. Giger, 3 Ky. 586, 597–598 (1808); Price v.

McIlvain, 2 Tread. 503, 504 (S. C. 1815); Tyler v. Stevens,

4 N. H. 116, 117 (1827); 1 Z. Swift, A Digest of the Laws of

the State of Connecticut 775 (1822) (“In England, and in

the courts of the United States, jurors are not permitted to

be witnesses respecting the misconduct of the jury . . . and

this is, most unquestionably, the correct principle”). Some

States, however, permitted juror affidavits about juror

misconduct. See, e.g., Crawford v. State, 10 Tenn. 60, 68

(1821); Cochran v. Street, 1 Va. 79, 81 (1792). And others

initially permitted such evidence but quickly reversed

course. Compare, e.g., Smith v. Cheetham, 3 Cai. R. 57,

——————

1 Prior to 1770, it appears that juror affidavits were sometimes re-

ceived to impeach a verdict on the ground of juror misbehavior, al-

though only “with great caution.” McDonald v. Pless, 238 U. S. 264, 268

(1915); see, e.g., Dent v. The Hundred of Hertford, 2 Salk. 645, 91 Eng.

Rep. 546 (K. B. 1696); Philips v. Fowler, Barnes. 441, 94 Eng. Rep. 994

(K. B. 1735). But “previous to our Revolution, and at least as early as

1770, the doctrine in England was distinctly ruled the other way, and

has so stood ever since.” 3 T. Waterman, A Treatise on the Principles of

Law and Equity Which Govern Courts in the Granting of New Trials in

Cases Civil and Criminal 1429 (1855).

4 PENA-RODRIGUEZ v. COLORADO

THOMAS, J., dissenting

59–60 (N. Y. 1805) (opinion of Livingston, J.) (permitting

juror testimony), with Dana v. Tucker, 4 Johns. 487, 488–

489 (N. Y. 1809) (per curiam) (overturning Cheetham);

compare also Bradley’s Lessee v. Bradley, 4 Dall. 112 (Pa.

1792) (permitting juror affidavits), with, e.g., Cluggage,

supra, at 156–158 (opinion of Yeates, J.) (explaining that

Bradley was incorrectly reported and rejecting affidavits);

compare also Talmadge v. Northrop, 1 Root 522 (Conn.

1793) (admitting juror testimony), with State v. Freeman,

5 Conn. 348, 350–352 (1824) (“The opinion of almost

the whole legal world is adverse to the reception of the

testimony in question; and, in my opinion, on invincible

foundations”).

By the time the Fourteenth Amendment was ratified,

Lord Mansfield’s no-impeachment rule had become firmly

entrenched in American law. See Lettow, New Trial for

Verdict Against Law: Judge-Jury Relations in Early-

Nineteenth Century America, 71 Notre Dame L. Rev. 505,

536 (1996) (“[O]pponents of juror affidavits had largely

won out by the middle of the century”); 8 J. Wigmore,

Evidence in Trials at Common Law §2352, p. 697 (J.

McNaughton rev. 1961) (Wigmore) (Lord Mansfield’s rule

“came to receive in the United States an adherence almost

unquestioned”); J. Proffatt, A Treatise on Trial by Jury

§408, p. 467 (1877) (“It is a well established rule of law

that no affidavit shall be received from a juror to impeach

his verdict”). The vast majority of States adopted the no-

impeachment rule as a matter of common law. See, e.g.,

Bull v. Commonwealth, 55 Va. 613, 627–628 (1857) (“[T]he

practice appears to be now generally settled, to reject the

testimony of jurors when offered to impeach their verdict.

The cases on the subject are too numerous to be cited”);

Tucker v. Town Council of South Kingstown, 5 R. I. 558,

560 (1859) (collecting cases); State v. Coupenhaver, 39 Mo.

430 (1867) (“The law is well settled that a traverse juror

cannot be a witness to prove misbehavior in the jury in

Cite as: 580 U. S. ____ (2017) 5

THOMAS, J., dissenting

regard to their verdict”); Peck v. Brewer, 48 Ill. 54, 63

(1868) (“So far back as . . . 1823, the doctrine was held that

the affidavits of jurors cannot be heard to impeach their

verdict”); Heffron v. Gallupe, 55 Me. 563, 566 (1868) (rul-

ing inadmissible “depositions of . . . jurors as to what

transpired in the jury room”); Withers v. Fiscus, 40 Ind.

131, 131–132 (1872) (“In the United States it seems to be

settled, notwithstanding a few adjudications to the con-

trary . . . , that such affidavits cannot be received”).2

The Court today acknowledges that the States “adopted

the Mansfield rule as a matter of common law,” ante, at 6,

but ascribes no significance to that fact. I would hold that

it is dispositive. Our common-law history does not estab-

lish that—in either 1791 (when the Sixth Amendment was

ratified) or 1868 (when the Fourteenth Amendment was

ratified)—a defendant had the right to impeach a verdict

with juror testimony of juror misconduct. In fact, it

strongly suggests that such evidence was prohibited. In

the absence of a definitive common-law tradition permit-

ting impeachment by juror testimony, we have no basis to

invoke a constitutional provision that merely “follow[s] out

the established course of the common law in all trials for

crimes,” 3 Story §1785, at 662, to overturn Colorado’s

decision to preserve the no-impeachment rule, cf.

Boumediene v. Bush, 553 U. S. 723, 832–833 (2008) (Scalia,

J., dissenting).

* * *

Perhaps good reasons exist to curtail or abandon the no-

impeachment rule. Some States have done so, see Appen-

dix to majority opinion, ante, and others have not. Ulti-

——————

2 Although two States declined to follow the rule in the mid-19th cen-

tury, see Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, 210 (1866);

Perry v. Bailey, 12 Kan. 539, 544–545 (1874), “most of the state courts”

had already “committed themselves upon the subject,” 8 Wigmore

§2354, at 702.

6 PENA-RODRIGUEZ v. COLORADO

THOMAS, J., dissenting

mately, that question is not for us to decide. It should be

left to the political process described by JUSTICE ALITO.

See post, at 5–7 (dissenting opinion). In its attempt to

stimulate a “thoughtful, rational dialogue” on race rela-

tions, ante, at 21, the Court today ends the political pro-

cess and imposes a uniform, national rule. The Constitu-

tion does not require such a rule. Neither should we.

I respectfully dissent.

Cite as: 580 U. S. ____ (2017) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–606

_________________

MIGUEL ANGEL PENA-RODRIGUEZ, PETITIONER v.

COLORADO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

COLORADO

[March 6, 2017]

JUSTICE ALITO, with whom THE CHIEF JUSTICE and

JUSTICE THOMAS join, dissenting.

Our legal system has many rules that restrict the ad­

mission of evidence of statements made under circum­

stances in which confidentiality is thought to be essential.

Statements made to an attorney in obtaining legal advice,

statements to a treating physician, and statements made

to a spouse or member of the clergy are familiar examples.

See Trammel v. United States, 445 U. S. 40, 51 (1980).

Even if a criminal defendant whose constitutional rights

are at stake has a critical need to obtain and introduce

evidence of such statements, long-established rules stand

in the way. The goal of avoiding interference with confi­

dential communications of great value has long been

thought to justify the loss of important evidence and the

effect on our justice system that this loss entails.

The present case concerns a rule like those just men­

tioned, namely, the age-old rule against attempting to

overturn or “impeach” a jury’s verdict by offering state­

ments made by jurors during the course of deliberations.

For centuries, it has been the judgment of experienced

judges, trial attorneys, scholars, and lawmakers that

allowing jurors to testify after a trial about what took

place in the jury room would undermine the system of

trial by jury that is integral to our legal system.

2 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

Juries occupy a unique place in our justice system. The

other participants in a trial—the presiding judge, the

attorneys, the witnesses—function in an arena governed

by strict rules of law. Their every word is recorded and

may be closely scrutinized for missteps.

When jurors retire to deliberate, however, they enter a

space that is not regulated in the same way. Jurors are

ordinary people. They are expected to speak, debate,

argue, and make decisions the way ordinary people do in

their daily lives. Our Constitution places great value on

this way of thinking, speaking, and deciding. The jury

trial right protects parties in court cases from being

judged by a special class of trained professionals who do

not speak the language of ordinary people and may not

understand or appreciate the way ordinary people live

their lives. To protect that right, the door to the jury room

has been locked, and the confidentiality of jury delibera­

tions has been closely guarded.

Today, with the admirable intention of providing justice

for one criminal defendant, the Court not only pries open

the door; it rules that respecting the privacy of the jury

room, as our legal system has done for centuries, violates

the Constitution. This is a startling development, and

although the Court tries to limit the degree of intrusion, it

is doubtful that there are principled grounds for prevent­

ing the expansion of today’s holding.

The Court justifies its decision on the ground that the

nature of the confidential communication at issue in this

particular case—a clear expression of what the Court

terms racial bias1—is uniquely harmful to our criminal

——————

1 The bias at issue in this case was a “bias against Mexican men.”

App. 160. This might be described as bias based on national origin or

ethnicity. Cf. Hernandez v. New York, 500 U. S. 352, 355 (1991) (plu­

rality opinion); Hernandez v. Texas, 347 U. S. 475, 479 (1954). How-

ever, no party has suggested that these distinctions make a substantive

Cite as: 580 U. S. ____ (2017) 3

ALITO, J., dissenting

justice system. And the Court is surely correct that even a

tincture of racial bias can inflict great damage on that

system, which is dependent on the public’s trust. But

until today, the argument that the Court now finds con­

vincing has not been thought to be sufficient to overcome

confidentiality rules like the one at issue here.

Suppose that a prosecution witness gives devastating

but false testimony against a defendant, and suppose that

the witness’s motivation is racial bias. Suppose that the

witness admits this to his attorney, his spouse, and a

member of the clergy. Suppose that the defendant,

threatened with conviction for a serious crime and a

lengthy term of imprisonment, seeks to compel the attor­

ney, the spouse, or the member of the clergy to testify

about the witness’s admissions. Even though the constitu­

tional rights of the defendant hang in the balance, the

defendant’s efforts to obtain the testimony would fail. The

Court provides no good reason why the result in this case

should not be the same.

I

Rules barring the admission of juror testimony to im­

peach a verdict (so-called “no-impeachment rules”) have a

long history. Indeed, they pre-date the ratification of the

Constitution. They are typically traced back to Vaise v.

Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B. 1785), in

which Lord Mansfield declined to consider an affidavit

from two jurors who claimed that the jury had reached its

verdict by lot. See Warger v. Shauers, 574 U. S. ___, ___

(2014) (slip op., at 4). Lord Mansfield’s approach “soon

took root in the United States,” ibid., and “[b]y the begin­

ning of [the 20th] century, if not earlier, the near-

universal and firmly established common-law rule in the

——————

difference in this case.

4 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

United States flatly prohibited the admission of juror

testimony to impeach a jury verdict,” Tanner v. United

States, 483 U. S. 107, 117 (1987); see 27 C. Wright & V.

Gold, Federal Practice and Procedure: Evidence §6071, p.

431 (2d ed. 2007) (Wright & Gold) (noting that the Mans­

field approach “came to be accepted in almost all states”).

In McDonald v. Pless, 238 U. S. 264 (1915), this Court

adopted a strict no-impeachment rule for cases in federal

court. McDonald involved allegations that the jury had

entered a quotient verdict—that is, that it had calculated

a damages award by taking the average of the jurors’

suggestions. Id., at 265–266. The Court held that evi­

dence of this misconduct could not be used. Id., at 269. It

applied what it said was “unquestionably the general rule,

that the losing party cannot, in order to secure a new trial,

use the testimony of jurors to impeach their verdict.” Ibid.

The Court recognized that the defendant had a powerful

interest in demonstrating that the jury had “adopted an

arbitrary and unjust method in arriving at their verdict.”

Id., at 267. “But,” the Court warned, “let it once be estab­

lished that verdicts . . . can be attacked and set aside on

the testimony of those who took part in their publication

and all verdicts could be, and many would be, followed by

an inquiry in the hope of discovering something which

might invalidate the finding.” Ibid. This would lead to

“harass[ment]” of jurors and “the destruction of all frank­

ness and freedom of discussion and conference.” Id., at

267–268. Ultimately, even though the no-impeachment

rule “may often exclude the only possible evidence of

misconduct,” relaxing the rule “would open the door to the

most pernicious arts and tampering with jurors.” Id., at

268 (internal quotation marks omitted).

The firm no-impeachment approach taken in McDonald

came to be known as “the federal rule.” This approach

categorically bars testimony about jury deliberations,

except where it is offered to demonstrate that the jury was

Cite as: 580 U. S. ____ (2017) 5

ALITO, J., dissenting

subjected to an extraneous influence (for example, an

attempt to bribe a juror). Warger, supra, at ___ (slip op.,

at 5); Tanner, supra, at 117;2 see 27 Wright & Gold §6071,

at 432–433.

Some jurisdictions, notably Iowa, adopted a more per­

missive rule. Under the Iowa rule, jurors were generally

permitted to testify about any subject except their “subjec­

tive intentions and thought processes in reaching a ver­

dict.” Warger, supra, at ___ (slip op., at 4). Accordingly,

the Iowa rule allowed jurors to “testify as to events or

conditions which might have improperly influenced the

verdict, even if these took place during deliberations within

the jury room.” 27 Wright & Gold §6071, at 432.

Debate between proponents of the federal rule and the

Iowa rule emerged during the framing and adoption of

Federal Rule of Evidence 606(b). Both sides had their

supporters. The contending arguments were heard and

considered, and in the end the strict federal approach was

retained.

An early draft of the Advisory Committee on the Federal

Rules of Evidence included a version of the Iowa rule, 51

F. R. D. 315, 387–388 (1971). That draft was forcefully

criticized, however,3 and the Committee ultimately pro­

——————

2 As this Court has explained, the extraneous influence exception

“do[es] not detract from, but rather harmonize[s] with, the weighty

government interest in insulating the jury’s deliberative process.”

Tanner, 483 U. S., at 120. The extraneous influence exception, like the

no-impeachment rule itself, is directed at protecting jury deliberations

against unwarranted interference. Ibid.

3 In particular, the Justice Department observed that “[s]trong policy

considerations continue to support” the federal approach and that

“[r]ecent experience has shown that the danger of harassment of jurors

by unsuccessful litigants warrants a rule which imposes strict limita­

tions on the instances in which jurors may be questioned about their

verdict.” Letter from R. Kliendienst, Deputy Attorney General, to

Judge A. Maris (Aug. 9, 1971), 117 Cong. Rec. 33648, 33655 (1971).

6 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

duced a revised draft that retained the well-established

federal approach. Tanner, supra, at 122; see Committee

on Rules of Practice and Procedure of the Judicial Confer­

ence of the United States, Revised Draft of Proposed Rules

of Evidence for the United States Courts and Magistrates

73 (Oct. 1971). Expressly repudiating the Iowa rule, the

new draft provided that jurors generally could not testify

“as to any matter or statement occurring during the course

of the jury’s deliberations.” Ibid. This new version was

approved by the Judicial Conference and sent to this

Court, which adopted the rule and referred it to Congress.

56 F. R. D. 183, 265–266 (1972).

Initially, the House rejected this Court’s version of Rule

606(b) and instead reverted to the earlier (and narrower)

Advisory Committee draft. Tanner, supra, at 123; see

H. R. Rep. No. 93–650, pp. 9–10 (1973) (criticizing the

Supreme Court draft for preventing jurors from testifying

about “quotient verdict[s]” and other “irregularities which

occurred in the jury room”). In the Senate, however, the

Judiciary Committee favored this Court’s rule. The Com­

mittee Report observed that the House draft broke with

“long-accepted Federal law” by allowing verdicts to be

“challenge[d] on the basis of what happened during the

jury’s internal deliberations.” S. Rep. No. 93–1277, p. 13

(1974) (S. Rep.). In the view of the Senate Committee, the

House rule would have “permit[ted] the harassment of

former jurors” as well as “the possible exploitation of

disgruntled or otherwise badly-motivated ex-jurors.” Id.,

——————

And Senator McClellan, an influential member of the Senate Judiciary

Committee, insisted that the “mischief in this Rule ought to be plain for

all to see” and that it would be impossible “to conduct trials, particu-

larly criminal prosecutions, as we know them today, if every verdict were

followed by a post-trial hearing into the conduct of the juror’s delibera­

tions.” Letter from Sen. J. McClellan to Judge A. Maris (Aug. 12,

1971), id., at 33642, 33645.

Cite as: 580 U. S. ____ (2017) 7

ALITO, J., dissenting

at 14. This result would have undermined the finality of

verdicts, violated “common fairness,” and prevented jurors

from “function[ing] effectively.” Ibid. The Senate rejected

the House version of the rule and returned to the Court’s

rule. A Conference Committee adopted the Senate ver­

sion, see H. R. Conf. Rep. No. 93–1597, p. 8 (1974), and

this version was passed by both Houses and was signed

into law by the President.

As this summary shows, the process that culminated in

the adoption of Federal Rule of Evidence 606(b) was the

epitome of reasoned democratic rulemaking. The “distin­

guished, Supreme Court-appointed” members of the Advi­

sory Committee went through a 7-year drafting process,

“produced two well-circulated drafts,” and “considered

numerous comments from persons involved in nearly

every area of court-related law.” Rothstein, The Proposed

Amendments to the Federal Rules of Evidence, 62 Geo.

L. J. 125 (1973). The work of the Committee was consid­

ered and approved by the experienced appellate and trial

judges serving on the Judicial Conference and by our

predecessors on this Court. After that, the matter went to

Congress, which “specifically understood, considered, and

rejected a version of [the rule] that would have allowed

jurors to testify on juror conduct during deliberations.”

Tanner, 483 U. S., at 125. The judgment of all these par­

ticipants in the process, which was informed by their

assessment of an empirical issue, i.e., the effect that the

competing Iowa rule would have had on the jury system, is

entitled to great respect.

Colorado considered this same question, made the same

judgment as the participants in the federal process, and

adopted a very similar rule. In doing so, it joined the

overwhelming majority of States. Ante, at 9. In the great

majority of jurisdictions, strong no-impeachment rules

continue to be “viewed as both promoting the finality of

verdicts and insulating the jury from outside influences.”

8 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

Warger, 574 U. S., at ___ (slip op., at 4).

II

A

Recognizing the importance of Rule 606(b), this Court

has twice rebuffed efforts to create a Sixth Amendment

exception—first in Tanner and then, just two Terms ago,

in Warger.

The Tanner petitioners were convicted of committing

mail fraud and conspiring to defraud the United States.

483 U. S., at 109–110, 112–113. After the trial, two jurors

came forward with disturbing stories of juror misconduct.

One claimed that several jurors “consumed alcohol during

lunch breaks . . . causing them to sleep through the after­

noons.” Id., at 113. The second added that jurors also

smoked marijuana and ingested cocaine during the trial.

Id., at 115–116. This Court held that evidence of this

bacchanalia could properly be excluded under Rule 606(b).

Id., at 127.

The Court noted that “[s]ubstantial policy considera­

tions support the common-law rule against the admission

of jury testimony to impeach a verdict.” Id., at 119. While

there is “little doubt that postverdict investigation into

juror misconduct would in some instances lead to the

invalidation of verdicts reached after irresponsible or

improper juror behavior,” the Court observed, it is “not at

all clear . . . that the jury system could survive such efforts

to perfect it.” Id., at 120. Allowing such post-verdict

inquiries would “seriously disrupt the finality of the pro­

cess.” Ibid. It would also undermine “full and frank dis­

cussion in the jury room, jurors’ willingness to return an

unpopular verdict, and the community’s trust in a system

that relies on the decisions of laypeople.” Id., at 120–121.

The Tanner petitioners, of course, had a Sixth Amend­

ment right “to ‘a tribunal both impartial and mentally

competent to afford a hearing.’ ” Id., at 126 (quoting Jor-

Cite as: 580 U. S. ____ (2017) 9

ALITO, J., dissenting

dan v. Massachusetts, 225 U. S. 167, 176 (1912)). The

question, however, was whether they also had a right to

an evidentiary hearing featuring “one particular kind of

evidence inadmissible under the Federal Rules.” 483

U. S., at 126–127. Turning to that question, the Court

noted again that “long-recognized and very substantial

concerns support the protection of jury deliberations from

intrusive inquiry.” Id., at 127. By contrast, “[p]etitioners’

Sixth Amendment interests in an unimpaired jury . . .

[were] protected by several aspects of the trial process.”

Ibid.

The Court identified four mechanisms that protect

defendants’ Sixth Amendment rights. First, jurors can be

“examined during voir dire.” Ibid. Second, “during the

trial the jury is observable by the court, by counsel, and by

court personnel.” Ibid. Third, “jurors are observable by

each other, and may report inappropriate juror behavior to

the court before they render a verdict.” Ibid. And fourth,

“after the trial a party may seek to impeach the verdict by

nonjuror evidence of misconduct.” Ibid. These “other

sources of protection of petitioners’ right to a competent

jury” convinced the Court that the juror testimony was

properly excluded. Ibid.

Warger involved a negligence suit arising from a motor­

cycle crash. 574 U. S., at ___ (slip op., at 1). During voir

dire, the individual who eventually became the jury’s

foreperson said that she could decide the case fairly and

impartially. Id., at ___ (slip op., at 2). After the jury

returned a verdict in favor of the defendant, one of the

jurors came forward with evidence that called into ques­

tion the truthfulness of the foreperson’s responses during

voir dire. According to this juror, the foreperson revealed

during the deliberations that her daughter had once

caused a deadly car crash, and the foreperson expressed

the belief that a lawsuit would have ruined her daughter’s

life. Ibid.

10 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

In seeking to use this testimony to overturn the jury’s

verdict, the plaintiff ’s primary contention was that Rule

606(b) does not apply to evidence concerning a juror’s

alleged misrepresentations during voir dire. If otherwise

interpreted, the plaintiff maintained, the rule would

threaten his right to trial by an impartial jury.4 The Court

disagreed, in part because “any claim that Rule 606(b) is

unconstitutional in circumstances such as these is fore­

closed by our decision in Tanner.” Id., at ___ (slip op., at

10). The Court explained that “[e]ven if jurors lie in voir

dire in a way that conceals bias, juror impartiality is

adequately assured by” two of the other Tanner safe­

guards: pre-verdict reports by the jurors and non-juror

evidence. 574 U. S., at ___ (slip op., at 10).

Tanner and Warger fit neatly into this Court’s broader

jurisprudence concerning the constitutionality of evidence

rules. As the Court has explained, “state and federal

rulemakers have broad latitude under the Constitution to

establish rules excluding evidence from criminal trials.”

Holmes v. South Carolina, 547 U. S. 319, 324 (2006) (in­

ternal quotation marks and alteration omitted). Thus,

evidence rules of this sort have been invalidated only if

they “serve no legitimate purpose or . . . are disproportion­

ate to the ends that they are asserted to promote.” Id., at

326. Tanner and Warger recognized that Rule 606(b)

serves vital purposes and does not impose a disproportion­

ate burden on the jury trial right.

Today, for the first time, the Court creates a constitu­

tional exception to no-impeachment rules. Specifically,

the Court holds that no-impeachment rules violate the

Sixth Amendment to the extent that they preclude courts

——————

4 Although Warger was a civil case, we wrote that “[t]he Constitution

guarantees both criminal and civil litigants a right to an impartial

jury.” 574 U. S., at ___ (slip op., at 9).

Cite as: 580 U. S. ____ (2017) 11

ALITO, J., dissenting

from considering evidence of a juror’s racially biased com­

ments. Ante, at 17. The Court attempts to distinguish

Tanner and Warger, but its efforts fail.

Tanner and Warger rested on two basic propositions.

First, no-impeachment rules advance crucial interests.

Second, the right to trial by an impartial jury is adequately

protected by mechanisms other than the use of juror

testimony regarding jury deliberations. The first of these

propositions applies regardless of the nature of the juror

misconduct, and the Court does not argue otherwise.

Instead, it contends that, in cases involving racially biased

jurors, the Tanner safeguards are less effective and the

defendant’s Sixth Amendment interests are more pro­

found. Neither argument is persuasive.

B

As noted above, Tanner identified four “aspects of the

trial process” that protect a defendant’s Sixth Amendment

rights: (1) voir dire; (2) observation by the court, counsel,

and court personnel; (3) pre-verdict reports by the jurors;

and (4) non-juror evidence. 483 U. S., at 127.5 Although

the Court insists that that these mechanisms “may be

compromised” in cases involving allegations of racial bias,

it addresses only two of them and fails to make a sus­

tained argument about either. Ante, at 16.

1

First, the Court contends that the effectiveness of voir

dire is questionable in cases involving racial bias because

——————

5 The majority opinion in this case identifies a fifth mechanism: jury

instructions. It observes that, by explaining the jurors’ responsibilities,

appropriate jury instructions can promote “[p]robing and thoughtful

deliberation,” which in turn “improves the likelihood that other jurors

can confront the flawed nature of reasoning that is prompted or influ­

enced by improper biases.” Ante, at 20–21. This mechanism, like those

listed in Tanner, can help to prevent bias from infecting a verdict.

12 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

pointed questioning about racial attitudes may highlight

racial issues and thereby exacerbate prejudice. Ibid. It is

far from clear, however, that careful voir dire cannot

surmount this problem. Lawyers may use questionnaires

or individual questioning of prospective jurors6 in order to

elicit frank answers that a juror might be reluctant to

voice in the presence of other prospective jurors.7 More­

over, practice guides are replete with advice on conducting

effective voir dire on the subject of race. They outline a

variety of subtle and nuanced approaches that avoid

pointed questions.8 And of course, if an attorney is con­

——————

6 Both of those techniques were used in this case for other purposes.

App. 13–14; Tr. 56–78 (Feb. 23, 2010, morning session).

7 See People v. Harlan, 8 P. 3d 448, 500 (Colo. 2000) (“The trial court

took precautions at the outset of the trial to foreclose the injection of

improper racial considerations by including questions concerning racial

issues in the jury questionnaire”); Brewer v. Marshall, 119 F. 3d 993,

996 (CA1 1997) (“The judge asked each juror, out of the presence of

other jurors, whether they had any bias or prejudice for or against

black persons or persons of Hispanic origin”); 6 W. LaFave, J. Israel, N.

King, & O. Kerr, Criminal Procedure §22.3(a), p. 92 (4th ed. 2015)

(noting that “[j]udges commonly allow jurors to approach the bench and

discuss sensitive matters there” and are also free to conduct “in cham­

bers discussions”).

8 See, e.g., J. Gobert, E. Kreitzberg, & C. Rose, Jury Selection: The

Law, Art, and Science of Selecting a Jury §7:41, pp. 357–358 (3d ed.

2014) (explaining that “the issue should be approached more indirectly”

and suggesting the use of “[o]pen-ended questions” on subjects like “the

composition of the neighborhood in which the juror lives, the juror’s

relationship with co-workers or neighbors of different races, or the

juror’s past experiences with persons of other races”); W. Jordan, Jury

Selection §8.11, p. 237 (1980) (explaining that “the whole matter of

prejudice” should be approached “delicately and cautiously” and giving

an example of an indirect question that avoids the word “prejudice”); R.

Wenke, The Art of Selecting a Jury 67 (1979) (discussing questions that

could identify biased jurors when “your client is a member of a minority

group”); id., at 66 (suggesting that instead of “asking a juror if he is

‘prejudiced’ ” the attorney should “inquire about his ‘feeling,’ ‘belief’ or

‘opinion’ ”); 2 National Jury Project, Inc., Jurywork: Systematic Tech­

Cite as: 580 U. S. ____ (2017) 13

ALITO, J., dissenting

cerned that a juror is concealing bias, a peremptory strike

may be used.9

The suggestion that voir dire is ineffective in unearthing

bias runs counter to decisions of this Court holding that

voir dire on the subject of race is constitutionally required

in some cases, mandated as a matter of federal supervi-

sory authority in others, and typically advisable in any case

——————

niques §17.23 (E. Krauss ed., 2d ed. 2010) (listing sample questions

about racial prejudice); A. Grine & E. Coward, Raising Issues of Race in

North Carolina Criminal Cases, p. 8–14 (2014) (suggesting that attor­

neys “share a brief example about a judgment shaped by a racial

stereotype” to make it easier for jurors to share their own biased views),

http://defendermanuals.sog.unc.edu/race/8-addressing-race-trial (as last

visited Mar. 3, 2017); id., at 8–15 to 8–17 (suggesting additional strate­

gies and providing sample questions); T. Mauet, Trial Techniques 44

(8th ed. 2010) (suggesting that “likely beliefs and attitudes are more

accurately learned through indirection”); J. Lieberman & B. Sales,

Scientific Jury Selection 114–115 (2007) (discussing research suggest­

ing that “participants were more likely to admit they were unable to

abide by legal due process guarantees when asked open-ended ques­

tions that did not direct their responses”).

9 To the extent race does become salient during voir dire, there is

social science research suggesting that this may actually combat rather

than reinforce the jurors’ biases. See, e.g., Lee, A New Approach to Voir

Dire on Racial Bias, 5 U. C. Irvine L. Rev. 843, 861 (2015) (“A wealth of

fairly recent empirical research has shown that when race is made

salient either through pretrial publicity, voir dire questioning of pro­

spective jurors, opening and closing arguments, or witness testimony,

White jurors are more likely to treat similarly situated Black and

White defendants the same way”). See also Sommers & Ellsworth,

White Juror Bias: An Investigation of Prejudice Against Black Defend­

ants in the American Courtroom, 7 Psychology, Pub. Pol’y, & L. 201,

222 (2001); Sommers & Ellsworth, How Much Do We Really Know

About Race and Juries? A Review of Social Science Theory and Re­

search, 78 Chi.-Kent L. Rev. 997, 1013–1014, 1027 (2003); Schuller,

Kazoleas, & Kawakami, The Impact of Prejudice Screening Procedures

on Racial Bias in the Courtroom, 33 Law & Human Behavior 320, 326

(2009); Cohn, Bucolo, Pride, & Somers, Reducing White Juror Bias: The

Role of Race Salience and Racial Attitudes, 39 J. Applied Soc. Psycho-

logy 1953, 1964–1965 (2009).

14 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

if a defendant requests it. See Turner v. Murray, 476

U. S. 28, 36–37 (1986); Rosales-Lopez v. United States, 451

U. S. 182, 192 (1981) (plurality opinion); Ristaino v. Ross,

424 U. S. 589, 597, n. 9 (1976). If voir dire were not useful

in identifying racial prejudice, those decisions would be

pointless. Cf. Turner, supra, at 36 (plurality opinion)

(noting “the ease with which [the] risk [of racial bias]

could have been minimized” through voir dire). Even the

majority recognizes the “advantages of careful voir dire” as

a “proces[s] designed to prevent racial bias in jury deliber­

ations.” Ante, at 20. And reported decisions substantiate

that voir dire can be effective in this regard. E.g., Brewer

v. Marshall, 119 F. 3d 993, 995–996 (CA1 1997); United

States v. Hasting, 739 F. 2d 1269, 1271 (CA7 1984); People

v. Harlan, 8 P. 3d 448, 500 (Colo. 2000); see Brief for

Respondent 23–24, n. 7 (listing additional cases). Thus,

while voir dire is not a magic cure, there are good reasons

to think that it is a valuable tool.

In any event, the critical point for present purposes is

that the effectiveness of voir dire is a debatable empirical

proposition. Its assessment should be addressed in the

process of developing federal and state evidence rules.

Federal and state rulemakers can try a variety of ap­

proaches, and they can make changes in response to the

insights provided by experience and research. The ap­

proach taken by today’s majority—imposing a federal

constitutional rule on the entire country—prevents exper­

imentation and makes change exceedingly hard.10

——————

10 It is worth noting that, even if voir dire were entirely ineffective at

detecting racial bias (a proposition no one defends), that still would not

suffice to distinguish this case from Warger v. Shauers, 574 U. S. ___

(2014). After all, the allegation in Warger was that the foreperson had

entirely circumvented voir dire by lying in order to shield her bias. The

Court, nevertheless, concluded that even where “jurors lie in voir dire

in a way that conceals bias, juror impartiality is adequately assured”

Cite as: 580 U. S. ____ (2017) 15

ALITO, J., dissenting

2

The majority also argues—even more cursorily—that

“racial bias may make it difficult for a juror to report

inappropriate statements during the course of juror delib­

erations.” Ante, at 16. This is so, we are told, because it is

difficult to “call [another juror] a bigot.” Ibid.

Since the Court’s decision mandates the admission of

the testimony of one juror about a statement made by

another juror during deliberations, what the Court must

mean in making this argument is that jurors are less

willing to report biased comments by fellow jurors prior to

the beginning of deliberations (while they are still sitting

with the biased juror) than they are after the verdict is

announced and the jurors have gone home. But this is

also a questionable empirical assessment, and the Court’s

seat-of-the-pants judgment is no better than that of those

with the responsibility of drafting and adopting federal

and state evidence rules. There is no question that jurors

do report biased comments made by fellow jurors prior to

the beginning of deliberations. See, e.g., United States v.

McClinton, 135 F. 3d 1178, 1184–1185 (CA7 1998); United

States v. Heller, 785 F. 2d 1524, 1525–1529 (CA11 1986);

Tavares v. Holbrook, 779 F. 2d 1, 1–3 (CA1 1985) (Breyer,

J.); see Brief for Respondent 31–32, n. 10; Brief for United

States as Amicus Curiae 31. And the Court marshals no

evidence that such pre-deliberation reporting is rarer than

the post-verdict variety.

Even if there is something to the distinction that the

Court makes between pre- and post-verdict reporting, it is

debatable whether the difference is significant enough to

merit different treatment. This is especially so because

post-verdict reporting is both more disruptive and may be

the result of extraneous influences. A juror who is ini-

——————

through other means. Id., at ___ (slip op., at 10).

16 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

tially in the minority but is ultimately persuaded by other

jurors may have second thoughts after the verdict is an­

nounced and may be angry with others on the panel who

pressed for unanimity. In addition, if a verdict is unpopu­

lar with a particular juror’s family, friends, employer, co­

workers, or neighbors, the juror may regret his or her vote

and may feel pressured to rectify what the jury has done.

In short, the Court provides no good reason to depart

from the calculus made in Tanner and Warger. Indeed,

the majority itself uses hedged language and appears to

recognize that this “pragmatic” argument is something of

a makeweight. Ante, at 16–17 (noting that the argument

is “not dispositive”); ante, at 16 (stating that the operation

of the safeguards “may be compromised, or they may prove

insufficient”).

III

A

The real thrust of the majority opinion is that the Con­

stitution is less tolerant of racial bias than other forms of

juror misconduct, but it is hard to square this argument

with the nature of the Sixth Amendment right on which

petitioner’s argument and the Court’s holding are based.

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

by the Amendment depends on the nature of a jury’s

partiality or bias. As the Colorado Supreme Court aptly

put it, it is hard to “discern a dividing line between differ­

ent types of juror bias or misconduct, whereby one form of

partiality would implicate a party’s Sixth Amendment

right while another would not.” 350 P. 3d 287, 293

Cite as: 580 U. S. ____ (2017) 17

ALITO, J., dissenting

(2015).11

Nor has the Court found any decision of this Court

suggesting that the Sixth Amendment recognizes some

sort of hierarchy of partiality or bias. The Court points to

a line of cases holding that, in some narrow circumstances,

the Constitution requires trial courts to conduct voir dire

on the subject of race. Those decisions, however, were not

based on a ranking of types of partiality but on the Court’s

conclusion that in certain cases racial bias was especially

likely. See Turner, 476 U. S., at 38, n. 12 (plurality opin­

ion) (requiring voir dire on the subject of race where there

is “a particularly compelling need to inquire into racial

prejudice” because of a qualitatively higher “risk of racial

bias”); Ristaino, 424 U. S., at 596 (explaining that the

requirement applies only if there is a “constitutionally

significant likelihood that, absent questioning about

racial prejudice, the jurors would not be [impartial]”).12

Thus, this line of cases does not advance the majority’s

argument.

It is undoubtedly true that “racial bias implicates

unique historical, constitutional, and institutional con­

cerns.” Ante, at 16. But it is hard to see what that has to

do with the scope of an individual criminal defendant’s

Sixth Amendment right to be judged impartially. The

Court’s efforts to reconcile its decision with McDonald,

——————

11 The majority’s reliance on footnote 3 of Warger, ante, at 12–13, is

unavailing. In that footnote, the Court noted that some “cases of juror

bias” might be “so extreme” as to prompt the Court to “consider whether

the usual safeguards are or are not sufficient to protect the integrity

of the process.” 574 U. S., at ___–___, n. 3 (slip op., at 10–11, n. 3)

(emphasis added). Considering this question is very different from

adopting a constitutionally based exception to long-established no-

impeachment rules.

12 In addition, those cases did not involve a challenge to a long-

established evidence rule. As such, they offer little guidance in per­

forming the analysis required by this case.

18 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

Tanner, and Warger illustrate the problem. The Court

writes that the misconduct in those cases, while “troubling

and unacceptable,” was “anomalous.” Ante, at 15. By

contrast, racial bias, the Court says, is a “familiar and

recurring evil” that causes “systemic injury to the admin­

istration of justice.” Ante, at 15–16.

Imagine two cellmates serving lengthy prison terms.

Both were convicted for homicides committed in unrelated

barroom fights. At the trial of the first prisoner, a juror,

during deliberations, expressed animosity toward the

defendant because of his race. At the trial of the second

prisoner, a juror, during deliberations, expressed animos­

ity toward the defendant because he was wearing the

jersey of a hated football team. In both cases, jurors come

forward after the trial and reveal what the biased juror

said in the jury room. The Court would say to the first

prisoner: “You are entitled to introduce the jurors’ testi­

mony, because racial bias is damaging to our society.” To

the second, the Court would say: “Even if you did not have

an impartial jury, you must stay in prison because sports

rivalries are not a major societal issue.”

This disparate treatment is unsupportable under the

Sixth Amendment. 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.

B

Recasting this as an equal protection case would not

provide a ground for limiting the holding to cases involv­

ing racial bias. At a minimum, cases involving bias based

on any suspect classification—such as national origin13 or

——————

13 See Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 440

Cite as: 580 U. S. ____ (2017) 19

ALITO, J., dissenting

religion14—would merit equal treatment. So, I think,

would bias based on sex, United States v. Virginia, 518

U. S. 515, 531 (1996), or the exercise of the First Amend­

ment right to freedom of expression or association. See

Regan v. Taxation With Representation of Washington, 461

U. S. 540, 545 (1983). Indeed, convicting a defendant on

the basis of any irrational classification would violate the

Equal Protection Clause.

Attempting to limit the damage worked by its decision,

the Court says that only “clear” expressions of bias must

be admitted, ante, at 17, but judging whether a statement

is sufficiently “clear” will often not be easy. Suppose that

the allegedly biased juror in this case never made refer­

ence to Peña-Rodriguez’s race or national origin but said

that he had a lot of experience with “this macho type” and

knew that men of this kind felt that they could get their

way with women. Suppose that other jurors testified that

they were certain that “this macho type” was meant to

refer to Mexican or Hispanic men. Many other similarly

suggestive statements can easily be imagined, and under

today’s decision it will be difficult for judges to discern the

dividing line between those that are “clear[ly]” based on

racial or ethnic bias and those that are at least somewhat

ambiguous.

IV

Today’s decision—especially if it is expanded in the

ways that seem likely—will invite the harms that no-

impeachment rules were designed to prevent.

First, as the Court explained in Tanner, “postverdict

scrutiny of juror conduct” will inhibit “full and frank dis­

——————

(1985).

14 See, e.g., United States v. Armstrong, 517 U. S. 456, 464 (1996);

Burlington Northern R. Co. v. Ford, 504 U. S. 648, 651 (1992); New

Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam).

20 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

cussion in the jury room.” 483 U. S., at 120–121; see also

McDonald, 238 U. S., at 267–268 (warning that the use of

juror testimony about misconduct during deliberations

would “make what was intended to be a private delibera­

tion, the constant subject of public investigation—to the

destruction of all frankness and freedom of discussion and

conference”). Or, as the Senate Report put it: “[C]ommon

fairness requires that absolute privacy be preserved for

jurors to engage in the full and free debate necessary to

the attainment of just verdicts. Jurors will not be able to

function effectively if their deliberations are to be scruti­

nized in post-trial litigation.” S. Rep., at 14.

Today’s ruling will also prompt losing parties and their

friends, supporters, and attorneys to contact and seek to

question jurors, and this pestering may erode citizens’

willingness to serve on juries. Many jurisdictions now

have rules that prohibit or restrict post-verdict contact

with jurors, but whether those rules will survive today’s

decision is an open question—as is the effect of this deci­

sion on privilege rules such as those noted at the outset of

this opinion.15

Where post-verdict approaches are permitted or occur,

——————

15 The majority’s emphasis on the unique harms of racial bias will not

succeed at cabining the novel exception to no-impeachment rules, but it

may succeed at putting other kinds of rules under threat. For example,

the majority approvingly refers to the widespread rules limiting attor­

neys’ contact with jurors. Ante, at 17–18. But under the reasoning of

the majority opinion, it is not clear why such rules should be enforced

when they come into conflict with a defendant’s attempt to introduce

evidence of racial bias. For instance, what will happen when a lawyer

obtains clear evidence of racist statements by contacting jurors in

violation of a local rule? (Something similar happened in Tanner. 483

U. S., at 126.) It remains to be seen whether rules of this type—or

other rules which exclude probative evidence, such as evidentiary

privileges—will be allowed to stand in the way of the “imperative to

purge racial prejudice from the administration of justice.” Ante, at 13.

Cite as: 580 U. S. ____ (2017) 21

ALITO, J., dissenting

there is almost certain to be an increase in harassment,

arm-twisting, and outright coercion. See McDonald,

supra, at 267; S. Rep., at 14 (explaining that a laxer rule

“would permit the harassment of former jurors by losing

parties as well as the possible exploitation of disgruntled

or otherwise badly-motivated ex-jurors”); 350 P. 3d, at

293. As one treatise explains, “[a] juror who reluctantly

joined a verdict is likely to be sympathetic to overtures by

the loser, and persuadable to the view that his own con­

sent rested on false or impermissible considerations, and

the truth will be hard to know.” 3 C. Mueller & L. Kirk­

patrick, Federal Evidence §6:16, p. 75 (4th ed. 2013).

The majority’s approach will also undermine the finality

of verdicts. “Public policy requires a finality to litigation.”

S. Rep., at 14. And accusations of juror bias—which may

be “raised for the first time days, weeks, or months after

the verdict”—can “seriously disrupt the finality of the

process.” Tanner, supra, at 120. This threatens to

“degrad[e] the prominence of the trial itself ” and to send

the message that juror misconduct need not be dealt with

promptly. Engle v. Isaac, 456 U. S. 107, 127 (1982). See

H. R. Conf. Rep. No. 93–1597, at 8 (“The Conferees believe

that jurors should be encouraged to be conscientious in

promptly reporting to the court misconduct that occurs

during jury deliberations”).

The Court itself acknowledges that strict no-

impeachment rules “promot[e] full and vigorous discus­

sion,” protect jurors from “be[ing] harassed or annoyed by

litigants seeking to challenge the verdict,” and “giv[e]

stability and finality to verdicts.” Ante, at 9. By the ma­

jority’s own logic, then, imposing exceptions on no-

impeachment rules will tend to defeat full and vigorous

discussion, expose jurors to harassment, and deprive

verdicts of stability.

The Court’s only response is that some jurisdictions

already make an exception for racial bias, and the Court

22 PENA-RODRIGUEZ v. COLORADO

ALITO, J., dissenting

detects no signs of “a loss of juror willingness to engage in

searching and candid deliberations.” Ante, at 19. One

wonders what sort of outward signs the Court would

expect to see if jurors in these jurisdictions do not speak as

freely in the jury room as their counterparts in jurisdic­

tions with strict no-impeachment rules. Gathering and

assessing evidence regarding the quality of jury delibera­

tions in different jurisdictions would be a daunting enter­

prise, and the Court offers no indication that anybody has

undertaken that task.

In short, the majority barely bothers to engage with the

policy issues implicated by no-impeachment rules. But

even if it had carefully grappled with those issues, it still

would have no basis for exalting its own judgment over

that of the many expert policymakers who have endorsed

broad no-impeachment rules.

V

The Court’s decision is well-intentioned. It seeks to

remedy a flaw in the jury trial system, but as this Court

said some years ago, it is questionable whether our system

of trial by jury can endure this attempt to perfect it.

Tanner, 483 U. S., at 120.

I respectfully dissent.