Amicus Curiae Brief — Pena-Rodriguez v. Colorado, 136 S. Ct. 1513 (2016) (No. 15-606)

Supreme Court. US

FILED

SEP -8 20%

OFFICE OF THE CLERK

No. 15-606

IN THE

Supreme Court of the United States

MIGUEL ANGEL PENA-RODRIGUEZ,

Petitioner,

Us.

STATE OF COLORADO,

Respondent.

On Writ of Certiorari to

the Supreme Court of Colorado

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

—— -—

KENT S. SCHEIDEGGER

KYMBERLEE STAPLETON

Criminal Pastice Legal Fan.

2131 L Street

Sacramento, CA 95816

(916) 446-0345

briefs@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1. Whether the Colorado Supreme Court properly

held that the exclusion of juror testimony alleging racial

bias during deliberations pursuant to Rule 606(b) of the

Colorado Rules of Evidence is consistent with a defen-

dant’s right to an impartial jury.

2. Whether the Sixth Amendment compels an

implicit exception to the no-impeachment rule for

evidence of racially biased statements, but not for

evidence of other types of prejudice.

(i)

TABLE OF CONTENTS

Questions presented i

Table of authorities v

Interest of amicus curiae |

Summary of facts and case 2

Summary of argument 4

Argument 5

I

Preserving the secrecy of jury deliberations is

consistent with the right to a jury trial guaranteed

by the Sixth Amendment 5

II

Rule 606(b) constitutionally precludes juror testimony

relating to allegations of racial bias during

deliberations 9

A. Rule 606(b) versus the Sixth Amendment 10

B. Sufficiency of Tanner safeguards 17

C. Court of Appeals cases 19

Ill

Preserving the confidentiality of jury deliberations

is fundamental to the uninhibited and forthright

discussion that must occur for a jury to wholly

focus on reaching the right result 23

(iii)

iv

A. Privileged communications in other areas of

the law 25

B. Total elimination of bias untenable 29

Conclusion 31

(iv)

TABLE OF AUTHORITIES

Cases

Batson v. Kentucky, 476 U. S. 79 (1986) 29

Clark v. United States, 289 U.S. 1 (1933) 16, 23

Dana v. Tucker, 4 Johns. 487 (1809) . 6

Delaware v. Van Arsdall, 475 U. S. 673 (1986) 25

Dombrowski v. Eastland, 387 U.S.82(1967) . 27

Dorr v. Fenno, 29 Mass. (12 Pick.) 521 (1832) 8

Duncan v. Louisiana, 391 U.S. 145 (1968) ca. oe

Eastland v. United States Servicemen’s Fund,

421 U.S. 491(1979) ... .. ‘ ——

Gravel v. United States, 408 U.S.606(1972) .. 27

Irvin v. Dowd, 366 U.S. 717 (1961) 30

Lessee of Cluggage v. Swan, 4 Binn. 150

(Pa. 1811) 8

McDonald v. Pless, 238 U. S. 264 (1915) 10, 16

McDonough Power Equipment, Inc. v. Greenwood,

464 U.S. 548 (1984) . 13

Pena-Rodriguez v. People, 350 P 3d 287

(Colo. 2015). . ...... .. 2,3,4

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

(1981) , ‘ss es

Shillcutt v. Gagnon, 827 F. 2d 1155 (CA7 1987) 19

Singer v. United States, 380 U. S. 24 (1965) 6

Smith v. Brewer, 444 F Supp. 482

(SD Iowa 1978) 24

Smith v. Phillips, 455 U. S. 209 (1982) 13, 14

Stein v. Bowman, 38 U. S. 209 (1839) 26

Stewart ex rel. Stewart v. Rice, 47 P. 3d 316

(Colo. 2002) g

Strauder v. West Virginia, 100 U. S. 303 (1880) 29

Tanner v. United States, 483 U.S. 107

(1987) , ; 8, 10, 11, 12, 24, 25

Tenney v. Brandhove, 341 U.S. 367 (1951) 27

Thompson v. Utah, 170 U. S. 343 (1898) 7

Trammel v. United States, 445 U. S. 40 (1980) 26

Turner v. Louisiana, 379 U. S. 466 (1965) 30

Turner v. Murray, 476 U. S. 28 (1986) 29, 30

United States v. Benally, 546 F 3d 1230

(CA10 2008) 7, 10, 16-23, 30

United States v. Helstoski, 442 U. S. 477 (1979) 28

United States v. Henley, 238 F. 3d 1111

(CA9 2001) _ . , eas 19, 20

United States v. Johnson, 383 U. S. 169 (1966) 27

United States v. Sells Engineering, Inc.,

463 U. S. 418 (1983) 7

United States v. Villar, 586 F 3d 76 (CAI 2009) 19

vii

United States v. Williams, 504 U.S. 36(1992) . .. 7

United States v. Wood, 299 U.S. 123 (1936) 18, 29

Vaise v. Delaval, 99 Eng. Rptr. 944 (K. B. 1785) 7

Warger v. Shauers, 574 U.S. __, 135S. Ct. 521,

190 L. Ed. 2d 422 (2014) 7, 9, 10, 12, 14-17

Williams v. Price, 343 F. 3d 223 (CA3 2003) . 20

Wolfle v. United States, 291 U.S. 7(1934) . 26

United States Constitution

U.S. Const., Amdt. 6 5,6

U.S. Const., Art. I, §6, cl. 1. et 27

U.S. Const., Art. III, § 2, cl. 3 5

United States Statute

18 U.S.C. § 1508 ; 23

Rules of Court

Colo. Rule Civ. Proc. 606(b) 4,9

Fed. Rule Evid. 606(b) . AATF g

Secondary Authorities

Forsyth, W., History of Trial ” Jury

(2d ed. 1971) Soe sae ' bee

Gershman, Contaminating the Verdict:

The Problem of Juror Misconduct,

50 S. D. L. Rev. 322 (2005) 14

viii

Gobert, In Search of the Impartial Jury,

79 J. Crim. L. & C. 269 (1988) 29

Note: Public Disclosures of Jury Deliberations,

96 Harv. L. Rev. 886 (1983) . 28

Story, J., Commentaries on the Constitution of

the United States (abridged ed. 1833,

reprinted 1987) a i gigas —_s

IN THE

Supreme Court of the United States

MIGUEL ANGEL PENA-RODRIGUEZ,

Petitioner,

US.

STATE OF COLORADO,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)’ is a

non-profit California corporation organized to partici-

pate in litigation relating to the criminal justice system

as it affects the public interest. CJLF seeks to bring the

constitutional protection of the accused into balance

with the rights of the victim and of society to rapid,

efficient, and reliable determination of guilt and swift

execution of punishment.

In this case, the defendant is attempting to use his

Sixth Amendment right to an impartial jury as a sword

—

Both parties have filed blanket consents to amicus briefs.

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amicus curiae CJLF made a monetary

contribution to its preparation or submission.

to slice open the firmly established rule that jurors may

not testify as to statements made during deliberations

if such testimony is used to challenge the validity of the

verdict. Furthermore, reversing the conviction would

force the two young victims to again testify as to the

sexual assault they both endured. The use of the Sixth

Amendment in this manner is contrary to the interests

CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

In May 2007, two teenage sisters were approached

by a man in a bathroom of a horse-racing facility where

Petitioner Miguel Pena-Rodriguez worked. Pervia-

Rodriguez v. People, 350 P. 3d 287, 288 (Colo. 2015) (en

banc). While in the bathroom, the man asked the

sisters if they wanted to “party.” Respondent’s Brief in

Opposition to Petition for Writ of Certiorari (“Opp.”) 3.

When the sisters refused, the man turned the bathroom

light off, leaving the room dark. /bid. As the sisters

attempted to leave the dark bathroom, the man grabbed

at the girls—one on the shoulder, then the breast, the

other on the shoulder, then the buttocks. bid. After a

struggle, the sisters escaped and told their father, also

a race track employee, what had happened in the

bathroom. /d., at 4. The police were notified. bid.

Later that night, the teenage sisters identified

Petitioner as the man who assaulted them. Opp., at 4.

Petitioner was subsequently charged with one count of

attempted sexual assault on a child (felony), one count

of unlawful sexual contact (misdemeanor), and two

counts of harassment (misdemeanors). /bid.

During voir dire, the venire received a written

questionnaire that included several questions regarding

each juror’s ability to render a verdict based on the

evidence presented at trial. Peria-Rodriguez, 350 P 3d,

at 288. Prior to voir dire, defense counsel was advised

by the judge that “in the past, some of our jurors have

been vocal in their dislike of people who aren't in the

country legally. So I don’t know if that’s an issue for

you or your client, but you may want to address it.”

Opp. 4-5. Defense counsel chose not to mention race or

immigration status, nor ask any questions about the

venire’s experiences or views on race. /d., at 5. Fur-

ther, none of the empaneled juror’s voir dire responses

reflected a propensity towards racial bias. Peria-Rodri--

guez, 350 P 3d, at 288.

The empaneled jury deliberated for a “somewhat

lengthy” period of time. Brief for Petitioner 6. The

jury reported to the judge that they were unable to

reach a unanimous decision on any of the charges. [bid.

The judge admonished them to keep deliberating to try

and reach unanimity. [bid.

After deliberating for a total of 12 hours, the jury

found Petitioner guilty of the three misdemeanor

counts of unlawful sexual contact and harassment, but

they were unable to reach a verdict on the felony charge

of attempted sexual assault on a child. /d., at 7.

After trial, two jurors (M.M. and L.T.) spoke with

defense counsel alleging that a fellow juror (H.C.) had

made racially biased statements about Petitioner and

Mexican men in general during deliberations. Peria-

Rodriguez, 350 P 3d, at 288-289. The trial court

subsequently granted Petitioner’s motion for juror

contact information. /bid. Petitioner then moved for a

new trial submitting affidavits from jurors M.M. and

L.T. Id., at 289. According to M.M. and L.T., H.C. said

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

men take whatever they want.” Jbid. The two jurors

also stated that juror H.C. “made other statements

concerning Mexican men being physically controlling of

women because they have a sense of entitlement and

7”

think they can ‘do whatever they want with women.

Ibid. Also, H.C. “believed that [Petitioner] was guilty

because in his experience as an ex-law enforcement

officer, Mexican men had a bravado that caused them to

believe they could do whatever they wanted with

women.” Ibid. In addition, L.T. contended that H.C.

“said that where he used to patrol, nine times out of ten

Mexican men were guilty of being aggressive toward

women and young girls” and “he did not think the alibi

witness was credible because, among other things, he

was ‘an illegal.’” IJbid.

The trial court denied the motion, finding that

Colorado Rule of Evidence 606(b) barred any inquiry

into juror deliberations. Peria-Rodriguez, 350 P 3d, at

289.

Petitioner appealed and a divided Court of Appeals

affirmed. Jbid. The Colorado Supreme Court also

affirmed, by a 4-3 vote. /d., at 293.

SUMMARY OF ARGUMENT

The right to an impartial jury of one’s peers is

guaranteed by the Sixth Amendment. Preserving and

protecting the secrecy of jury deliberations is regarded

as sacrosanct. Both of these principles have deep

historical roots and both are of upmost importance.

Rule 606(b) prohibits the use of post-verdict juror

testimony to inquire into the validity of a verdict.

Congress's broad codification of the no-impeachment

rule precludes testimony of biased statements mace

during jury deliberations. Allegations of racial bias by

a juror do not fall within any of the three enumerated

exceptions and the Sixth Amendment does not create a

fourth implicit exception for such silegations. Preserv-

ing the confidentiality of jury deliberations is funda-

mental to the uninhibited and forthright discussion

that must occur within the jury room when deciding a

peer’s fate.

Tanner v. United States and Warger v. Shauers

addressed the constitutional interplay between jury

impartiality versus jury secrecy, and in both cases this

Court held that jury secrecy prevails. Tanner held that

a defendant’s Sixth Amendment rights are adequately

protected by several aspects of the trial process.

Tanner’s “sources of protection” apply in this case with

equal force. Allowing litigants to peek into the jury

deliberation room under the guise of determining

whether racial bias played a role in the decision-making

process is contrary to Congressional intent and this

Court’s precedent. The consequences of abandoning

the protections given to secret jury deliberations are too

great.

ARGUMENT

I. Preserving the secrecy of jury deliberations

is consistent with the right to a jury trial

guaranteed by the Sixth Amendment.

The right to a trial by jury in all criminal prosecu-

tions is guaranteed by the United States Constitution.

U. S. Const., Art. III, § 2, cl. 3.2. The Sixth Amend-

ment, made applicable to the states by the Fourteenth

Amendment, expands upon that right and guarantees

to the criminally accused an impartial jury from the

state and district where the crime was committed. U.S.

2. “The trial of all Crimes, except in Cases of Impeachment, shal!

be by Jury; and such Trial shall be held in the State where the

said Crimes shal! have been committed os

Const., Amdt. 6;° Duncan v. Louisiana, 391 U. S. 145,

149 (1968).

Trial by jury has deep historical roots and has

significantly evolved over hundreds of years.

W. Forsyth, History of Trial by Jury 1-5 (2d ed. 1971).

The English colonists brought trial by jury to America

and declared it an “ ‘inherent and invaluable right of

every British subject in these colonies.’” Duncan, 391

U. S., at 152 (quoting resolution of the Stamp Act

Congress (1765)). The colonists were vehemently

against “trials before judges dependent on the crown

alone for their salaries.” [bid.; see also Singer v. United

States, 380 U. S. 24, 29 (1965) (referring to the colo-

nists’ “increasing hostility to the Crown”). “Its preser-

vation and proper operation as a protection against

arbitrary rule were among the major objectives of the

revolutionary settlement which was expressed in the

Declaration and Bill of Rights of 1689.” Duncan, 391

U.S., at 151.

Trial by jury was well established by the time the

Constitution and Bill of Rights were drafted and

ratified. America’s founding fathers included in those

two documents the explicit right to a jury trial to

“guard against a spirit of oppression and tyranny on the

part of rulers, and against a spirit of violence and

vindictiveness on the part of the people.” J. Story,

Commentaries on the Constitution of the United States

§ 924, p. 657 (abridged ed. 1833, reprinted 1987).

The methods of protecting those underlying reasons

are found in the Fifth and Sixth Amendments. The

3. The Sixth Amendment provides, in part: “In all criminal

prosecutions, the accused shal] enjoy the right to a speedy and

public trial, by an impartial jury of the State and district

wherein the crime shal! have been committed{.|” U. S. Const.,

Amdt. 6.

Fifth Amendment guards against vindictive prosecution

by requiring a grand jury to first convene and assess

whether there is cause to prosecute. /d., §§ 928-929, at

661-662. “They sit in secret, and examine the evidence

laid before them by themselves.” Ibid. (emphasis

added). It is “long established policy” and well settled

in this Court that grand juries operate in total secrecy.

United States v. Sells Engineering, Inc., 463 U.S. 418,

424-425 (1983); see also United States v. Williams, 504

U. S. 36, 48 (1992). “Both Congress and this Court

have consistently stood ready to defend it against

unwarranted intrusion.” Sells Engineering, 463 U. S..,

at 425.

The right to an impartial jury of one’s peers is

guaranteed by the Sixth Amendment. Jury trials are

fundamental to our criminal justice system, seeking to

protect against arbitrary power and influence, and

government oppression. Duncan, 391 U. S., at 153;

Thompson v. Utah, 170 U.S. 343, 350 (1898), overruled

on other grounds in Collins v. Youngblood, 497 U. S.

37, 51-52 (1990). The rule that demands secrecy of

what that impartial jury discusses behind closed doors

during deliberations predates the Sixth Amendment

and can be traced to common law in the 1785 case of

Vaise v. Delaval, 99 Eng. Rptr. 944 (K. B. 1785). In

that case, the judge (Lord Mansfield), was informed

that the jury had decided the case by drawing lots.

Warger v. Shauers, 574 U.S. _, 135 S. Ct. 521, 526,

190 L. Ed. 2d 422, 428 (2014); see also United States v.

Benally, 546 F. 3d 1230, 1233 (CA10 2008). “Mans-

field’s Rule” declared that the proffered juror affidavits

detailing the alleged activity were inadmissible and

instituted a blanket ban on jurors testifying against

their own verdict. Benally, supra, at 1233. Over time,

“Mansfield’s Rule” found itself imbedded in this Court’s

constitutional jurisprudence. “By the beginning of this

century, if not earlier, the near universal and firmly

established common-law rule in the United States flatly

prohibited the admission of juror testimony to impeach

a verdict.” Tanner v. United States, 483 U.S. 107, 117

(1987).

State court decisions from the early nineteenth

century reflect the acceptance of Mansfield’s Rule.

“I am opposed to penetrating into the recesses of

a jury-room, through the instrumentality of jurors,

who are kept together until they have agreed upon

their verdict. The settled rule in New York and

Virginia, as well as most modern English authori-

ties, are adverse to the receiving of such testi-

mony. [t]he testimony of jurors ought not be

admitted to invalidate their verdicts.” Lessee of

Cluggage v. Swan, 4 Binn. 150, 158-159 (Pa. 1811).

“The former practice, both in England and in

this country, was to admit the testimony of jurors in

regard to their own misbehaviour. But this

practice was broken in upon by Lord Mansfield in

Vaise v. Delaval, 1 T.R. 11, and has ever since been

holden to be improper and dangerous. The rule is

now perfectly well settled in both countries and may

be laid down to be, that the testimony of jurors is

inadmissible to show their own misbehaviour|.|”

Dorr v. Fenno, 12 Pick. (29 Mass.) 521, 525 (1832)

(emphasis added); see also Dana v. Tucker, 4 Johns.

487, 488 (1809) (per curiam).

Thus, Mansfield’s Rule cannot be inconsistent with

the right to a jury trial as embodied within the Sixth

Amendment and made applicable to the states by the

Fourteenth, because it was sweeping the country

contemporaneously with the ratification of the Bill of

Rights, and it was established law when the Fourteenth

Amendment was adopted.

II. Rule 606(b) constitutionally precludes

juror testimony relating to allegations of

racial bias during deliberations.

Colorado Rule of Evidence 606(b)* and its federal

counterpart Federal Rules of Evidence 606(b)° codify

the common-law rule and bar the use of post-verdict

juror testimony to inquire into the validity of a verdict.

Warger v. Shauers, 574 U.S. __, 135 S. Ct. 521, 527,

190 L. Ed. 2d 422, 430 (2014). Among other reasons,

jurors are prohibited from impeaching their own

verdicts in order to “promot/e] the finality of verdicts

and insulatl(e] the jury from outside influences.” /d.,

135 S. Ct., at 526, 190 L. Ed. 2d, at 428, citing McDon-

ald v. Pless, 238 U. S. 264, 267-268 (1915).

As originally enacted, the only express exceptions to

Rule 606(b) were for “extraneous information and

outside influences.” Warger, 135 S. Ct., at 527, 190

L. Ed. 2d, at 430. A third exception was added in 2006

4. Colorado Rule of Evidence 606(b) provides: “Upon an inquiry

into the validity of a verdict or indictment, a juror may not

testify as to any matter or statement occurring during the

course of a jury's deliberations 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 therewith. But

a juror may testify about (1) whether extraneous prejudicial

information was improperly br>~ught to the jurors’ attention,

(2) whether any outside influence 4s improperly brought to

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

entering the verdict onto the verdict form. A juror’s affidavit

or evidence of any statement by the juror may not be received

on a matter about which the juror would be precluded from

testifying.”

5. Colorado recognizes that its no-impeachment rule is

substantially similar to the federal rule and it looks to federal!

authority to guide its construction of the state rule. Stewart ex

rel. Stewart v. Rice, 47 P. 3d 316, 321 (Colo. 2002).

10

for mistakes made when entering the verdict on the

verdict form. /d., 1355S. Ct., at 527, n. 2, 190 L. Ed. 2d,

at 430, n. 2. “Rule 606(b) is a rule of evidence, but its

role in the criminal justice process is substantive: it

insulates the deliberations of the jury from subsequent

second-guessing by the judiciary.” United States v.

Benally, 546 F 3d 1230, 1233 (CA10 2008).

In this case, two jurors offered testimony vie affida-

vits that may show the verdict was affected by a fellow

juror’s racial bias. Thus,

“wjhen the affidavit of a juror, as to the misconduct

of himself or the other members of the jury, is made

the basis of a motion for a new trial, the court must

choose between redressing the injury of the private

litigant and inflicting the public injury which would

result if jurors were permitted to testify as to what

happened in the jury room.” McDonald v. Pless, 238

U. S. 264, 267 (1915).

Petitioner is seeking a new trial and the only evidence

he has to offer in support of his motion are the two

juror affidavits that contain statements allegedly made

by a fellow juror during deliberations. These affidavits

fall squarely within the parameters of Rule 606(b). The

only reason they are being considered in this appeal is

because of their allegations of racial bias. Their admis-

sion is prohibited unless the Sixth Amendment requires

another exception in addition to those in the text of the

rule.

A. Rule 606(b) Versus the Sixth Amendment.

This Court addressed the interplay between Rule

606(b) and the Sixth Amendment in both Tanner and

Warger. In Tanner v. United States, 483 U.S. 107, 113

(1987), the defendants filed a motion seeking permis-

sion to interview the jurors, an evidentiary hearing and

1]

a new trial after they were convicted, but before they

were sentenced. The motion was based on a report of

a juror that several jurors consumed drugs and alcoho!

during the trial causing them to sleep through the

afternoons. Ibid. The trial court concluded that any

juror testimony about juror intoxication was inadmissi-

ble under Rule 606(b). Jbid. However, the trial court

allowed a hearing with non-juror witnesses, such as

court personnel, so that they could testify as to their

observations of the jury. [bid.

After the hearing, the trial court denied the motion

for a new trial. /d., at 115. While an appeal was

pending, defendants filed another motion for a new trial

based on additional evidence from another juror alleg-

ing more detailed evidence of juror drug and alcohol use

during the trial. Jd., at 115-116. The motion was again

denied. Id., at 116. The Eleventh Circuit affirmed and

the issue before this Court was whether Rule 606(b)

barred juror testimony of drug and alcohol use, and

whether an evidentiary hearing that included such juror

testimony was compelled by their Sixth Amendment

right to a competent jury. /d., at 116-117.

This Court canvassed the legislative history of Rule

606(b) and concluded it “demonstrates with uncommon

clarity that Congress specifically understood, consid-

ered, and rejected a version of Rule 606(b) that would

have allowed jurors to testify on juror conduct during

deliberations.” Jd., at 125. This Court further held

that juror intoxication is not an “outside influence”

about which jurors may testify to impeach their verdict,

and the proposed juror testimony was barred by Rule

606(b).

This Court then addressed whether prohibiting

jurors from testifying as to their conduct during deliber-

ations violates a defendant's right to a fair trial before

an impartial and competent jury. /d., at 126. The

12

constitutional argument was rejected due to “long-

recognized and very substantial concerns support|ing|

the protection of jury deliberations from intrusive

inquiry.” Id., at 127.

It was further held that a defendant’s Sixth Amend-

ment right to a mentally competent jury is protected by

several aspects of the trial process:

“The suitability of an individual for the responsibil-

ity of jury service, of course, is examined during voir

dire. Moreover, during the trial the jury is observ-

able by the court, by counsel, and by court person-

nel. [Citation.] Moreover, jurors are observable by

each other, and may report inappropriate juror

behavior to the court before they render a verdict.

[Citation.| Finally, after the trial a party may seek

to impeach the verdict by nonjuror evidence of

misconduct.” Jbid. (emphasis in original).

Even though Tanner involved juror competency,

rather than impartiality, these “sources of protection”

apply in this case with equal force. Here, the judge

cautioned the defense about the possibility of the

jurors’ “dislike of people who aren’t in the country

legally.” Opp. 4-5. The judge advised the defense that

they “may want to address the possibility of bias.” [bid.

“(Vjoir dire can be an essential means of protecting” a

defendant’s right to an impartial jury Warger, 135

S. Ct., at 528-529, 190 L. Ed. 2d, at 431.

In this case, the defense chose not to mention race

or immigration status, nor ask the venire about their

views on race, despite an invitation from the judge to do

so. “Voir dire plays a critical function in assuring the

crimina] defendant that his Sixth Amendment right to

an impartial jury will be honored.” Rosales-Lopez v.

United States, 451 U. S. 182, 188 (1981) (plurality

opinion).

13

“A trial represents an important investment of

private and social resources, and it ill serves the

important end of finality to wipe the slate clean

simply to recreate the peremptory challenge process

because counsel lacked an item of information which

objectively he should have obtained from a juror on

voir dire examination.” McDonough Power Equip-

ment, Inc. v. Greenwood, 464 U. S. 548, 555 (1984).

If counsel’s choice was ineffective assistance, there is a

remedy. If not, the defense should not be allowed to

roll the dice and then complain about a problem it could

have prevented.

In addition, jurors M.M. and L.T. could have

reported juror H.C.’s racially biased comments made

during deliberations before a verdict was reached. This

is especially true considering that the jury was initially

unable to reach a verdict on any of the charges. The

jury informed the judge they were unable to reach a

verdict. Brief for Petitioner 6. The judge then admon-

ished the jury to continue deliberating and attempt to

reach unanimity. /bid.

According to Petitioner, the trial court informed the

jurors that it was their duty “to consult with one

another and to deliberate with a view of reaching a

verdict.” Ibid. When the judge was informed of the

jury’s inability to agree, any one of the jurors could

have told the judge about the racial comments made by

juror H.C. The judge could have investigated the

allegations and made a decision as to whether juror

H.C. should be excused.

“Due Process does not require a new trial every time

a juror has been placed in a potentially compromising

situation. Were that the rule, few trials would be

constitutionally acceptable.” Smith v. Phillips, 455

U.S. 209, 217 (1982). It is the responsibility of the trial

14

judge to be “ever watchful to prevent prejudicial

occurrences and to determine the effect of such

occurrences when they happen.” Ibid. (emphasis

added). The trial judge holds the keys, and it is within

his or her control to determine if prejudice is seeping in.

If the judge is informed during the trial or deliberations

of juror misconduct, he or she has the option to declare

a mistrial, or that juror can be dismissed and replaced

with an alternate, or in some jurisdictions the parties

can stipulate to a jury of less than 12. Gershman,

Contaminating the Verdict: The Problem of Juror

Misconduct, 50 S. D. L. Rev. 322, 339 (2005).

More recently, in Warger v. Shauers, supra, this

Court had another opportunity to examine the constitu-

tional concerns raised by Rule 606(b). This Court

unanimously held that Rule 606(b) precludes a party

from introducing juror testimony in a proceeding in

which that party is seeking a new trial based on evi-

dence that a juror lied during voir dire. 135 S. Ct., at

528, 190 L. Ed. 2d, at 431.

Warger is a civil case in which Petitioner Warger’s

motorcycle was struck from behind by Respondent

Shauers’ truck. /d., 135 S. Ct., at 524, 190 L. Ed. 2d, at

427. Warger suffered extensive injuries and sued

Shauers for negligence in Federal District Court. Ibid.

Lengthy voir dire was conducted and none of the jurors

responded affirmatively to the question of whether they

could not be a fair and impartial juror on the type of

case before them. Jbid. The trial commenced and the

jury returned a verdict in favor of Shauers. Ibid. After

the case was over, one of the jurors contacted Warger’s

attorney and stated that another juror commented

during deliberations that her daughter had been at

fault in a car accident in which a man had died. I[bid.

The juror expanded further, allegedly saying that it

15

would have ruined her daughter’s life if she had been

sued. /bid.

Warger moved for a new trial on the ground that a

juror had deliberately lied during voir dire about her

ability to be impartial. /bid. The District Court denied

the motion because the only evidence supporting

Warger’s claim were comments made during delibera-

tions and they were barred by Rule 606(b). Id, 135

S. Ct., at 525, 190 L. Ed. 2d, at 427. The Eighth Circuit

affirmed, and this Court granted certiorari and also

affirmed. See id., 135 S. Ct., at 525, 190 L. Ed. 2d, at

428.

This Court examined the historical evolution of Rule

606(b) from common law through its codification by

Congress. /d., 135 S. Ct., at 525-527, 190 L. Ed. 2d, at

428-430. It is important to note that early on, many

courts, including this Court, interpreted Mansfield’s

Rule differently—some courts applied it narrowly and

others applied it more broadly. /d., 135 S. Ct., at 526,

190 L. Ed. 2d, at 428-429. Under the narrow approach,

also known as the “Iowa Rule,” juror testimony was

excluded only if it “consisted of evidence of the jurors’

subjective intentions and thought process in reaching a

verdict.” Id., 135 S. Ct., at 526, 190 L. Ed. 2d, at 428.

Thus, courts adhering to this narrow view allowed

testimony of jury deliberations when used to challenge

juror conduct during voir dire. Id., 135 S. Ct., at 526,

190 L. Ed. 2d, at 429. In the present case, the juror was

speaking of his own thought process, and the evidence

would have been excludable even under the narrow

view of the rule.

Under the broader approach, also known as the

“federal approach,” all evidence of jury deliberations

was inadmissible unless used to prove an “extraneous

matter” influenced the jury. /bid. Courts adhering to

this broader view did not allow testimony of jury

16

deliberations to demonstrate dishonestly during voir

dire. Ibid.

In Warger, this Court made clear that it had rejected

the Iowa approach in both McDonald v. Pless, 238 U.S.

264 (1915), and in Clark v. United States, 289 U.S. 1

(1933). See 135 S. Ct., at 527, 190 L. Ed. 2d, at 429-

430. Congress’s subsequent enactment of Rule 606(b)

encompassed this Court’s broader view of the no-

impeachment rule. /d., 135 S. Ct., at 527, 190

L. Ed. 2d, at 430.

“For those who consider legislative history relevant,

here it confirms that this choice of language was no

accident. Congress rejected a prior version of the

Rule that, in accordance with the Iowa approach,

would have prohibited juror testimony only as to the

‘effect of anything upon [any] juror’s mind or

emotions or concerning his mental processes’

[Citation.| Thus Congress ‘specifically understood,

considered, and rejected a version of Rule 606(b)’

that would have likely permitted the introduction of

evidence of deliberations to show dishonesty during

voir dire.” Ibid.; see also Benally, 546 F 3d, at

1238-1239.

Warger holds that Congress’s broad codification of

the no-impeachment rule precludes biased statements

made during jury deliberations to prove a juror lied

during voir dire. If those biased statements cannot be

introduced to prove a juror lied during voir dire, thus

precluding any questioning about a juror’s impartiality

when rendering a verdict, it follows that a juror’s biased

statements made during deliberations also cannot be

introduced in a motion for a new trial unless the

statement falls into express exception to the Rule.

17

B. Sufficiency of Tanner Safeguards.

Rule 606(b) has three enumerated exceptions: (1)

whether extraneous prejudicial information was im-

properly brought to the jurors’ attention (i.e., newspa-

per article or television newscast), (2) whether any

outside influence was improperly brought to bear upon

a juror (i.e., attempted bribe or threat to juror’s safety),

or (3) whether there was a mistake in entering the

verdict onto the verdict form. Racially biased com-

ments do not fall into the scope of any of these three

exceptions. See Benally, 546 F. 3d, at 1237-1238. Nor

did Congress create a fourth exception for alleged

racially biased statements or comments made during

deliberations. Creating an implicit exception for alleged

racially biased statements is the type of subjective

second-guessing by the judiciary that this Court sought

to avoid and would contravene explicit Congressional!

intent. Jd., at 1239.

“[A] court in a particular case is not the proper

forum for making or enlarging exceptions to the

rules of evidence. Our commission is to apply the

Rules of Evidence as written and interpreted to the

case at hand. Perhaps it would be a good idea to

amend Rule 606(b) to allow testimony revealing

racial bias in jury deliberations, but the body en-

trusted with making the Rules is Congress|.]” IJd.,

at 123°.

It is important to note that in Warger, this Court

stated in a footnote that “[t]here may be cases of juror

bias so extreme that, almost by definition, the jury trial

right has been abridged. If and when such a case arises,

the Court can consider whether the usual safeguards

are or are not sufficient to protect the integrity of the

process. We need not consider the question, however,

for those facts are not presented here.” Jd., 135 S. Ct.,

at 529, n. 3, 190 L. Ed. 2d, at 432, n. 3. A juror’s bias

18

may be actual or implied as a matter of law. United

States v. Wood, 299 U.S. 123, 133 (1936).

This is not a case of extreme juror bias that justifies

a need to revisit the Tanner safeguards. An extreme

case might be, for example, a jury deliberation infected

with racial hatred so deep that the jury would convict

without evidence or on clearly insufficient evidence.

Juror H.C.’s stereotypical beliefs do not rise to that

level. The only evidence presented by the defense in

this case are affidavits from two jurors that allege

racially biased comments were made by one other juror

during deliberations. There is no evidence to show that

the racially biased comments persuaded all 12 jurors to

vote guilty. There is no evidence to show that the two

complaining jurors were strong-armed into voting guilty

by juror H.C.’s racially biased statements. There is no

evidence to prove that juror H.C. is a racist, or that he

based his guilty vote solely on racial] prejudices and not

on the evidence presented. Furthermore, the guilty

verdicts on all three misdemeanor counts were unani-

mous, which means jurors M.M. and L.T. concurred in

the decision to find Petitioner guilty beyond a reason-

able doubt. See Benally, 546 F 3d, at 1241.

The Tanner safeguards apply in cases like this one

and equally seek to protect a defendant’s right to an

impartial jury.

“Voir dire can still uncover racial predilections,

especially when backed up by the threat of contempt

or perjury prosecutions. Jurors can report to the

judge during trial if racist remarks intrude on jury

deliberations, enabling the judge to declare a mis-

trial or take other corrective measures. After the

verdict is rendered, it could still be impeached if

there is evidence of juror wrongdoing that does not

depend on the testimony of fellow jurors in breach

of Rule 606(b) confidentiality. And even trial

19

observation could uncover racist attitudes if a juror

openly wore his feelings on his sleeve. These protec-

tions might not be sufficient to eliminate every

partial juror, just as in Tanner they proved insuffi-

cient to catch every intoxicated juror, but jury

perfection is an untenable goal.” I/d., at 1240.

C. Court of Appeals Cases.

The issue of introducing racially biased comments

made during deliberations has been at issue in several

Federal Court of Appeals cases. The First and Seventh

Circuits agree that juror testimony concerning alleged

racially biased statements is deemed incompetent under

Rule 606(b) and stressed the importance of the policies

embodied within the Rule. See United States v. Villar,

586 F 3d 76, 83-84 (CAl 2009); see also Shillcutt v.

Gagnon, 827 F. 2d 1155, 1158-1159 (CA7 1987).

Despite that acknowledgment, the Seventh Circuit

nonetheless declared that the Rule could not be applied

where racial prejudice “pervaded the jury room” and

thus affected the outcome of the verdict. Shillcutt, 827

F 2d, at 1159. The First Circuit found a constitutional

exception for “rare and grave cases” that “implicate a

defendant’s rights to due process and an impartial

jury.” Villar, 586 F 3d, at 87. Both Circuit Courts

went beyond the intended dictates of the Rule and

essentially created their own exception to Rule 606(b)

for allegations of racial bias during deliberations.

In United States v. Henley, 238 F. 3d 1111, 1121

(CA9 2001), a Ninth Circuit case decided before Warger,

one of the issues was whether Rule 606(b) precludes the

admission of racially biased statements made by a juror

outside the deliberation room when offered to show a

juror lied during voir dire. The court held that the Rule

does not preclude its admission. /bid., citing Hard v.

Burlington Northern R.R., 812 F. 2d 482 (CA9 1987).

20

Because Henley was decided prior to Warger and

reached an opposite result on similar facts, it has little

or no authority as precedent. Even though it was not at

issue, the court further stated in dicta that “a powerful

case can be made that Rule 606(b) is wholly inapplica-

ble to racial bias” because racial bias is “plainly a

mental bias” unrelated to the issues that a jury may

legitimately be called upon to determine in a criminal!

case. Henley, 238 F. 3d, at 1120.

The Third Circuit also addressed whether racially

biased statements allegedly made by jurors during

deliberations could be introduced to challenge a juror’s

honesty during voir dire in a state-prisoner habeas

corpus case, Williams v. Price, 343 F 3d 223 (CA3

2003) (Alito, J.). The Third Circuit refused to follow

the Ninth Circuit’s lead, stating its precedent appears

to be “inconsistent with” Rule 606(b). Jd., at 236, n. 5.

Rather, the court found that “Tanner implies that the

Constitution does not require the admission of evidence

that falls within Rule 606(b)’s prohibition.” Jd., at 235.

Applying the federal habeas corpus standard for claims

rejected on the merits by the state courts, the court

held that no Supreme Court decision “clearly estab-

lishes that it is unconstitutional for a state to apply a

‘no impeachment’ rule that does not contain an excep-

tion for juror testimony about racial bias on the part of

jurors.” Id., at 239.

Perhaps the most instructive Court of Appeals case

on this issue, and the best articulated analysis as to why

Rule 606(b) constitutionally precludes juror testimony

of racial bias, is the Tenth Circuit’s decision in Benally.

The facts are somewhat analogous to this case. Mr.

Benally, a member of the Ute Mountain Ute Tribe, was

charged with and found guilty of assault. 546 F. 3d, at

1231. During voir dire, the venire was asked several!

questions about their views on Native Americans. Ibid.

21

No jurors responded in a manner that would indicate

potential bias. /bid.

The day after the jury announced its verdict, one

juror approached defense counsel and claimed that the

jury deliberation had been improperly influenced by

biased claims about Native Americans. Jbid. Armed

with two affidavits of alleged racial bias by jurors,

Benally moved to vacate the verdict and receive a new

trial on the basis that the jurors lied during voir dire

about their racial bias towards Native Americans. /d.,

at 1232. The Tenth Circuit held that Rule 606(b)

prohibits juror testimony of racial bias in jury delibera-

tions and there is no Sixth Amendment exception. /d.,

at 1231.

The Benally court discussed the history and purpose

of Rule 606(b) and the policies it seeks to pro-

tect—namely, the finality of verdicts, protection against

juror harassment, it reduces the incentive for jury

tampering, it promotes free and frank discussion, and

it protects the community’s trust in the jury system.

Id., at 1234.

With those policy reasons in mind, the court exam-

ined the Ninth and Third Circuits’ assessment of the

issue. The court rejected the Ninth Circuit’s interpre-

tation, which permitted juror testimony to show deceit

during voir dire, even when the improper voir dire was

the basis for a new trial. Jd., at 1235-1236. Instead it

followed the Third Circuit’s approach and held that

“allowing juror testimony through the backdoor of a

voir dire challenge risks swallowing the rule.” I/d., at

1236.

The Benally court then refused to create an implicit

exception to the Rule for evidence of racial bias stating

that “courts no longer have common law authority to

fashion and refashion rules of evidence as the justice of

22

the case seems to demand, but must enforce the rules

as enacted.” Id., at 1239.

Lastly, the Benally court addressed the argument

that Rule 606(b) was unconstitutional as applied to the

defendant. /d., at 1239-1241. The court discussed

Tanner at length and held that the standards enunci-

ated in that case protects a defendant’s Sixth Amend-

ment right without “breachiig the ban on post-verdict

juror testimony ” /d., at 1240.

“It may well be true that racial prejudice is an

especially odious, and especially common, form of

Sixth Amendment violation. But once it is held that

the rules of evidence must be subordinated to the

need to admit evidence of Sixth Amendment viola-

tions, we do not see how the courts could stop at the

‘most serious’ such violations.

Nor does there seem to be a principled reason to

limit the exception only to claims of bias, when

other types of jury misconduct undermine a fair trial

as well. If a jury does not follow the jury instruc-

tions, or ignores relevant evidence, or flips a coin, or

falls asleep, then surely that defendant’s right to a

fair trial would be aggrieved ” Id., at 1241.

The broad codification of Mansfield’s Rule enacted

by Congress and copied by Colorado precludes jurors

from testifying about anything discussed during deliber-

ations unless it falls into an express exception to Rule

606(b). The facts of this case do not. Congress did not

enact a fourth exception for allegations of racial bias,

and it would be improper for this Court to create an

exception that is in direct contravention of express

legislative intent. If this Court opens the door to allow

allegations of racial bias during deliberations, where

would the exception end? It would permit endless

future litigation over other types of discriminatory bias,

23

such as gender, religion, age, disability, and sexual

orientation to name a few. “[I|f every claim that, if

factually supported, would be sufficient to demand a

new trial warrants an exception to Rule 606(b), there

would be nothing left of the Rule, and the great benefit

of protecting jury decision-making from judicial review

would be lost.” Ibid.

Ill. Preserving the confidentiality of

jury deliberations is fundamental to

the uninhibited and forthright discussion

that must occur for a jury to wholly focus

on reaching the right result.

Protecting the sanctity and secrecy of private jury

deliberations is not a new precept. “Freedom of debate

might be stifled and independence of thought checked

if jurors were made to feel that their arguments and

ballots were to be freely published to the world.” Clark

v. United States, 289 U.S. 1, 13 (1933). Furthermore,

it is a violation of federal law for anyone who is not

empaneled as a juror to knowingly or willingly record,

attempt to record, listen to or observe, or attempt to

listen to or observe, grand or petit jury proceedings.

See 18 U.S. C. § 1508.

Jurors can be unpredictable and at times haphazard.

A carefully selected group of 12 men and women step

into the jury box with very little in common. Once they

retire to the jury room to deliberate, that group of 12

now have the duty to come together as a harmonious

whole with justice as their goal. They are the epitome

of democracy in action. American jurors come from all

walks of life—from the highly educated to the illiterate,

wealthy to middle class to barely scraping by, copious

note-takers who intently listen to every word spoken to

24

those day-dreaming throughout the proceedings about

their upcoming vacation.

Jury members reflect different opinions, different

backgrounds, different biases, different religions,

different races, different political affiliations, and

different educational backgrounds. The American jury

system works well because of these differences. Jurors

may use their own common sense and real world

experience to decide if one version of the events is more

plausible than the other and must be freely able to

explain to their fellow jurors why a witness was or was

not credible. They must also be able to give their

opinions without constraint about the character of the

involved parties.

The jury room is a place for open discussion and

debate. Private jury deliberations allow a jury to focus

on reaching the right result. If jurors knew their

deliberations were to be made public or inquired into,

their focus may switch from the right result to the

result that may be the most amenable to public opinion.

“{FJull and frank discussion in the jury room, jurors’

willingness to return an unpopular verdict, and the

community’s trust in a system that relies on the deci-

sions of laypeople would all be undermined by a barrage

of post-verdict scrutiny of juror conduct.” Tanner v.

United States, 483 U.S. 107, 120-121 (1987). Further-

more,

“lo]ne prominent commentator has concluded that

‘|glenerally, it seems better to draw [the line] in

favor of juror privacy; in the heat of juror debate al!

kinds of statements may be made which have little

effect on outcome, though taken out of context they

seem damning and absurd.’” Smith v. Brewer, 444

F. Supp. 482, 490 (SD Iowa 1978) (quoting

3 J. Weinstein & M. Berger, Weinstein’s Evidence

606-636 (1976)).

25

The jury system is admittedly far from perfect. A

criminal defendant is entitled to a fair trial, not a

perfect one. Delaware v. Van Arsdall, 475 U.S. 673,

681 (1986).

“There is little doubt that postverdict investigation

into juror misconduct would in some instances lead

to the invalidation of verdicts reached after irre-

sponsible or improper juror behavior. It is not at all

clear, however, that the jury system could survive

such efforts to perfect it. Allegations of juror mis-

conduct, incompetency, or inattentiveness, raised for

the first time days, weeks, or months after the

verdict, seriously disrupt the finality of the process.”

Tanner, 483 U.S., at 120.

The founders of our country strongly desired to give

criminal defendants the right to a jury of their peers.

Because of this right, ordinary citizens have a duty to

participate in court proceedings to decide the fate of

fellow citizens faced with criminal charges. It is un-

likely that all 12 jurors will all agree on every point at

the outset of deliberations. There may be a couple of

jurors who view the facts and evidence differently from

their fellow jurors. The jurors must be able to candidly

discuss these differences of opinion. A jury of ordinary

citizens cannot be expected to do the right thing if they

fear their discussions will become the centerpiece of a

post-verdict attack.

- Privileged Communications in Other Areas of the

The policies that underlie several areas of privileged

communication are analogous to the policies that

prohibit jurors from testifying against their own ver-

dicts. Both seek to promote uninhibited and forthright

discussion of which secrecy and confidentiality are

fundamental.

26

“The privileges between priest and penitent, attor-

ney and client, and physician and patient limit

protection to private communications. These

privileges are rooted in the imperative need for

confidence and trust. The priest-penitent privilege

recognizes the human need to disclose to a spiritual

counselor, in total and absolute confidence, what are

believed to be flawed acts or thoughts and to receive

priestly consolation and guidance in return. The

lawyer-client privilege rests on the need for the

advocate and counselor to know all that relates to

the client’s reasons for seeking representation if the

professional mission is to be carried out. Similarly,

the physician must know all that a patient can

articulate in order to identify and to treat disease;

barriers to full disclosure would impair diagnosis

and treatment.” Trammel v. United States, 445

U.S. 40, 51 (1980).

Deeply rooted in common law is the marital commu-

nication privilege. This privilege excludes as evidence

the private communications between husband and wife

made in the confidence of the marital relationship.

Ibid. “The basis of the immunity given to communica-

tions between husband and wife is the protection of

marital confidences, regarded as so essential to the

preservation of the marriage relationship as to out-

weigh the disadvantages to the administration of justice

which the privilege entails.” Wolfle v. United States,

291 U.S. 7, 14 (1934); see also Stein v. Bowman, 38

U. S. 209, 223 (1839) (“To break down or impair the

great principles which protect the sanctities of husband

and wife, would be to destroy the best solace of human

existence”).

Another analogous area in which this Court has

recognized the need for a very broad privilege is the

immunity given to members of Congress pursuant to

27

the Speech or Debate Clause of Article I, section 6,

clause 1.°

“The reason for the privilege is clear. It was well

summarized by James Wilson, an influential mem-

ber of the Committee of Detail which was responsi-

ble for the provision in the Federal Constitution. ‘In

order to enable and encourage a representative of

the public to discharge his public trust with firm-

ness and success, it is indispensably necessary, that

he should enjoy the fullest liberty of speech, and

that he should be protected from the resentment of

every one, however powerful, to whom the exercise

of that liberty may occasion offence.’” Tenney v.

Brandhove, 341 U. S. 367, 373 (1951) (quoting 2

Works of James Wilson 38 (Andrews ed. 1896)).

The Speech or Debate Clause affords members of

Congress absolute immunity from lawsuit, an absolute

testimonial privilege, and an absolute evidentiary

privilege. See Eastland v. United States Servicemen’s

Fund, 421 U. S. 491, 501-503 (1979); see also Dom-

browski v. Eastland, 387 U. S. 82, 85 (1967) (per

curiam). “Since the Glorious Revolution in Britain, and

throughout United States history, the privilege has

been recognized as an important protection of the

independence and integrity of the legislature.” United

States v. Johnson, 383 U. S. 169, 178 (1966). The

Clause assures wide freedom of speech, debate, and

deliberation to the legislative branch without intimida-

tion from the executive and judicial branches. Gravel

6. “The Senators and Representatives. . shall in all cases, except

treason, felony and breach of the peace, be privileged from

arrest during their attendance at the session of their respective

Houses, and in going to and returning from the same; and for

any speech or debate in either House, they shall not be

questioned in any other place.” U.S. Conat., Art. I, §6, cl. 1.

28

v. United States, 408 U. S. 606, 616 (1972); see also

United States v. Helstoski, 442 U.S. 477, 492 (1979).

Even though legislative acts are not done in private,

nor are they intended to be secret, the policy behind the

privilege is to allow members of Congress to debate

freely and openly without fear of repercussion. In the

jury deliberation context, juries should similarly be able

to freely and openly deliberate without fear of their

comments and opinions being scrutinized in public, or

being subject to second-guessing or overruling by a

judge.

When legislators are working in their legislative

capacity, and jurors are working in their juror capacity,

both should be able to discuss their thoughts, opinions,

and ideas without restraint. Both are entitled to

protection from questioning about the statements they

made or actions taken while carrying out their duties.

“(Jjury deliberations seem to conform perfectly with

the utilitarian conception of privileged communications:

they arise from a relationship of trust, and their confi-

dentiality is preserved|.]” Note, Public Disclosures of

Jury Deliberations, 96 Harv. L. Rev. 886, 900, n. 84

(1983).

The priest-penitent, attorney-client, physician-

patient, husband-wife, and Congressional privileges are

all entrenched in common law. Secret jury delibera-

tions are also rooted in common law. These privileges

serve similar purposes and are intended to encourage

candid, direct, and unrestrained discussion. All of these

rules of law sacrifice the completeness of evidence to

serve an interest in confidentiality that society deems

more important. Making these judgments is within the

competence of the authorities vested with the power to

make the rules of evidence.

29

B. Total Elimination of Bias Untenable.

Justitia, the Roman Goddess of Justice, also known

as Lady Justice, sits in many courthouses and law

schools around the world. Her presence is empower-

ing—she stands tall, blindfolded, holding the scales of

justice. Her blindfold represents “blind justice.”

Justice is to be meted out impartially and objectively

without fear and regardless of wealth, status, race,

gender, or identity.

Bias, of any kind, should never motivate a juror to

convict or acquit a criminal] defendant. Racial bias is

deplorable and our judicial system has made great

strides over the years in an attempt to eliminate racial

bias in the jury selectic.: process and during jury

deliberations. See, e.g., Strauder v. West Virginia, 100

U.S. 303, 310 (1880) (exclusion of blacks from juries by

reason of their race violated Equal Protection Clause);

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

challenge may not be used to exclude juror solely based

on race); see also Turner v. Murray, 476 U. S. 28, 36-37

(1986) (capital defendant accused of an interracial

crime entitled to have prospective jurors informed of

victim’s race and questioned on the issue of racial bias. )

However, “[t)he difficulty springs from the fact that al!

adults have beliefs, values, and prejudices which make

impartiality in the tabula rasa sense impossible.”

Gobert, In Search of the Impartial Jury, 79 J. Crim. L.

& C. 269, 271 (1988).

“Impartiality is not a technical conception. It is a

state of mind. For the ascertainment of this mental

indifference, the Constitution lays down no particular

tests and procedure is not chained to any ancient and

artificial formula.” United States v. Wood, 299 VU. S.

123, 145-146 (1936). Jurors need not be totally igno-

rant of the facts and issues involved, but must have the

ability to set aside their opinions or impressions and

30

render a verdict based on the evidence developed at

trial. Irvin v. Dowd, 366 U. S. 717, 722-723 (1961);

Turner v. Louisiana, 379 U. S. 466, 472-473 (1965).

This Court is no stranger to the fact that racial

prejudice may go undetected in jury deliberations,

especially in capital sentencing proceedings. See

Turner v. Murray, 476 U. S., at 35 (plurality opinion)

(“[flear of blacks, which could easily be stirred up by

the violent facts of petitioner’s crime, might incline a

juror to favor the death penalty”). “‘It remains an

unfortunate fact in our society that violent crimes

perpetrated against members of other racial or ethnic

groups often raise |a reasonable possibility that racial

prejudice would influence the jury).’” /d., at 35, n. 7

(quoting Rosales-Lopez v. United States, 451 U.S. 182,

192 (1981)). Upon being empaneled, jurors are in-

structed to leave their preconceived prejudices and

opinions at home. In an ideal world, they are to walk

into the jury box with an open mind and the where-

withal to listen to the evidence and facts presented.

However, in all reality, it is unknown if that actually

happens because “|jjuries provide no reasons, only

verdicts.” Benally, 546 F 3d, at 1233.

The American jury decision-making process has

been described as a “black box.” Jbid. “(The inputs

(evidence and argument) are carefully regulated by law

and the output (the verdict) is publically announced,

but the inner workings and deliberation of the jury are

deliberately insulated from subsequent review.” Ibid.

If this Court were to delve into the inner workings of

jury deliberations to determine if racial bias played a

role in the verdict, the exception may end up swallow-

ing the rule that has been firmly established for hun-

dreds of years. The “black box” theory of jury decision

making will cease to exist because this Court opened up

Pandora’s Box. Allowing jurors to impeach their own

31

verdict with testimony about alleged racial bias during

deliberations may appear to create a small peek into the

black box. However, over time that small peek will

slowly open up even further with allegations of different

types of alleged bias and eventually the black box wil!

be blown wide open.

Trial by jury reflects the values and standards of the

general public brought together for the sole purpose of

deciding a peer’s fate. If this Court allows litigants to

peek into the jury deliberation room under the guise of

determining whether bias played a role in the decision-

making process, a juror’s ability to be impartial may be

quashed out of fear of public scrutiny. A jury’s “black

box” decision-making process and its independence

from subjective overrule by the judiciary must be

fiercely guarded. The consequences of abandoning the

protections given to secret jury deliberations are too

great.

CONCLUSION

The judgment of the Colorado Supreme Court

should be affirmed.

September, 2016

Respectfully submitted,

KYMBERLEE STAPLETON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation