Whither Secret Deliberations?: Pena-Rodriguez v. Colorado and the Non-Impeachment Rule

by Richard L. Jolly

This week the Supreme Court decided Pena-Rodriquez v. Colorado. The case concerns the centuries-old rule that a jury’s verdict cannot be called into question based on comments or conclusions the jurors expressed during deliberations. The Court concluded that the Constitution requires an exception to this rule when a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.

The facts are rather simple. State prosecutors in Colorado brought criminal charges against Miguel Angel Pena-Rodriguez based on allegations of sexual assault. After a 3-day trial, the jury found Pena-Rodriguez guilty of unlawful sexual conduct and harassment, but failed to reach a verdict on the attempted sexual assault charge. After the verdict, Pena-Rodriguez’s lawyer spoke with the jury. Most of them had already left, though two jurors remained behind to speak with him. They told the lawyer that during deliberations, another juror had expressed anti-Hispanic bias toward Pena-Rodriguez and his alibi witness. The lawyer reported this to the trial court, and with the court’s supervision, obtained sworn affidavits from the jurors. But Pena-Rodriguez’s appeal for a new trial was denied because “[t]he actual deliberations that occur among the jurors are protected from inquiry.” Pena-Rodriquez appealed all the way to the Supreme Court of the United States.

The question asked of the Supreme Court was whether the common law rule that the jury’s verdict cannot be impeached based on accounts of what occurred during deliberations must yield to the Constitution’s guarantee to a fair and impartial trial. The Court noted that the non-impeachment rule had basis going back to at least the eighteenth century, during which there were no exceptions. Since then, however, the federal law had developed such that it permitted an exception for testimony about events extraneous to the deliberative process. The law had also left the door open for those cases in which it would be impossible to refuse juror’s testimony about deliberations “without violating the plainest principles of justice.”

And so the Court found here. Noting the country’s history of racial discrimination, the Court determined that “[a] constitutional 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 confident in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.” Accordingly, a new rule was pronounced that courts may review jury’s deliberations when there is “a showing that one or more jurors made statements exhibiting over racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting.”

Three Justices dissented. Though they acknowledged the seriousness of racial animus in the administration of justice, they did not agree that reviewing jury deliberations was a constitutionally permissible or desirable way to root out discrimination. They highlighted reason courts avoid interfering with the jury’s confidential communications is to ensure that debate flows freely. Jurors are encouraged to speak, argue, and make decisions based without any outside influence. Avoiding such interference “has long been thought to justify the loss of important evidence and the effect on our justice system that this loss entails.” Essentially, the jury door is locked for a good reason.

So what does this all mean? Perhaps nothing, perhaps a lot. It does not appear at the moment that the Court has opened the door to all forms of discriminatory deliberations. The majority noted that “[n]ot every offhand comment indicating racial bias or hostility will justify setting aside the non-impeachment bar to allow further judicial inquiry.” Instead, “to qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.” The Court left that determination to the discretion of the trial court in light of all the circumstances. How much prying into the jury’s deliberations occurs will depend entirely on how trial courts implement this test and how it evolves.

One this is certain, however. All losing parties and their friends, supporters, and attorneys will seek to contact and question jurors for any hint of racially discriminatory rationale in the deliberation room. The dissent warned that this type of “pestering may erode citizens’ willingness to serve on juries.” Though that remains to be seen, Pena-Rodriguez v. Colorado is a dramatic departure from the common law and the practice of secret deliberations going back centuries.