Racial bias and jury decision-making is fraught with many unanswered questions. We know it exists but too what extent remains a vast unknown. Most studies focus on the issue of race in the jury selection process or the influence a defendant’s race may have on a jury outcome—not on the racial bias of juries per se.


Racial Bias of Juries


On March 6, 2017, the U.S. Supreme Court in Pena-Rodriquez v. Colorado walked up to the edge of the jury racial bias. Miguel Angel Pena-Rodriquez (“Pena”) was convicted in a Colorado court of sexually assaulting two teenage sisters. As is a common practice among defense attorneys and prosecutors, Pena’s attorney spoke with jurors about why and how they arrived at their guilt decision.


Two of the jurors expressed concern about conduct they had witnessed in the deliberation process. One juror with a law enforcement background reportedly said it had been his experience as a cop that “Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” The law enforcement juror added that “nine times out of ten, Mexican men were guilty of being aggressive toward women and young girls … I think he did it because he’s a Mexican, and Mexican men take whatever they want.”


Under the trial court’s supervision, Pena’s attorney secured affidavits from the two jurors attesting to what the lone law enforcement juror had said.


Rules Prohibit Testimony About Deliberations


Pena’s attorney then faced a daunting fight to get a new trial before a new jury. Guided by 18th century common law, the Colorado rules of evidence prohibits a juror from testifying about any statements made by other jurors during the deliberation process in any post-conviction proceeding questioning the validity of the jury verdict. In effect, jurors are forbidden to impeach their verdict either by affidavits or live testimony.


The trial court and the Colorado appellate courts rejected Pena’s challenge to the jury decision-making process by finding that the two jurors could not testify about anything that had been said in the deliberation process. It is known as the “no-impeachment rule”—an evidentiary rule adopted by the federal government and all states which bars jurors from later efforts to impeach the validity of the jury’s verdict because of misconduct.


“No-Impeachment” Rule Gives Way to Sixth Amendment


In its most recent decision dealing with this long debated evidentiary rule, the Supreme Court in Pena held that the “no-impeachment rule” must give way under the Sixth Amendment when a juror makes “a clear statement that he or she relied on racial stereotypes or animus to convict a criminal defendant.” In effect, the Sixth Amendment’s guarantee of due process in the trial setting supersedes an evidentiary rule rooted in 200-year-old common law. The Court added that the Pena case,


“… lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and those seeking to eliminate racial bias in the jury system. Those lines of precedents need not conflict. Racial bias … implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice….”


In the wake of the Pena decision, Noah Feldman, a constitutional and international law professor at Harvard Law School and a former U.S. Supreme Court clerk, pointed out in a USA Today website piece that “ … lawyers never quite want to know why the jury did what it did – the lawyers are afraid the rationale may be too far from what the law requires, which would upset the apple cart of the judicial system.”


Lawyers Should Talk to Jurors About Verdict


That may or may not be the case. What is true is that criminal defense attorneys should, every time the opportunity presents itself, speak to jurors in a post-verdict setting to understand “why the jury did what it did.” The conduct and presentation of the attorney may have been either an overwhelming or contributing factor. Criminal defense attorneys have a duty to strive to understand all the influences on jury decision-making, especially those involving the effect racial bias.


Racial Bias Has No Seat in Jury Room


With Pena, the Supreme Court has quite firmly and unequivocally pronounced that racial bias does not have a seat in the jury room. As Justice Kennedy said in the decision: “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.”


These words of wisdom not only apply to the jury room but to every segment of our society which, today, finds itself torn by racial divisions and classifications.