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U.S. Supreme Court,
Constitutional Law,
9th U.S. Circuit Court of Appeals

Oct. 17, 2017

Beginning to see the light

Some things cannot be unseen. Last term, the U.S. Supreme Court held that judges could -- and, indeed, must -- open their eyes to some of what goes on inside the jury box during deliberations.

In "The Matrix," the protagonist Neo learns that the world he knows is a "computer-generated dream world" and that the real world is a very different place. And once his eyes are opened, he can never go back. The lesson? Some things cannot be unseen.

Last term, the U.S. Supreme Court in Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) held that judges could -- and, indeed, must -- open their eyes to some of what goes on inside the jury box during deliberations.

Under the English and early American common law, courts by and large refused to entertain jurors' post-verdict reports of what happened during deliberations as a basis for overturning that verdict. E.g., McDonald v. Pless, 238 U.S. 264 (1915). The Federal Rules of Evidence eventually codified a similar standard, and now bars a juror from "testify[ing] 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" except to show that (1) "extraneous prejudicial information was improperly brought to the jury's attention," (2) "an outside influence was improperly brought to bear on any juror," or (3) "a mistake was made in entering the verdict on the verdict form." Fed. R. Evid. 606(b).

Courts have articulated three reasons for this "no impeachment" rule. First, judicial scrutiny of verdicts through juror affidavits or testimony might cause jurors to "be harassed and beset" by the party who lost at trial and who is hoping to "secure from them evidence of ... misconduct," which might deter "full and vigorous discussion" in the jury room. Tanner v. United States, 483 U.S. 107, 120 (1987); Pena-Rodriguez, at 20, 22. Second, curtailing judicial scrutiny "gives [greater] stability and finality to verdicts." Pena-Rodriguez, at 865. Lastly, consideration of juror affidavits and statements is not necessary to prevent or ferret out juror misconduct because such misconduct can be averted or discovered through (1) voir dire, (2) observation of misconduct by the court and counsel, (3) pre-verdict reports of jurors, and (4) evidence of misconduct in the jury room stemming from sources other than juror affidavits or statements. Tanner, at 127. As between the injury to the individual litigants from leaving a tainted verdict intact and the systemic injury to jury deliberations and the finality of verdicts from allowing judges to consider evidence reporting what went on in the jury room, this rule deems the former to be "the lesser of [the] two evils." McDonald, at 267.

Pena-Rodriguez weighs the evils differently when it comes to juror affidavits "exhibiting" a deliberating juror's "overt racial basis" and "tend[ing] to show that racial animus was a significant motivating factor in the juror's vote to convict." Id. at 869. Racial bias, the court reasoned, offends the constitutional right to an impartial jury, id. at 868-69; Sheppard v. Maxwell, 384 U.S. 333, 362 (1966), and accordingly fits within a previously unused exception to the no-impeachment rule reserved for the "gravest and most important cases." United States v. Reid, 53 U.S. 361, 366 (1852). The court explained that racial bias is different from other forms of juror misconduct because (1) it is a "familiar and recurring evil," rather than "anomalous behavior from a single jury -- or juror -- gone off course," and (2) the "stigma that attends racial bias" makes it harder for jurors to report racial bias because people do not like accusing one another of being "bigots." Pena-Rodriguez, at 868-69. Thus, the court concluded, the trial court in Pena-Rodriguez was required to consider a juror affidavit reporting that one of the jurors in a criminal defendant's unlawful sexual assault case had voiced his view that defendant was guilty because "Mexican men [like the defendant] ha[ve] a bravado that cause[s] them to believe they [can] do whatever they want[] with women." Id. at 862.

Will courts, once they heed Pena-Rodriguez's mandate to look inside the jury box for verdicts tainted by racial bias, be able to look away when they see other bias or misconduct?

Our recent experience with judicial scrutiny of peremptory challenges may provide some insight.

Much like a jury's deliberations, a litigant's exercise of peremptory challenges to excuse jurors, for any reason or no reason at all, historically occurred "without inquiry and without being subject to the court's control." Swain v. Alabama, 380 U.S. 202, 220 (1965).

And much like Pena-Rodriguez, the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986) departed from its historical "hands off" approach in concluding that courts must scrutinize peremptory challenges to ensure they were not being exercised to discriminate against prospective jurors on the basis of race.

Has judicial scrutiny of peremptory challenges remained confined to racial discrimination? It has not.

Since Batson, courts have refused to put on blinders and to ignore the discriminatory use of peremptory challenges on grounds other than race. Both federal and California courts prohibit the use of peremptory challenges to bump jurors on the basis of their sex, J.E.B. v. Alabama, 511 U.S. 127 (1994), their ethnicity, United States v. Martinez-Salazar, 528 U.S. 304 (2000), their religion, United States v. Brown, 352 F.3d 654 (2d Cir. 2003); In re Freeman, 38 Cal.4th 630 (2006), and their sexual orientation, SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014); People v. Garcia, 77 Cal. App. 4th 1269 (2000); People v. Douglas, 10 Cal. App. 5th 834 (2017).

Now that the proverbial veil over the jury box has been opened, will courts confine their scrutiny only to deliberations tainted by "overt racial discrimination"?

What if a juror affidavit reports that another juror invoked sexual stereotypes? Is sexual discrimination any less a "familiar and recurring evil" than racial discrimination? The Supreme Court in J.E.B. thought not. 511 U.S. at 135-36. What about religious discrimination or discrimination on the basis of sexual orientation? And is it any less stigmatic to be called a "misogynist," a religious "bigot" or a "homophobe" than a "racist"? If not, then Pena-Rodriguez's rationale logically extends to discrimination on these other bases.

And what about other types of juror misconduct? Under the no-impeachment rule, courts have refused to consider evidence that a jury reached its verdict based by taking a "split-the-baby" approach to damages by adding up and then averaging each juror's damages assessment, McDonald, by resorting to a "game of chance," Vaise v. Delaval, 99 Eng. Rep. 944 (K.B. 1785), or by flipping a coin, United States v. Leung, 796 F.3d 1032 (9th Cir. 2015). Yet such arbitrariness is the very antithesis of due process. Hurtado v. California, 110 U.S. 516, 527 (1884). Will courts, in a post-Pena-Rodriguez world, continue to ignore a jury affidavit reporting such misconduct?

These questions are most pressing in the federal courts, but less so in the California courts because California's no-impeachment rule is much narrower -- it excludes only juror affidavits attesting to the jury's "mental processes" but allows consideration of "statements made" or "conduct ... occurring" during deliberations -- and because juror misconduct gives rise to a rebuttable presumption of prejudice. Cal. Evid. Code Section 1150; In re Stankewitz, 40 Cal.3d 391, 397-402 (1985).

Will federal judges opening their eyes to the reality inside the jury box be able to ignore the misconduct inside any better than judges opening their eyes to the reality of jury selection?

The answer to this question is left for the inevitable sequels to Pena-Rodriguez. Those sequels will be more illuminating -- and undoubtedly more entertaining -- than the sequels to "The Matrix."


Ben Armistead

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