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The Challenge
The newsletter of the ISBA’s Standing Committee on Racial and Ethnic Minorities and the Law

February 2018, vol. 28, no. 1

Can a court grant a new trial based on proof that racial bias affected jury deliberations? SCOTUS says YES.

Until about a year ago, had I been asked whether a jury verdict undisputedly influenced by racial bias could stand, I would have insisted that it could not. I would have insisted that a jury verdict based on racial bias was unconstitutional, in violation of the Sixth Amendment, and that in the year 2017 no American court would let such a verdict stand.

Before last spring, I would have been wrong. My mistake would have been based on a legal evidence rule that I remember little to nothing about from my law school years. This rule is referred to as the “no impeachment rule.”

As lawyers know, our legal system gives great respect and deference to the role of a jury in a trial, leading to the adoption of the “no-impeachment rule.”1 As Justice Kennedy recently put it, “A general rule has evolved to give substantial protection to verdict finality 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 deliberations.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 861 (2017). In essence, this rule means that one cannot later impeach the jury’s verdict/finding based on information from deliberations that would seem to call into question the verdict’s validity or fairness. The rule is reflected in Federal Rule of Evidence 606(b) and all states follow some version of the no-impeachment rule, while permitting some exceptions to the rule. 137 S. Ct. 865.

But what if it is essentially conceded in a given case that the jury’s verdict was influenced by blatant racial discrimination – by the illegal consideration of race and racial stereotypes? What if there was proof that racial bias motivated members of the jury pool? Could a judge consider the verdict tainted and grant a new trial? Until recently, there was something of a circuit split on this issue. In many jurisdictions, based on precedent such as Tanner v. United States, 483 U.S. 107 and Warger v. Shauers, 574 U.S. ––––, 135 S.Ct. 521, the answer this question would have been “no.”

This very issue came before the state appellate courts of Colorado in 2012 and 2015, before making its way to the Supreme Court of the United States.2 In Colorado, after a trial and a guilty verdict against Miguel Angel Peña-Rodriguez in a sexual contact case, two jurors voluntarily spoke with defendant’s counsel to report events from the deliberations. 137 S. Ct. 861-62, 870. The two jurors told counsel that a particular juror, called “H.C.” or “Juror 11” in the proceedings, had expressed a strong bias against Mexican men such as defendant Peña-Rodriguez.

[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 believe they could do whatever they wanted with women.” 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.’ ” According to the jurors, H.C. further explained that, in his experience, “nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls.” 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.’”

Peña-Rodriguez, 137 S. Ct. 862 (internal citations omitted); see also Peña-Rodriguez v. Colorado, 350 P.3d 287, 289 (Colo. 2015).

Affidavits were obtained from these two jurors, under the supervision of the Colorado trial court. Notably, the court did not dispute whether or not racial bias had influenced the decision of juror H.C. Rather, the issue was whether the court had any power to do anything about a rendered verdict that may have been influenced by racial bias. The Colorado state courts, at each step, answered, “No.” First, the trial court refused to consider the affidavits, finding them barred by the no-impeachment rule and not falling within any exceptions to the codified rule. Second, affirming the decision of the trial court, the Colorado Court of Appeals rejected the request for a new trial on a number of grounds, including finding that no exception to the no-impeachment rule of Colorado Rule of Evidence 606(b) applied. 2012 WL 5457362 at *7-8. Third, framing the question as “whether CRE 606(b) applies to such affidavits and, if so, whether the Sixth Amendment nevertheless requires their admission,” the Supreme Court of Colorado held that defendant Peña-Rodriguez’s Sixth Amendment right to an impartial jury was not violated. 350 P.3d 288.

In an eagerly awaited decision, the majority opinion of the Supreme Court of the United States reversed the Supreme Court of Colorado.

[This] 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.

Peña-Rodriguez, 137 S. Ct. 869. Justice Kennedy, writing for the majority, distinguished the juror bias in Peña-Rodriguez’s trial from the juror bias at issue in the cases deemed by many as the operative precedent.

Racial bias of the kind alleged in this case differs in critical ways from the compromise verdict in McDonald,3 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.

Id at. 868. The Court noted, “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 convicting on that basis.” Id. at 870.

The Supreme Court also clarified that its decision did not stand for a proposition that that any mention of race or a mere comment suggesting racial bias would be grounds for a new trial.

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 proceed, 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 statement must tend to show that racial animus was a significant 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 content and timing of the alleged statements and the reliability of the proffered evidence.

137 S. Ct. 869. The Court explicitly did not dictate what procedures lower courts should follow when confronted with objections to jury verdicts based on racial animus, nor did the Court 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 granted.” Id. at 870. And while the state court decisions and the oral arguments before the Supreme Court showed awareness and concern about other types of bias (such as religious bias) that might unfairly affect jury deliberations, the Supreme Court ultimately recognized that racial bias is different because it implicates an especially “pernicious” type of harm to our justice system. “Permitting racial prejudice in the jury system damages both the fact and the perception” of the jury’s role as “a vital check against the wrongful exercise of power by the State.” Id. at 868 (internal marks and citations omitted).

In a wise and eloquent conclusion, Justice Kennedy noted that our country continues to make efforts to “overcome race-based discrimination, adding, “It is the mark of a maturing legal system that it seems to understand and implement the lessons of history.” Id. at 871. Joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, the votes of the majority thereby reversed the judgment of the Supreme Court of Colorado, remanding the case for further proceedings. Id.

While there are a number of articles and published analyses concerning the Peña-Rodriguez opinion, it clearly does not come with a recipe or cure for the “pernicious” influence of racial bias in a jury pool. How many questions about racial bias need to be asked during voir dire? What if fellow members of the jury do not report such comments after the trial? Should the jury be instructed to report such comments BEFORE rendering a verdict – and would such an instruction have any curative effect? None of those questions are answered by the trio of cases addressing this particular factual scenario.

Perhaps just knowing that the courts are constitutionally permitted to enter this thicket is good news enough. Our society, and therefore our justice system, has particular issues in dealing with racial diversity. Sanctioned racial discrimination is not so far in the past, and despite Civil Rights legislation after the Civil War, American courts have had a hard time eliminating racial discrimination in the courtroom and jury system.4 Given such history, some of us might call it “progress” to hear the Supreme Court state, “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.” Id. at 867.

But for some of us, the fact that this was even a question in 2017 is cause for lamentation, and proof of the need to keep fighting for awareness, for diversity in the profession, and for a better justice system.


1. Fed. Rule Evid. 606(b); Colorado Rule of Evidence 606(b).

2. Peña-Rodriguez v. Colorado, No. 11CA0034, 2012 COA 193, 3, 2012 WL 5457362 (Nov. 8, 2012); 350 P.3d 287, 288 (Colo. 2015).

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

4. See, e.g., Brian Serr & Mark Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance, 79 J. Crim. L. & Criminology 1 (1988).