Pena-Rodriguez v. Colorado: Impeaching a Jury Verdict for Racial Bias

Rule 606(b) and the "no-impeachment" rule

It is a long-established rule that the sanctity of a jury’s verdict would not be breached. A jury verdict free from extraneous comment and critique was critical to reinforce impartiality. “At common law jurors were forbidden to impeach their verdict, either by affidavit or live testimony.” Pena-Rodriguez v. Colorado, 580 U.S. ______(2017). Then, in the Sixties, Congress Codified the “no-impeachment” rule in FRE 606(b), which states:

But Rule 606(b) is a statute. What happens when it runs afoul of the United States Constitution—specifically the Sixth Amend right to an impartial jury? What if a jury is basing its verdict on a preconceived racial bias? That was the question the Supreme Court answered in Pena-Rodriguez v. Colorado. Justice Kennedy, writing for a 5-3 majority, wrote:

The bias was obvious here

The racial bias in Miguel Pena-Rodriguez's case was overt. The juror in question made statements such as, "I think he did it because he's Mexican and Mexican men take whatever they want" and "nine times out of ten Mexican men were guilty of being aggressive toward women and young girls."

The Court went out of its way to limit the impact of its holding, “[n]ot every offhand comment indicating racial bias or hostility will justify inquiry.” To reach the level justifying an inquiry by the trial court the statement must tend to show that the racial bias was a significant motivating factor in the juror’s vote to convict.

In the future, where will the Court’s draw the line? This concession by Justice Kennedy begs the question—Does the bias have to be confirmed before you can inquire as to whether or not racial bias infected the verdict? The point of the impeachment by the trial court into the verdict would be to determine if improper racial bias motivated the juror(s) to convict. But the holding seems to require that determination before the inquiry. This is problematic and inefficient. The proper forum for such an inquiry should be with the trial court, not on a juror’s front step, conducted by an investigator, or defense counsel. The trial judge should retain control over the process.

No better place to expose racial bias

The Court rejected the argument by prosecutors, that the best place to ferret out racial bias is during voir dire, noting the dilemma faced by judges and lawyers in deciding whether to explore potential racial bias at void dire. And in response to the argument that such prejudice could be nullified with an instruction to jurors to self-report inappropriate or racially charged statements made by a fellow juror, the Court wrote:

Juror Harassment

Another concern raised by prosecutors was that in setting aside the no-impeachment rule—even in this limited case—would open the door to criminal defense attorneys harassing and badgering jurors after every guilty verdict, in a desperate attempt to uncover some trace of racial bias on their quest for a new trial. The majority leaves the task of policing attorneys to the individual states and their respective rules of ethics and professional responsibilities, as well as local court rules—both of which already have limits on attorneys contacting jurors post-verdict.

More questions raised than answered?

Other questions to potentially surface in future interpretations of Pena-Rodriguez v. Colorado, would presumably revolve around the scope and breath of the protection. Will the courts apply the protection to gender bias, or sexual orientation? What about religion or national origin? Would it be a violation of the Sixth Amendment for a juror to presume that a defendant accused of bombing an abortion clinic was likely guilty because he or she was Catholic? What about a bias against a practicing Muslim facing charges alleging an involvement in a terrorist organization? Will this decision have any bearing on civil juries in the future?


Has the Supreme Court opened up Pandora’s box? Or has it already started to pull back the reins on the import and impact of the new rule? Time will tell.

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