Published in Litigation, Volume 45, Number 4, Summer 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
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Opening the Door to
Jury Room Secrets
After Peña-Rodriguez
DAVID A. BARRETT, JOSHUA J. LIBLING, AND YOTAM BARKAI
The authors are with Boies Schiller Flexner LLP, New York City.
What happens in the jury room is generally a well-kept secret.
No one can contest a jury verdict by eliciting evidence about jury
deliberations, even if jurors accuse each other of ignoring the
judge’s instructions, misunderstanding the law, or improperly
inferring guilt from a defendant’s decision not to testify. These
secrets are kept through “no-impeachment rules”—Rule 606(b)
of the Federal Rules of Evidence, as well as similar rules in many
states—that prohibit jurors from testifying about statements made
during jury deliberations or their effect on a juror’s vote in con-
nection with an inquiry into the validity of a verdict. Rule 606(b)
is not in place because concerns about jurors are unwarranted;
it is in place precisely because juries are imperfect. But when do
those imperfections rise to a level that warrants intervention?
In other words, when does the law require jury secrecy to yield
to other concerns?
The rules governing trials have historically provided sparse
options for lawyers seeking to impeach a jury verdict. Rule 606(b)
permits inquiry into jury deliberations only in limited circum-
stances, including juror testimony that “extraneous prejudicial
information was improperly brought to the jury’s attention” or
that “an outside influence,” such as biased comments made by
court personnel or attempts to bribe jurors, “was improperly
brought to bear on any juror.” Rules 29 and 33 of the Federal Rules
of Criminal Procedure also permit a court to enter a judgment
of acquittal when it determines the evidence is insufficient to
sustain a conviction, or to vacate a judgment and grant a new trial
“if the interest of justice so requires.” As trial lawyers know, these
rules are often invoked, but they set a high bar that is rarely met.
The Holding in Peña-Rodriguez
In Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the U.S.
Supreme Court imposed an additional check on jury delibera-
tions by allowing, in all criminal cases, inquiry into alleged ex-
press racial animus that affected the verdict. Prior to the decision,
the states and the federal courts of appeals had been split as to
whether an exception to the no-impeachment rules was warrant
-
ed to allow such inquiry, with some 20 jurisdictions recognizing
such an exception, while the majority of jurisdictions did not.
Peña-Rodriguez involved clear evidence of racial animus
affecting the verdict. Miguel Angel Peña-Rodriguez was con-
victed of unlawful sexual contact and harassment in Colorado
state court. After the jury was discharged, two jurors informed
the defendant’s counsel that another juror had expressed anti-
Hispanic bias during deliberations. Peña-Rodriguez’s counsel
reported this information to the court and, under the court’s
supervision, obtained affidavits from the two jurors. The affiants
stated that a third juror, Juror H.C., had said during deliberations
