Claims Of Jury Racial Bias Were Unreviewable Under FRE 606(b)

Tenth Circuit reinstates conviction after concluding FRE 606(b) exceptions did not apply and Sixth Amendment right to an impartial jury was not violated; Tenth Circuit notes circuit split on whether allegations of juror misconduct on dishonesty during voir dire may be considered, in United States v. Benally, 546 F.3d 1230 (10th Cir. Nov. 12, 2008) (No. 08-4009)

What happens after a jury verdict when a juror claims misconduct occurred during the jury deliberations? A recent Tenth Circuit case focused on whether allegations of juror racial bias may be reviewed by the court.

Charge Of Racial Bias In Jury Deliberations

In the case, a jury convicted defendant Benally, who was a Native American, of forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon. One day after the verdict, one juror contacted defense counsel and claimed that the jury deliberation was tainted by racial bias against Native Americans. The juror signed an affidavit claiming that during the deliberations the foreman told jurors that based on his experience in living near a reservation, “[w]hen Indians get alcohol, they all get drunk,” and after they are drunk, they become violent. When the complaining juror disagreed, another juror concurred with the foreman based on her own experience living near a reservation. The juror further noted that some jurors noted the need to “send a message back to the reservation,” and another juror recounted how two law enforcement family members had “heard stories from them about what happens when people mess with police officers and get away with it.” Benally, 546 F.3d at 1232.

Motion For New Trial

A defense investigator interviewed another juror who declined to sign an affidavit but confirmed to the investigator that the foreman “made a statement regarding Indians and drinking” and “said something like he had seen a lot of Indians that drink.” Benally, _ F.3d at __. The defense investigator signed an affidavit concerning the second juror’s statements. The trial court granted the defense motion to vacate the verdict and ordered a new trial. The trial court concluded the general prohibition under FRE 606(b) against inquiring into the validity of a verdict by concluding two exceptions applied. First, the jury considered extraneous prejudicial information which was improperly brought to the attention of the jury, and second, an outside influence was improperly brought before the jury. The trial court also determined that two jurors did not truthfully respond to two voir dire questions: “Would the fact that the defendant is a Native American affect your evaluation of the case?” and “Have you ever had a negative experience with any individuals of Native American descent? And, if so, would that experience affect your evaluation of the facts of this case?” Benally, _ F.3d at __. The government appealed the granting of a new trial.

History & Purpose Of FRE 606(b)

The Tenth Circuit reinstated the conviction and concluded that FRE 606(b) barred review of the allegations of racial bias and the Sixth Amendment was not violated. The circuit traced the history and purpose of FRE 606(b) to 1785. As the circuit explained:

“Rule 606(b) is a rule of evidence, but its role in the criminal justice process is substantive: it insulates the deliberations of the jury from subsequent second guessing by the judiciary. Jury decision-making is designed to be a black box: the inputs (evidence and argument) are carefully regulated by law and the output (the verdict) is publicly announced, but the inner workings and deliberation of the jury are deliberately insulated from subsequent review. Judges instruct the jury as to the law, but have no way of knowing whether the jurors follow those instructions. Judges and lawyers speak to the jury about how to evaluate the evidence, but cannot tell how the jurors decide among conflicting testimony or facts. Juries are told to put aside their prejudices and preconceptions, but no one knows whether they do so. Juries provide no reasons, only verdicts. To treat the jury as a black box may seem to offend the search for perfect justice. The rule makes it difficult and in some cases impossible to ensure that jury verdicts are based on evidence and law rather than bias or caprice. But our legal system is grounded on the conviction, borne out by experience, that decisions by ordinary citizens are likely, over time and in the great majority of cases, to approximate justice more closely than more transparently law-bound decisions by professional jurists. Indeed, it might even be that the jury’s ability to be irrational, as when it refuses to apply a law against a defendant who has in fact violated it, is one of its strengths. If what went on in the jury room were judicially reviewable for reasonableness or fairness, trials would no longer truly be by jury, as the Constitution commands. Final authority would be exercised by whomever is empowered to decide whether the jury’s decision was reasonable enough, or based on proper considerations. Judicial review of internal jury deliberations would have the result that “every jury verdict would either become the court’s verdict or would be permitted to stand only by the court’s leave.”
Benally, _ F.3d at __ (quoting Carson v. Polley, 689 F.2d 562, 581 (5th Cir. 1982); other citation omitted)).

Circuit Split On Application Of FRE 606(b)

The Tenth Circuit noted there was a split in the circuits on whether juror testimony could be considered on whether there was dishonesty during voir dire. The Ninth Circuit had held that FRE 606(b) does not bar consideration of jury deliberation statements on the issue of juror dishonesty during voir dire. See, e.g., United States v. Henley, 238 F.3d 1111, 1121 (9th Cir. 2001) (“Where, as here, a juror has been asked direct questions about racial bias during voir dire, and has sworn that racial bias would play no part in his deliberations, evidence of that juror’s alleged racial bias is indisputably admissible for the purpose of determining whether the juror’s responses were truthful.”); see also Hard v. Burlington No. R.R., 812 F.2d 482, 485 (9th Cir. 1987) (“Statements which tend to show deceit during voir dire are not barred by [Rule 606(b)].”). The Third Circuit, in an opinion by then-Judge Alito, disagreed with the Ninth Circuit construction and held that FRE 606(b) “categorically bar[s] juror testimony ‘as to any matter or statement occurring during the course of the jury’s deliberations’ even if the testimony is not offered to explore the jury’s decisionmaking process in reaching the verdict.” Williams v. Price, 343 F.3d 223, 235 (3d Cir. 2003) (Alito, J.); id. at 236 n.5 (“Since the affidavits in Hard recounted statements made during jury deliberations, 812 F.2d at 483, it appears that the decision is inconsistent with Federal Rule of Evidence 606(b).”).

Tenth Circuit Position

The Tenth Circuit found the Third Circuit position consistent with FRE 606(b) and noted a concern about creating a “backdoor” to the rule:

“A broad question during voir dire could then justify the admission of any number of jury statements that would now be recharacterized as challenges to voir dire rather than challenges to the verdict. Given the importance that Rule 606(b) places on protecting jury deliberations from judicial review, we cannot read it to justify as large a loophole as Mr. Benally requests.”
Benally, _ F.3d at __.

In reviewing prior precedent, the Tenth Circuit concluded neither exception to FRE 606(b) applied, and an exception should not be implied in the rule for racial bias. In reviewing the legislative history, the circuit noted that Congress had rejected a broader exception to the rule, which would have permitted introduction of the juror statements. Finally, there was no violation of the Sixth Amendment right to an impartial jury. There were other safeguards in the process to protect against juror bias, including “voir dire, observation of the jury during court, reports by jurors of inappropriate behavior before they render a verdict, and post-verdict impeachment by evidence other than juror testimony.” Benally, _ F.3d at __ (citing Tanner v. United States, 483 U.S. 107, 127 (1987)). The circuit noted:

Voir dire can still uncover racist predilections, especially when backed up by the threat of contempt or perjury prosecutions. Jurors can report to the judge during trial if racist remarks intrude on jury deliberations, enabling the judge to declare a mistrial or take other corrective measures. After the verdict is rendered, it could still be impeached if there is evidence of juror wrongdoing that does not depend on the testimony of fellow jurors in breach of Rule 606(b) confidentiality. And even trial observation could uncover racist attitudes if a juror openly wore his feelings on his sleeve. These protections might not be sufficient to eliminate every partial juror, just as in Tanner they proved insufficient to catch every intoxicated juror, but jury perfection is an untenable goal. The safeguards that the Court relied upon for exposing the drug and alcohol use amongst jurors in Tanner are also available to expose racial biases of the sort alleged in Mr. Benally’s case.”
Benally, _ F.3d at __. The circuit concluded that Supreme Court precedent that claims of juror intoxication was not reviewable under FRE 606(b) could not be distinguished, citing Tanner v. United States, 483 U.S. 107, 125 (1987) (“[T]he legislative history demonstrates with uncommon clarity that Congress specifically understood, considered, and rejected a version of Rule 606(b) that would have allowed jurors to testify on juror conduct during deliberations, including juror intoxication. This legislative history provides strong support for the most reasonable reading of the language of Rule 606(b)--that juror intoxication is not an ‘outside influence’ about which jurors may testify to impeach their verdict.”).

Federal Rules of Evidence