First Circuit Notes Conflict Between The Constitution And FRE 606(b) (Barring Inquiry into Validity of Jury’s Verdict)

While noting general agreement that FRE 606(b) precludes inquiry into the validity of a verdict based on a juror’s testimony about racial or ethnic comments made “during the course of deliberations,” First Circuit finds the rule “cannot be applied so inflexibly as to bar juror testimony in those rare and grave cases where claims of racial or ethnic bias during jury deliberations implicate a defendant’s right to due process and an impartial jury” under the Fifth And Sixth Amendments, in United States v. Villar, 586 F.3d 76 (1st Cir. Nov. 10, 2009) (No. 08-1154)

In an effort to protect the jury deliberation process and promote the goal of finality, FRE 606(b) provides that a juror is incompetent to serve as a witness in a proceeding that would impeach the jury’s verdict by soliciting evidence on the jury’s thought processes during deliberations that resulted in a verdict. The rule represents a balancing of interests. As noted in the ACN:

“The values sought to be promoted by excluding the evidence include freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. McDonald v. Piess, 238 U.S. 264 (1915). On the other hand, simply putting verdicts beyond effective reach can only promote irregularity and injustice. The rule offers an accommodation between these competing considerations.”
ACN FRE 606.

Notwithstanding the accommodation under the rule, FRE 606(b) has come under some increasing scrutiny on whether it may unacceptably hinder an inquiry into a verdict that may be tainted. Some circuits have concluded that the rule may yield to the Constitution. See, e.g., Shillcutt v. Gagnon, 827 F.2d 1155, 1158 (7th Cir. 1987) (FRE 606(b) “cannot be applied in such an unfair manner as to deny due process” as to preclude inquiry into whether juror said regarding the black defendant that “he sees a seventeen year old white girl—I know the type”). Recently, the First Circuit has added to questions about whether FRE 606(b)’s application may violate the Constitution.

In the case, defendant Villar was convicted by a jury for committing bank robbery. Shortly after the verdict, as described in the opinion, the jury’s verdict was called into question based on an issue of ethnic heritage:

“Hours following his conviction, defense counsel received an e-mail message from one of the jurors disclosing that during deliberations another juror said, ‘I guess we’re profiling but they cause all the trouble.’ When defense counsel filed a motion for a court inquiry into the validity of the verdict, the court held a hearing in which the juror was asked only to authenticate the e-mail. Concluding that an allegation of ethnically biased statements within the jury room was not, as Villar argued, an external matter open to post-verdict inquiry, the district court held that Federal Rule of Evidence 606(b) precluded the court from engaging in any further examination beyond the mere authentication of the e-mail.”
Villar, 586 F.3d at 78. On appeal, the defendant challenged the trial court’s denial of the motion to make an inquiry into the validity of the verdict.

The First Circuit reversed and remanded the case. In its analysis, the circuit noted that generally “race-related” statements fall outside the scope of any exception to FRE 606(b)’s prohibition on juror impeachment testimony. As the First Circuit noted, “courts that have held that Rule 606(b), by its express terms, precludes any inquiry into the validity of the verdict based on juror testimony regarding racial or ethnic comments made ‘during the course of deliberations.’” Given this authority, the circuit found there was no error or abuse of discretion in applying FRE 606(b) so that it would preclude the court from any further inquiry into the course of the jury’s deliberations. Villars, 586 F.3d at 84 (citing United States v. Benally, 546 F.3d 1230, 1236-38 (10th Cir. 2008) (court abused its discretion by admitting evidence of racial comments in the jury room under FRE 606(b)’s exceptions); Shillcutt, 827 F.2d at 1159 (FRE 606(b) precludes review of evidence of racial slurs during jury deliberations since “[w]e cannot expunge from jury deliberations the subjective opinions of jurors, their attitudinal expositions, or their philosophies”) (internal citations omitted)).

However, Fifth Amendment Due Process and Sixth Amendment Fair Trial rights were implicated by the application of FRE 606(b) in the case. According to the First Circuit, “[m]any courts have recognized that Rule 606(b) should not be applied dogmatically where there is a possibility of juror bias during deliberations that would violate a defendant’s Sixth Amendment rights.” Villars, 586 F.3d at 85-86 (citing United States v. Heller, 785 F.2d 1524, 1527 (11th Cir. 1986) (the “religious prejudice [anti-Semitic comments] displayed by the jurors ... is so shocking to the conscience and potentially so damaging to public confidence in the equity of our system of justice, that we must act decisively to correct any possible harmful effects on this appellant” despite FRE 606(b)).

Because of the importance of the constitutional issues involved in the jury’s verdict, the First Circuit decided that in appropriate circumstances vindication of constitutional rights could not be precluded by implementing FRE 606(b) as to bar inquiry into the jury’s use of racial or ethnic prejudice in deliberations:

“While the issue is difficult and close, we believe that the rule against juror impeachment cannot be applied so inflexibly as to bar juror testimony in those rare and grave cases where claims of racial or ethnic bias during jury deliberations implicate a defendant’s right to due process and an impartial jury.”
Villars, 586 F.3d at 87.


The First Circuit distinguished the Supreme Court’s treatment of a related issue in Tanner v. United States, 483 U.S. 107, 117 (1987) (after defendant’s conviction testimony by jurors related to allegation that several jurors had consumed alcohol and drugs during lunch breaks, causing them to sleep through the afternoon trial sessions and possibly affecting their reasoning ability properly precluded by FRE 606(b)). Tanner identified several mechanisms that would protect jury deliberations short of evading FRE 606(b). This included the use of voir dire to preclude problems, observations of the jury by counsel and the trial court during trial, jurors reporting juror behavior prior to rendering a verdict that involved prejudicial conduct, or admitting non-juror testimony as to wrongdoing. However, the First Circuit found none of the Tanner options would vindicate the defendant’s constitutional rights in his current appeal.

In reversing the district court’s denial of defendant’s motion to make an inquiry into the validity of the verdict, the circuit remanded the case back to the district judge, explaining:

“[W]e conclude that the district court here did have the discretion to inquire into the validity of the verdict by hearing juror testimony to determine whether ethnically biased statements were made during jury deliberations and, if so, whether there is a substantial probability that any such comments made a difference in the outcome of the trial. The experienced trial judge in this case suggested that he might have conducted such an inquiry if he had possessed the discretion to do so.

“Although we conclude that the district court erred when it concluded that it had no discretion to hold an inquiry into possible bias in jury deliberations, we emphasize that not every stray or isolated off-base statement made during deliberations requires a hearing at which jury testimony is taken. As courts and commentators have highlighted, the need to protect a frank and candid jury deliberation process is a strong policy consideration. Still, at the other extreme, there are certain rare and exceptional cases involving racial or ethnic prejudice that require hearing jury testimony to determine whether a defendant received a fair trial under the Sixth Amendment. The determination of whether an inquiry is necessary to vindicate a criminally accused’s constitutional due process and Sixth Amendment rights is best made by the trial judge, who is most familiar with the strength of the evidence and best able to determine the probability of prejudice from an inappropriate racial or ethnic comment. There is nothing about the evidence in this case that allows us to make this determination on appeal.”
Villars, 586 F.3d at 88.


As Villars suggests, FRE 606(b) does not preclude inquiry into a constitutionally unsound verdict. The limited circumstances in which the FRE 606(b) bar examining jurors concerning jury deliberations under the Constitution remains unclear. The Villars case was remanded for further consideration.

This is not necessarily a new doctrine. As noted, in the 1915 Supreme Court case of McDonald v. Pless, 238 U.S. 264 (1915), the Supreme Court ruled that under the applicable common law jurors were incompetent to testify against their verdict. However, the court observed that “it would not be safe to lay down any inflexible rule because there might be instance in which such testimony of the juror could not be excluded without ‘violating the plainest principles of justice’” as were guaranteed by the constitution. Villars recasts for the Twenty-First Century the problems that even FRE 606(b) has been unable to resolve in precluding a juror from testifying on the course of the jury’s deliberations. The Villars opinion highlights a rare but recurring tension between a policy which bars inquiring into and questioning the jury deliberations and isolated circumstances in which inquiry may be permitted.

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