Jury Free from Bias

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In addition to requiring that a petit jury be selected from a representative cross section of the community,1 the Supreme Court has interpreted the Sixth Amendment to require assurance that the jurors chosen are unbiased—that is, the jurors must be willing to decide the case on the basis of the evidence presented.2 The Court has held that absent a showing of actual bias, a juror’s employment by the government that is prosecuting the case does not require disqualification for implicit bias.3 By extension, absent a showing of actual bias, a federal petit jury may consist entirely of federal government employees without offending the right to an impartial jury.4 A violation of a defendant’s right to an impartial jury does occur, however, when the jury or any of its members is subjected to pressure or influence which could impair freedom of action; the trial judge should conduct a hearing in which the defense participates to determine whether impartiality has been undermined.5 Exposure of the jury to possibly prejudicial material and disorderly courtroom activities may deny impartiality and require judicial inquiry.6 Similarly, a trial court should not condone private communications, contact, or tampering with a jury, or the creation of circumstances raising the dangers thereof.7 When the locality of the trial has been saturated with publicity about a defendant, so that it is unlikely that he can obtain a disinterested jury, he is constitutionally entitled to a change of venue.8 Subjecting a defendant to trial in an atmosphere of actual or threatened mob domination also violates the right to an impartial jury.9

There are limits on the extent to which an inquiry can be made into whether a criminal defendant’s right to a jury trial has been denied by a biased jury. The federal rules of evidence10 and the vast majority of the states11 forbid the “impeachment” or questioning of a verdict by inquiring into the internal deliberations of the jury—a rule of evidence that originated in English common law.12 This “no impeachment” rule, which aims to promote “full and vigorous discussion” by jurors and to preserve the “stability” of jury verdicts, has limited the ability of criminal defendants to argue in post-conviction proceedings that a jury’s internal deliberations demonstrated bias amounting to a deprivation of the right to a jury trial.13 Indeed, the Court has held that the Sixth Amendment justifies an exception to the no impeachment rule in only the “gravest and most important cases.” 14 As a result, the Court has rejected a Sixth Amendment exception to the rule when evidence existed that jurors were under the influence of alcohol and drugs during the trial.15 In the Court’s view, three safeguards—(1) the voir dire (jury selection) process, (2) the ability for the court and counsel to observe the jury during trial, and (3) the potential for jurors to report untoward behavior to the court before rendering a verdict—adequately protect Sixth Amendment interests while preserving the values underlying the no impeachment rule.16

In Pena-Rodriguez v. Colorado, the Court for the first time recognized a Sixth Amendment exception to the no impeachment rule.17 In that case, a criminal defendant contended that his conviction by a Colorado jury for harassment and unlawful sexual contact should be overturned on constitutional grounds because evidence from two jurors revealed that a fellow juror had expressed anti-Hispanic bias toward the petitioner and his alibi witness during deliberations.18 The Court agreed, concluding that where a juror makes a “clear statement” indicating that he relied on “racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way . . . . ” 19 In so holding, the Court emphasized the “imperative to purge racial prejudice from the administration of justice” that underlies the Fourteenth Amendment, which, in turn, makes the Sixth Amendment applicable to the states.20 Contrasting the instant case from earlier rulings that involved “anomalous behavior from a single jury—or juror—gone off course,” 21 the Court noted that racial bias in the judicial system was a “familiar and recurring evil” 22 that required the judiciary to prevent “systemic injury to the administration of justice.” 23 Moreover, the Court emphasized “pragmatic” rationales for its holding, noting that other checks on jury bias would be unlikely to reveal racial bias.24

1: See Amdt6.4.2 A Jury Selected from a Representative Cross Section of the Community
2: Skilling v. United States, 561 U.S. 358, 378 (2010).
3: Dennis v. United States, 339 U.S. 162, 171–72 (1950); see generally United States v. Wood, 299 U.S. 123, 133 (1936) ( “The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as matter of law.” ).
4: Frazier v. United States, 335 U.S. 497, 509–11 (1948) ( “Government employees [are] subject, as are all other persons and in the same manner, to challenge for ‘actual bias’ and under all ordinary circumstances only to such challenge. In that view, absent any basis for such challenge, we do not see how a right to challenge the panel as a whole can arise from the mere fact that the jury chosen by proper procedures from a properly selected panel turns out to be composed wholly of Government employees or, a fortiori, of persons in private employment.” ). On common-law grounds, the Court in Crawford v. United States, 212 U.S. 183 (1909), disqualified federal employees, but the Court sustained a statute removing the disqualification because of the increasing difficulty in finding jurors in the District of Columbia in United States v. Wood, 299 U.S. 123 (1936).
5: Smith v. Phillips, 455 U.S. 209, 215 (1982) ( “This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” ); Remmer v. United States, 350 U.S. 377, 381–82 (1956) (granting new trial where hearing established that a juror was “disturbed and troubled” after having been offered a bribe and interviewed by the FBI about the incident).
6: E.g., Sheppard v. Maxwell, 384 U.S. 333, 350–51, 357 (1966); Irvin v. Dowd, 366 U.S. 717, 723–24 (1961). Exposure of the jurors to knowledge about the defendant’s prior criminal record and activities is not alone sufficient to establish a presumption of reversible prejudice, but on voir dire jurors should be questioned about their ability to judge impartially. Murphy v. Florida, 421 U.S. 794, 799–800 (1975). The Court indicated that under the same circumstances in a federal trial it may have overturned the conviction pursuant to its supervisory power. Id. at 797–98 (citing Marshall v. United States, 360 U.S. 310 (1959)) . Essentially, the defendant must make a showing of prejudice into which the court may then inquire. Chandler v. Florida, 449 U.S. 560 (1981); Smith, 455 U.S. at 215–18; Patton v. Yount, 467 U.S. 1025, 1031–33 (1984).
7: Remmer v. United States, 347 U.S. 227, 229 (1954); see Turner v. Louisiana, 379 U.S. 466, 473–74 (1965) (placing jury in charge of two deputy sheriffs who were principal prosecution witnesses at defendant’s trial denied him his right to an impartial jury); Parker v. Gladden, 385 U.S. 363, 363–65 (1966) (influence on jury by prejudiced bailiff).
8: Irvin v. Dowd, 366 U.S. 717, 727–28 (1961) (felony); Rideau v. Louisiana, 373 U.S. 723, 725–26 (1963) (felony); Groppi v. Wisconsin, 400 U.S. 505, 507–09 (1971) (misdemeanor). Important factors to be considered, however, include the size and characteristics of the community in which the crime occurred; whether the publicity was blatantly prejudicial; the time elapsed between the publicity and the trial; and whether the jurors’ verdict supported the theory of prejudice. Skilling v. United States, 561 U.S. 358, 381–84 (2010).
9: Frank v. Mangum, 237 U.S. 309, 335 (1915) ( “We, of course, agree that if a trial is in fact dominated by a mob, so that the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law in the proper sense of that term.” ); see also Sheppard, 384 U.S. at 362 (recognizing, in case where media activity inside the courtroom created a “carnival atmosphere at trial,” that “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influences” ); Irvin, 366 U.S. at 728 ( “With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt.” ).
10: See FED. R. Evid. 606(b)(1) ( “During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.” ).
11: See Peña-Rodriguez v. Colorado, No. 15–606, slip op. at 9 (U.S. May 6, 2017) (noting that 42 jurisdictions follow the federal rule).
12: Id. at 2. The no-impeachment rule does have three central exceptions, allowing a juror to testify about (1) extraneous prejudicial information improperly brought to the jury’s attention; (2) outside influences brought to bear on any juror; and (3) a mistake made in entering the verdict on the verdict form. See FED. R. Evid. 606(b)(2); Peña-Rodriguez, slip op. at 7–9.
13: See Peña-Rodriguez, slip op. at 9.
14: Id. at 8 (quoting McDonald v. Pless, 238 U.S. 264, 269 (1915)).
15: See Tanner v. United States, 483 U.S. 107, 127 (1987); see also Warger v. Shauers, 574 U.S. 40, 44–45 (2014) (holding, in a civil case, that the no-impeachment rule barred the introduction of evidence that a juror lied during jury selection about bias against one party).
16: See Tanner, 483 U.S. at 127. In addition, while the no-impeachment rule, by its very nature, prohibits testimony by jurors, evidence of misconduct other than juror testimony can be used to impeach the verdict. Id.
17: See Peña-Rodriguez v. Colorado, No. 15–606, slip op. (U.S. May 6, 2017).
18: Id at 3.
19: Id. at 17.
20: Id. at 13.
21: Id. at 15.
22: Id.
23: Id. at 16.
24: Id. ( “[T]his Court has noted the dilemma faced by trial court judges and counsel in deciding whether to explore potential racial bias at voir dire . . . The stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the court of juror deliberations.” ).