jury-delib-4What happens in the jury room, stays in the jury room. Except when it doesn’t. Earlier this month, the Supreme Court agreed to hear the appeal of a Colorado man whose counsel learned, after the guilty verdict was rendered, that one of the jurors had made statements in deliberation that the defendant must be guilty and his alibi witness could not be trusted, because both men were Hispanic. The case, Peña-Rodriguez v. Colorado, pits two fundamental aspects of jury trials against each other: the inadmissibility of evidence about what was said or done during jury deliberations versus the right to a fair trial by unbiased jurors. The Supreme Court’s ruling could open up jury verdicts to possible challenge when those verdicts appear to be the result of racial or other bias.

Jury Deliberations – Not a Secret, but not Admissible

Strictly speaking, jury deliberations are not always secret. In fact, a common feature of jury trials in many jurisdictions is the post-verdict interview, where lawyers seize the opportunity to discuss the case directly with the recently discharged jurors before they leave the courthouse. These interviews can be an incredibly valuable tool for trial lawyers. They can reveal which arguments resonate and which don’t, for appeal and potential retrial.  They can serve as a gut check for even the most seasoned trial lawyer, and they can provide helpful critiques for younger lawyers developing their trial presentation skills. But, with very limited exceptions, statements made by a juror after she has been discharged cannot be used as evidence to try to upset the verdict.

Federal Rule of Evidence 606 says that courts considering whether to overturn a jury verdict may not hear live testimony from a juror, nor receive a juror’s affidavit or any other evidence of a juror’s statements, on anything that was said or done during jury deliberations. There are a few exceptions, such as when a juror testifies that information that was not in evidence was given to the jury (like Henry Fonda pulling out the second knife in 12 Angry Men) or that there has been some sort of improper outside influence used against a juror (like the mob’s threat to kill Demi Moore’s son in The Juror). But other than in very narrow circumstances, it doesn’t matter what a juror reports happened during deliberations; it can’t be used to overturn the verdict.

Peña-Rodriguez – If Bias Comes out After Trial, Can You Do Anything About it?

In granting certiorari in Peña-Rodriguez, the Supreme Court appears to be entertaining the possibility of opening up another exception to this evidentiary rule.  Miguel Peña-Rodriguez was convicted of three misdemeanor counts for the alleged sexual harassment and groping of two teenage girls at a horse track where he worked. The defense maintained that the case was one of mistaken identity. Somebody had assaulted the girls, they argued, but it wasn’t Peña-Rodriguez because he had been in a barn in a different part of the track facility during the attack. An alibi witness produced by the defense corroborated the defendant’s story.

After the verdict, Peña-Rodriguez’s lawyer was told by two of the jurors that another juror allegedly made racist statements during deliberations regarding the defendant’s guilt and impugning the credibility of his alibi witness, including:

  • “I think he did it because he’s Mexican and Mexican men take whatever they want.”
  • “Mexican men [have] a bravado that cause[] them to believe they could do whatever they wanted with women.”
  • “[N]ine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”
  • “[T]he alibi witness [wasn’t] credible because, among other things, he was an illegal.”

After defense counsel learned of these statements and others like them, the defense obtained sworn affidavits from both jurors and moved for a new trial. The trial court denied the motion, under Colorado’s analogue to FRE 606, because the jurors’ testimony could not serve as a basis for overturning the verdict. This holding was affirmed on appeal, ultimately by the Colorado Supreme Court. Peña-Rodriguez’s lawyers sought review from the U.S. Supreme Court, challenging the state evidentiary rule under the Sixth Amendment (applicable to state law under the Fourteenth Amendment). The Supreme Court accepted cert earlier this month.

What to Watch for – Balancing of Two Fundamental Tenets of Jury Trials

The Supreme Court must decide whether the Constitutional right to an impartial jury trumps the exclusionary rule of evidence. At issue is the balance between the need for finality of jury verdicts, on the one hand, and the right to a fair trial, on the other. Overlaying this balancing is the additional concern — clearly on the minds of the Colorado Supreme Court justices when they denied Peña‑Rodriguez’s appeal — that the lawyers on the losing side of a jury trial might harass and coerce jurors in an attempt to drum up a basis for overturning the verdict. Of course, any ancillary proceeding involving evidence from the jury deliberations would also presumably require cross-examination of the jurors to probe the jurors’ credibility and reliability.

While the Supreme Court’s decision will likely focus on the narrow issue of racial prejudice in criminal trials, it has the potential of shifting this balance more broadly and opening up, just a tiny bit more, the shroud surrounding the jury room.

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Photo of Shawn S. Ledingham Jr. Shawn S. Ledingham Jr.

Shawn Ledingham is a partner in the firm’s Trial Strategies practice, successful in obtaining victories through motion practice and defending client interests at trial. He has represented over thirty Fortune 500 companies and subsidiaries in litigation, as well as many other businesses, sports…

Shawn Ledingham is a partner in the firm’s Trial Strategies practice, successful in obtaining victories through motion practice and defending client interests at trial. He has represented over thirty Fortune 500 companies and subsidiaries in litigation, as well as many other businesses, sports leagues, law firms, and public entities.

Shawn is a member of the firm’s Sports Law Group and has a deep understanding of the legal framework of today’s sports industry. Shawn has represented and counseled a wide range of sports leagues and teams, including Major League Baseball, Major League Soccer, the National Basketball Association, the Women’s National Basketball Association, the National Football League, the Pac-12 Conference, the Big East Conference, the World Surf League, the Drone Racing League, and Oracle Team USA.

Shawn also has substantial experience in toxic tort, product liability, and environmental litigation. A member of the firm’s Product Liability & Consumer Litigation Group, Shawn defends clients in cases of alleged environmental contamination, product design or manufacturing defects, and improper or inadequate labeling.

Shawn is actively involved in promoting justice in his community and is a member of Proskauer’s Pro Bono Committee.  During the summer of 2019, Shawn served as a pro bono prosecutor with the Los Angeles Office of the City Attorney, prosecuting three jury trials as sole trial counsel and resolving many other cases short of trial. Shawn also served as counsel to the Los Angeles County Citizens’ Commission on Jail Violence, investigating excessive use of force by deputies within the county jail system. For his work on jail reform, Shawn received the ACLU of Southern California’s Community Service Pro Bono Award and a commendation from the County of Los Angeles.

While in law school, Shawn was managing editor of the New York University Law Review.