Supreme Court Ethics Quiz Of The Day: Jury Secrecy vs. Jury Bias

The Supreme Court ruled today that courts must reject the usual rule that jury deliberations are secret when evidence emerges they were marred by racial or ethnic bias. The 5-to-3 decision was triggered by statements made during jury deliberations in a 2010 sexual assault trial, when a juror said of the defendant, “I think he did it because he’s Mexican, and Mexican men take whatever they want.” The juror was a former law enforcement officer, and after the trial was over, two other jurors submitted sworn statements describing what he had said during deliberations.

 “He said that where he used to patrol, nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls,” one juror recalled.

Those statements, the Court’s majority said,  warranted an investigation by the trial judge into deliberations that are ordinarily secret. Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Justice Kennedy in the majority opinion.

In dissent, Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, wrote that the majority opinion was a well intentioned but ill-considered intrusion into jurors’ privacy. “This is a startling development,” Justice Alito wrote, “and although the court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.”

“Not every offhand comment indicating racial bias or hostility will justify” an investigation into jurors’ deliberations, Justice Kennedy wrote for the majority. “For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.”


Before today, the Supreme Court has said that even egregious misconduct in the jury room cannot be used to challenge a conviction if it would require jurors to testify about occurred during deliberations.

Your Ethics Alarms  Supreme Court Ethics Quiz of the Day is…

Did the SCOTUS majority choose the right side in this ethics conflict?

I’m not so sure it did, but I want to see what you think first.


25 thoughts on “Supreme Court Ethics Quiz Of The Day: Jury Secrecy vs. Jury Bias

  1. I don’t have an answer to this, but shouldn’t the other jurors have reported this immediately? It seems to me this is grounds for dismissal of the juror in question.

    • See… I don’t have nearly the legal background that Jack does, and America might be a different bird than Canada, but I took a course or four while getting my degree, so I’ll take a swing at it.

      “I don’t have an answer to this, but shouldn’t the other jurors have reported this immediately?”

      In a word… No. Not only are jurors prohibited from discussing deliberations outside the deliberation room, but report it to who, so they could do what?

      “It seems to me this is grounds for dismissal of the juror in question.”

      Deliberations isn’t the time to dismiss jurors, jury selection is. If they make it to deliberations, you can’t remove jurors because you think they might be biased… By that point the facts of the case SHOULD have biased them.

      Books have been written on this subject. What if instead of a person biased against Mexicans, you had a juror sitting on a case where capital punishment could be considered a punishment, but he was fundamentally opposed to capital punishment. I’d suggest you do some research on “jury nullification”, although doing so might cause you to never actually sit on a jury.

      Coles Notes on it:

      • Thanks. I did some research after leaving that comment and realized that you can’t dismiss jurors at that point–lesson learned.

  2. I think it sets a terrible precedent. You know every offhand comment WILL become a basis for the aggrieved party to intrude on the jury’s secrecy, particularly if there is an adverse finding. It is also an invitation for jurors to turn on each other if they see the case going differently than they believe it should go. As it is I dislike the idea of jurors forcing a result against the thoughts of the rest of the panel by being the lone holdout against guilt or the lone holdout against death or whatever. I dislike the idea still more of a juror who has made up his/her mind from the get-go that the defendant isn’t guilty or the plaintiff deserves to recover a big chunk of money, who, if the trial starts to go the other way, can then say that someone else on the panel said something biased against that party, and possibly invalidate the process. It’s just too open to abuse.

  3. My legal experience is limited to being an expert witness a few times. My understanding is that each attorney had an opportunity to question potential jurors to elicit whether or not they might be biased in favor of one side or the other and eliminate from the jury those who might be unfavorable toward whichever side he represented. (Why would an attorney defending a criminal case want an ex law enforcement officer on the jury?) Given that he was accepted by both attorneys to be on the jury, I would think that they are then obligated to accept whatever biases he brings to the deliberations. I think in this case the Court came down on the wrong side. Jury deliberations are secret for a reason and should remain so. An additional factor is the ever present one of who gets to decide which biases are bad and which good. If there was a member of the jury who was in favor of open border and argued that all Mexican men had gotten a raw deal and all the Mexicans he ever dealt with were the salt of the earth and would never harm a woman, would that be okay?

  4. I agree with John Billingsley that the adversarial system is supposed to give the parties the opportunity to pick a jury and weed out objectionable jurors.

    I write separately for 2 points:

    1. How very different would the screenplay for 12 Angry Men be if this rule were in place (especially considering, if I recall correctly, one of the jurors said “they’re all animals” at one point.

    2. If an all-white jury acquits a white police officer of killing a black man (trying to make as inflammatory a scenario as I can), and one of the juror happens to remark many of the jurors did not want to ruin a white cop’s life over a black man’s body (or words to that effect), could we get around the double-jeopardy clause and try him again. Yes, it’s a long shot and, hopefully a slippery slope argument, but, when the Supreme Court starts tampering with long-held traditions that are integral to our conception of a justice system, there is no telling what will happen next.

    Bonus Point: The jury’s decision should be like the Delphic Oracle. You present your evidence; you get your decision; there is not much room to question it; you can’t argue with it; it is what it is.


    • Jut,

      I would think your hypothetical would not happen because the accused is the one appealing a conviction, not the state appealing an acquittal. However, jury misconduct is always grounds for a mistrial. There are, however, numerous bases on which to challenge the make up of the jury, on appeal. For instance a Batson Challenger is an objection in which one party argues that the other has used the peremptory challenge to strike one or more prospective jurors from the panel for a discriminatory purpose in violation of the equal protection guarantee of the U.S. Constitution.


  5. I think this is a really difficult question ethically. A prejudiced jury SHOULD be grounds for a mistrial or appeal, but the problem is when this rule goes into practice. There’s just a lot of potential for abuse, both from attorneys and from fellow jurors looking for their 15 seconds of fame. What if, for example, a defense attorney plants a virulent racist on the jury to intentionally cause a mistrial?

  6. One statement by a single juror justified an investigation? The other jurors couldn’t express a questioning or contrary opinion in opposition to that juror’s statement?

    I think it’s a terrible decision. Juries render verdicts, not individual jurors.

    I’m also a little confused. Are the two complaining jurors saying this former police officer’s comments even convinced them to find the defendant guilty? Shouldn’t they have hung the jury? Strange.

    • I’m a little unclear what would constitute a biased juror when a trial is going on. Would somebody who commits a microagression (I.e. Rolling their eyes at another juror of a different race, religion, sex, and so on) be considered biased? Or perhaps a verbal statement like (She’s just a dumb blond and couldn’t have done it”) do? I’m also thinking of the possible comments that might have been made when the jurors were deliberating during the OJ criminal case).

  7. It seems to me that voir dir proceedings are designed to ferret out overt bias. preemptive challenges give both sides equal opportunity to reject a juror without cause.

    It seems to me that each juror brings with him/her certain biases based on life experience the degree to which is unknown unless some utterance leads a person to become aware of that bias. Silence can mask bias. What if a surgeon because of her experience in a tort trial relies on personal experience to draw conclusions either for or against a plaintiff and others shift their opinions based on comments by that surgeon experiential bias still exists. Personal experience will always shape how evidence is perceived by the juror. Simply a statement of experience does not imply bias. It should be taken only as information not in evidence.

    I believe Jurors comments should be maintained under wraps.

  8. This is a very interesting case, and normally the lineup would give me pause. However, I think this requires careful consideration.

    First of all, what is the purpose of jury secrecy anyway? This is one tough cookie, because looking at various publications regarding the matter, it seems more like a tradition (enshrined in state rules of criminal procedure) than a particularly defensible right or privilege. It would make a lot of sense to keep secrecy in order to encourage candor — if a jury must concern itself with publication of it’s deliberations, which has been described as “sausage-making” by UPenn law review in an argument to curb it, and jury secrecy does not appear to be adopted by all the criminal procedures of the various states with respect to impeachment of a jury verdict under certain situations.

    In general, I agree with the court’s conclusions but not it’s reasoning. After spending four pages describing the horrors of racial animus, the court writes thus:

    All forms of improper bias pose challenges to the trial process. But there is a sound basis to treat racial bias with added precaution. A consti­tutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right. [my emphasis]

    I find this reasoning flawed. The Sixth Amendment’s assurance of “impartiality” is addressed mainly in voir dire, where potential bias should be sorted out. However, inevitably some bias of varying types — racial, religious, gender, etc. will wind up getting through jury selection. We don’t have pre-crime (or pre-jury) technology yet, so it’s just not possible to filter out all bias.

    Assuming that I’m right about that, what the court has done is set racial bias as distinct from other biases. I presume they would be inclined to do the same thing in cases of religious, gender, or other prejudices that have been addressed in court rulings or explicitly in the text of the constitution itself, or an amendment, but we’ll have to wait for another day to find out for sure.

    But there are some biases that would not be captured by the constitution or prior ruling by the Supreme Court. Presumably, these biases would be considered insufficient to reach the level of impeachment the court has established today for racial prejudice.

    So the question becomes, how can the meaning of “impartial” in the sixth amendment be parsed like that? I don’t believe it can, and this ruling smacks to me of typical Kennedy judicial activism, finding support in the constitution for which there is none, or rather, none that can be found in its text. “Penumbras” by another means, I guess.

    Justice Thomas makes the most reasonable dissent from a constitutional perspective. Justice Alito’s dissent is basically an argument from the perspective of stare decisis, but that hoary rule is certainly not immunity from a clear issue of constitutionality, so I find it rather less persuasive than Thomas’ straightforward rejection of the Sixth Amendment’s applicability. However, this is a good bookend to Thomas’ dissent from Alito’s opinion (in which Roberts joined):

    As this summary shows, the process that culminated in the adoption of Federal Rule of Evidence 606(b) was the epitome of reasoned democratic rulemaking. The “distin­guished, Supreme Court-appointed” members of the Advi­sory Committee went through a 7-year drafting process, “produced two well-circulated drafts,” and “considered numerous comments from persons involved in nearly every area of court-related law.” Rothstein, The Proposed Amendments to the Federal Rules of Evidence, 62 Geo. L. J. 125 (1973). The work of the Committee was consid­ered and approved by the experienced appellate and trial judges serving on the Judicial Conference and by our predecessors on this Court. After that, the matter went to Congress, which “specifically understood, considered, and rejected a version of [the rule] that would have allowed jurors to testify on juror conduct during deliberations.” [my emphasis]

    Thomas’ dissent is brief, so I won’t quote from it here, but I prefer his dissent to the judicial activism of the majority.

    TL;DR I think the court legislated from the bench here. I am persuaded by Justice Thomas’ dissent that a proper reading of the Sixth Amendment would not allow the conclusion of the majority. I am further persuaded by Justice Alito’s dissent that Congress is the proper forum for a nationwide rule allowing jury impeachment for racial or other prejudice.

    The court, as in Obergefell v. Hodges [gay marriage] reached what is probably the right result for the wrong reasons.

  9. Given that as a juror you live in a ‘nation of assholes’ it gets even more important to uphold secrecy of juror deliberations. In a ‘nation of assholes’ any remark (or action) that can be interpreted in the most negative way, will be interpreted as such resulting in insults, death threats and what you have.

    If this concept of a ‘nation of assholes’ gets more and more reality within the USA there could be a tipping point after which the whole concept of a jury of your peers isn’t feasible anymore.

  10. Did the SCOTUS majority choose the right side in this ethics conflict?

    My gut tells me the answer is no but I’m having a difficult time putting it into words. Maybe I’ll be able to wrap my head around my gut feeling better later. I trust my gut.

    That said, I think I’ll at least share these thoughts.

    I think the court engaged in judicial activism and legislated from the bench.

    I think this “ruling” could lead to abuse by overt opinion bigoted jurors trying to control the outcome of a jury.

    I believe that this statement, “the Supreme Court has said that even egregious misconduct in the jury room cannot be used to challenge a conviction if it would require jurors to testify about [what] occurred during deliberations”, is a crucial part of the system; without this secrecy stringently in place there will be people (maybe even me) that would “decline” jury duty.

  11. I don’t know the law here and don’ have enough energy to read the court’s opinion. I’ve got some questions that maybe somebody who did read theit can answer. What if during the deliberations the juror had said, “I know the defendant’s family and all of the men are violent thugs and rapists?” Is it really true that under existing law no inquiry into that statement is permitted? That seems much more prejudicial than saying, “Most Mexicans are violent thugs and rapists,” because the other jurors will have their own opinions on the subject of Mexicans and we can be almost certain that some or all of them will disagree with the biased juror. Is the court saying that we can’t inquire into the first statement but we can inquire into the second? If so, the new rule seems to be driven mostly by sentimentality and moral posturing.

    Is the court saying that every convicted defendant can demand a post-trial proceeding to find out whether racial bias was expressed in the jury room, or does this rule only apply if a juror comes forward on her own initiative to disclose the bias? If so, the rule will have very little practical effect. Or will defense attorneys be allowed to start approaching jurors and asking them whether any bias had been expressed during deliberations? That seems highly undesirable.

    And as Wayne said, what sort of evidence of bias is sufficient? Does the alleged biased juror have to make an actual biased statement, or is it sufficient that another juror has a strong intuition that he was biased? If a biased statement is required, how biased does it have to be? Would it have been biased if the juror had said, “Statistically, the rate of rape and violent assault is higher among Mexicans than non-Hispanic whites but lower than among blacks”? Is that statement biased? It is objectively true, but the court decided a couple of weeks ago that testimony to that effect by an expert witness required a conviction to be reversed.

    It seems that in future cases, the court will have to narrow this rule so much that it scarcely ever applies. The justice system already takes an unconscionably long time to decide criminal cases. A broad version of this rule would make it grind even more slowly.

    • What if during the deliberations the juror had said, “I know the defendant’s family and all of the men are violent thugs and rapists?”

      I believe voir dire commonly asks if you know the defendant or his/her family, so it would at least be contempt of court and quite possibly perjury.

      Normally, misconduct like that would produce a mistrial.

      Is it really true that under existing law no inquiry into that statement is permitted?

      No, not true. That’s a clear case of misconduct by a juror.

      Is the court saying that every convicted defendant can demand a post-trial proceeding to find out whether racial bias was expressed in the jury room, or does this rule only apply if a juror comes forward on her own initiative to disclose the bias?

      Here’s how they describe their conclusion:

      The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution. [my emphasis]

      As to what constitutes “egregious case[s],” unfortunately, that is going to be left to the lower courts and legislatures to say. A Supreme Court ruling, as you know, is rarely the last word. Doubtless, at some point, this will require clarification at the circuit court of appeals level.

      • Thanks. That’s a helpful clarification.

        As you say, everything depends on what “egregious” means. It has always seemed to me that an awful lot of the Supreme Court’s so-called “landmark decisions,” especially in the areas of criminal law and procedure, turn out to apply only in very rare cases.

  12. -Is thought-policing juries realistically possible? Either we admit that a “jury of your peers” is an acceptable means to determine guilt, or it isn’t. Once the state starts trying to determine if jurors were employing thoughtcrime in their deliberations or not, how is that different from the judge/courts simply declaring their own verdicts?

    I am fairly ignorant of jury selection process in general though.

    -I have hunch that this ruling will be selectively enforced; i.e. black people will cite this case as evidence that even one white person on a jury will irreparably prejudice it against them, while all-black juries who refuse to convict despite overwhelming evidence will be given a pass.

  13. In summary:

    The dissenting opinion is correct.

    There’s 12 jurors for a reason. So that the one biased jerk who slips through voir dire is counteracted. If he’s not, there’s a hung jury and a mistrial (unless the other 11 happen to agree with the vote of the jerk but for other reasons.

    If all 12 jurors are racist jerks, then the defense attorney didn’t do his job during voir dire.

    And before someone says the system is already racist and this occurs in a very noticeable quantity in the modern day, go ahead a put a lid on it.

  14. Bad Supreme Court opinion. Someone has already called out the “12 Angry Men” deliberations, but another comment — isn’t this the purpose of voir dire? – is key.

    Frankly, it appears to be too difficult already to get halfway intelligent people to serve on juries. Now, since presumably a juror can be called out on any comment that may offend another juror, what we’ll end up with is the folks who really really want that $100 a day in income.

    • And of course the minor consideration that any worry members of the jury may have that speaking freely may lead to comments being misinterpreted with dire results for the misinterpreted juror can only serve to stifle free discussion. That cannot bode well for defendants in the long run.

      • To Tex and Jack: What are the Constitutional impacts of this decision?

        On a related subject, ask Jack to describe his experience as a juror on a med/mal case. He fully expected to be dinged because he was a lawyer. No way: he had to serve, was foreman of the jury (surprise!), and spent hours explaining the concept of “proximate cause” to a bunch of idiots. It was a more complex case than I can remember or describe clearly, but the plaintiff received a very modest settlement: the jury recommended that the doctor retire: which he did.

        I found this article by Jack years ago, and don’t know if it’s still on line, As I recall the title was “Confessions of Med/Mal Juror.” Maybe Jack can help you find it.

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