Holding Juries Accountable: Assessing the Right to a Competent and Unimpaired Jury in Light of Tanner and Federal Rule of Evidence 606(b)

AuthorCaden A. Grant
PositionJ.D., Georgetown University Law Center (expected May 2023); B.A., George Washington University (2020)
Holding Juries Accountable: Assessing the Right to
a Competent and Unimpaired Jury in Light of
Tanner and Federal Rule of Evidence 606(b)
In Tanner v. United States, the Supreme Court held that Federal Rule of
Evidence 606(b) prohibits the use of juror testimony to impeach a verdict except
where an outside influence was brought to bear on the jurors.
This holding, while
a reasonable interpretation of the text of Rule 606(b),
was remarkable given the
extent of the misconduct at issue in the case. Jury members admitted to having
five to six drinks during lunch breaks and using and selling both marijuana and co-
Jurors even described themselves as flyingduring the trial, which they
regarded as one big party.
The Court, however, found that such influences were
largely internal, no different than an illness or general fatigue.
Furthermore, the
constitutional right to a fair trial in front of an impartial jury was deemed
adequately protected by procedural safeguards such as voir dire, observation of ju-
ror behavior by judges and other court officials, and non-juror testimony during
any post-verdict inquiry.
Given the importance of the jury trial to the American legal system, a substantive
inquiry into the merits of Tanner and Rule 606(b) is necessary. Our Constitution guar-
antees every criminal defendant the right to a fair trial by a capable and impartial jury,
as well as the right to the due process of law before any defendant is deprived of their
life or liberty.
While decisions like that in Tanner profess to protect the judicial sys-
tem’s integrity by securing the finality of a jury verdict, they rely on fear-based rea-
soning that questions the system’s ability to survive an inquiry into its methods, rather
than focusing on the adequacy of the system itself. Although the Court was correct in
emphasizing the importance of the jury system’s survival, ensuring survival by
* J.D., Georgetown University Law Center (expected May 2023); B.A., George Washington University
(2020). © 2022, Caden A. Grant.
1. Tanner v. United States, 483 U.S. 107, 108 (1987).
2. FED. R. EVID. 606(b).
3. Tanner, 483 U.S. at 11516.
4. Id.
5. Id. at 122.
6. Id. at 127.
7. See U.S. CONST. amend. V (granting the right to a jury in a criminal trial); U.S. CONST. amend. VI (grant-
ing the right to an impartial jury); U.S. CONST. amend. XIV, § 1 (granting the right to due process of the law
before deprivation of life, liberty, or property).
putting the jury’s methods beyond question causes more harm than good. However,
Tanner remains largely unchallenged, with courts being particularly unwilling to
accept arguments contesting the policy concerns used to shield the jury process from
inquiry. They have instead preferred requests for highly specific exceptions to the
now generally accepted no-impeachment rule.
Notably, despite the Court’s concerns,
the success of these exceptions proves that the jury system is capable of surviving
attempts to improve its process. Therefore, it is important to revisit the necessary
extent of the no-impeachment rule to move beyond the mere survival of the jury sys-
tem and toward a more effective system of ensuring the quality of justice.
This Note will analyze the give and take between Tanner’s interpretation of
Rule 606(b) and the constitutional rights of due process and trial by a competent
and unimpaired jury. Ultimately, it will argue that the rule’s current interpretation
leaves those constitutional rights unprotected and requires significant change in ei-
ther application or substance. Section I will provide a general background on the
constitutional rights at issue, namely the jury trial rights and due process rights pro-
vided by the Fifth, Sixth, and Fourteenth Amendments, as well as a background on
Tanner and the no-impeachment rule. Section II will define the extent of the no-
impeachment rule and its post-Tanner exceptions. Section III will then question the
Court’s decision in Tanner, weighing the policy arguments for the no-impeachment
rule against the downsides of the Court’s reluctance to evaluate the jury process,
while also explaining the inadequacy of the enumerated alternative methods for pro-
tecting constitutional due process and jury rights. Finally, Section IV will propose
methods in which legal professionals can either work within the confines of current
precedent or attempt to reform Rule 606(b) to better protect and ensure the right to a
competent and unimpaired jury.
Rule 606(b) and its subsequent interpretation in Tanner implicate a variety of
policy considerations and constitutional rights. This section will provide a back-
ground on the constitutional jury trial and due process rights, the meaning of Rule
606(b), and a summary of the Tanner decision to provide necessary context for
an analysis of the no-impeachment rule.
The Sixth Amendment of the United States Constitution provides that, [i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy public trial,
8. See, e.g., Pe~
naRodriguez v. Colorado, 137 S. Ct. 855, 869 (2017) (preserving the no-impeachment rule
while creating an additional exception for allegations of juror racial bias); Warger v. Shauers, 574 U.S. 40, 49
50 (2014) (disfavoring arguments questioning policy justifications for the no-impeachment rule and preferring
requests for specific exceptions to the rule).
by an impartial jury of the State and district wherein the crime shall have been
Courts have held that this right can be violated when jury members
act improperly; however, not all misconduct necessarily deprives a losing party
of the right to a fair trial.
The Constitution also, through the Fifth Amendment, guarantees that [n]o
person shall be . . . deprived of life, liberty, or property, without due process of
This due process right includes the right to a tribunal both impartial and
mentally competent to afford a hearing,
as well as a jury capable and willing
to decide the case solely on the evidence before it.
Each of these Constitutional guarantees are implicated by Rule 606(b) and the
Tanner decision. The Tanner Court ultimately determined that both were
adequately protected by other procedural safeguards, despite the inability to
inquire into certain types of juror misconduct.
Both Rule 606(b) and the Court’s
holding in Tanner are discussed further below.
Federal Rule of Evidence 606(b) governs inquiries into the validity of a verdict
or indictment.
The Rule generally bars evidence about any statement made dur-
ing jury deliberations.
It prevents post-verdict juror testimony on (1) any state-
ment made or incident that occurred during deliberations, (2) the effect of
anything on the jury’s vote, or (3) any juror’s mental processes concerning the de-
The Rule also contains exceptions, allowing post-verdict juror testimony
about whether extraneous prejudicial information was improperly brought to the
jury’s attention[,] an outside influence was improperly brought to bear on any ju-
ror[, or] a mistake was made in entering the verdict form.
Despite these exceptions, the Rule is colloquially known as the no-impeach-
ment rule, as it largely prevents parties from impeaching jury verdicts based on
juror testimony about how a verdict was reached. While the Rule’s Advisory
Committee Notes recognize that simply putting verdicts beyond effective reach
can only promote irregularity and injustice,they assert that the Rule properly
accommodates these considerations while also promoting the values of freedom
of deliberation, stability and finality of verdicts, and protection of jurors against
9. U.S. CONST. amend. VI.
10. 24 AM. JUR. 2D Proof of Facts 633 § 1 (1980).
11. U.S. CONST. amend. V.
12. Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).
13. Smith v. Phillips, 455 U.S. 209, 217 (1982).
14. See infra Section I.C.2 for a discussion of the Tanner case, including the Court’s alternative procedural
safeguards of voir dire, juror observability, and non-juror testimony. See generally, Tanner v. United States,
483 U.S. 107, (1987).
15. FED. R. EVID. 606(b).
16. Id.
17. Id.
18. Id.

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