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

• Author: Caden A. Grant
• Position: J.D., Georgetown University Law Center (expected May 2023); B.A., George Washington University (2020)
• Pages: 773-804

Holding Juries Accountable: Assessing the Right to

a Competent and Unimpaired Jury in Light of

Tanner and Federal Rule of Evidence 606(b)

CADEN A. GRANT*

INTRODUCTION

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.

1

This holding, while

a reasonable interpretation of the text of Rule 606(b),

2

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-

caine.

3

Jurors even described themselves as “flying” during the trial, which they

regarded as “one big party.”

4

The Court, however, found that such influences were

largely internal, no different than an illness or general fatigue.

5

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.

6

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.

7

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 115–16.

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).

773

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.

8

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.

I. BACKGROUND

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.

A. THE SIXTH AMENDMENT AND DUE PROCESS

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~

na–Rodriguez 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).

774 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:773

by an impartial jury of the State and district wherein the crime shall have been

committed.”

9

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.”

10

The Constitution also, through the Fifth Amendment, guarantees that “[n]o

person shall be . . . deprived of life, liberty, or property, without due process of

law.”

11

This due process right includes the right to “a tribunal both impartial and

mentally competent to afford a hearing,”

12

as well as “a jury capable and willing

to decide the case solely on the evidence before it.”

13

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.

14

Both Rule 606(b) and the Court’s

holding in Tanner are discussed further below.

B. FEDERAL RULE OF EVIDENCE 606(B): THE NO-IMPEACHMENT RULE

Federal Rule of Evidence 606(b) governs inquiries into the validity of a verdict

or indictment.

15

The Rule generally bars evidence about any statement made dur-

ing jury deliberations.

16

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-

cision.

17

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.”

18

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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