Runaway Jury: An Analysis of State Laws Concerning Juror Impeachment

• Author: Brenda I. Rowe,Wesley S. McCann
• Published date: 01 April 2020
• Date: 01 April 2020
• DOI: http://doi.org/10.1177/0887403418805150
• Subject Matter: Articles

https://doi.org/10.1177/0887403418805150

Criminal Justice Policy Review

2020, Vol. 31(3) 395 –421

© The Author(s) 2018

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DOI: 10.1177/0887403418805150

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Article

Runaway Jury: An Analysis of

State Laws Concerning Juror

Impeachment

Brenda I. Rowe1 and Wesley S. McCann2

Abstract

The no impeachment rule bars the admission into evidence of juror testimony

regarding jury deliberations in proceedings questioning the validity of a verdict. In

Pena-Rodriguez v. Colorado, the U.S. Supreme Court created a constitutional exception

to the no impeachment rule to allow impeachment of a verdict by a juror’s testimony

regarding a fellow juror’s clear statement during jury deliberations indicating reliance

on racial bias as a substantial motivating factor for that juror’s vote. This study

traces the history of the no impeachment rule, analyzes the Court’s decision in Pena-

Rodriguez v. Colorado, examines variation in exceptions provided by states’ statutory

no impeachment rules, and discusses the likely impact of Pena-Rodriguez as well as

policy implications of the current state of no impeachment statutes.

Keywords

no impeachment rule, Sixth Amendment, impartial jury, racial bias, rules of evidence,

jury decision making

The no impeachment rule bars the admission into evidence, in proceedings question-

ing the validity of a verdict, of post-verdict juror testimony regarding jury delibera-

tions (Covington, 2018; Koffler, 2018).1 This long-standing rule is based on public

policy considerations of preserving the finality of verdicts, promoting uninhibited dis-

cussion during jury deliberations, and preventing harassment of jurors by the losing

party after the trial is over (Casey, 1998; Diehm, 1991; Reidy, 2009; Thompson, 1984;

West, 2011). Furthermore, the no impeachment rule has long been thought to be vital

1Texas A&M University–San Antonio, TX, USA

2The College of New Jersey, Ewing, NJ, USA

Corresponding Author:

Brenda I. Rowe, Department of Social Sciences, Texas A&M University–San Antonio, One University

Way, San Antonio, TX 78224, USA.

Email: Brenda.Rowe@tamusa.edu

805150CJPXXX10.1177/0887403418805150Criminal Justice Policy ReviewRowe and McCann

research-article2018

396 Criminal Justice Policy Review 31(3)

to the survival of our system of trial by jury, as close scrutiny of jurors’ imperfections

in carrying out their duties would likely undermine a vast number of verdicts and

compromise public confidence in the jury system (Tanner v. United States, 1987;

West, 2011). Although the rule certainly serves important public policy considerations,

the rule is not without controversy, as it has prevented courts from hearing post-verdict

juror testimony regarding outrageous acts of jury misconduct such as use of games of

chance to determine a verdict (Vaise v. Delaval, 1785, as cited in Miller, 2009) and

jurors’ drug and alcohol use during trial (Tanner v. United States, 1987; West, 2011).

While its origins can be traced back to the common law in England, the no impeach-

ment rule has been codified in Federal Rule of Evidence 606(b) and state statute coun-

terparts (Crump, 2018; Miller, 2009, 2012; West, 2011). Such statutes provide for

certain statutory exceptions, such as the exceptions provided in Federal Rule of

Evidence 606(b) for juror testimony regarding outside influence, use of prejudicial

extraneous evidence, and clerical mistake in entry of the verdict on the verdict form

(Crump, 2018; Miller, 2009). Generally, most no impeachment statutes draw a strong

internal versus external distinction, barring jurors from impeaching their verdict with

juror testimony regarding matters internal to jury deliberations while allowing jurors

to impeach a verdict by testifying regarding matters external to jury deliberations

(Miller, 2009).

When the no impeachment rule bars post-verdict juror testimony regarding a fellow

juror’s remarks during jury deliberations which indicated reliance on racial stereo-

types in casting a vote of guilt, the no impeachment rule collides with the protection of

a fundamental right: the Sixth Amendment right to a trial by an impartial jury (Koffler,

2018). The constitutional right to trial by an impartial jury provides essential protec-

tion for the liberty of the accused by placing the responsibility for judging guilt or

innocence in the hands of peers, as a check against the power of the government

(Crump, 2018). But this essential protection becomes an illusion when the fate of the

accused is placed in the hands of a bigoted juror and the courts turn a deaf ear to other

jurors’ reports that the jury was far from impartial.

In Pena-Rodriguez v. Colorado (2017), the U.S. Supreme Court created a constitu-

tional exception to the long-standing no impeachment rule to allow impeachment of a

verdict by a juror’s post-verdict testimony regarding a fellow juror’s clear statement

during jury deliberations indicating reliance on racial bias as a substantial motivating

factor for that juror’s vote. The Court deemed existing safeguards, such as voir dire

and pre-verdict juror testimony, inadequate to prevent racial bias, which is essential to

preserving the Sixth Amendment right to trial by an impartial jury (Pena-Rodriguez v.

Colorado, 2017).

While this recent decision represents a step in the right direction, it raises the ques-

tion of whether legislative bodies ought to re-examine state no impeachment statutes

to ensure those statutes provide for appropriate exceptions which can facilitate redress

for criminal defendants whose fate has been decided by jurors who have failed to live

up to the noble ideal of the jury trial as a bulwark against the government’s potential

abuse of power. In the wake of Pena-Rodriguez, it is important for state legislatures to

take action, as high profile instances of verdicts infected by explicit bias undermine