THE NEW IMPARTIAL JURY MANDATE.

• Author: Jolly, Richard Lorren

Impartiality is the cornerstone of the Constitution's jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not provide a standard for determining when evidence of partiality is sufficient to set aside a verdict but made clear that an otherwise procedurally adequate decision may fall to substantive deficiencies.

This Article advances a structural theory of the Constitution's impartial jury mandate, focusing on the interplay between its ex ante procedural and ex post substantive components. The Article argues that the mandate has traditionally taken shape as a collection of procedural guarantees because of a common law prohibition on reviewing the substance of jury deliberations. Pena-Rodriguez tosses this constraint, allowing judges for the first time to review the rationales upon which jurors base their verdicts. The Article then offers a novel approach for applying substantive impartiality more broadly by looking to the Equal Protection Clause's tiers of scrutiny. It concludes that ex ante procedural rules and ex post substantive review can operate in conjunction to tease out undesirable, impermissible forms of jury bias, while still allowing for desirable, permissible forms of jury bias.

TABLE OF CONTENTS INTRODUCTION I. THE JURY'S COMPETING RESPONSIBILITIES A. The Emergence of the Modern Jury B. The Difficulty with Defining Impartiality II. IMPARTIALITY AS EX ANTE PROCEDURE A. The fury No-Impeachment Rule B. Procedures Tending to Secure an Impartial fury 1. Pre-Venire Procedures 2. Post-Venire Procedures III. IMPARTIALITY AS EX POST SUBSTANCE A. Rejected Exceptions to Rule 606(b) B. Constitutionally Required Review of Deliberations IV. APPLYING THE NEW IMPARTIAL JURY MANDATE A. A Tiered Approach to Scrutinizing Biases B. Ex Ante Procedures Versus Ex Post Substantive Review CONCLUSION INTRODUCTION

Impartiality is the cornerstone of the Constitution's jury trial protections. (1) The Sixth Amendment is explicit in its guarantee that the criminally accused shall enjoy the right to "trial[] by an impartial jury." (2) And while by its terms the Seventh Amendment does not command that impartial juries resolve private disputes, courts and scholars agree that such a requirement is implicit. (3) The Fifth Amendment similarly protects in the grand jury context. (4) And if a state chooses to provide a jury trial in circumstances in which a jury is not constitutionally required, that jury must nevertheless be impartial. (5) Indeed, impartiality as a concept is deeply entangled with what it means to involve lay citizens in the administration of justice. Simply put: a partial jury is no jury at all.

Yet despite the concept's centrality, there is little agreement on what makes a jury impartial. Jurors must lack specific biases against the parties, such as having a personal interest in the outcome of the case, but defining impermissible general biases beyond that is far more difficult. This difficulty is the result of competing understandings of the jury's core institutional responsibilities. On the one hand, the law invites--and at times requires--jurors to bring their unique political, moral, and psychological insights to bear on a dispute. In this sense, the jury sits as a democratic check on the application and development of law, ensuring that powerful social and political actors do not operate in a manner unconstrained by popular notions of justice. (6) On the other hand, the jury is conceived of as a blank slate. It is a tabula rasa upon which only the facts presented within the courtroom are considered and the law as described by the judge is applied. To this end, the jury is a purely neutral arbiter. (7)

Balancing the tension between the jury's competing responsibilities is critical to gaining the benefits and controlling the detriments of lay judicial involvement. It is within this balance that a jury's impartiality must be assessed: the law requires some kinds of preconceptions (what we often call common sense) and fundamentally rejects others (called biases). If the jury brings too much of its own outside opinions, or the wrong kind of opinions, into the courtroom, the parties are denied impartial consideration of their dispute. Alternatively, it is unrealistic, and perhaps undesirable, to treat jurors as if they are mere automatons. Facts and laws are fuzzy, and ignoring a diversity of opinions robs the litigants of public consideration of their multifaceted dispute. (8) Our system of justice expects the impartial jury to be both wise and blind.

But historically, there has been no mechanism by which to check whether a jury was sufficiently impartial. This is because of the Mansfield Rule, also known as the jury no-impeachment rule. This rule was first advanced in 1785 when Lord Mansfield refused to accept two affidavits from jurors who claimed that the jury had reached its decision by flipping a coin. (9) Although scholars debate how firmly this rule was established before Lord Mansfield's articulation, that the jury could not impeach its own verdict became readily established in the common law. (10) The United States accepted the rule almost unquestionably, (11) and it is now reflected in Federal Rule of Evidence 606(b), and every state has a least some version of the rule. (12) Generally speaking, then, up until very recently only jury inputs and outputs were reviewable. Courts could check the jury-selection process as well as the verdicts reached but were unable to assess whether jurors actually reached their verdicts impartially. This is why the jury is colloquially referred to as a black box.

Because courts historically lacked the ability to review jury deliberations for bias, the Constitution's impartial jury mandate (13) has taken form as prophylactic guarantees. That is, courts have mandated certain processes designed to procure what is likely to be an impartial jury. For instance, jurors must be summoned according to principles of nondiscrimination (14) and must reflect a fair cross section of the community, (15) and parties must be given opportunity to challenge jurors before the final verdict. (16) But these prophylactic safeguards offer a far-from-perfect solution. Jurors with improper biases, both conscious and unconscious, still slip by and influence decisions. While there is no way to confidently assert exactly how often this occurs, there is strong reason to believe that biased juries pose a serious concern for the fair administration of justice. (17)

The 2017 Supreme Court case Pena-Rodriguez v. Colorado addressed the issue of juror bias during deliberations, with the Court adopting an expansive new understanding of the impartial jury mandate. (18) In that case, a Colorado state jury found Mr. Pena-Rodriguez guilty of sexual assault. After the verdict, two jurors told the defense attorney that another juror had purportedly stated that based on his experience as a former law enforcement officer, "nine times out of ten Mexican men [are] guilty of being aggressive toward women and young girls," and concluded that "[Mr. Pena-Rodriguez] did it because he's Mexican and Mexican men take whatever they want." (19) Mr. Pena-Rodriguez's lawyers asked the trial judge to investigate the comments, but the judge held that Colorado's jury no-impeachment rule barred him from doing so. (20) Mr. Pena-Rodriguez petitioned up to the United States Supreme Court, which granted certiorari and reversed.

Writing for the majority, Justice Kennedy held that

where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee. (21) But the Court warned that "[n]ot every offhand comment ... will justify setting aside the no-impeachment bar;" rather, only those "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." (22) It stressed that the decision was limited to racial bias in criminal cases, noting the "unique historical, constitutional, and institutional concerns" implicated by racism. (23)

Pena-Rodriguez v. Colorado represents a dramatic development in impartial jury mandate jurisprudence. Allowing judges to check jurors' rationales--rather than just the processes by which the jurors were selected and the trial conducted--fundamentally alters what was previously thought the Constitution mandated. Read broadly, Pena-Rodriguez seems to recognize a Sixth Amendment right to have jury decisions made only according to constitutionally permitted rationales. (24) But questions persist. Most problematically, it remains unclear whether deliberations may be reviewed for bias against other suspect and nonsuspect classes of individuals, or whether the rule applies outside the criminal context. Moreover, the value of certain prophylactic rules, such as peremptory challenges, might be suspect when deliberations are reviewable. The case thus offers an opportunity to reassess the many strands and motivations of the impartial jury mandate.

This Article addresses the Constitution's jury requirements in light of Pena-Rodriguez, with the treatment existing on two distinct levels. On the most...