Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense

Abstract:     
It is well established that the presence of a biased juror is a structural defect not subject to a harmless error analysis; however, courts repeatedly have precluded criminal defendants from proving such bias by applying Rule of Evidence 606(b) to prevent jurors from impeaching their verdicts through allegations of racial, religious, or other prejudice by jurors. Court also routinely have held that application of the Rule in such cases does not violate the Sixth Amendment right to an impartial jury based upon the Supreme Court's conclusion in Tanner v. United States that the Rule did not violate the right to a competent jury.

Criminal defendants, however, should be able to rely upon another Sixth Amendment right to allow them to present post-trial juror testimony regarding racial, religious, or other bias by jurors. Since its 1967 opinion in Washington v. Texas, the Supreme Court has declared that the Compulsory Process Clause renders unto criminal defendants the "right to present a defense" and has found that courts violate this right by applying rules of evidence in a manner that is arbitrary or disproportionate to the purposes that they were designed to serve. This article argues that when courts preclude jurors from impeaching their verdicts through evidence of juror racial, religious, or other bias, they apply Rule 606(b) in a way that is arbitrary and disproportionate to the purposes that the Rule is designed to serve and thus violate criminal defendants' right to present a defense.

Keywords: Jury Impeachment, Right to Present a Defense, Compulsory Process Clause, Juror Bias

JEL Classifications: K14, K41

Accepted Paper Series