12 Racist Men: Post-Verdict Evidence of Juror Bias

Jessica L. West

Vermont Law School; University of Washington - School of Law

January 1, 2011

Harvard Journal of Racial & Ethnic Justice, Vol. 27, p. 165-204, 2011
Vermont Law School Research Paper No. 05-12

Federal Evidence Rule 606(b) and similar state rules prohibit post-verdict admission of juror statements, including racist or biased remarks, made during deliberations. The roots of the evidentiary prohibition are historically deep and the interests underlying the Rule implicate the very existence of the jury system. Constitutionality of the post-verdict evidentiary exclusion is based upon the presumption that pre-trial and trial mechanisms exist to discern juror bias prior to deliberations. Empirical studies and recent cases indicate, however, that these mechanisms do not currently operate to adequately expose or remove juror biases. This article argues that the expansion of these mechanisms, including more diverse jury venires, more robust and effective juror voir dire, less discretion for parties to remove jurors on the basis of race, and the development of jury admonitions directly addressing bias, will reduce juror expressions of bias during deliberations. Even with these reforms, however, not all juror bias will be disclosed and, whether for reasons of embarrassment, inattention or intent, some jurors will misrepresent material biases during voir dire. To address juror misrepresentations during voir dire, the article proposes a narrow exception to Rule 606(b) permitting inquiry into juror bias for the purpose of showing juror misrepresentation. The article’s unique approach of combining enhanced pre-trial and trial mechanisms with a narrow exception to the rule to address juror misrepresentations strikes a balance between upholding the goals underlying Rule 606(b) and the right to a fair trial by an impartial jury.

Number of Pages in PDF File: 40

Keywords: juror bias, FRE 606(b)

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Date posted: October 8, 2011 ; Last revised: September 27, 2016

Suggested Citation

West, Jessica L., 12 Racist Men: Post-Verdict Evidence of Juror Bias (January 1, 2011). Harvard Journal of Racial & Ethnic Justice, Vol. 27, p. 165-204, 2011; Vermont Law School Research Paper No. 05-12. Available at SSRN: https://ssrn.com/abstract=1935973

Contact Information

Jessica L. West (Contact Author)
Vermont Law School ( email )
68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

University of Washington - School of Law ( email )
William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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