The Constitutional Right to an Implicit Bias Jury Instruction

53 Pages Posted: 18 Feb 2021

See all articles by Colin Miller

Colin Miller

University of South Carolina School of Law

Date Written: February 14, 2021

Abstract

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give a “no adverse inference” instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant’s silence against him, and lower courts have ruled against recognizing such a right to jury impeachment.

Meanwhile, the Supreme Court has addressed the issue of juror racial bias in reverse. In 2017, the Court ruled in Pena-Rodriguez v. Colorado that jurors must be allowed to impeach their verdict based on jurors holding a defendant’s race against him. But the Court has never held that there is a right to an implicit bias jury instruction, and no lower court has ever recognized such a right.

In Pena-Rodriguez, however, the Supreme Court clearly recognized that the right to an impartial jury not only addresses “unique historical, constitutional, and institutional concerns,” but also requires “[a] constitutional rule.” Specifically, the Pena-Rodriguez Court concluded that “[a] constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”

This article contends that this rule must go further and address juror racial bias on both the back end and the front end. For the same reasons that the Supreme Court created the right to a jury instruction that jurors must not hold a defendant’s silence against him, it should recognize the right to a jury instruction that jurors must not hold a defendant’s race against him.

Keywords: Racial Bias, Jury Instructions, Sixth Amendment

JEL Classification: K14, K42

Suggested Citation

Miller, Colin, The Constitutional Right to an Implicit Bias Jury Instruction (February 14, 2021). Available at SSRN: https://ssrn.com/abstract=3785645 or http://dx.doi.org/10.2139/ssrn.3785645

Colin Miller (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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