Race, Bias, and Doctrine in Warger v. Shauers

This week, the Supreme Court decided Warger v. Shauers, a unanimous decision on the rule against challenging trial jury verdicts based on evidence of jury deliberations. Warger is noteworthy in part because it comes at a time when grand jury decisions are coming under special scrutiny, particularly in cases involving concerns of racial bias. In Warger, the problem of racial bias lurks just beneath the surface—or, more literally, in a footnote just beneath the main text. Warger‘s elliptical reaction to this problem illustrates how the Court translates constitutional principles into rules for normal cases and exceptions for extraordinary ones.

Here are the basic facts of Warger. After a civil jury verdict found no liability for a traffic accident, one of the jurors claimed that the foreperson had been biased against the plaintiff. The foreperson, it seems, had revealed during jury deliberations that one of her close family members had been at fault in a traffic accident. This led the plaintiff to request a new trial on the ground that the foreperson had been deceptive during voir dire, causing a violation of the plaintiff’s constitutional right to an impartial jury. However, Federal Rule of Evidence 606(b) generally bars challenges to jury verdicts based on evidence relating to jury deliberations, subject to certain exceptions. The question in Warger was whether Rule 606(b) applies in circumstances where a juror may have lied during voir dire. In a crisp opinion by Justice Sotomayor, the Court held that that the jury-deliberation evidence couldn’t be considered.

Given recent events, it’s timely to ask why the U.S. legal system goes to such lengths to protect jury deliberations from scrutiny. Warger doesn’t explore this issue in any detail, except to gesture toward traditional interests in finality and jury independence. The question that most bedevils this area of law is how to know which kinds of juror predisposition are ‘bias’ and which kinds provide helpful local knowledge or democratic insight. In Warger itself the foreperson allegedly had a personal experience relevant to the case. Does that show that she couldn’t neutrally apply the law, or that she had unique insight into the jury’s decision? (For more reflections in this vein, check out Dov Fox’s recent work on the ‘architecture of juror bias.’)

Most of the Court’s decision concerns Rule 606, but the defendant also argued that stringent application of the Rule would raise constitutional difficulties by impairing the right to an impartial jury. Evidence of jury deliberations, after all, could go to show jury partiality. So in applying the Rule, a court is effectively turning a blind eye to evidence of a constitutional violation. That sounds like only a small step away from treating a constitutional violation as constitutionally valid. Therefore, the defendant concluded, the Court should choose to read the Rule in a way that avoided raising this problem.

The Court rejected this argument from constitutional avoidance because it believed that the “plain text” of the Rule unambiguously precluded use of jury testimony in Warger. But that move implicitly raised a deeper question: if the Rule clearly applied in Warger, was it unconstitutional?

The Court accordingly went on to consider and reject the constitutional argument. Here is the key passage, which I’ve broken up into paragraphs:

[A]ny claim that Rule 606(b) is unconstitutional in circumstances such as these is foreclosed by our deci­sion in Tanner.

In Tanner, we concluded that Rule 606(b) precluded a criminal defendant from introducing evidence that multiple jurors had been intoxicated during trial, rejecting the contention that this exclusion violated the defendant’s Sixth Amendment right to “‘a tribunal both impartial and mentally competent to afford a hearing.’” 483 U. S., at 126 (quoting Jordan v. Massachusetts, 225 U. S. 167, 176 (1912)).

We reasoned that the defendant’s right to an unimpaired jury was sufficiently protected by voir dire, the observations of court and counsel during trial, and the potential use of “nonjuror evidence” of mis­conduct. 483 U. S., at 127.

Similarly here, a party’s right to an impartial jury remains protected despite Rule 606(b)’s removal of one means of ensuring that jurors are unbiased. Even if jurors lie in voir dire in a way that conceals bias, juror impartiality is adequately assured by the parties’ ability to bring to the court’s attention any evidence of bias before the verdict is rendered, and to employ nonjuror evidence even after the verdict is rendered.

This passage may seem like a conventional invocation of precedent, but it is actually a bit more interesting. In Tanner, jury-deliberation evidence tended to show that some jurors were intoxicated. If that was so, then the defendant’s right to an “impartial and mentally competent” jury would have been infringed. So, if credited, this evidence was pretty powerful stuff. Yet the Court didn’t care whether the evidence was credible.

Instead, the Court ignored the evidence on the ground that the relevant constitutional right was “sufficiently protected” by other means of promoting jury impartiality. Warger adopts and extends that reasoning, concluding that the right to jury impartiality (and sobriety) is “adequately assured” by mechanisms unrelated to Rule 606(b). In other words, potentially compelling evidence of a constitutional violation can be overlooked in a particular case because the legal system is generally pretty good at solving the general type of problem at issue.

This kind of reasoning is very common—and perhaps even inherent in judicial precedent—but it is also objectionable. If the defendant in Tanner really had a right to a sober jury, then why should the unusualness of his problem preclude him from having a remedy?

Interestingly, Warger itself seems to recognize that the Court’s normal system-wide perspective must sometimes give way to the particularities of individual injustices. This point arises in footnote 3, which is appended to the Court’s above-quoted discussion:

There may be cases of juror bias so extreme that, almost by defini­tion, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process. We need not consider the question, however, for those facts are not presented here.

So the Court reserved the possibility of “juror bias so extreme that, almost by definition, the jury trial right has been abridged.” As others have noted, the kind of bias that the Court has most vividly in mind here is probably racism—a scenario forcefully raised by the plaintiff and amicus NACDL. Clearly, this point is relevant to issues of current national debate (which centers on grand juries, not the trial juries at issue in Warger). The Court’s decision to avoid naming this much-discussed problem may reflect a desire to avoid entanglement with an ongoing public controversy.

Yet the nature of the reservation doesn’t line up with the stated reasons for the rule. Again, Warger‘s stated reason for finding no constitutional violation was that there are lots of other mechanisms that protect against jury bias. That reasoning might suggest a different result if, from a system-wide perspective, the normal mechanisms became less effective at checking jury bias. And it might also suggest a reservation for individual cases where the normal impartiality mechanisms aren’t faithfully applied. But those reservations aren’t the one that appears in Warger.

So, what implicit reasoning underlies Warger’s reservation? One possibility is that the Court sees a hierarchy of bias, such that pedestrian bias—like juror intoxication—is unconstitutional but not so bad as to justify supplementing the normal impartiality mechanisms. However, viewing the matter strictly as a jury impartiality issue (and not, for example, as an equal protection issue), it’s hard to see what kind of impartiality could be worse than the unconstitutional kind. This suggests that the hierarchy of bias might rely on other constitutional values, apart from jury impartiality.

Another possibility is that some types of bias, like intoxication, are easier to detect. As a result, uncorroborated jury-deliberation evidence might just be less than compelling evidence of unconstitutional partiality in any given case. If the jurors were really intoxicated, for instance, you might expect some sign of that based on their courtroom behavior or on the drinks that jurors had with them as they went into the jury deliberation room. In that sense, “the usual safeguards” might indeed be “sufficient to protect the integrity of the process.” Racism and other forms of bias, by contrast, might be harder to detect without access to the deliberative record. On this approach, what matters isn’t the “extreme” degree of bias, so much as whether it’s extremely hard to detect.

Of course, the Warger reservation is just a reservation and so might not come to anything—which is doubtless how it garnered such easy unanimity. But at this particular moment it seems quite possible that a more “extreme” case could eventually arise.