Note draft.docx


28 Color in the “Black Box” Vol. 5.1 

 

 

COLOR IN THE “BLACK BOX”: 
ADDRESSING RACISM IN JUROR 

DELIBERATIONS† 
 

ASHOK CHANDRAN* 
 

The idea of trial by an impartial jury lies at the core of American criminal justice.  Yet racism—both 
explicit and implicit—often has profound impacts on the administration of criminal law and criminal 
procedure.  Such bias manifests itself at all levels of the system, including the deliberative process itself.  
Currently, however, defendants of color have limited options in challenging racism in juries.  This Note 
analyzes a current circuit split over whether Rule 606(b) provides defendants with one avenue of recourse 
by introducing juror testimony about statements made during the deliberative process.  By looking at the 
history leading up to the Rule’s enactment, this Note centers institutional legitimacy in the discussion, 
arguing that the Rule was born out of a desire to preserve the legitimacy of a jury trial following the demise 
of the trial by ordeal.  By barring the introduction of juror testimony about allegedly racist statements made 
during deliberations, this Note goes on to posit, a strict textual interpretation of Rule 606(b) actually 
delegitimizes the jury trial in the eyes of communities of color.  A strict commitment to the text, therefore, 
flies in the face of the very purposes of the Rule. 
 

 
I. INTRODUCTION……………………………………………………………… 29 

 
II. A RATIONAL BLIND FAITH: THE HISTORICAL ORIGINS OF THE JURY AS A 

BLACK BOX……………………………………………………………………31 
 

III. TRUST IN THE SYSTEM: THE DEVELOPMENT OF THE JURY “BLACK BOX” IN 

AMERICAN JURISPRUDENCE………………………………………………….33 
 

IV. SHADES OF GREY: RACIAL BIAS IN CRIMINAL PROCEEDINGS………………..37 
 

A. Voir Dire……………………………………………………………...37 
 

B. Rule 606(b)…………………………………………………………...40 
 

V. MOVING FORWARD: EMPIRICAL REALITIES OF TRIAL……………………… 43 
 
A. Race in Criminal Justice: Rhetoric vs. Reality………………………45 

 
B. Distrust in the System………………………………………………..48 

 
VI. CONCLUSION………………………………………………………………….51 

 
 



2014 COLUMBIA JOURNAL OF RACE AND LAW 29 

 

I. INTRODUCTION 

“The one place where a man ought to get a square deal is in a courtroom, be he any 
color of the rainbow, but people have a way of carrying their resentments right into a 
jury box. As you grow older, you'll see white men cheat black men every day of your 
life, but let me tell you something and don't you forget it - whenever a white man does 
that to a black man, no matter who he is, how rich he is, or how fine a family he comes 
from, that white man is trash.” 

 
~Harper Lee, To Kill A Mockingbird 

 
 The notion of a trial by jury is one of the cornerstones of the American justice system, codified as 
a fundamental right by the Sixth Amendment to the U.S. Constitution.1  As such, the protections of the 
Sixth Amendment guarantee more than just the right to any jury; rather, the text specifically guarantees all 
criminal defendants the right to trial “by an impartial jury.”2  The Supreme Court has stressed that this 
impartiality requirement is an added protection of the Amendment, repeatedly overturning verdicts where 
a jury was predisposed to come to a certain conclusion.3  While a juror need not be completely ignorant 
of all aspects of the case,4 he must be able to “lay aside his impression or opinion and render a verdict 
based on the evidence presented in court.”5  Preconceived notions of guilt and innocence should have no 
bearing on a trial; evidence alone should persuade an otherwise neutral body of jurors to come to a verdict. 
 
 This impartiality is paramount for many reasons.  First, and most obviously, it guarantees each 
defendant a fair chance to litigate his or her case without the specter of bias.  Juries predisposed to find a 
defendant guilty lessen the state's burden of proof and fail to grant a criminal defendant a fair trial, 

                                                        
† This Note was written before the Supreme Court issued its decision in Warger v. Shauers, No. 13-517 (Dec. 8, 

2014).  Though the Court rejected Warger’s attempts to create an implied exception to Rule 606(b) of the Federal Rules 
of Evidence in situations where jurors lie during voir dire, it did not squarely address the question taken up in this Note: 
may allegations of racial bias in jury deliberations trump the text of the Rule and allow juror testimony to serve as 
grounds for a new trial? 

* J.D. Candidate 2015, Columbia Law School; B.A. 2012, Yale University.  The author would like to thank 
Professors Theodore Shaw and Daniel Richman for their supervision and direction during the process of writing and 
editing this Note.  The author also thanks Angelica Pedraza and the staff of the Columbia Journal of Race & Law for their 
invaluable editing. 

1 See Duncan v. Louisiana, 391 U.S. 145, 153-154 (1968) (“Even such skeletal history is impressive support for 
considering the right to jury trial in criminal cases to be fundamental to our system of justice, an importance frequently 
recognized in the opinions of this Court.”); see also Thompson v. State of Utah, 170 U.S. 343, 349-50 (1968) (“Those 
who emigrated to this country from England brought with them this great privilege ‘as their birthright and inheritance, 
as a part of that admirable common law which had fenced around and interposed barriers on every side against the 
approaches of arbitrary power.”) (quoting J. Story, Commentaries on the Constitution of the United States 1779). 

2 U.S. Const. amend. VI (emphasis added). 
3 See, e.g., Irvin v. Dowd, 366 U.S. 717 (1961) (“In the ultimate analysis, only the jury can strip a man of his 

liberty or his life. In the language of Lord Coke, a juror must be as ‘indifferent as he stands unsworne.’ His verdict must 
be based upon the evidence developed at the trial.  This is true, regardless of the heinousness of the crime charged, the 
apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by 
Chief Justice Marshall. ‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’”) (internal 
citations omitted); Sheppard v. Maxwell, 384 U.S. 333 (1966) (holding that jurors’ exposure to inherently prejudicial 
publicity due to community news saturation rendered the trial fundamentally unfair); Morgan v. Illinois,  

504 U.S. 719 (1992) (emphasizing how central jury impartiality is in the context of capital trials). 
4 See Holt v. U.S., 218 U.S. 245 (1910) (finding a juror sufficiently neutral despite allegations that he had read 

about the case in the news). 
5 Irvin v. Dowd, 366 U.S. 717, 723 (1961). 



30 Color in the “Black Box” Vol. 5.1 

 

“violating even the minimal standards of due process.”6  Courts have suggested, however, a second—yet 
no less important—function of this requirement: the appearance of impartiality is needed to lend credibility 
to the entire enterprise of a jury trial.7  Incredible powers are trusted to juries composed of average men 
and women.  Decisions of life and death are often made by twelve randomly chosen members of a 
community.  For people to trust the system and continue to accept its validity, the jury’s decrees must be 
seen as Truth.8  Accordingly, the jury must be seen as something of a “black box,” a mysterious entity 
which produces a verdict from a set of facts through an unknown—and unknowable—deliberation process.  
The less the public knows about the decision-making process, the less able it is to criticize or question the 
resulting verdict.  In America, such efforts were codified in Rule 606 of the Federal Rules of Evidence, 
subsection (b)(1): 
 

During an inquiry into the validity of a verdict or indictment, a juror may 
not testify about any statement made or incident that occurred during the 
jury's deliberations; the effect of anything on that juror's or another juror's 
vote; or any juror's mental processes concerning the verdict or indictment. 
The court may not receive a juror's affidavit or evidence of a juror's 
statement on these matters.9 

 
In protecting the mystery of the deliberation process, the drafters of the Federal Rules of Evidence sought 
to preserve the legitimacy of the jury system by protecting it from undue public scrutiny; concerns of 

                                                        
6 Id. at 722. 
7 See, e.g., U.S. v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997) (“It is well understood, for example, that disclosure 

of the substance of jury deliberations may undermine public confidence in the jury system.”); U.S. v. Ebron, 683 F.3d 
105, 125 (5th Cir. 2012) (“[I]t is recognized that the secrecy of deliberations is essential to the success of the jury 
system.”). 

8 I use a capital “T” in describing this concept to distinguish between “truth” (what actually happened in a 
given transaction) and “Truth” (what is pronounced to have occurred by the jury). 

9 Fed. R. Evid. 606(b)(1).  This Note focuses exclusively on the Federal Rules of Evidence, rather than 
addressing the various state rules that exist.  Aside from workability concerns and the fear of making this Note overly 
lengthy, the federal focus makes sense because many state rules either parallel Rule 606(b) or impose stricter burdens.  
See, e.g., Il. R. Evid. Rule 606 (2010) (employing the same language as the federal rule); Ala. R. Evid. 606 (1996) 
(mirroring the federal statute but leaving out the third exception); Wy. R. Evid. 606 (1977) (employing only the first two 
exceptions found in the federal rule); Pa. R. Evid. 606 (employing only the first two exceptions of the federal rule); Oh. 
R. Evid. 606 (1980) (allowing jurors to testify as to external influences only after “outside evidence” was introduced).  
Some states offer comparatively more protections in their statutes, see, e.g., In. R. Evid. 606 (containing all three 
exceptions found in the federal rule and an additional exception for “any juror’s drug or alcohol use”); N.D. R. Evid. 606 
(containing the three federal exceptions and an exception for testimony about “whether . . . the verdict was arrived at by 
chance”); Mont. R. Evid. 606 (allowing jurors to testify as to “whether any juror has been induced to assent to any 
general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of 
chance”), but do not do so in a way that would allow testimony about racial bias.  Only a few states seem to leave open 
the option of this kind of testimony.  Rule 5-606 of the Maryland Code seems to start from a general presumption that 
jurors should be allowed to testify, only disallowing juror testimony as to “(A) any matter or statement occurring during 
the course of the jury's deliberations, (B) the effect of anything upon that or any other sworn juror's mind or emotions as 
influencing the sworn juror to assent or dissent from the verdict, or (C) the sworn juror's mental processes in connection 
with the verdict.”  Md. Rule 5-606 (1993).  California, on the other hand, has expressly allowed such testimony as a 
matter of state law.  The California Supreme Court has interpreted Section 1150 of the California Evidence Code to 
allow juror testimony about statements made in the deliberative process.  People v. Steele, 47 P.3d 225 (Cal. 2002).  
Importantly, juror testimony is still limited to only the actual statements made; jurors may not testify as to the likely 
effects of the statements.  Id. at 248.  Connecticut and Hawaii also seem to take this approach.  For a comparison of 
these three states’ rules with the federal rules and a discussion of the benefits and disadvantages of each, see Nicholas 
Bauman, “Extraneous Prejudicial Information”: Remedying Prejudicial Juror Statements Made During Deliberations, 55 ARIZ. L. REV. 
775 (2013). 



2014 COLUMBIA JOURNAL OF RACE AND LAW 31 

 

finality and secrecy outweighed the potential value of more accurate verdicts.10  This Note accepts as a 
valid and, indeed, valuable, premise the legitimizing role of “black box” deliberation; important 
considerations of the judiciary’s image generally favor this sort of approach to adjudication.11  However, 
this Note posits that in the context of racial politics, the justice system’s refusal to acknowledge the well-
documented impacts of explicit and implicit racial bias on jury deliberations has had the opposite effect, 
undermining its legitimacy in the eyes of communities of color.  Part II explores the rationale for treating 
the jury as a black box, tracing the concept to its origins at common law to explain how the idea became 
so central to our judiciary.  Part III examines the American approach to this principle, looking at its 
codification in Rule 606(b) of the Federal Rules of Evidence and its treatment in subsequent Supreme 
Court jurisprudence.  Part IV shifts focus and looks at the ways in which the law currently allows 
defendants to address issues of racism in the jury pool.  It then traces a current circuit split over the 
question of whether Rule 606(b) conflicts with the Fourteenth Amendment's guarantee of racial equality.  
Finally, Part V introduces social science research showing the effects of implicit racial bias on juries’ 
decision-making processes and explores the impacts of racially disparate treatment on the legitimacy of 
the system as a whole to suggest that, as a prudential matter, 606(b)(1) should not bar defendants from 
alleging racial bias in the jury in post-conviction motions for new trials.12 
 
II. A RATIONAL BLIND FAITH: THE HISTORICAL ORIGINS OF THE JURY AS A BLACK BOX 
 
 In order to understand the contemporary legal landscape surrounding Rule 606(b) and the 
importance of jury secrecy to the American system, it is important to trace their historical origins.  Though 
considered one of the bedrocks of contemporary criminal procedure, the secrecy of jury deliberations may 
have arisen as a historical accident.  The concept originated in medieval England.  Before the adoption of 
the jury system as we know it today, courts settled disputes by subjecting parties to a trial by ordeal.13  
Under this system, a trial would begin upon accusation by a presentment jury.14  This jury, however, served 
no adjudicative purpose; their duty was merely to “report every crime and every suspect.”15  Once so 
accused, a defendant would swear an oath of innocence before a priest or clergyman.16  The clergyman 
overseeing the ordeal would then subject the accused to some sort of extreme physical test or punishment 
to allow a divine determination of his guilt or innocence.17  The nature of the punishment varied; so long 
as the burden served as a “test of deed or word, fraught with moral danger that yielded the Deity's judgment 
mediated through man's practical wisdom,”18 any sort of punishment would do.  Most common was the 

                                                        
10 S. Rep. No. 93-1277, at 13-14 (1974). 
11 For a discussion of the arguments on the other side, see Andrew J. Hull, Unearthing Mansfield’s Rule: Analyzing 

the Appropriateness of Federal Rule of Evidence 606(b) in Light of Common Law Tradition, 38 S. ILL. U. L.J. 403 (2014) (arguing 
that Rule 606(b) represents a break from older common law tradition and hampers important policy ends). 

12 Of course, many different forms of bias play out in the criminal justice system.  For an in-depth treatment of 
other types of bias that affect criminal defendants in the trial process, see generally Joey L. Mogul, The Dykier, The Butcher, 
The Better: The State’s Use of Homophobia and Sexism to Execute Women in the United States, 8 N.Y. CITY L. REV. 473 (2005) 
(describing sexism and homophobia through the trial process); Kimberly A. Moore, Xenophobia in American Courts, 97 
NW. U. L. REV. 1497 (2003) (describing xenophobia and anti-immigrant bias); Ann Cammett, Shadow Citizens: Felony 
Disenfranchisement and the Criminalization of Debt, 117 PENN ST. L. REV. 349 (2012) (describing bias against poor ex-felons 
in requirements for regaining voting privileges). This Note, however, focuses only on the question of racial bias. 

13 George Fisher, The Jury’s Rise as Lie Detector, 107 YALE L.J. 575 (1997). 
14 Roger Groot, The Jury of Presentment Before 1215, 26 AM. J. LEGAL HIST. 1 (1982).  The idea of a “jury” was 

probably first seen in 1166.  Id. at 3. 
15 Id. at 5. 
16 CARL STEPHENSON & FREDERICK GEORGE MARCHAM, SOURCES OF ENGLISH CONSTITUTIONAL HIStory 

77-78 (1972). 
17 Trisha Olson, Of Enchantment: The Passing of Ordeals and the Rise of Jury Trials, 50 SYRACUSE L. REV. 109, 118 

(2000). 
18 Id. 



32 Color in the “Black Box” Vol. 5.1 

 

ordeal of the iron, in which the accused would be required to carry a red-hot iron a distance of 
approximately three meters.19   The accused was found to be innocent if the resulting burns healed 
completely within three days.  Other examples of ordeals included the ordeal of the cauldron (in which the 
accused could prove innocence by seizing a small object from the bottom of a cauldron filled with boiling 
water without sustaining burns),20 the ordeal of cold water (in which the accused proved innocent if, after 
being submerged into a pool of blessed water, she sank),21 the ordeal of hot ploughshares (in which the 
accused would prove innocence by walking unharmed over a bed of hot coals),22 and the ordeal of the 
cursed morsel (in which the accused would prove innocence by swallowing roughly one ounce of cheese).23  
The trial by ordeal was, at its core, premised on the belief that a divine power would intervene to protect 
those who were truly innocent.24  Medieval rulers acknowledged the link between ordeals and divine 
protection and, indeed, valued it; one of the earliest Carolingian capitularies proclaimed: “[l]et doubtful 
cases be determined by the judgment of God.”25  When the accused passed these tests, therefore, he 
showed divine favor; God, after all, could never make a mistake about a person’s guilt. 
 
 This element of divinity that underpinned the trial by ordeal also served to cement people’s faith 
in the verdict of a case.  The ordeal was “enforced in an exercise of power, yet [it] represented submission 
to that power as submission to the deity.”26  Submitting to the trial process was thus explicitly considered 
a submission to God.  By presenting the adjudicative process as something beyond the control of man, 
beyond his prejudice and bias, the ordeal brought the divine into the trial and rendered the verdict itself 
unassailable.  Thus, trial by ordeal established an early emphasis on the finality of a verdict.  In this system, 
to question the verdict would be to question God itself.  Such doubt was unheard of in the deeply religious 
world of early medieval England. 
 
 The trial by ordeal met its end in 1215, when the Fourth Lateran Council forbade members of the 
cloth from presiding over such ordeals.27  Without a priest to ensure God's presence in the ritual, the trial 
was fundamentally disrupted.  The presence of the priest at the ordeal had affirmed the divine aspects of 
the trial, thus stripping the ordeal of its divine imprimatur deprived the ritual of authority, and the ordeals 
quickly became meaningless.28  Neither the Council nor the Crown, however, seems to have posited a 
substitute; scholars suggest that the English criminal courts began using the presentment jury to determine 
questions of fact and deliver final verdicts, simply “substitut[ing] one ordeal for another.”29  Though this 
use of the jury was initially rejected,30 by 1229, the practice seems to have become commonplace.31 
 

                                                        
19 Id. at 117. 
20 Id. 
21 Id. 
22 Id. 
23 Id. 
24 Fisher, supra note 13, at 585-587. 
25 Olson, supra note 17, at 122. 
26 ROBERT BARTLETT, TRIAL BY FIRE AND WATER 100 (1986). 
27 Fisher, supra note 13, at 586. 
28 James Fitzjames Stephen noted that the author of the Mirror complained during the reign of Edward I 

(1272-1307), “It is an abuse that proofs and purgations be not by the miracle of God where other proof faileth.”  JAMES 

FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 253 (1883) (quoting article 127 of the Mirror). 
29 Fisher, supra note 13, at 586. 
30 See JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 44 (1950) (“Leave to the 

inadequate judgments of mere human judges the testing of the truth-telling of witnesses, when life or property are at 
stake? By no means.”).  Indeed, in the early years of the jury trial as we know it today, people were so reluctant to 
consent to a trial by jury that English courts began threatening defendants to get them to do so.  Fisher, supra note 13, at 
588-89. 

31 Olson, supra note 17, at 172. 



2014 COLUMBIA JOURNAL OF RACE AND LAW 33 

 

 The shift from a divine arbiter to a human one brought with it important considerations of 
institutional legitimacy and finality of judgments.  The trial by ordeal was believed precisely because it was 
divine.  Guilt or innocence was pronounced through the infallible judgment of God.32  What could make 
a verdict rendered by mere men, as opposed to such a divine being, final and legitimate?  And if the verdicts 
themselves were illegitimate, how could the system be trusted?  As a note in the Harvard Law Review 
suggests, the Crown responded by creating a highly formalized body of rules that enshrouded the entire 
process of jury deliberation in secrecy to maintain the sense of mystery and wonder that had accompanied 
the ordeal and rendered verdicts final.33  Procedural legitimacy became of paramount importance in filling 
the void: 
 

“If the public is to be persuaded to entrust controversies to the judicial 
system, what is crucial, even more than that the ‘truth’ be found, is that it 
appear to be found through a legitimate, reliable process; as long as the 
ultimate determination of closely contested issues continues to depend on 
jury verdicts, the law has an obligation to maintain general respect for 
those verdicts, to avoid exposing them ‘to easy and obvious criticism.’”34 

 
Rules of procedure that removed the deliberative process further and further from public imagination 
served this legitimizing role.35  By the mid-1300s, juries in England seem to have begun deliberating in a 
physically distinct space: the juror room.36  No one was allowed access to the jury room until the verdict 
was delivered.37  Conversely, no juror was allowed to leave the jury room until a verdict had been reached.38  
This secrecy led to an important consequence: erdicts could not be impeached by questioning the validity 
of the jurors' deliberations.39  By shrouding the jury and the deliberation process to the greatest extent 
possible, these procedural rules obscured the fact that the decision was made by fallible humans.  Just as 
the divine verdict of the ordeal was seen as superhuman, immune to individual prejudices, the jury verdict 
was presented as the result of an inexplicable and unassailable process.  Once the process was mystified, it 
became impossible to critique.  The rules allowed the community to suspend its disbelief, maintaining a 
blind faith that the process was working justice. 
 
III. TRUST IN THE SYSTEM: THE DEVELOPMENT OF THE JURY “BLACK BOX” IN AMERICAN 

JURISPRUDENCE 

 American courts generally accepted the British tradition of secrecy surrounding jury deliberations.  
Early courts in colonial Virginia required jury deliberations to be conducted in complete isolation. Like 
their British counterparts, Virginia juries were unable to interact with the outside world in any way before 
rendering a verdict.40  By the early 20th Ccentury, therefore, evidence scholars noted that the firmly 

                                                        
32 Id. at 120. 
33 Note, Public Disclosures of Jury Deliberations, 96 HARV. L. REV. 886, 891 (Feb. 1983). 
34 Id. 
35 See generally WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 298-350 (6th ed. 1938) (describing the 

origin and development of juries in England). 
36 Id. at 318. 
37 WILLIAM FORSYTH, HISTORY OF TRIAL BY JURY 114 (James Appleton Morgan ed., 1857) (1853). 
38 Diane E. Courselle, Struggling With Deliberative Secrecy, Jury Independence, and Jury Reform, 57 S.C. L. REV. 203, 215 

(Autumn 2005). 
39 PATRICK DEVLIN, TRIAL BY JURY 48 (1966) (“The court will not listen to any juryman who has second 

thoughts or allow any of them to assert thereafter that he was not a consenting party to the verdict.”). 
40 Courselle, supra note 38, at 217; see also Nancy J. King, The Origins of Felony Jury Sentencing in the United States, 78 

CHI.-KENT L. REV. 937, 946-47 (2003) (noting an early Virginia opinion that permitted a convicted defendant to go free 
because the court allowed a juror to visit his family for five minutes during deliberations). 



34 Color in the “Black Box” Vol. 5.1 

 

established common law rule in the United States flatly prohibited the admission of juror testimony to 
impeach a jury verdict.41   Courts thus accepted the underlying philosophy that the finality interests 
protected by deliberative secrecy outweighed the risk of some juror misconduct during deliberations.42  As 
jury verdicts became increasingly difficult to question, mistakes became harder to find.  In Hyde v. U.S.,43 
petitioners convicted of conspiracy to defraud the United States sought to vacate their convictions by 
alleging juror misconduct and bargaining in the deliberative process.  After the jury twice failed to reach a 
verdict, the presiding judge told the jurors that they had to come to a unanimous verdict, and sent them 
back for further deliberation.  One juror alleged that certain members of the jury, fearing that the judge 
would make all stay until a verdict was reached, had simply bargained away their votes.  The petitioner 
claimed that this agreement amounted to undue coercion by the judge's orders.  The Supreme Court 
rejected petitioner's claim, however, declaring that “the testimony of jurors should not be received to show 
matters which essentially inhere in the verdict itself and necessarily depend upon the testimony of the 
jurors, and can receive no corroboration.”44 
 

American courts did recognize, however, that concerns of fairness outweighed finality at a certain 
point.  As early as 1907, the Supreme Court recognized that defendants had a right to a jury free from 
outside influences.45  In the 1950’s, the Supreme Court emphasized this freedom from external influences 
in Remmer v. U.S., holding that certain errors were too egregious to overlook in the name of finality.46  
There, the Court was forced to address the issue of whether or not allegations of bias in the jury (based 
on one juror's potential pecuniary gain from returning a guilty verdict) required that petitioner be granted 
a new hearing.47  Justice Minton, in a unanimous opinion, was careful to point out the secrecy concerns at 
stake.  Allowing post-conviction inquiry into the validity of the deliberation would open a veritable 
Pandora's Box, for “a juror must feel free to exercise his functions without the F.B.I. or anyone else looking 
over his shoulder.  The integrity of jury proceedings must not be jeopardized by unauthorized invasions.”48  
On the other hand, the Court noted the axiom that “any private communication, contact, or tampering 
directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious 
reasons, deemed presumptively prejudicial . . . .”49  These two principles were in conflict in Remmer: 
allowing the petitioner to successfully challenge the verdict would destabilize the jury system, but rejecting 
the petition would effectively condone bribery in the justice system.  Ultimately, the Court found that the 
bribery made the risk of prejudice too high, granting petitioner's motion for rehearing, but provided no 
reason for the balancing. 
 
 Such was the state of deliberative secrecy at common law in the United States.  Congress, in 
adopting the Federal Rules of Evidence, believed that it was merely codifying the state of these common 
law principles about deliberative secrecy in Rule 606 of the Federal Rules of Evidence (hereafter, the 
“Rule”), which speaks generally to circumstances in which members of a juror may testify as a witness.50  
The Rule specifically states that: 
 

                                                        
41 See 8 J. Wigmore, Evidence § 2352, pp. 696-697 (J. McNaughton rev. ed. 1961) (noting that the common law 

rule, originating from a 1785 opinion of Lord Mansfield, “came to receive in the United States an adherence almost 
unquestioned.”).  

42 Courselle, supra note 38, at 219. 
43 225 U.S. 347 (1912) 
44 Id. at 384 
45 Patterson v. Colorado, 205 U.S. 454, 462 (1907). 
46 347 U.S. 227 (1954). 
47 Id. 
48 Id. 
49 Id. at 229 
50 S. Rep. No. 93-1277, at 13-14 (1974); Fed. R. Evid. 606. 



2014 COLUMBIA JOURNAL OF RACE AND LAW 35 

 

During an inquiry into the validity of a verdict or indictment, a juror may 
not testify about any statement made or incident that occurred during the 
jury’s deliberations; the effect of anything on that juror’s or another juror’s 
vote; or any juror’s mental processes concerning the verdict or indictment. 
The court may not receive a juror’s affidavit or evidence of a juror’s 
statement on these matters.51 

 
Thus, by its plain terms, the Rule generally bars jurors from testifying as to any issues affecting the 
deliberative process.  In its notes about the Rule, the Advisory Committee explained: “The mental 
operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of 
inquiry, place every verdict at the mercy of jurors and invite tampering and harassment.”52  Allowing judges 
to conduct an ex post facto review of jury deliberations would open every verdict to questioning.  The 
stability of the entire system would be undermined, and the legitimacy of the jury trial would be 
compromised. 
 
 This protection is not without exceptions, however.  The Rule itself acknowledge three specific 
exceptions to the general principle of the jury “black box.”  Jurors may be forced to discuss their 
deliberative process when: “(A) extraneous prejudicial information was improperly brought to the jury’s 
attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made 
in entering the verdict on the verdict form.”53  The first two exceptions seemed to codify the earlier 
common law tradition, under which judges handled such challenges by drawing a distinction between 
external and internal influences on a jury: influences from someone who was not physically in the jury 
room were “external,” while anything about the jurors themselves was “internal.”54  Under this analysis, 
petitioners could only challenge their sentences and force jurors to testify when the jury had improper 
interactions with the outside world.  For example, the Supreme Court found that a jury's improper 
conversations with the bailiff,55 a juror's pending application with the District Attorney's office,56 and a 
purported bribe offered to a juror57 were all impermissible “external” influences that empowered the court 
to explore what, if any, prejudice resulted to the defendants.  On the other hand, internal matters such as 
the conduct and disagreements of the jurors58 or the bargaining process that took place in deliberations59 
were inappropriate considerations for review. 
 
 Years later, the Supreme Court clarified this standard in the case of Tanner v. U.S.,60 reaffirming its 
commitment to a jury “black box” in interpreting Rule 606(b).  Petitioner Tanner was charged with and 
convicted of conspiring to defraud the United States and committing mail fraud by an allegedly intoxicated 
jury.  After a juror revealed this information to Tanner's attorney in an unsolicited phone call, Tanner 
appealed, alleging that intoxication was an impermissible external influence that warranted a new trial.  
According to the juror who came forward, the behavior was extreme: throughout the trial, several jurors 
had consumed significant quantities of alcohol, which caused them to fall asleep in the middle of trial.  

                                                        
51 Fed. R. Evid. 606(b)(1). 
52 Fed. R. Evid. 606(b), notes of Advisory Committee. 
53 Fed. R. Evid. 606(b)(2). 
54 Tanner v. United States, 483 U.S. 107, 117-18 (1987). 
55 Parker v. Gladden, 385 U.S. 363 (1966). 
56 Smith v. Phillips, 455 U.S. 209 (1982). 
57 Remmer, supra note 46. 
58 McDonald v. Press, 238 U.S. 264 (1915). 
59 Hyde v. U.S., 225 U.S. 347 (1912) (denying a motion for a new trial based on allegations that jurors bargained 

away their votes in order to end the deliberations sooner). 
60 483 U.S. 107. 



36 Color in the “Black Box” Vol. 5.1 

 

Prosecutors, defense counsel, and even the judge noticed this pattern, but simply thought nothing of it.61  
In rejecting a petitioner’s challenge of potential bias in the jury, the Court wrote: 
 

There is little doubt that postverdict investigation into juror misconduct 
would in some instances lead to the invalidation of verdicts reached after 
irresponsible or improper juror behavior.  It is not at all clear, however, 
that the jury system could survive such efforts to perfect it.  Allegations 
of juror misconduct, incompetency, or inattentiveness, raised for the first 
time days, weeks, or months after the verdict, seriously disrupt the finality 
of the process. . . .  Moreover, full and frank discussion in the jury room, 
jurors’ willingness to return an unpopular verdict, and the community’s 
trust in a system that relies on the decisions of laypeople would all be 
undermined by a barrage of postverdict scrutiny of juror conduct.62 

 
In this candid recognition of the system’s imperfections, the Court acknowledged that the hardline rule of 
jury secrecy could potentially lead to injustice in certain cases.  Juror bias would be allowed to play out 
behind closed doors, effectively immune to challenges by convicted defendants.  Gross misbehavior in the 
courthouse—the supposed bastion of justice—would simply be forgiven.  Yet the Court feared the 
catastrophic effects of juror questioning would be even more harmful to society.63  The injustice caused 
by unfair verdicts, in its view, was far less than the legitimacy that would be lost if the curtain were raised 
and jury determinations were subject to a sort of appellate review.  In explaining the exceptions put forth 
in Rule 606(b)(1)(A) and (B), the Court emphasized that the external/internal distinction was not a spatial 
one.  The fact that the jurors had obtained the alcohol and become intoxicated outside of the jury room 
was thus not relevant to the 606(b) question.  Rather, the Court held, the distinction focused on the nature 
of the interference itself.64  An interference that was entirely internal—such as conflicts between jurors or 
an individual juror's bias or prejudice—was not reviewable after a verdict was rendered.  Internal biases 
and interferences could not easily be avoided or excised from the process; so long as human juries are to 
be used, individual bias will enter into the deliberative process.  Allowing such challenges of the internal 
deliberation process, therefore, would be to allow challenges to the validity of the entire system.  External 
interferences, on the other hand, did not present the same legitimacy concerns.  In fact, the Court reasoned, 
reviewing a juror's interactions with the outside world enhanced the legitimacy of the jury trial by ensuring 
that only the jurors at the trial (and nobody else who had improper contact with them) would return the 
verdict.65  Juror conduct during the trial and deliberations was not sufficiently external to be properly 
challenged in a post-conviction motion.  Regardless of the efficacy of this distinction or its wisdom as a 
matter of policy,66 one thing is clear from the Court's discussion: by the time of Tanner, it was accepted 
that the core purpose of Rule 606(b) was to preserve the legitimacy of the jury process. 

                                                        
61 Id. at 114–15 
62 Id. at 120–21. 
63 Id. at 121. 
64 Id. at 117–18 (“The distinction was not based on whether the juror was literally inside or outside the jury 

room when the alleged irregularity took place; rather, the distinction was based on the nature of the allegation.  Clearly a 
rigid distinction based only on whether the event took place inside or outside the jury room would have been quite 
unhelpful.”). 

65 Id. at 120 (“The Court’s holdings requiring an evidentiary hearing where extrinsic influence or relationships 
have tainted the deliberations do not detract from, but rather harmonize with, the weighty government interest in 
insulating the jury's deliberative process.”). 

66 Perhaps part of the justification for this rule can be found in the asymmetry of appellate remedies.  This 
asymmetry results from the general principle that while defendants may appeal convictions, the government may never 
appeal an acquittal.  See Kepner v. United States, 195 U.S. 100, 133 (1904) (holding that the government may not appeal 
an acquittal).  One could argue that, given this powerful remedy available only to defendants, judgments of conviction 



2014 COLUMBIA JOURNAL OF RACE AND LAW 37 

 

 
IV. SHADES OF GREY: RACIAL BIAS IN CRIMINAL PROCEEDINGS 
 
 Racial disparities exist at all levels of the criminal justice system. 67   The courtroom is no 
exception. 68   Defendants of color—generally litigating their cases in front of white judges and 
predominantly white juries—have long raised challenges to their trials and convictions by alleging racial 
bias in the judicial process itself.69  Racism in the jury can be challenged in two main ways: the voir dire 
process, which allows a defendant to question jurors before the trial begins for the purposes of striking 
certain members of the pool, or a 606(b) exception, which allows a defendant to solicit juror testimony 
after a verdict has been returned for the purpose of seeking a new trial. 

 
Over the 20th Century, the Supreme Court's attitude towards voir dire has changed significantly: 

while at first the Court seemed to allow broad inquiry into racial bias in the jury pool, the limits it has 
recently placed on voir dire rights have rendered the process relatively weaker, unable to root out deep-
seated racism in juries.  As 606(b) is a newer rule, there is less case law on the subject.  However, the 
current circuit split on the Rule may give the Court an opportunity to limit post-conviction challenges in 
the same way.  Given this potential parallel, both processes are addressed in turn. 

 
A. Voir Dire 

  
One way defendants may seek to examine potential racism in jurors through the voir dire process, 

by which defendants are given the opportunity to question prospective jurors before the trial begins.  
During voir dire, defendants are allowed to ask direct questions to jurors “in relation to their ability to 
decide a particular case.”70  This right is not absolute, however.71  Recognizing the potential for excessively 
long or irrelevant voir dire, many courts have imposed additional limits on proper voir dire questioning.  
Some courts, for example, limit the types of questions that may be asked during voir dire to only those 

                                                        
should be protected from complete scrutiny.  However, as this Note focuses only on comparing the experiences of 
defendants of color raising post-conviction challenges to white defendants raising similar challenges, these broader issues 
are less relevant.  As the rest of this Note will show, defendants of color face the unique challenge of racism in 
deliberations; thus, while it accepts the general bar on postconviction juror testimony, this Note still argues for a limited 
exception to place defendants of color and white defendants on a more even playing field. 

67 See generally Justin Murray, Reimagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for 
Prosecutors, 49 AM. CRIM. L. REV. 1541 (2012) (describing ways in which racial disparities are maintained through 
prosecutors’ discretionary decisions before and after trial and the external influence of institutional policies and culture). 

68 See Peggy C. Davis, Law as Microaggression, 98 YALE L.J. 1559 (1989) (describing the various ways in which 
Black communities experience courtrooms and jury trials). 

69 See, e.g., Ellis v. Harrison, 2010 WL 3385206 (C.D. Cal. July 20, 2010) (alleging biased counsel); Mason v. 
Mitchell, 320 F.3d 604 (6th Cir. 2003) (alleging a biased jury); Love v. State, 543 N.W.2d. 621 (Iowa Ct. App. 1995) 
(pointing to jury orientation instruction drawing attention to Black defendant and White victim); Marshall v. State, 854 
So.2d 1235 (Fla. 2003) (alleging a biased jury); Smith v. Mitchell, 348 F.3d 177 (6th Cir. 2003) (alleging bias in charge and 
prosecution of capital offenses and discrimination in selection of jury); State v. Kinder, 942 S.W.2d 313 (Mo. 1996) (en 
banc) (alleging biased judge and disqualification of juror potentially favorable to Black defendant); Villafuerte v. Stewart, 
142 F.3d 1124 (9th Cir. 1998) (alleging biased judge). 

70 Barbara Allen Babcock, Voir Dire: Preserving “Its Wonderful Power”, 27 STAN. L. REV. 545, 545 (1975). 
71 Indeed, the Supreme Court has never held voir dire as constitutionally required, though several states have 

suggested as much.  See, e.g., State v. Sanko, 658 S.E.2d 94, 96 (S.C. 2008) (“A capital defendant’s right to voir dire, while 
grounded in statutory law, is also rooted in the Due Process Clause of the Fourteenth Amendment of the United States 
Constitution.”), cert. denied 555 U.S. 875 (2008); State v. Ball, 824 So. 2d 1089, 1110 (La. 2002) (holding as a matter of 
state constitutional law that “[a]s a general matter, an accused in a criminal case is constitutionally entitled to a full and 
complete voir dire examination.”). 



38 Color in the “Black Box” Vol. 5.1 

 

which are “directly relevant” to the trial.72  Importantly, the determination of “direct relevance” is left to 
the discretion of the court, and a trial judge’s refusal to allow even proper lines of questioning is often 
found to be errorless on appeal.73   
 
 In the later Nineteenth and early Twentieth Centuries, as litigants of color first began entering the 
system in larger numbers, courts faced a new question: was voir dire about jurors' potential racial biases 
an acceptable or reasonable ground of questioning?  The Supreme Court first addressed this question in 
the case of Aldridge v. U.S., where a Black defendant charged with and convicted of first degree murder of 
a white man challenged his trial judge's refusal to question the jury about racial bias.74  The defendant’s 
counsel noted that “at the last trial of this case” at least one juror, a white woman, mentioned that “the 
fact that the defendant was [Black] and the deceased a white man perhaps somewhat influenced her.”75  
The Court, in an 8-1 opinion, held that the trial judge's refusal was erroneous, reasoning that the risk of 
prejudice in such an instance was simply too high.76  The Court rejected the argument that the juror could 
simply put aside her racist beliefs in reaching a verdict, particularly where the juror had made a statement 
that overtly showed bias.77  Notably, the Court based its decision, in part, on the fact that refusing to 
acknowledge racial bias in the jury system would surely bring the system into disrepute.78  Thus legitimacy 
was still at the forefront of the Court's mind, even when addressing questions of racism.  Nearly four 
decades later, the Court revisited the issue and affirmed its stance in Ham v. South Carolina, this time 
grounding its decision in the Fourteenth Amendment's Due Process Clause.79  Noting that “a principal 
purpose of the adoption of the Fourteenth Amendment was to prohibit the States from invidiously 
discriminating on the basis of race.”80 Justice Rehnquist—in a part of the opinion without dissent—held 
that the trial judge had a constitutional duty to ask about racial bias in voir dire when such questions were 
proposed by the defendant even without the overt evidence of racial bias that was present in Aldridge.81  
 

                                                        
72 See, e.g., People v. Semone, 35 P.2d 379, 383 (Cal. Ct. App. 1934) (limiting “examination of jurors within 

reasonable bounds so as to expedite trial.”); People v. Crowe, 8 Cal. 3d 815, 818-19 (Cal. 1973) (holding that it is 
appropriate under statute for judge to limit questions posed to potential jurors to those “within the scope of reasonable 
examination.”).  For a more thorough discussion of the various limits courts may impose and the broad latitude they are 
given in doing so, see generally R. Brent Cooper & Diana L. Faust, Procedural and Judicial Limitations on Voir Dire—
Constitutional Implications and Preservation of Error in Civil Cases, 40 ST. MARY’S L.J. 751 (2009). 

73 Babcock, supra note 70, at 546. 
74 283 U.S. 308 (1931). 
75 Id. at 310. 
76 Id. at 314-15. 
77 See id. at 314 (“if any one of them [the jurors] was shown to entertain a prejudice which would preclude his 

rendering a fair verdict, a gross injustice would be perpetrated in allowing him to sit. . . . we do not think that it can be 
said that the possibility of such prejudice is so remote as to justify the risk in forbidding the inquiry.”). 

78 Id. at 314-15 (“The argument is advanced on behalf of the government that it would be detrimental to the 
administration of the law in the courts of the United States to allow questions to jurors as to racial or religious 
prejudices. We think that it would be far more injurious to permit it to be thought that persons entertaining a 
disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification 
were barred. No surer way could be devised to bring the processes of justice into disrepute.”). 

79 409 U.S 524 (1973).  Petitioner, a Black, bearded civil rights advocate who had lived the majority of his life in 
South Carolina, was on trial for marijuana possession.  In voir dire, the petitioner sought to have the jury questioned 
about potential biases against (1) Black people, (2) bearded people, and (3) drug use.  The trial judge declined to inquire 
about any of the subjects, instead asking only generally about bias and prejudice.  Id. at 526. 

80 Id. at 526-7. 
81 See id. at 525 (noting only that defendant was a civil rights advocate who lived in the South, and presenting no 

additional evidence of any particular juror's bias). 



2014 COLUMBIA JOURNAL OF RACE AND LAW 39 

 

 Ham's seemingly broad holding—namely, that a defendant always has a right to question 
prospective jurors about racial bias—was narrowed just three years later, in Ristaino v. Ross.82  Writing for 
the majority, Justice Powell emphasized that Ham did not create an unqualified and generally applicable 
right to examine a jury's racial bias.  Determining bias, Justice Powell wrote, was “particularly in the 
province of the trial judge.”83  He distinguished Ham by discussing the particular factual circumstances 
that made an inquiry into racial bias necessary in that case: since the defendant was a civil rights advocate, 
Justice Powell determined, “[r]acial issues . . . were inextricably bound up with the conduct of the trial.”84  
The petitioner in Ristaino, on the other hand, only contended that racial bias was possible because of the 
interracial nature of his crime (he was Black, and the alleged victim was white).85  The Court refused to 
find that there was a significant likelihood of prejudice to a defendant based on nothing more than an 
interracial crime.86  Rather than articulate a clear test for determining when such questioning would be 
proper, the Court merely said courts must “[assess] whether under all of the circumstances presented there 
was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would 
not be as indifferent as they stand unsworne.”87 
 
 The uncertainty created by this ambiguous language led to a circuit split over the question of when 
race-based voir dire was acceptable.  Thus, seven years later, the Court was forced to reconsider the issue 
and clarify its ruling in Ristaino in Rosales-Lopez v. U.S., in which a Mexican American sought to examine 
the jury's racial bias in his trial for his part in a plan to smuggle illegal immigrants across the border.88  At 
first glance, the Ristaino language would seem to allow such questioning; illegal immigration is viewed as a 
heavily racialized practice, the stereotypes of which disproportionately affect Latinos and, specifically, 
Mexicans.89  Thus it seems it would have been extremely prejudicial to have jurors associate the defendant 
with illegal immigration in the trial.  In a plurality opinion by Justice White, however, the Court rejected 
petitioner's argument.  Ristaino and Ham, according to Justice White and the plurality, only required a trial 
judge to allow race-based questioning where racial issues were “inextricably bound up with the conduct of 

                                                        
82 424 U.S. 589 (1976).  Respondent, a Black male, was tried for armed robbery, assault, and battery of a White 

security guard.  Before the start of voir dire, respondent’s counsel asked to have the jury questioned about racial 
prejudices.  The following exchange occurred: 

“THE COURT: . . . I thought from something Mr. Donnelly (counsel for a codefendant) said, he 
might have wanted on the record something which was peculiar to this case, or peculiar to the circumstances 
which we are operating under here which perhaps he didn't want to say in open court. 
“Is there anything peculiar about it, Mr. Donnelly? 
“MR. DONNELLY: No, just the fact that the victim is white, and the defendants are black. 

“THE COURT: This, unfortunately, is a problem with us, and all we can hope and pray for is that the 
jurors and all of them take their oaths seriously and understand the spirit of their oath and understand the spirit 
of what the Court says to them this Judge anyway and I am sure all Judges of this Court would take the time to 
impress upon them before, during, and after the trial, and before their verdict, that their oath means just what it 
says, that they are to decide the case on the evidence, with no extraneous considerations. 

“I believe that that is the best that can be done with respect to the problems which as I said, I regard 
as extremely important . . . .” 
Id. at 591. 
83 Id. at 595 (citing Rideau v. Louisiana, 373 U.S. 723, 733 (1963)).   
84 Id. at 597. 
85 Id. at 591 (noting that defense counsel, when asked for reasons why he wished to question jurors about racial 

bias, replied: “just the fact that the victim is white, and the defendants are black.”). 
86 Id. at 597-98. 
87 Id. at 596 (internal quotations and citations omitted). 
88 451 U.S. 182 (1981). 
89 See generally Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United States v. 

Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 GEO. L.J. 1005 (2010) (noting 
how racialized stereotypes about illegal immigration have become increasingly prevalent in the wake of Brignoni-Prince and 
the acceptance of “Mexican appearance” as a relevant factor in making an immigration stop). 



40 Color in the “Black Box” Vol. 5.1 

 

the trial.”90  This link required “more substantial indications of the likelihood of racial or ethnic prejudice 
affecting the jurors in a particular case. . . .”91  Importantly, Rosales-Lopez altered the presumption in such 
cases; whereas Aldridge and Ham presumed the validity of a defendant's proposed line of questioning, the 
Rosales-Lopez Court specifically stated that “[t]here is no constitutional presumption of juror bias for or 
against members of any particular racial or ethnic groups.”92  Where their decisions about voir dire 
questioning had previously been entitled to some deference, petitioners now bore the heavy burden of 
making a “substantial indication” that racial issues were “inextricably bound up” with the trial.  Importantly, 
however, the Court again emphasized that such rules were in place to preserve the legitimacy of the jury 
trial, echoing the Aldridge Court’s concerns.93  Thus, even while curtailing defendants’ rights to inquire 
about racism in voir dire, the Court reaffirmed that concerns of institutional legitimacy were central to 
questions of jury procedure and selection.  Curiously, however, the Rosales-Lopez Court went on to deny 
petitioner’s requests,94 without providing any further discussion about legitimacy of the jury trial. 
 

B. Rule 606(b) 
 
 Defendants may also challenge potential bias in the jury after their convictions by seeking 
permission to interview jurors after the verdict has been rendered.  Nearly all courts in the United States 
have some procedure by which an attorney may obtain permission from the court to take juror testimony 
pursuant to Rule 606(b).  As a gatekeeping matter, however, a defendant must show that her case falls into 
one of the three exceptions to the Rule.  The ability of a defendant to request such permission specifically 
for the purpose of uncovering racial bias, however, is hotly contested.  Textualists may argue that Rule 
606(b) specifically enumerates only three exceptions to the general bar on juror testimony: (1) extraneous 
prejudicial information improperly brought to the jury's attention, (2) outside influences improperly 
brought to bear on any juror, and (3) mistakes on the verdict form.95  The need to protect juries and jury 
verdicts, under this view, requires a narrow construction of any rule which interferes with the jury’s 
privacy.96  Opponents of this approach, on the other hand, argue that the guarantee of a fair trial afforded 
by the Sixth Amendment supersedes the text of the Federal Rules of Evidence, and thus jury racism is 
properly questioned to impeach a verdict.97  
 
 The Supreme Court has remained silent on this issue.  Tanner, discussed above, is the only Supreme 
Court case that interprets Rule 606(b) and its limitations of juror testimony.  The petitioner in Tanner 
sought to interview jurors after the entry of a verdict to determine whether or not one of the jurors had 
been intoxicated for one day of the trial.  In rejecting petitioner's argument, the Court noted that significant 
protections already existed to guarantee defendants a Sixth Amendment impartial jury.  Voir dire, 
observations of the jury by counsel and the court during trial, opportunities for jurors to report 
inappropriate juror behavior prior to rendering a verdict, and the admissibility of non-juror testimony as 
to wrongdoing all were sufficient procedural safeguards that adequately prevented juror bias from affecting 
the deliberation process.98 

                                                        
90 Rosales-Lopez, 452 U.S. at 189 (citing Ristaino, 424 U.S. at 597). 
91 Id. at 190. 
92 Id. 
93 Id. at 191 (citing Aldridge, 283 U.S. at 314-5). 
94 Id. at 193-4. 
95 Fed. R. Evid. 606(b)(2). 
96 See generally Scott Ritter, Beyond the Verdict: Why Courts Must Protect Jurors from the Public Before, During, and After 

High-Profile Cases, 89 IND. L.J. 911 (Spring 2014). 
97 See Amanda R. Wolin, What Happens in the Jury Room Stays in the Jury Room . . . But Should It?: A Conflict Between 

the Sixth Amendment and Federal Rule of Evidence 606(b), 60 U.C.L.A. L. REV. 262 (October 2012). 
98 Tanner, 483 U.S. at 127.  Scholars, however, have subsequently addressed the shortcomings of these 

measures.  See, e.g., Leah S. P. Rabin, The Public Injury of an Imperfect Trial: Fulfilling the Promise of Tanner and the Sixth 



2014 COLUMBIA JOURNAL OF RACE AND LAW 41 

 

 
 In the wake of Tanner, however, the circuits have split over whether or not evidence of racial bias 
in the jury warrants granting a defendant's request to interview jurors and compel testimony.  The Tenth 
Circuit read Tanner to its logical end and adopted a textualist view of Rule 606(b) in U.S. v. Bennally.99  In 
Bennally, a Native American defendant convicted of assault with a dangerous weapon sought a new trial 
after one juror came forward with an allegation that racially charged statements had been made during 
deliberations.100  A second juror made statements to the defense investigator corroborating the first juror's 
charges, but refused to sign an affidavit to that effect.  Bennally moved to vacate the verdict pursuant to 
Rule 33 of the Federal Rules of Criminal Procedure.  Even though the trial court had allowed the defendant 
to ask about racial bias in voir dire, Bennally contended that the statements of the jurors clearly showed 
that they had lied.  The government, in opposition, argued that Rule 606(b) barred impeachment of the 
verdict based on the purely personal beliefs of jurors.  The district court held that racist beliefs constituted 
“extraneous prejudicial information” and were thus excepted from the bar on juror testimony. 
 
 On appeal, the Tenth Circuit reversed, finding the statutory terms unambiguous that any 
prejudicial information must be “extraneous,” or external to the juror, to be properly considered.  The 
court recognized that Bennally likely had been prejudiced by the jurors' racism, yet stressed the 
countervailing interest of the state in maintaining the jury “black box”:  
 

To treat the jury as a black box may seem to offend the search for perfect 
justice. The rule makes it difficult and in some cases impossible to ensure 
that jury verdicts are based on evidence and law rather than bias or caprice. 
But our legal system is grounded on the conviction, borne out by 
experience, that decisions by ordinary citizens are likely, over time and in 
the great majority of cases, to approximate justice more closely than more 
transparently law-bound decisions by professional jurists.101 

 
In so noting, the court reiterated the importance of jury mystery: “[i]f what went on in the jury room were 
judicially reviewable for reasonableness or fairness, trials would no longer truly be by jury, as the 
Constitution commands.”102  Allowing a court to intervene whenever a jury verdict was purported to be 
unfair or unreasonable, the court worried, would put the entire legitimacy of the jury system at stake.  
Nobody could rely on a jury verdict that could so easily be overturned.  The court, in denying Bennally's 
claim, saw itself as “preserv[ing] the community's trust in a system that relies on the decisions of laypeople 

                                                        
Amendment Through Post-Verdict Inquiry Into Truthfulness at Voir Dire, 14 U. PA. J. CONST. L. 537 (2011) (arguing that the 
jurors are likely to be unaware of or unwilling to admit racial biases during voir dire, and that racism in the 
deliberations—as opposed to during the trial itself—would be largely unobservable by non-jurors because of existing 
protections for deliberative secrecy). 

99 546 F.3d 1230 (10th Cir. 2008). 
100 Id. at 1231-32 (describing how the foreman told the jury that “[w]hen Indians get alcohol, they all get 

drunk,” and that “when they get drunk, they get violent.”  When a juror protested that not all Indians get drunk, the 
foreman responded “Yes, they do.”  Several other jurors nodded along, or indicated agreement with the statement.  In 
another instance, the juror overheard several other members of the jury agreeing that they needed to “send a message 
back to the reservation.”). 

101 Id. at 1233.  Interestingly, the court also noted: “We do not deny that the jurors’ alleged statements were 
entirely improper and inappropriate. The statements about Native Americans in particular were gross generalizations 
built upon prejudice and had no place in the jury room. Impropriety alone, however, does not make a statement 
extraneous.” 

102 Id.  



42 Color in the “Black Box” Vol. 5.1 

 

that would all be undermined by a barrage of postverdict scrutiny.”103  The Seventh Circuit has also 
adopted this approach for largely the same reasons.104 
 
 Not all circuits have adopted this approach, however.  In U.S. v. Villar, the First Circuit addressed 
the same question on a nearly identical fact pattern.105  Villar, a Hispanic man, was convicted of bank 
robbery by a jury.  Shortly after the jury handed down the verdict, one of the jurors emailed Villar’s counsel 
about racially charged statements made by another juror during deliberations.106  Upon Villar’s motion for 
a court inquiry into the verdict, the district court looked to the text of Rule 606(b) and found that the 
unambiguous text barred consideration of the juror’s email.  On appeal, the First Circuit agreed that the 
juror’s email could not be considered under Rule 606(b).  However, the court went on to reverse the lower 
court’s decision and remand for a new trial on Sixth and Fourteenth Amendment grounds.  Allegations of 
racial bias, according to the court, so severely compromised the jury’s impartiality that it independently 
violated the Sixth Amendment.107  Further, given the racial nature of the bias, the court found that such 
comments implicated the Fourteenth Amendment's Due Process clause.108  Under this framework, race is 
categorically different; the court expressed concern that the Tanner safeguards—voir dire, conduct in the 
courtroom, and juror reports before the handing down of a verdict—would do little to combat racism in 
the deliberation process: 
 

While individual pre-trial voir dire of the jurors can help to disclose 
prejudice, it has shortcomings because some jurors may be reluctant to 
admit racial bias. In addition, visual observations of the jury by counsel 
and the court during trial are unlikely to identify jurors harboring racial or 
ethnic bias. Likewise, non-jurors are more likely to report inappropriate 
conduct-such as alcohol or drug use-among jurors than racial statements 
uttered during deliberations to which they are not privy.  

 
Thus, the court found, no other procedural safeguards could weed out invidious racial bias from entering 
into the courtroom.  606(b) was declared unconstitutional insofar as it conflicted with the Sixth and 
Fourteenth Amendment rights of a defendant.109  

                                                        
103 Id. at 1234. 
104 See Shillcutt v. Gagnon, 827 F.2d 1155, 1158 (7th Cir. 1987).  Importantly, however, the court said in dicta 

that 606(b) “cannot be applied in such an unfair manner as to deny due process.” Id. at 1159. This suggests that, were a 
more severe case of racial bias in a jury to come up, the Seventh Circuit may adopt the reasoning of the First and Ninth 
Circuits. 

105 586 F.3d 76, 78 (1st Cir. 2009). 
106 Id.  Petitioner alleged, and indeed the state conceded, that a juror said “I guess we’re profiling but they cause 

all the trouble.”   
107 Id. at 86. 
108 Id. at 87. 
109 While no other federal circuits have weighed in on this question, districts within the Second Circuit have 

previously indicated their agreement with the First Circuit’s approach in Villar.  See, e.g., Wright v. United States, 559 F. 
Supp. 1139, 1151 (E.D.N.Y. 1983), aff’d, 732 F.2d 1048 (2d Cir. 1984) (rejecting petitioner’s motion, but suggesting that 
“if a criminal defendant could show that the jury was racially prejudiced, such evidence could not be ignored without 
trampling the [S]ixth [A]mendment's guarantee to a fair trial and an impartial jury.”); Tobias v. Smith, 468 F. Supp. 1287, 
1290-91 (W.D.N.Y. 1979) (requiring evidentiary hearing because alleged racial comments were “sufficient to raise a 
question as to whether the jury's verdict was discolored by improper influences and that they [were] not merely matters 
of jury deliberations. . . . There should be no injection of race into jury deliberations and jurors who manifest racial 
prejudice have no place in the jury room.”).  The Ninth Circuit has been asked to address this question as well, and has 
taken a somewhat different approach.  In United States v. Henley, 238 F.3d 1111, 1120 (9th Cir. 2001), the court held 
that Rule 606(b) does not bar inquiries into racial bias because the Rule could not apply to questions of mental bias.  
Writing for the unanimous panel, Judge Reinhardt explained that “Racial prejudice is plainly a mental bias that is 



2014 COLUMBIA JOURNAL OF RACE AND LAW 43 

 

 This past term, the Supreme Court granted certiorari from the Eighth Circuit to address the related 
question of whether Rule 606(b) permits a party moving for a new trial based on juror dishonesty during 
voir dire to introduce juror testimony about statements made during deliberations that tend to show the 
alleged dishonesty.110  Though the facts of the case itself are not about racial bias, amici have raised the 
race question for the Court’s consideration.111  This Note suggests that, in rendering its decision, the Court 
should consider some of the social realities of criminal trials and the role of race in contemporary criminal 
justice, the subject of Part IV. 
 
V. MOVING FORWARD: EMPIRICAL REALITIES OF A TRIAL 
 
 Other commentators have analyzed this split, positing various reasons for why the issue should be 
resolved to allow post-conviction inquiry into juror racial bias.  A main point of their critiques, however, 
has been that the constitutional protections put forth by the Tanner Court are particularly insufficient in 
the context of racial bias.112  Much of the literature on the subject this far seems to echo this concern.113  
As mentioned above, the Tanner majority identified four key safeguards that rendered inquiry into internal 
juror misconduct unnecessary: (1) voir dire, (2) observations of the jury by counsel and the court during 
trial, (3) opportunities for jurors to report inappropriate juror behavior prior to rendering a verdict, and 
(4) the admissibility of non-juror testimony as to the misconduct.114  In the context of racial bias, scholars 
argue, none are effective.   
 
 Aside from the limits on its usage discussed above, voir dire is unlikely to uncover racial bias.  As 
an initial matter, voir dire is usually performed by the judge, not defense counsel.115  Without an incentive 
to advocate for a defendant, judges are less likely to inquire into juror racism.  Even where counsel is 
permitted to conduct the questioning, strategic considerations may advise against doing so.  The effects of 
bringing racial bias up are unpredictable at best; often, such questioning will simply draw more attention 
to the defendant's race or ethnicity, increasing the effect of race on the trial.116  Finally, even when the 
questions are asked, they are unlikely to actually uncover anything.  Given the level of generality with which 
courts ask questions during voir dire, a juror’s subtler biases may easily go undetected.  As Sherri Lynn 
Johnson has pointed out, “[a]sking a general question about impartiality and race is like asking whether 

                                                        
unrelated to any specific issue that a juror in a criminal case may legitimately be called upon to determine. It would seem, 
therefore, to be consistent with the text of the rule, as well as with the broad goal of eliminating racial prejudice from the 
judicial system, to hold that evidence of racial bias is generally not subject to Rule 606(b)'s prohibitions against juror 
testimony.”  Id. 

110 Warger v. Shauers, 134 S. Ct. 1491 (2014), granting cert. to 721 F.3d 606 (8th Cir. 2014). 
111 Brief for Nat’l Assoc. of Crim. Defense Lawyers as Amicus Curiae Supporting Petitioners, Warger, No. 13-

517 (June 3, 2014). 
112 Rabin, supra note 98, at 549-53. 
113 See, e.g., Brandon C. Pond, Note, Juror Testimony of Racial Bias in Jury Deliberations: United States v. Bennally and the 

Obstacle of Federal Rule of Evidence 606(b), 2010 B.Y.U. L. REV. 237 (2010) (explaining why the procedural safeguards 
suggested by the Tanner Court are particularly poor protections in the context of racism); Bauman, supra note 9, at 796-
97 (emphasizing the shortcomings of the Tanner procedures in the context of implicit bias); Dov Fox, Neuro-Voir Dire 
and the Architecture of Bias, 65 HASTINGS L.J. 999, 1010-13 (2014) (discussing the emerging psychological evidence that in 
many cases, bias cannot be consciously recognized); Jessica L. West, 12 Racist Men: Post-Verdict Evidence of Jury Bias, 27 
HARV. J. RACIAL & ETHNIC JUST. 165, 187-89 (2011) (pointing out the difficulty of uncovering bias in voir dire). 

114 Tanner, 483 U.S. at 127. 
115 1 Fed. Jury Prac. & Instr. § 4:7 (6th ed.). 
116 See TED A. DONNER & RICHARD K. GABRIEL, JURY SELECTION STRATEGY AND SCIENCE §33:1, (3d ed. 

2000) (“Race and gender bias may be appropriate reasons for excusing prospective jurors, but the subjects should 
probably not be specifically addressed, in any voir dire, unless the facts of the case suggest that racism could be a 
dispositive factor . . . On the other hand, whenever a prospective juror uses a choice of terms that suggest a tendency to 
racial or gender bias, attorneys should weigh the possibility of exposing such a bias through further questions against the 
effect of such an examination on other jurors.”).  



44 Color in the “Black Box” Vol. 5.1 

 

one believes in equality for blacks; jurors may sincerely answer yes, they believe in equality and yes, they 
can be impartial, yet oppose interracial marriage and believe that blacks are more prone to violence.”117  
Thus, to the extent that voir dire relies on individuals being aware of and admitting to their own biases, it 
is unlikely to uncover more subtle forms of discrimination that jurors may harbor. 
 
 Critics of the Tanner safeguards also note that racial bias, unlike juror intoxication or other 
misconduct like that observed in Tanner, is not easily observed by the court or either party.  It is difficult, 
if not impossible, to ascertain a silent jury’s racial beliefs just by looking at its members during the trial.  
Even where such racism can somehow be observed, the standard of proof is often insurmountably high.  
In United States v. Abcasis, a defendant convicted of various narcotics-related offenses sought post-trial relief 
after his counsel claimed to have observed a juror making “mocking gestures” and anti-Semitic remarks to 
her fellow jurors.118  Even accepting counsel's allegations as true, the court denied relief.  For a new trial, 
the court held, the defendant would have to show not just that the juror harbored bias, but that she had 
actually been influenced by that bias in the deliberation itself.119  It is difficult to imagine how an attorney, 
viewing the jury only during the trial itself, could ever meet this burden.  Without the ability to observe the 
jurors in the deliberative process, one cannot prove that racial bias was actually used in the deliberation.  
This same problem would prevent jurors from effectively policing each other; jurors are not able to discuss 
the case with each other until the deliberations themselves, so it would be quite difficult for one juror to 
identify a peer/s racial bias in the context of the case before the deliberations. 
 
 While these arguments are all compelling, they present a series of complications that would make 
them difficult to argue in front of a court.  Most of the objections Rabin and other scholars like her raise 
are equally applicable to other forms of bias; difficulty of observation will be a problem whenever a juror's 
internal thoughts or beliefs are at issue.  Thus under this approach, no principled reason exists to allow 
questioning of racial bias while disallowing questioning as to any other form of internal bias.  It is unlikely 
that courts would be willing to use this rationale to allow questions as to any and all forms of bias, fearing 
that such a result would effectively undercut the entire purpose of Rule 606(b).  The need for proof that 
bias operated in the deliberations themselves would be equally difficult for other types of bias as well.  This 
high burden of proof renders most allegations of bias or prejudice nearly impossible to prove. 
 
 While voir dire may be particularly difficult in the context of race, the fundamental challenge 
remains the same for other forms of bias: people are often unwilling to admit their prejudices, or are simply 
unaware of them.  As most psychologists today agree, bias operates in subconscious ways; implicit 
prejudices are often not consciously recognized by their holders, but can impact behavior in profound 
ways that can alter the course of a criminal trial.120  Given how brief the voir dire period usually is, short 
and straightforward questions are all that most judges and attorneys will be able to ask.121  Few people 
would respond to these questions is a way suggesting bias, although they could hold deeply prejudiced 
views.122 
 
 A more persuasive rationale for exempting race from 606(b)'s categorical bar on post-conviction 
juror testimony about the deliberative process lies in the very rationale posited for the Rule itself: 

                                                        
117 Sheri Lynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611, 1670 (1985). 
118 811 F. Supp. 828, 830 (E.D.N.Y. 1992). 
119 Id. at 835 (“[E]vidence of bias may be sufficient to establish a constitutional violation if there is 'clear and 

incontrovertible' or 'substantial if not wholly conclusive evidence' that it was 'more likely than not' that a juror was 
biased and that his bias affected the actual deliberations.”). 

120 See generally Anthony S. Greenawald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CALIF. L. 
REV. 945 (2006) 

121 Johnson, supra note 117, at 1673. 
122 Id. 



2014 COLUMBIA JOURNAL OF RACE AND LAW 45 

 

institutional legitimacy.  While the past century has seen massive improvements in racial minorities' 
treatment in the American criminal justice system, it is hard to deny that inequity, persecution, and racism 
still permeate all levels of the process.  From disparate policing practices to unequal prosecution rates, 
from biased convictions to uneven sentencing to rampant prison abuses, young Black and Latino men still 
suffer by virtue of their race.123  The Supreme Court's unwillingness to address these issues with anything 
more than empty, albeit sympathetic, rhetoric has not given them much hope; indeed, when confronted 
with clear evidence that such problems exist, courts have turned a blind eye.  Such indifference has 
delegitimized the courts in the eyes of communities of color.  A strict textual enforcement of Rule 606(b) 
would thus undercut the very policy reasons for its adoption. 
 

A. Race in Criminal Justice: Rhetoric vs. Reality 
 
 The Reconstruction Amendments to the United States Constitution had the collective effect of 
guaranteeing legal and political equality to all citizens of the United States regardless of color.  Particularly 
in the context of juries, the Supreme Court interpreted this promise to mean that criminal defendants of 
all colors possessed the same right to an impartial jury.  In the canonical case of Strauder v. West Virginia, 
the Court held that a defendant's right to a fair trial was violated by a statute categorically barring Black 
men from serving on juries.124  Writing for the unanimous Court, Justice Strong determined: 

 
[T]he constitution of juries is a very essential part of the protection such 
a mode of trial is intended to secure. The very idea of a jury is a body of 
men composed of the peers or equals of the person whose rights it is 
selected or summoned to determine; that is, of his neighbors, fellows, 
associates, persons having the same legal status in society as that which 
he holds. 125 

 
Justice Strong went on to note particularly that the potential for prejudice in the jury ran high, warning 
that “prejudices often exist against particular classes in the community, which sway the judgment of jurors, 
and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that 
protection which others enjoy.”126   A categorical exclusion of Blacks from juries was impermissible 
partially because it exacerbated the potential for this prejudice.  This principle was reiterated in Batson v. 
Kentucky, where the Court emphasized the important goal of “eradicat[ing] racial discrimination in the 
procedures used to select the venire from which individual jurors are drawn.”127  “Competence to serve as 
a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider 
evidence presented at a trial,” the Court reasoned, and racial bias had no part in such a system.128  Thus, 
while the holding focused purely on racism in the peremptory strike process, the Court's opinion strongly 
suggested that such racial bias was as improper in the juror's mind as it was in the prosecutor's.  Reiterating 
the central concerns of judicial legitimacy, the Court warned that such biases “undermine public 
confidence in the fairness of our system of justice.”129 

                                                        
123 See generally CORAMAE RICHEY MANN, UNEQUAL JUSTICE: A QUESTION OF COLOR 129-219 (1993) 

(discussing different outcomes for communities of color and white communities in criminal justice processes); THOMAS 

M. UHLMAN, RACIAL JUSTICE: BLACK JUDGES AND DEFENDANTS IN AN URBAN TRIAL COURT 13 (1979); David Cole, 
The Paradox of Race and Crime: A Comment On Randall Kennedy's “Politics of Distinction”, 83 GEO. L.J. 2547 (1995); 
Developments in the Law -- Race and the Criminal Process, 101 HARV. L. REV. 1472 (1988). 

124 100 U.S. 303, 305 (1879). 
125 Id. at 308. 
126 Id. at 309. 
127 476 U.S. 79, 85 (1986). 
128 Id. at 87. 
129 Id. 



46 Color in the “Black Box” Vol. 5.1 

 

  
As much as these statements suggest a commitment towards full racial equality in the courtroom, 

racism and implicit bias are still disturbingly common at all levels of the justice system.  From the earliest 
points of law enforcement, racial minorities are disproportionately targeted.  Police units are frequently 
deployed in heavily minority neighborhoods simply without reason.130  Professor Ian Ayres has conducted 
an extensive study in the context of Southern California, surveying the methods and incidence of routine 
pedestrian and motor vehicle stops (searching for weapons or drugs) in the greater Los Angeles 
metropolitan area in the period between July 2003 and June 2004.  Even after correcting for potential error, 
the results were shocking: per 10,000 residents, the stop rate for Blacks was found to be 3,400 stops higher 
than that for Whites, while the stop rate for Latinos was nearly 360 stops higher than that for Whites.131  
Given that contemporary estimates suggest that Blacks represent just 12% of monthly drug users,132 this 
disparity makes little sense.  Beyond the disproportionate targeting, however, Professor Ayres' research 
convincingly demonstrated that the stops were highly inaccurate, and indeed were unlikely to uncover 
anything at all.  When compared to frisked Whites, frisked Blacks were 42.3% less likely to be found 
carrying a weapon, while frisked Latinos were 31.8% less likely to be so found. 133   Thus, the 
disproportionate targeting of Black and Latino persons in Los Angeles made stops ultimately less likely to 
uncover anything.  When stopped subjects consented to the searches, the numbers were similar: consensual 
searches of Blacks were 37.0% less likely to uncover weapons, 23.7% less likely to uncover drugs, and 
25.4% less likely to uncover anything else.134  Consensual searches of Latinos were similarly ineffective: such 
searches were 32.8 less likely to uncover weapons, 34.3% less likely to uncover drugs, and 12.3% less likely 
to uncover anything else.135  Despite these numbers, stopped Blacks were 29% more likely, while stopped 
Latinos were 32% more likely, to be arrested that stopped whites.136   Such statistics are not merely a factor 
of racism in a particular police force or a particular context; the recent controversy over the New York 
Police Department's Stop-and-Frisk Program demonstrates the same racial disparities.  For every year the 
program operated, over 80% of the “suspicious” persons stopped were young Black or Latino persons.137  
Weapons were seized in only 1% of stops of Blacks, and 1.1% of stops of Latinos.138   Similarly, contraband 
materials other than weapons were recovered in just 1.8% of Blacks and 1.7% of Latinos.139 

 
 Once targeted by police forces in such racially disparate ways, Black and Latino people face starkly 
different rates of prosecution.  Given how much discretion is afforded to prosecutors in their decisions 
whether to prosecute certain offenders, these determinations are almost never subject to review.  Professor 
Sonja B. Starr has studied how this discretion contributes to racial inequalities in the criminal justice, 
showing that Black defendants are routinely charged with harsher sentences across all vectors.140  When 

                                                        
130 Andrew Guthrie Ferguson & Damien Bernache, The High-Crime Area Question: Requiring Verifiable and 

Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 AM. U. L. REV. 1587 (2008) (discussing the 
difficulties of quantifying and reliably designating areas as “high risk” or “high crime”). 

131 IAN AYRES & JONATHAN BOROWSKY, A STUDY OF RACIALLY DISPARATE OUTCOMES IN THE LOS 

ANGELES POLICE DEPARTMENT (2008), available at http://www.aclusocal.org/issues/police-practices/racially-disparate-
outcomes-in-the-los-angeles-police-department/. 

132 Criminal Justice Fact Sheet, NAACP, http://www.naacp.org/pages/criminal-justice-fact-sheet (last visited Mar. 
13, 2014). 

133 AYRES, supra note 131, at 26. 
134 Id. 
135 Id. at 27.  
136 Id. 
137 Stop-and-Frisk Data, NEW YORK CIVIL LIBERTIES UNION, http://www.nyclu.org/content/stop-and-frisk-

data (last visited Sept. 26, 2014). 
138 Floyd v. City of New York, 959 F. Supp. 2d 540, 558 (S.D.N.Y. 2013). 
139 Id. 
140 Sonja B. Starr & Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the 

Effects of Booker, 123 YALE L. J. 2 (Oct. 2013). 



2014 COLUMBIA JOURNAL OF RACE AND LAW 47 

 

Blacks and Whites committed nearly identical crimes, prosecutors were more than twice as likely to charge 
Black defendants with offenses carrying higher minimum sentences.141 
 
 Finally, despite narratives of color-blind justice, racism is often overt in the trial itself.  In U.S. v. 
Calhoun, the Fifth Circuit addressed the question of whether or not a prosecutor's racist statements to a 
jury constituted clear error.142  Defendant, an African American man, was on trial for drug-related offenses.  
During the course of the trial, the state prosecutor said to the jury: “You've got African–Americans, you've 
got Hispanics, you've got a bag full of money.  Does that tell you—a light bulb doesn't go off in your head 
and say, 'This is a drug deal'?”143  The message of the question was clear: Calhoun, by virtue of his race, 
was more likely to be involved in a cocaine conspiracy.  Yet the Fifth Circuit refused to hold that such a 
statement was prejudicial to Calhoun.  Because “the improper racial overtone of the question was isolated” 
and the question “focused on the presence of the large sum of money rather than the race of the 
participants,” Calhoun had not been significantly prejudiced.144  Further, the court instructed the jury “that 
the statements and arguments of the attorneys were not evidence and that the verdict must be based only 
on the evidence.” 145   While concurring judges noted that “the prosecutor’s racial remark was 
unquestionably improper,” nobody dissented as to this conclusion.  The Calhoun decision shows how 
unwilling courts are to accept that the ugly specter of racial bias works in subconscious ways.  Such overt 
racism is, unfortunately, far from uncommon.146  

 
Thus racial bias, in the subtle form of implicit bias, pervades the criminal justice process.  It has 

been clearly established that broad discretion afforded to each of the above mentioned actors in the 
criminal justice system results in heavily racialized patterns of incarceration.147  Most of these decisions, 
however, are likely not made from a conscious form of racism.  Disaggregating intent from the definition 
of racism reveals that most Americans are socialized to exhibit automatic preferences for white people and 
automatic biases towards Black and Latino people.148   Jurors are far from immune to this process.  
Allegations of juror bias permeated the discussion of George Zimmerman's notorious trial just this past 
year.149  Importantly, this bias is often subconscious.  In one of the first large-scale surveys that studied 
the phenomenon of juror bias, Johan M.G. van der Dennen developed the theory that juries 

                                                        
141 Id. at 29. 
142 478 Fed. App’x 193 (5th Cir. 2012), cert denied, 113 S. Ct. 1136 (2013). 
143 Id. at 195. 
144 Id. at 195. 
145 Id. 
146 See, e.g., State v. Jackson, 520 N.W.2d 291 (Wis. 1994) (juror allegedly said “Eenie, meenie, minie, moe, catch 

a n----r by the toe.”); State v. Brye, 1993 WL 525057 at *1 (Conn. Dec. 10, 1993) (at trial, a juror said “I know ‘that 
neighborhood’ better than anyone and I'm sure he is guilty;” “the defendant was simply not worth all this time and 
trouble;” and “Joan, he's an animal; don't you want his kind off the street? He should be put away for a long time or he'll 
get out and come after us. Aren't you afraid?”); Ex parte Guzmon, 730 S.W.2d 724 (Tex. Crim. App. 1987) (counsel 
referred to her own client as a “wetback”); Callins v. Collins, 998 F.2d 269 (5th Cir. 1993) (venireman referred to the 
defendant as a “n----r”). 

147 AYRES, supra note 131, at 32; Marc Maurer, Justice For All? Challenging Racial Disparities in the Criminal Justice 
System, HUMAN RIGHTS MAGAZINE, Vol. 37 No. 4, (Fall 2010); Jerry Kang et. al., Implicit Bias in the Courtroom, 59 
U.C.L.A. L. REV. 1124, 1135-37 (June 2012). 

148 Devon Carbado, Kimberle Crenshaw, Cheryl I. Harris & Valerie Purdie-Vaughns, Race Undercover: The Matter 
of Bias in the Zimmerman Trial, HUFFINGTON POST BLOG (August 7, 2013, 2:21 PM), 
http://www.huffingtonpost.com/devon-carbado/race-undercover-the-matte_b_3715071.html. 

149 See Tom Foreman, Analysis: The Race Factor in George Zimmerman’s Trial, CNN (July 15, 2013, 9:10 AM), 

http://www.cnn.com/2013/07/14/justice/zimmerman-race-factor/.  George Zimmerman was charged with 
murder for shooting the 17-year old Trayvon Martin.  He was acquitted by a jury of six who found that he had acted in 
self-defense under Florida's stand-your-ground law, which allows an individual to use lethal force in response to a 
reasonable belief that lethal force is about to be used upon them. 



48 Color in the “Black Box” Vol. 5.1 

 

subconsciously perform a sort of in-group selection, favoring defendants to whom they relate.150 Thus, 
White jurors were more likely to sympathize with and acquit White defendants, while Black jurors were 
more likely to favor Black defendants.  A key point in van der Dennen’s study was the insight that “an 
individual will discriminate against a member of an out-group even when there is no conflict of interest 
and there is no past history of intergroup hostility . . . .”151  Thus conscious animus is not a necessary 
component to biased decision-making.152  The stand-your-ground laws at issue in Zimmerman's trial are 
always applied in racially disparate ways: Whites who kill Blacks are over four times as likely to be 
exonerated under stand-your-ground protections as Blacks who kill Whites in the same jurisdictions.153  In 
states in which the death penalty is used, a famous study by David Baldus demonstrated that the death 
penalty was applied in twenty-two percent of murders involving Black murderers and White victims, but 
only three percent of murders involving White murderers and Black defendants.154  When confronted with 
such drastic disparities in McCleskey v. Kemp, however, the Supreme Court refused to find undue racial 
bias.155  Such disparities are not limited to the criminal context; in civil cases, studies have shown that Black 
plaintiffs are significantly less likely to win their cases, while Black defendants are significantly more likely 
to lose.156  Thus, while jurors may not recognize their biases, empirical studies seem to show that they 
administer “justice” in an extremely racially disparate manner. 

 
B. Distrust in the System 

Academics have recently begun developing theories of compliance with the law that focus on 
legitimacy.  Procedural justice, or the fairness of the manner in which authorities exercise their authority, 
is one of the most important factors in shaping individuals’ views on a legal system’s legitimacy.157  When 
communities feel a sense of procedural justice in their interactions with the criminal justice system, studies 
show, they are more likely to  

 
. . . cooperate, comply, and accept the state’s monopoly on the use of 
force . . . .  Feelings of trust and confidence in the police and courts—and 
a willingness to defer to their instructions—generate the belief that 
authorities have the right to define appropriate behaviour; encourage the 
perception that authorities are justified in expecting feelings of obligation 
and responsibility from citizens; and strengthen identification with the 
goals, motives, and moral purpose of legal authorities.158 

 

                                                        
150 Johann M.G. van der Dennen, Ethnocentrism and In-group/Out-group Differentiation: A Review and Interpretation of 

the Literature, in THE SOCIOBIOLOGY OF ETHNOCENTRISM 1, 17 (Vernon Reynolds et al. eds., 1987).   
151 Id. 
152 Id.  van der Dennen posits several theories of why such bias may exist, including realistic conflict theory, 

evolutionary theory, sociopsychological theories, frustration-aggression-displacement theory, group narcissism theory, 
reference group theory, and many others.  For an exhaustive list of possible explanations, and an explanation of each 
one, see Id. at 10-16. 

153 John K. Roman & Shebani Rao, The Logic of Racial Disparities, REAL CLEAR POLICY (July 19, 2013), 
http://www.realclearpolicy.com/articles/2013/07/19/the_logic_of_racial_disparities__575.html. 

154 McCleskey v. Kemp, 481 U.S. 279, 286 (1987). 
155 McCleskey, 481 U.S. 279. 
156 Robert J. MacCoun, Getting Inside the Black Box: Toward a Better Understanding of Civil Jury Behavior, RAND 

CORP. 1 (1987), available at www.rand.org/content/rand/pubs/notes/2009/N2671.pdf. 
157 Tom R. Tyler & Jonathan Jackson, Future Challenges in the Study of Legitimacy and Criminal Justice, in 

LEGITIMACY AND CRIMINAL JUSTICE: AN INTERNATIONAL EXPLORATION 83, 84 (Justice Tankebe, J. & Alison Liebling 
eds., 2013).  Indeed, Tyler and Jackson introduce statistical evidence that suggests that procedural justice is more 
important in preserving institutional legitimacy than actual performance.  Id. at 84-85. 

158 Id. at 88. 



2014 COLUMBIA JOURNAL OF RACE AND LAW 49 

 

Thus, community members are more likely to engage and cooperate with criminal justice actors and accept 
the entire system as a valid exercise of state power when they feel the system treats them fairly.159 

 
Unfortunately, as discussed above, Black and Latino communities often find themselves 

disadvantaged in the criminal justice system in ways that delegitimize law enforcement in their eyes.  Such 
delegitimizing effects are also at work in the courthouse.  Professor Peggy Davis has extensively described 
the effects of subconscious racial biases on defendants of color.  Davis characterizes the law as a system 
of subtle racial hierarchies which act as a series of microaggressions—“…subtle, stunning, often automatic, 
and non-verbal exchanges which are 'put downs' of blacks by offenders.”160  Decisions such as McCleskey 
and Zimmerman do nothing but reify colored communities' perceptions of the law as maintaining a status 
quo of racial hierarchy.  From the minute Black and Latino persons enter the courthouse, Davis posits, 
they are subjected to a series of unconscious and unspoken assumptions.  Take, for instance, the story of 
John T. Harvey, III.  In 1992, Harvey was assigned to defend a Black man charged with assault with intent 
to murder in front of a White judge.  On June 11, Harvey showed up in front of the judge wearing a suit 
adorned with a small kente cloth, a multicolored woven cloth traditionally worn by African royalty and 
adopted in the 1960s by the Black community in America as a symbol of racial pride.  Upon seeing Harvey, 
the judge warned that Harvey would not be allowed to wear the cloth in front of the jury for fear that it 
would send “a hidden message to jurors.”161  Harvey was later removed from the case.162  While the judge 
was concerned about propriety and distraction in the trial, the decision to remove Harvey as counsel sent 
a clear message: any hint of “Africanness” was just a distraction, and had no place in the courthouse.  Black 
defendants and Black jurors in particular feel silenced by such microaggressions, and Blacks consequently 
lose faith in what they see as a broken system. 

 
These microaggressions have the net effect of breeding a deep distrust of the criminal justice 

system in communities of color.  The Stop Snitchin’ campaign, popularized in late 2004 by Baltimore 
filmmaker Rodney Bethea, was one manifestation of this wariness.  The campaign focused on convincing 
urban Black arrestees to stop cooperating with police in exchange for leniency.163  From its outset, the 
movement’s racial undertones were clear.164  This message had similarly found acceptance in Black and 
Latino subcultures; hip hop culture began to shift, reflecting a belief that something was fundamentally 
wrong with the criminal justice system.165 

 

                                                        
159 See generally Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime 

in Their Communities?, 6 OHIO ST. J. CRIM. L. 231, 263 (Fall 2008). 
160 Peggy C. Davis, Law as Microaggression, 98 YALE L. J. 1559, 1565 (1989) (citing Pierce, Psychiatric Problems of the 

Black Minority, in AMERICAN HANDBOOK OF PSYCHIATRY 66 (S. Arieti ed. 1974)). 
161 Black D.C. Atty. Is At Odds With Judge Over Kente Cloth, JET, June 22, 1992, at 35.  
162 Id. 
163 PAUL BUTLER, LET’S GET FREE: A HIP-HOP THEORY OF JUSTICE, 85-87 (2009). 
164 ‘Stop Snitching’ Movement Confounding Criminal Justice (NPR broadcast May 8, 2008), available at 

http://www.npr.org/templates/story/story.php?storyId=90280108 (“What is really going on is that, after centuries of 
bad treatment at the hands of the outside world, and law enforcement is part of that outside world, most recently 
enormously exacerbated by 20 years of drug enforcement and a mass incarceration policy in this country. It has become 
mainstream thought in many minority, especially African-American communities, that law enforcement is the enemy, 
and good people do not treat with the enemy. So this is not primarily fear, and it's not primarily recent, you know, 
special cultural influences.  Again, those things matter. But this is mostly the price we're paying for American history and 
especially for having 2.2 million people in prison, most of them drawn from very troubled neighborhoods. They're mad, 
and they're disengaging.”).  The movement gained national attention when New York rapper Cam’ron discussed his 
refusal to cooperate with police in an interview on 60 Minutes.  60 Minutes: Stop Snitchin’ (CNN television broadcast Apr. 
22, 2007). 

165 BUTLER, supra note 163, 124-25. 



50 Color in the “Black Box” Vol. 5.1 

 

Indeed, scholars have argued that the pervasive racism in the criminal justice system has left black 
with only one option: race-based jury nullification. 166   Given the disproportionate policing and 
incarceration rates for Black defendants in drug-related offenses, Butler calls for all Black jurors to 
uniformly find Black defendants not guilty in non-violent crimes.167  The reasons for this are twofold: first, 
Butler argues, the current state of disparate policing and prosecution has led to imprisonment of large 
swaths of the young Black male population.168  Entirely excising such a large segment of the community 
has spillover consequences; communities stay poor, children grow up without parents, and cycles of crime 
and poverty continue.  Second, and more radically, Butler suggests that the criminal law itself is an 
instrument of White supremacy.169  Laws written, enforced, and adjudicated by white people cannot ever 
adequately govern the needs and realities of life for Black America.  Such a system, Butler claims, is worthy 
of no deference.  Although a depressing view of the prospects of Black defendants, Butler's arguments are 
not wholly unfounded.  Laws such as the Sentencing Reform Act and its disparate treatment of crack and 
powder cocaine are evidence of the ways in which laws are written to disadvantage communities of color 
independent of their administration.  This, combined with the sorts of implicit bias discussed above, means 
Black defendants are inherently at a disadvantage in any sort of legal proceeding.  Several other scholars 
have picked up on this idea, calling for all communities of color to engage in similar race-based 
nullification.170 
  

While these proposals have both merits and drawbacks that can be debated at length, the very fact 
of their existence is meaningful.  Such calls speak volumes to these communities' perceptions of the law 
and legal system.  This is the central hypocrisy of American legal thought on jurors; while courts have been 
nearly entirely focused on preserving the law's legitimacy in interpreting various rules governing jury 
secrecy, their refusal to protect defendants of color against racial bias in jury deliberations has in fact caused 
a deep distrust of the law enforcement system in communities of color.  In the context of Rule 606(b), 
courts’ refusal to allow questioning into allegations of racial bias in the deliberative process—lauded by 
courts as a great defender of the legitimacy of the deliberations—has actually had the converse effect, 
delegitimizing courts in minority communities.  Decisions like Bennally can be seen as further 
microaggressions; they send clear messages that the institution of “law” does not care about the concerns 
about minority communities.  If the Supreme Court hears a case dealing with this question, it should 
continue to focus on the legitimacy of the jury system.  However, if should be sure to bear in mind: 
legitimacy to whom?  Thus, the Court should amend the Federal Rules of Evidence to create an express 
fourth exception for allegations of racism in the deliberative process in the name of institutional legitimacy. 

 
 Opponents of such an amendment of FRE 606(b) need not fear about opening the Pandora's Box 
of never-ending challenges to valid verdicts.  In every case that has addressed the issue so far, petitioners 
have only raised their claims once a member of the jury actively reached out and alerted them of racist 
comments or behaviors that took place.  If such a limit were imposed as a matter of law, petitioners could 
only challenge their convictions by asserting racial bias after a juror independently contacted the petitioner 
or her lawyer describing racist behavior in the deliberation process.  It seems unlikely that this would 
seriously upset the stability of trial verdicts; the rarity of such an occurrence is reflected in the paucity of 

                                                        
166 Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L. J. 677 (1995). 
167 Id. at 679-680, 717-718.  
168 Id. 
169 Id.  
170 See, e.g., Long X. Do, Jury Nullification and Race-Conscious Reasonable Doubt: Overlapping Reifications of Commonsense 

Justice and the Potential Voir Dire Mistake, 47 UCLA L. REV.1843 (2000); Richard R. W.  Brooks, Fear and Fairness in the City, 
73 S. CAL. L. REV. 1219 (2000). 



2014 COLUMBIA JOURNAL OF RACE AND LAW 51 

 

cases that actually deal with this question at all.171  Opponents who take the opposite critique—that the 
benefits of this additional safeguard would be de minimis—are likely correct; requiring a juror to 
independently contact the defendant with evidence of deliberative racism before allowing the motion 
would severely limit the number of successful claims brought.  However, given the importance of 
eliminating all racial prejudice from the courtroom, these incremental benefits would be worth pursuing, 
especially given the relatively low costs of implementing such procedures. 
 
 The arguments in this Note may seem to beg the question of what makes racial bias in the 
deliberative process unique—that is, if racial bias is such a problem in society, why is this Note limiting its 
discussion to just Rule 606(b), rather than addressing arguably more common problems, such as racialized 
policing or discriminatory prosecution?  The answer lies in the history discussed above.  While it is true 
that racial bias pervades the criminal justice process, few other procedural protections exist almost 
exclusively to preserve the legitimacy of a jury trial.  This Note does not suggest a complete restructuring 
of the trial system; rather, it limits its suggestions to the context of FRE 606(b).  While it would be naïve 
to view this narrow determination as a panacea to the racism that permeates the criminal justice system, 
the unique purpose of 606(b)—preserving legitimacy—makes it particularly important to think about bias 
in this context.  Given the Court’s express commitment to using 606(b) to legitimize jury trials and jury 
verdicts, the delegitimizing effects of racism in deliberations are particularly troubling.  As defendants of 
color are already subject to such disparate forms of “justice” as a result of the implicit bias discussed above, 
the trial system should seek to minimize further harms worked by overt racism demonstrated in the 
deliberative process.  While communities of color are subject to disparate treatment in society on a daily 
basis, the trial process should be examined even more stringently for evidence of possible racism.  
Nowhere else are determinations of an individual's most fundamental liberties trusted to a body of twelve 
strangers. 
 
VI. CONCLUSION 

 As the history of American jurisprudence, legislative history, and subsequent judicial 
interpretations show, the core purpose of Rule 606(b) of the Federal Rules of Evidence was to instill 
confidence in the jury system.  This Note has sought to demonstrate the historical reasons for such a 
rationale by tracking the evolution of trials through medieval England.  In shifting from the trial by ordeal 
to the modern trial by jury, courts gave up the divine backing that had previously rendered verdicts 
unassailable.  No longer was God the decisionmaker, weighing in on a criminal defendant's guilt or 
innocence.  Such decisions were now to be rendered by twelve ordinary members of the community.  This 
new, more fragile system needed credibility; to lend credence to verdicts delivered by man instead of God, 
American courts developed procedural safeguards to guarantee jury secrecy.  Federal Rule 606(b) was born 
from this sentiment, from this very desire to preserve jury legitimacy by shrouding the process in secrecy.  
Courts interpreting the Rule have admitted this, indeed prioritizing it over a “correct” outcome in many 
cases.   
 
 Yet these concerns of institutional legitimacy have thus far been limited to the attitudes of 
mainstream white society; jurisprudence on the subject has repeatedly failed to acknowledge and address 
the problems of racial bias that pervade all aspects of the American criminal justice system.  By tracing the 
use of voir dire to examine racial bias in a jury through history, this Note has shown that defendants of 
color are left effectively powerless to challenge the very real impacts of race on their trials.  This, when 
combined with other lines of jurisprudence that show courts' unwillingness to recognize implicit bias 

                                                        
171 Indeed, only the seven cases discussed in this Note seem to have arisen out of a juror approaching the 

defendant without any sort of prompting or independent questioning.  Pandora's Box could not have been opened for 
only four cases to arise in the entire 50-year period since the adoption of the Federal Rules of Evidence. 



52 Color in the “Black Box” Vol. 5.1 

 

pervasive in modern criminal justice, has delegitimized the entire system in the eyes of communities of 
color.  Calls for extreme measures such as race-based jury nullification show that such communities have 
no faith in the system's ability to render fair verdicts.  To combat this increasing disillusionment with a 
system purported to be the hallmark of justice, courts should take greater efforts to combat racism in juries.  
Given the limits placed on the use of voir dire (as well as those inherent in the process itself), Rule 606(b) 
stands alone today as the only process by which defendants can weed out racism from jury deliberations, 
already a particularly difficult process to review in any capacity.  Resolving the tension between Rule 606(b) 
of the Federal Rules of Evidence and the Fourteenth Amendment in a way that foregrounds a commitment 
to true racial equality would help generate fair trials and bolster institutional legitimacy in the eyes of the 
most marginalized.  Till then, however, our jurisprudence will remain dishonest; courts will remain focused 
on jury legitimacy in the eyes of whites alone.