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Historically, race-based jury bias has maintained the most prominent place in the hierarchy of social ills that have plagued the American Criminal Justice System. Relying on Due Process and Equal Protection principles, the United States Supreme Court and lower federal courts have chipped away at the problem with mixed results. State Courts have also served as laboratories, providing important lessons on the successes and failures of different approaches, often leading the way with their innovations. A formidable obstacle commonly referred to as a "black box," better known as the no-impeachment rule, has made progress difficult. The no-impeachment rule was designed to protect the secrecy of jury deliberations from scrutiny by allowing only limited access to the content of jury deliberations. Its aim was to promote frank and open discussions during deliberations, protecting all communications with the exception of extraneous influences like newspapers, threats, and bribes. In Pena-Rodriguez v. Colorado the U.S. Supreme Court finally broke through the black box and delivered on a long-held expectation that the no-impeachment rule would yield in cases involving overt statements of racial bias. Pena-Rodriguez represents an important step forward. Though the decision may not have a widespread impact in a system where implicit racial bias continues to be the much larger problem, the decision nonetheless can serve as a catalyst for a new discussion, this time led by the highest court in the land. And, as history has shown, the decision can also serve as the ever-important first step forward as the system struggles to improve its ability to eradicate biases that deny criminal defendants equal treatment under the law.

This article attempts to begin a conversation about the effect of racial and other biases that can work to deny criminal defendants a fair trial. Contrary to the Court's fears that the jury system cannot survive such attempts to perfect it, the article argues that the eradication of overt bias on the basis of Equal Protection and Due Process will produce a system better equipped to deliver equal justice for all, while improving its institutional standing among the American public. Tracing the Court's history in similar contexts, and examining the experiences of lower federal and State courts, the article takes the position that the issue of overt bias will inevitably be expanded beyond race to protect characteristics such as gender, religion, sexual orientation, and perhaps political affiliation. Lastly, taking lessons from the State and lower federal courts that have addressed this issue, the article attempts to lay out mechanisms that will assist Courts charged with implementing Pena-Rodriguez.

Publication Citation

21 Harv. Latinx L. Rev. 1 (2018).