                                                                                     ACCEPTED
                                                                                 04-16-00508-CR
                                                                      FOURTH COURT OF APPEALS
                                                                           SAN ANTONIO, TEXAS
                                                                               9/26/2017 5:56 PM




                            No. 04-16-00508-CR

                       COURT OF APPEALS             FILED IN
                                             4th
                FOR THE FOURTH JUDICIAL DISTRICT COURT   OF APPEALS
                                              SAN ANTONIO, TEXAS
                      SAN ANTONIO, TEXAS     09/26/17 5:56:59 PM
                                                            KEITH E. HOTTLE
                                                                 CLERK


    MIGUEL AGUILAR, JR.,              §
    Appellant,                        §       Appeal from the
    versus                            §       of Webb County, Texas
                                      §       Cause No. 2014-CRS-00-1753
    THE STATE OF TEXAS,               §       D4
    Appellee.                         §   	




                           NOTICE OF EXHIBITS




                             CYNTHIA E. ORR
                             Bar No. 15313350
                             GOLDSTEIN, GOLDSTEIN & HILLEY
                             310 S. ST. MARY’S ST.
                             29th Floor Tower Life Bldg.
                             San Antonio, Texas 78205
                             Phone: 210-226-1463
                             Facsimile: 210-226-8367
                             Email: whitecollarlaw@gmail.com

                             ROBERT G. RODERY
                             Bar No. 24069072
                             LAW OFFICE OF ROBERT G. RODERY
                             310 S. St. Mary’s St. Ste. 1205
                             San Antonio, Texas 78205
                             Phone: 210-227-9399
                             Facsimile: 210-229-1445
                             Email: rrodery.law@gmail.com

	                                 1
                                No. 04-16-00508-CR

                                   COURT OF
                                    APPEALS
                            FOR THE FOURTH JUDICIAL
                          DISTRICT SAN ANTONIO, TEXAS



    MIGUEL AGUILAR, JR.,                      §
    Appellant,                                §       Appeal from the
    versus                                    §       of Webb County, Texas
                                              §       Cause No. 2014-CRS-00-1753
    THE STATE OF TEXAS,                       §       D4
    Appellee.                                 §   	




                               NOTICE OF EXHIBITS

    TO THE HONORABLE JUSTICES OF THE COURT OF
    APPEALS, FOURTH JUDICIAL DISTRICT:

          NOW COMES, Appellant, MIGUEL AGUILAR, by and

    through undersigned counsel, respectfully submits notice of the following:

          Copies of the cases to the Notice of Intervening & Supplemental

    Authority are attached in accordance to with the local rules.



                                    Respectfully submitted:


                                    /s/ Cynthia E. Hujar Orr

                                    CYNTHIA E. ORR
                                    Bar No. 15313350
                                    GOLDSTEIN, GOLDSTEIN & HILLEY
	                                         2
    310 S. ST. MARY’S ST.
    29th Floor Tower Life Bldg.
    San Antonio, Texas 78205
    Phone: 210-226-1463
    Facsimile: 210-226-8367
    Email: whitecollarlaw@gmail.com


    Robert G. Rodery
    Bar No. 24091107
    LAW OFFICE OF ROBERT G. RODERY
    310 S. St. Mary’s St.
    Suite 1215
    San Antonio, Texas 78205
    Phone: 210-227-9399
    Facsimile: 210-229-1445
    E-mail: rrodery.law@gmail.com



      Attorneys for Appellant,
           MIGUEL AGUILAR




	        3
                         CERTIFICATE OF SERVICE

    I hereby certify that a copy of the above foregoing Appellant’s Brief has

    been served electronically, in compliance with Tex. R. App. P. 9.5(b)(1) to

    David Reuthinger, Assistant District Attorney, 1110 Victoria, Suite 401,

    Laredo, Texas, 78040, on this the 25th day of September, 2017.

                                             By: /s/ Cynthia E. Hujar Orr




	                                        4
    Caution
As of: September 26, 2017 3:34 PM Z


                                             Franklin v. State
                                                                                         FILED IN
                                      Court of Criminal Appeals of Texas          4th COURT OF APPEALS
                                                                                   SAN ANTONIO, TEXAS
                                           June 30, 2004, Delivered               09/26/17 5:56:59 PM
                                                                                    KEITH E. HOTTLE
                                                  NO. 1481-00                             CLERK


Reporter
138 S.W.3d 351 *; 2004 Tex. Crim. App. LEXIS 1118 **
B. J. FRANKLIN, Appellant v. THE STATE OF                 petitioned for discretionary review, which the court
                                                          of criminal appeals granted.
TEXAS
                                                          Overview
Notice: [**1] PUBLISH.
                                                          The juror withheld material information that she
Prior History: ON STATE'S PETITION FOR                    was the victim's assistant Girl Scout troop leader,
DISCRETIONARY REVIEW FROM THE SIXTH                       and that her daughter was also in the same Girl
COURT OF APPEALS. BOWIE COUNTY.                           Scout troop as the victim. The trial judge, who was
                                                          informed of the relationship between the juror and
Franklin v. State, 23 S.W.3d 81, 2000 Tex. App.
                                                          the victim, refused to grant a mistrial and denied
LEXIS 3374 (Tex. App. Texarkana, 2000)                    defendant the opportunity to discover whether the
Disposition: Affirmed.                                    relationship affected defendant's right to a trial by
                                                          an impartial jury. The trial judge also deprived
Core Terms                                                defendant of the ability to develop evidence of bias
                                                          or prejudice on the record. The fact that the juror
juror, questions, voir dire, court of appeals, trial      had a relationship with the victim, one that many
court, impartial jury, biased, peremptory challenge,      people would consider almost a parental role,
mistrial, bias, intelligently, withheld, trial judge,     certainly had a tendency to show bias. Because the
material information, challenge for cause, defense        trial court refused to admit the information that
counsel, actual bias, withholding, trial judge's,         would have permitted the appellate court to apply a
deprived, right to trial, juror bias, impartial, refuse   harm analysis to the juror's failure to answer
to permit, girl scout, parties, argues, troop, grant a    counsel's voir dire questions accurately, there was
mistrial, fail to answer                                  an absence of evidence that would allow the
                                                          appellate court to determine beyond a reasonable
Case Summary                                              doubt that the error did not contribute to
                                                          defendant's conviction. Thus, the appellate court
Procedural Posture                                        properly applied the standard of harm in
On remand, the Sixth Court of Appeals, Bowie              defendant's case and properly reversed his
County (Texas), reversed defendant's aggravated           conviction.
sexual assault of a child conviction because a
                                                          Outcome
juror's failure to accurately answer defense
                                                          The court of criminal appeals affirmed the appellate
counsel's voir dire questions prevented him from
                                                          court's judgment.
intelligently exercising peremptory strikes or from
requesting a challenge for cause. The State
                                                                                                 Page 2 of 16
                            138 S.W.3d 351, *351; 2004 Tex. Crim. App. LEXIS 1118, **1

LexisNexis® Headnotes                                     HN4[ ] Criminal Process, Right to Jury Trial


                                                          The Sixth Amendment guarantees the right to a trial
   Criminal Law &                                         before an impartial jury.
   Procedure > Appeals > Standards of
   Review > General Overview
                                                              Constitutional Law > ... > Fundamental
HN1[ ] Appeals, Standards of Review
                                                              Rights > Criminal Process > Right to Jury Trial

Under Tex. R. App. P. 44.2, the standard of review            Criminal Law & Procedure > Juries &
for errors of a constitutional dimension differs from         Jurors > Voir Dire > General Overview
the standard for other errors.
                                                          HN5[ ] Criminal Process, Right to Jury Trial


   Criminal Law & Procedure > ... > Standards of          Part of the constitutional guarantee of the right to
   Review > Harmless & Invited                            an impartial jury in the Sixth Amendment includes
   Error > Constitutional Rights                          adequate voir dire to identify unqualified jurors.

   Criminal Law & Procedure > ... > Standards of
   Review > Harmless & Invited Error > General                Constitutional Law > ... > Fundamental
   Overview                                                   Rights > Criminal Process > Right to Jury Trial
HN2[ ]      Harmless         &     Invited      Error,        Criminal Law & Procedure > ... > Defendant's
Constitutional Rights                                         Rights > Right to Counsel > Constitutional
                                                              Right
See Tex. R. App. P. 44.2.
                                                              Criminal Law & Procedure > Juries &
                                                              Jurors > Voir Dire > General Overview

   Constitutional Law > ... > Fundamental                 HN6[ ] Criminal Process, Right to Jury Trial
   Rights > Criminal Process > Right to Jury Trial

   Criminal Law & Procedure > Juries &                    Essential to the Sixth Amendment guarantees of the
   Jurors > Voir Dire > General Overview                  assistance of counsel and trial before an impartial
                                                          jury is the right to question veniremembers in order
HN3[ ] Criminal Process, Right to Jury Trial              to intelligently exercise peremptory challenges and
                                                          challenges for cause.
Constitutional provisions bear on the selection of a
jury for the trial of a criminal case. However, not
every error in the selection of a jury violates the           Constitutional Law > ... > Fundamental
constitutional right of a trial by an impartial jury.         Rights > Criminal Process > Right to Jury Trial

                                                              Criminal Law & Procedure > Juries &
                                                              Jurors > Voir Dire > General Overview
   Constitutional Law > ... > Fundamental
   Rights > Criminal Process > Right to Jury Trial
                                                                                                  Page 3 of 16
                           138 S.W.3d 351, *351; 2004 Tex. Crim. App. LEXIS 1118, **1

   Criminal Law & Procedure > ... > Challenges to        juror withheld material information during voir
   Jury Venire > Bias & Prejudice > General              dire, and the information is withheld despite due
   Overview                                              diligence exercised by the defendant. So, it is not
                                                         necessary that the concealed information show
HN7[ ] Criminal Process, Right to Jury Trial             actual bias; just that it has a tendency to show bias.


Where a juror withholds material information
                                                             Constitutional Law > ... > Fundamental
during the voir dire process, the parties are denied
                                                             Rights > Criminal Process > Right to Jury Trial
the opportunity to exercise their challenges, thus
hampering their selection of a disinterested and         HN10[ ] Criminal Process, Right to Jury Trial
impartial jury. The fact that a juror will state that
the fact that he withheld information will not affect
his verdict is not dispositive of the issue where the    A defendant has no right that any particular
information is material and therefore likely to affect   individual serve on the jury. The defendant's only
the juror's verdict.                                     substantial right is that the jurors who do serve be
                                                         qualified.

   Constitutional Law > ... > Fundamental
   Rights > Criminal Process > Right to Jury Trial           Constitutional Law > ... > Fundamental
                                                             Rights > Criminal Process > Right to Jury Trial
   Criminal Law & Procedure > Juries &
   Jurors > Voir Dire > General Overview                     Criminal Law & Procedure > ... > Defendant's
                                                             Rights > Right to Counsel > Constitutional
HN8[ ] Criminal Process, Right to Jury Trial                 Right

                                                             Criminal Law & Procedure > Juries &
The fact that a juror did not intend to intentionally
                                                             Jurors > Voir Dire > General Overview
withhold information during voir dire is largely
irrelevant when considering the materiality of           HN11[ ] Criminal Process, Right to Jury Trial
information withheld.

                                                         When a defendant is prevented from questioning
   Constitutional Law > ... > Fundamental                the venire, he is prevented from obtaining
   Rights > Criminal Process > Right to Jury Trial       information, which implicates constitutional
                                                         protections.
   Criminal Law & Procedure > Juries &
   Jurors > Voir Dire > General Overview
                                                             Criminal Law & Procedure > Counsel > Right
   Criminal Law & Procedure > ... > Challenges to            to Counsel > General Overview
   Jury Venire > Bias & Prejudice > General
   Overview                                                  Criminal Law & Procedure > Juries &
                                                             Jurors > Peremptory Challenges > General
HN9[ ] Criminal Process, Right to Jury Trial                 Overview

                                                             Criminal Law & Procedure > Juries &
Under Texas law, a defendant must show that a                Jurors > Voir Dire > General Overview
                                                                                                  Page 4 of 16
                           138 S.W.3d 351, *351; 2004 Tex. Crim. App. LEXIS 1118, **1

   Criminal Law & Procedure > ... > Defendant's          Opinion by: KEASLER
   Rights > Right to Counsel > Constitutional
   Right                                                 Opinion

HN12[ ] Counsel, Right to Counsel
                                                          [*352] We granted review in this case to
                                                         determine whether the Court of Appeals erred in
A defendant's constitutional right to counsel            applying a constitutional harm analysis to the trial
requires that counsel be permitted to question the       court's denial of a mistrial after one of the jurors
members of the jury panel in order to intelligently      revealed during trial that she knew the victim. We
exercise peremptory challenges.                          conclude that it did not.

                                                         Facts
   Criminal Law & Procedure > ... > Defendant's
                                                         During voir dire at B. J. Franklin's trial, defense
   Rights > Right to Counsel > Constitutional
                                                         counsel asked the veniremembers if they knew any
   Right
                                                         of the participants in the trial. None of the jurors
   Criminal Law & Procedure > Counsel > Right            indicated that they knew the participants. But when
   to Counsel > General Overview                         the State called its first witness--the victim--to the
                                                         stand, Juror Spradlin notified the judge that she
   Criminal Law & Procedure > Juries &                   knew the victim because Spradlin was the assistant
   Jurors > Peremptory Challenges > General              leader of the victim's girl scout troop and that
   Overview                                              her [**2] daughter was also in that troop. Spradlin
                                                         told the judge that she had not recognized the
   Criminal Law & Procedure > Juries &                   victim's name during voir dire but recognized the
   Jurors > Voir Dire > General Overview                 victim when she saw her at trial. The trial judge
                                                         asked Spradlin if she could listen to the evidence in
HN13[ ]      Right to Counsel, Constitutional            the case and base her judgment just on what she
Right                                                    heard from the stand. Spradlin stated that she could.

                                                         Defense counsel moved for a mistrial, stating that if
Tex. Const. art. I, § 10 guarantees the right to         he had known about the relationship between
counsel, which includes the right of counsel to          Spradlin and the victim, he would have exercised a
question members of the venire panel in order to         peremptory challenge against Spradlin. Defense
intelligently exercise peremptory challenges.            counsel also requested to ask Spradlin some
                                                         additional questions about her relationship with the
Counsel: FOR APPELLANT: CRAIG HENRY,
                                                         victim. When the trial judge refused to allow
Texarkana, TX.
                                                         additional questioning, defense counsel objected
FOR STATE: BETTY MARSHALL, ASST. ST.                     that his client's due process rights were being
PRO. ATT., Austin, TX.                                   violated. He stated that he would have asked
                                                         Spradlin about her relationship with the victim,
Judges: Keasler, J., delivered the opinion of the        how long the relationship lasted, whether or not she
Court, in which Price, Johnson, Hervey, and              could set aside that relationship in deciding the
Holcomb, JJ., joined. Keller, P.J., filed a dissenting   case, and whether she would give more or less
opinion. Cochran, J., filed a dissenting opinion in      credence to the victim's testimony and truthfulness
which Meyers, J., joined. Womack, J., dissented          due to the relationship. Defense counsel stated that
without opinion.                                         the judge was preventing him from developing any
                                                                                                         Page 5 of 16
                                     138 S.W.3d 351, *352; 2004 Tex. Crim. App. LEXIS 1118, **2

testimony regarding [**3] potential biases. The                found that Juror Spradlin's failure to accurately
judge overruled defense counsel's objections and               answer counsel's voir dire questions prevented him
denied the motion for mistrial.                                from intelligently exercising peremptory strikes or
                                                               from requesting a challenge for cause. 6 It reasoned
Procedural History                                             that "a defendant's constitutional right to counsel
                                                               requires that counsel be permitted to question the
Franklin was convicted of aggravated sexual assault
                                                               jury panel in order [**5] to intelligently exercise
of a child, and the jury sentenced him to life in
                                                               peremptory challenges," so Spradlin's withholding
prison. Franklin appealed, arguing that the trial
                                                               of material information was of constitutional
court erred in denying the motion for mistrial
                                                               dimension. And because the trial judge refused to
"based upon a juror's failure to accurately answer
                                                               admit information that would have permitted the
questions during voir dire and also because he was
                                                               Court of Appeals to "apply a harm analysis to the
unable to intelligently exercise his peremptory
                                                               juror's failure to answer counsel's voir dire
strikes as a result of that failure." [*353] 1 The
                                                               questions accurately," it could not determine
Sixth Court of Appeals affirmed his conviction,
                                                               beyond a reasonable doubt that the error did not
finding that although the trial court erred in
                                                               contribute to Franklin's conviction. 7
refusing to permit further questioning of the juror,
Franklin failed to preserve error because he did not We then granted the State's petition for
request to make a bill of exceptions "that would discretionary review, which contends that the Court
have explored the relationship between the juror of Appeals erred in analyzing the improper
and the victim, thus providing information from limitation of defense questioning for harm under
which [the Court of Appeals] could assess whether Rule 44.2(a) of the Texas Rules of Appellate
the information was truly material." 2                         Procedure. The State also argues that the Court of
                                                               Appeals erred in holding that the improper
 [**4] We granted Franklin's petition for
                                                               limitation of defense counsel questioning in this
discretionary review, which claimed along with
                                                               case was harmful where [**6] the record does not
three other grounds for review that the information
                                                               show that the jury was not fair and impartial.
Spradlin withheld was material and that he had
preserved the issue for review. We concluded that Analysis
Franklin had preserved error and that the
information withheld by Spradlin was material. 3 The State characterizes the error at issue here as
We remanded the cause to the Court of Appeals to follows: "Is there a constitutional right for counsel
conduct a harm analysis. 4                                     to ask questions that are relevant only the to the
                                                               exercise of peremptory challenges?" The Court of
On remand, the Court of Appeals reversed Appeals rejected the characterization of the issue in
Franklin's conviction. It determined that the error those terms, 8 as do we. The error at issue here is
was of a constitutional dimension subject to harm the trial judge's denial of a mistrial when, after the
analysis under Rule 44.2(a). 5 The Court of Appeals trial began, Juror Spradlin revealed that she knew
                                                               the victim. The trial judge's refusal to allow defense
1 Franklin v. State, 986 S.W.2d 349, 352 (Tex. App.--Texarkana counsel to ask Juror Spradlin questions about her
1999).

2 Id.   at 354-55.                                                      TEX. R. APP. P. 44.2(a).

3 Franklin   v. State, 12 S.W.3d 473, 479 (Tex. Crim. App. 2000).       6 Franklin,   23 S.W.3d at 83.

4 Id.                                                                   7 Id.


5 Franklin    v. State, 23 S.W.3d 81, 83 (Tex. App.--Texarkana 2000);   8 Id.   at 82-83.
                                                                                                                         Page 6 of 16
                                     138 S.W.3d 351, *353; 2004 Tex. Crim. App. LEXIS 1118, **6

relationship with the victim is considered in the                  HN4[ ] The Sixth Amendment guarantees the
harm analysis, but it is not primarily the error in                right to a trial before an impartial jury. 13 HN5[ ]
question. Because the jury had been sworn and the                  Part of the constitutional guarantee of the right to
trial had begun, the appellant's [*354] only                       an impartial jury includes adequate voir dire to
remedy was a mistrial; defense counsel could not                   identify unqualified jurors. 14 And we have
have moved to challenge the juror for cause or to                  consistently held that HN6[ ] essential to the
peremptorily strike the juror. So, the issue here is               Sixth Amendment guarantees of the assistance of
what standard of harm should be applied to the trial               counsel and trial before an impartial jury "is the
judge's denial of a mistrial based on the juror's                  right to question veniremembers in order to
withholding of material information.                               intelligently exercise peremptory challenges and
                                                                   challenges for cause." 15 [**10] In Salazar [**9]
 [**7] HN1[ ] Under Texas Rule of Appellate                        v. State, we held that HN7[ ] "where a juror
Procedure 44.2, the standard of review for errors of               withholds material information during the voir dire
a constitutional dimension differs from the standard               process, the parties are denied the opportunity to
for other errors. 9 The rule provides that:                        exercise their challenges, thus hampering their
HN2[ ] (a) Constitutional error. If the record in a                selection of a disinterested and impartial jury." 16
criminal case reveals constitutional error that is                 We also found "that a juror will state that the fact
subject to harmless error review, the court of                     that he withheld information will not affect his
appeals must reverse a judgment of conviction or                   verdict is not dispositive [*355] of the issue where
punishment unless the court determines beyond a                    the information is material and therefore likely to
reasonable doubt that the error did not contribute to              affect the juror's verdict." 17 HN8[ ] The fact that
the conviction or punishment.                                      the juror did not intend to intentionally withhold
                                                                   information "is largely irrelevant when considering
(b) Other errors. Any other error, defect,                         the materiality of information withheld." 18
irregularity, or variance that does not affect
substantial rights must be disregarded. 10                         Here, Juror Spradlin withheld material information-
                                                                   -that she was the victim's assistant Girl Scout troop
Was a constitutional right affected by the juror's                 leader, and that her daughter was also in the same
withholding of material information during voir
dire and the judge's subsequent denial of a mistrial,              13 U.S.   CONST. amend VI.
compounded [**8] by the trial court's refusal to
                                                                   14 Morgan  v. Illinois, 504 U.S. 719, 729, 119 L. Ed. 2d 492, 112 S.
allow defense counsel to ask questions to develop a
                                                                   Ct. 2222 (1992).
record of actual bias or prejudice? We have said
before that HN3[ ] "constitutional provisions bear                 15 Raby v. State, 970 S.W.2d 1, 10 (Tex. Crim. App. 1998); Linnell v.
on the selection of a jury for the trial of a criminal             State, 935 S.W.2d 426, 428 (Tex. Crim. App. 1996) (citing Nunfio v.
                                                                   State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991)); Dinkins v.
case." 11 And while not every error in the selection               State, 894 S.W.2d 330, 344-345 (Tex. Crim. App. 1995); Burkett v.
of a jury violates the constitutional right of a trial             State, 516 S.W.2d 147, 148 (Tex. Crim. App. 1974); Hernandez v.
by an impartial jury, 12 we conclude that the error in             State, 508 S.W.2d 853, 854 (Tex. Crim. App. 1974); McCarter v.
this case did violate that right.                                  State, 837 S.W.2d 117, 119 (Tex. Crim. App. 1992); Naugle v. State,
                                                                   118 Tex. Crim. 566, 568, 40 S.W.2d 92, 94 (1931); see also Janecka
                                                                   v. State, 937 S.W.2d 456, 471 (Tex. Crim. App. 1996); Smith v.
                                                                   State, 676 S.W.2d 379, 384 (Tex. Crim. App. 1984); Mathis v. State,
9 TEX.   R. APP. P. 44.2.                                          167 Tex. Crim. 627, 628, 322 S.W.2d 629, 631 (1959).

10 Id.                                                             16 Salazar   v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978).

11 Jones   v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998).   17 Id.


12 Id.                                                             18 Franklin,   12 S.W.3d at 478.
                                                                                                                           Page 7 of 16
                                       138 S.W.3d 351, *355; 2004 Tex. Crim. App. LEXIS 1118, **9

Girl Scout troop as the victim--that prevented                actual bias or prejudice on the record. We
Franklin not only from intelligently exercising his           believe that all of these factors together--Juror
peremptory challenges but from exercising a                   Spradlin's failure to reveal her relationship to
challenge for cause as well. And, under Salazar,              the victim, the judge's denial of a mistrial, and
Spradlin's statement to the trial judge that she could        the trial judge's refusal to allow defense
consider the evidence and base her decision on the            counsel to question Spradlin about her
evidence does not mean that Franklin was not                  relationship to the victim--affected Franklin's
deprived of an impartial jury. 19 The trial judge,            right to a trial by an impartial jury. So, we
informed of the relationship between Spradlin and             conclude that the Court of Appeals properly
the victim, refused to grant a mistrial and denied            applied the constitutional standard of harm
Franklin the opportunity to discover whether the              under Rule 44.2(a).
relationship affected Franklin's right to a trial by an
impartial jury.                                          Judge Cochran's dissent argues that we should
                                                         apply the federal standard that Franklin must show
 [**11] And the error did not end there. The trial that Juror Spradlin had actual bias. Under the
judge also deprived Franklin of the ability to federal standard, the defendant must not only show
develop evidence of bias or prejudice on the record. that the juror failed to provide an honest answer to
In this case, defense counsel told the court:            a material question during voir dire but also that a
     Had I been allowed to ask questions, I would correct response would have provided the basis for
     have asked questions concerning the nature of a challenge for cause. 21 What Judge Cochran
     the relationship with [the victim], how long it advocates is not and has never [**13] been the
     had lasted, whether or not she could set aside standard in Texas. HN9[ ] Under Texas law, the
     any of her relationship with [the victim], in defendant [*356] must show that the juror
     sitting in judgment in this particular case, or withheld material information during voir dire, and
     whether she would tend to give more credence the information is withheld despite due diligence
     or less credence to [the victim]'s testimony and exercised by the defendant. 22 So, "it is not
     truthfulness due to that relationship.              necessary that the concealed information show
                                                         actual bias; just that it has a tendency to show bias."
     Counsel explained that these questions were 23 The fact that Spradlin had a relationship with the
     relevant to Spradlin's "potential biases" and victim, one that many people would consider
     would have uncovered information relevant to almost a parental role, certainly has a tendency to
     a challenge for cause. But the trial court show bias.
     refused to allow counsel to ask these questions,
     which we interpreted as "a direct order not to The State argues that, by analyzing the error for
     ask the questions." 20 The trial judge's refusal to harm under Rule 44.2(a), the Court of Appeals has
     allow defense counsel to ask Juror Spradlin issued an opinion that conflicts with our reasoning
     questions regarding the nature and extent of the in Jones v. State. 24 [**15] In Jones [**14] , we
     relationship deprived Franklin of the ability to found that an error in granting the State's challenge
     show actual bias or prejudice. We hesitate to
     hold Franklin to a burden of showing actual
                                                         21 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548,
     bias or prejudice [**12] when the trial judge
                                                         556, 78 L. Ed. 2d 663, 104 S. Ct. 845 (1984).
     denied him the ability to develop evidence of
                                                                     22 See   Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980).

                                                                     23 Robert
                                                                             G. Loewy, Note: When Jurors Lie: Differing Standards for
19 See   Salazar, 562 S.W.2d at 482.                                 New Trials, 22 AM. J. CRIM. L. 733, 743 (1995).

20 Franklin,   12 S.W.3d at 477.                                     24 Jones   v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998).
                                                                                                                             Page 8 of 16
                                          138 S.W.3d 351, *356; 2004 Tex. Crim. App. LEXIS 1118, **14

for cause was not of a constitutional dimension. 25                     Here, Franklin never had the opportunity to
We noted that "while it is true, as appellant argues,                   challenge Spradlin for cause or to strike her based
that the Constitution guarantees to an accused the                      on her relationship with the victim, and this
right to a speedy trial by an impartial jury, it does                   implicated his constitutional right to a trial by an
not follow that the rejection of [allegedly]                            impartial jury. Because the erroneous denial of a
unqualified persons for insufficient cause would                        challenge for cause is not at issue here, we are not
deprive appellant of that right." 26 Significant in our                 bound to apply the standard of harm associated
decision was that "no claim [was] made that the                         with that [**16] error.
jury, as finally constituted, was biased or
prejudiced; or that appellant was deprived of a trial                   The Court of Appeals found that because HN12[ ]
by an impartial jury." 27 We stated that HN10[ ]                        "a defendant's constitutional right to counsel
"a defendant has no right that any particular                           requires that counsel be permitted to question the
individual serve on the jury. The defendant's only                      members of the jury panel in order to intelligently
substantial right is that the jurors who do serve be                    exercise peremptory [*357] challenges," the error
qualified." 28 But here, Franklin's claims stem from                    involved in this case was of constitutional
the trial court's denial of a mistrial based on Juror                   dimension. 32 We have held that Article I, § 10, of
Spradlin's revelation during trial that she knew the                    the Texas Constitution HN13[ ] guarantees the
victim and that this deprived him of a trial by an                      right to counsel, which includes the right of counsel
impartial jury. We find that the State's reliance on                    to question members of the venire panel in order to
Jones is misplaced.                                                     intelligently exercise peremptory challenges. 33 But
                                                                        regardless of whether that type of error occurred,
This case is also distinguishable from Johnson v.                       we believe that Juror Spradlin's withholding of
State, 29 where we held that the erroneous denial of                    material information, the judge's denial of a
a challenge for cause is subject to a harm analysis                     mistrial, and the judge's refusal to allow defense
under Rule 44.2(b). 30 As we noted in Taylor v.                         counsel to ask Spradlin additional questions
State, HN11[ ] when a defendant is prevented                            adversely affected [**17] Franklin's right to a fair
from questioning the venire, he is prevented from                       and impartial trial. Because we conclude that the
obtaining     information,      which     implicates                    trial court's failure to grant a mistrial after Spradlin
constitutional protections.  31  But an erroneous                       revealed that she withheld material information is
denial of a challenge for cause does not prevent the                    constitutional error, we need not address whether
defendant from obtaining information; the                               the error implicated Franklin's right to counsel. So
defendant has elicited information from the jury                        we agree with the Court of Appeals that the proper
with which he can intelligently exercise his                            standard is the constitutional standard, but for a
challenges for cause or peremptory challenges.                          different reason.

                                                                        Judge Keller's dissent argues that our harm analysis
25 Id.   at 391-92.                                                     in this case conflicts with our recent decision in
26 Id.
                                                                        Hawkins v. State. 34 In Hawkins, we stated that
         at 391.
                                                                        whether a judge's failure to grant a mistrial
27 Id.                                                                  constitutes error inherently involves conducting a
28 Id.   at 393.

29 Johnson    v. State, 43 S.W.3d 1(Tex. Crim. App. 2001).              32 Franklin,   23 S.W.3d at 83.

30 Id.   at 2; Tex. R. App. P. 44.2(b).                                 33 Howard    v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996).

31 See    Taylor v. State, 109 S.W.3d 443, 451-52 (Tex. Crim. App.      34 Hawkins
                                                                                 v. State, No. 571-03, 135 S.W.3d 72, 2004 Tex. Crim.
2003).                                                                  App. LEXIS 899, at * 9 (Tex. Crim. App. May 19, 2004).
                                                                                                                Page 9 of 16
                                    138 S.W.3d 351, *357; 2004 Tex. Crim. App. LEXIS 1118, **17

harm analysis. 35 We said that determining whether                     "contending that there is a constitutional basis for
there is error involves determining whether the trial                  requiring a trial court to allow the parties to
judge made a mistake. 36But here, the issue is not                     question the juror, [*358] [we] have not explained
whether the judge made a mistake. We already                           what constitutional provision imposes such a
concluded in Franklin [**18] I that the trial judge                    requirement or [**20] why it does." 41 But we do
did make a mistake. 37 And despite the various                         not hold here that Franklin had a constitutional
characterizations of that mistake by the parties and                   right to ask the juror additional questions during
the Court of Appeals, the trial judge's only remedy                    trial. What we do hold is that because Franklin was
to correct the error was to grant a mistrial, which he                 unable to ask those questions during voir dire in
did not do. So, the only issue before us now is                        order to intelligently exercise his strikes based on
whether the Court of Appeals used the proper                           that information, he was denied the right to a fair
standard of harm in evaluating that error. Our                         and impartial jury. As we stated before, the fact that
analysis therefore is not at odds with Hawkins.                        the judge would not allow Franklin to ask the juror
                                                                       additional questions at trial compounded the
Judge Keller's dissent also asserts that our "only                     situation since he could not then affirmatively get
real argument for finding a violation of the right to                  any evidence of bias on the record.
an impartial jury is that there does not exist enough
information to determine whether the juror is                       In its second ground for review, the State argues
biased" and that we do not "explain why, from a                     that the Court of Appeals erred in finding harmful
constitutional perspective, it is not enough that the               error where the record does not show that the jury
trial court conducted its own inquiry." 38 [**19]                   was not fair and impartial. The State bases its
She states that there was not any evidence in the                   argument on the premise that the proper standard
record that Juror Spradlin was biased, and in fact                  for evaluating the harm is under Rule 44.2(b), and
that there was evidence that Juror Spradlin was not                 because Franklin was not denied a fair and
biased based on her responses to the trial judge's                  impartial jury, the error is harmless. But under Rule
questioning. 39 As we stated before, the issue before               44.2(a), the proper [**21] standard of harm in this
us is not whether the trial judge's ruling was error,               case, "the court of appeals must reverse a judgment
but what standard of harm to apply to that error.                   of conviction or punishment unless the court
And as we noted in response to Judge Cochran's                      determines beyond a reasonable doubt that the error
dissent, the defendant does not have to show                        did not contribute to the conviction or punishment."
evidence of actual bias; the defendant need only                    42 The Court of Appeals did not have to find that

show that the juror withheld material information                   the jury was not fair and impartial. Instead, the
despite the defendant's due diligence in eliciting                  Court of Appeals was required to reverse the
that information. 40                                                conviction unless it determined beyond a
                                                                    reasonable doubt that the trial court's denial of a
Judge Keller further states that if we are mistrial after Juror Spradlin revealed that she knew
                                                                    the victim did not contribute to Franklin's
                                                                    conviction or punishment. The Court of Appeals in
35 Id.                                                              this case found that because the trial court "refused
36 Id.
                                                                    to admit the information that would have permitted
                                                                    [it] to apply a harm analysis to the juror's failure to
37 Franklin v. State, 12 S.W.3d 473, 478-79 (Tex. Crim. App. 2000).
                                                                    answer counsel's voir dire questions accurately,"
38 Post,   slip. op. at 6.

39 Id.   at 6.                                                         41 Post,   slip. op. at 6-7.
40 See   Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980).   42 TEX.    R. APP. P. 44.2(a).
                                                                                                                       Page 10 of 16
                                    138 S.W.3d 351, *358; 2004 Tex. Crim. App. LEXIS 1118, **21

there was an "absence of evidence that would allow                The Court contends that "we already concluded in
[it] to determine beyond a reasonable doubt that the              Franklin I 5 that the trial judge did make a mistake"
error did not contribute to the conviction." 43 The               and therefore the only issue before us is the proper
Court of Appeals properly applied the standard of                 standard of harm. 6 But Franklin I did not in fact
harm in this case.                                                determine that the trial judge committed error in
                                                                  denying the request for a mistrial. Rather Franklin I
 [**22] Conclusion                                                agreed with the Court of Appeals's determination
                                                                  that the trial court erred in refusing to permit
We find that the Court of Appeals did not err in
                                                                  defense questioning of the juror. 7 The intermediate
analyzing the trial judge's denial of a mistrial based
                                                                  appellate court declined to reverse on the basis of
on a juror's withholding of material information
                                                                  that alleged error because it believed the error was
under Rule 44.2(a). 44 The Court of Appeals'
                                                                  not preserved 8 and, as a consequence, that it was
judgment is affirmed.
                                                                  impossible to determine whether the new
DATE DELIVERED: June 30, 2004                                     information was "material." 9 Franklin I disagreed
                                                                  with those determinations -- holding that appellant
KELLER, P.J., filed a dissenting opinion.                         had preserved his complaint 10 and that the new
                                                                  information was indeed "material." 11 [**24]
Dissent by: KELLER; COCHRAN                                       Franklin I did not, and could not have, addressed
                                                                  whether the trial court made a mistake in denying
Dissent
                                                                  the mistrial because the Court of Appeals never
                                                                  addressed whether the trial court erred in that
DISSENTING OPINION                                                regard.

The Court characterizes the issue as "what standard               On remand from Franklin I, the Court of Appeals
of harm should be applied to the trial judge's denial             confused the issue of what error was being
of a mistrial" based on the juror's withholding of                addressed. That court indicated that the error was
material information. 1 But as we recently                        not simply the refusal to permit questioning at trial
explained in Hawkins v. State, the question is not                but also somehow involved counsel's inability to
whether the defendant was harmed by the court's                   exercise for cause and [**25] peremptory strikes at
denial of a mistrial, but whether the trial court erred           voir dire:
in the first place by refusing to grant a mistrial. 2                      The State argues that the error before this Court
The harm analysis is built into the determination of                       is solely the trial court's refusal to permit
whether the trial court abused its [*359] discretion
by denying a mistrial. 3 The Court's harm analysis
is, therefore, directly at odds with our recent                   5 Franklin    v. State, 12 S.W.3d 473 (Tex. Crim. App. 2000).
holding [**23] in Hawkins. 4                                      6 Court's   op. at 11.

                                                                  7 Franklin, 12 S.W.3d at 479 ("The trial court erred in denying
43 Franklin,     23 S.W.3d at 83.                                 appellant the opportunity to ask questions of Juror Spradlin."); see
                                                                  also Franklin v. State, 986 S.W.2d 349, 353 (Tex. App.-Texarkana
44 TEX.    R. APP. P. 44.2(a).                                    1999).
1 Court's   op. at 5.
                                                                  8 Franklin,   986 S.W.2d at 353-354.
2 135S.W.3d 72, 2004 Tex. Crim. App. LEXIS 899, *9 (May 19,
2004).                                                            9 Id.   at 354-355.

3 Id.at   *10.                                                    10 Franklin,   12 S.W.3d at 477.

4 Id.                                                             11 Id.   at 477-478.
                                                                                                      Page 11 of 16
                               138 S.W.3d 351, *359; 2004 Tex. Crim. App. LEXIS 1118, **25

         counsel to question the juror. This view is not      [**27] The upshot of all this is that the exact
         supported either by our initial opinion or by the   identity of the error at issue remains unresolved.
         opinion of the Court of Criminal Appeals. In        Originally, the isolated error was the refusal to
         the Court of Criminal Appeal's opinion, it first    permit the defense to question the juror at trial. On
         determined that error had been preserved for        remand, the Court of Appeals suggested that the
         review -- that error being the refusal to permit    error was the deprivation of appellant's right to
         questioning of the juror. The Court of Criminal     intelligently exercise peremptory and for cause
         Appeals then discussed the question of whether      challenges. For the first time, the Court
         the information withheld by the juror during        characterizes the error as the failure to grant a
         voir dire was material. If that information was     mistrial. The Court may be correct in recasting the
         material, then counsel was unable, through no       error issue at this late stage, just as we did in
         fault of his own, to intelligently exercise his     Hawkins, but then the remaining discussion of error
         peremptory strikes or to request a strike for       and harm must be recast as well. It is inconsistent
         cause on this juror. The Sixth Amendment            to recast the error for the first time and then claim
         guarantees the "assistance of counsel" and a        that the error issue was resolved in a prior decision.
         trial before "an impartial jury." Part of this
         constitutional guarantee is an adequate voir dire   And the Court's failure to recast the issues under
         to identify unqualified jurors. Essential to this   Hawkins creates problems with its analysis
         guarantee is the right to question venire           regarding which harm standard to apply. The Court
         members in order to intelligently exercise          suggests that a constitutional standard of harm
         peremptory challenges and challenges for            applies in the present context because appellant was
         cause. In other words, a defendant's                unable to ask questions in voir dire in order to
         constitutional right to counsel requires that       intelligently exercise for cause and peremptory
         counsel [**26] be permitted to question the         challenges, and this denied him the right to trial by
         members of the jury panel in order [*360] to        a fair and impartial jury. But the right to [**28]
         intelligently exercise peremptory challenges. 12    intelligently exercise challenges is a separate right
                                                             from the right to an impartial jury. I do not see any
Although the Court of Appeals contended that its             necessary connection between the two.
more expansive view of the nature of the error was
supported by its own and our opinions, as discussed          If the juror were biased and could not set that bias
above, neither of those previous opinions isolated           aside, then the right to an impartial jury would be
any error other than the refusal to permit                   undermined. But whether appellant would have
questioning at trial. The lower court apparently             exercised a peremptory challenge, or raised a
interpreted the "materiality" discussion as invoking         challenge for cause, do not by themselves establish
its more expansive view of error, but the lower              that the juror in question was biased. Nor was there
court's prior opinion had in fact held that                  any evidence in this record that she was biased. In
materiality could not be determined due to an                fact, there was evidence, from the juror's response
inadequate record, 13 and Franklin I's discussion of         to the trial court's questioning, that she was not
materiality related to our holding that the trial court      biased. The Court does not adequately explain why
erred in refusing to permit questioning. 14                  we should override the trial court's determination
                                                             that the juror was not biased when there is evidence
                                                             in the record to support that ruling. It is true that we
12 Franklin
          v. State, 23 S.W.3d 81, 83 (Tex. App.-Texarkana    stated in Salazar that a juror's statement that the
2000)(emphasis in original; internal citations omitted).     information withheld would not affect his verdict is
13 See   above discussion.
14 12   S.W.3d at 478-479.
                                                                                                                       Page 12 of 16
                                   138 S.W.3d 351, *360; 2004 Tex. Crim. App. LEXIS 1118, **28

not dispositive when the information is material. 15                    If the Court is contending that there is a
But such a statement is at least questionable in light                  constitutional basis for requiring a trial court to
of much more recent pronouncements from this                            allow the parties to question the juror, it has not
Court upholding a trial court's ruling regarding a                      explained what constitutional provision imposes
juror's ability to serve impartially on the case when                   such a requirement or why it [**31] does.
that ruling is [**29] supported by the record. 16
                                                       Arguably, a right of defense counsel to question the
Moreover, in Salazar, upon which the Court relies, juror stems from the right to make a bill of
it is clear that the juror intentionally [*361] exceptions, but that right appears to stem from
withheld the information. 17 [**30] In the case at common law and court rules rather than the United
bar, however, the juror did not intentionally States or Texas constitutions. 21
withhold the information. 18 In Franklin I, we held
that the good faith of the juror is largely irrelevant Perhaps the Court is echoing the Court of Appeals's
when considering the materiality of the information conclusion that the error in this case is the
withheld. 19 But while good faith may be irrelevant deprivation of the intelligent use of strikes. If that
to the materiality of the information, it should be were the error, however, the logical place for that
relevant to whether the trial court is free to believe error to have occurred would be during voir dire.
the juror when she says that the information will But the trial court committed no such error in voir
not affect her deliberations.                          dire. To find such an error in voir dire, we would
                                                       have [**32] to make an exception to the general
The Court's only real argument for finding a principle, discussed in Hawkins, that error occurs
violation of the right to an impartial jury is that only when the trial court makes a mistake and hold
there does not exist enough information to that a juror's conduct could, by itself, create error to
determine whether the juror is biased. But the Court be complained about on appeal. Moreover, to help
does not explain how it arrives at that conclusion. appellant in this case, we would have to further
The trial court questioned the juror and received her hold that such error could occur even when the
verbal assurance of impartiality. The Court has not juror acted in good faith and did not intentionally
explained how the trial court's questioning was withhold information. I see no persuasive reason to
deficient. The Court says that appellant should not make such an exception to Hawkins.
be held to the burden of proving bias or prejudice
when he was not allowed to ask questions, but the I respectfully dissent.
Court does not explain why, from a constitutional KELLER, Presiding Judge
perspective, it is not enough that the trial court
conducted its own inquiry. In fact, that's what Date filed: June 30, 2004
happened in Salazar: the trial court conducted its
own inquiry without the assistance of the parties. 20 COCHRAN, J., filed a dissenting opinion in which
                                                       MEYERS, J., joined.

                                                                        OPINION
15 Id.   at 482.
                                                                        I respectfully dissent.
16 Quinnv. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997); see
also Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000).
17 562                                                                  20 Salazar   v. State, 562 S.W.2d 480, 481-482 (Tex. Crim. App.
       S.W.2d at 482 ("It is clear that juror Wooley was in violation
of his oath when he withheld information during voir dire").            1978).

18 Franklin,                                                            21 SeeSpence v. State, 758 S.W.2d 597, 599-600 (Tex. Crim. App.
               12 S.W.3d at 478.
                                                                        1988), cert. denied, 499 U.S. 932, 113 L. Ed. 2d 271, 111 S. Ct.
19 Id.                                                                  1339 (1991).
                                                                                                              Page 13 of 16
                           138 S.W.3d 351, *361; 2004 Tex. Crim. App. LEXIS 1118, **32

The error that we have already found in this case        from the stand. Juror Spradlin stated that she could.
was the trial court's failure to permit further          1

questioning of juror Spradlin concerning any actual
bias she might harbor against appellant. The             Appellant's counsel immediately moved for a
constitutional question, however, is whether             mistrial. The trial judge refused that request,
appellant's Sixth Amendment right to trial by an         stating: "I think it was obvious from seeing her that
impartial jury was violated. If Ms. [*362] Spradlin      she had no idea who this witness was until she saw
was actually biased against appellant, he did not        her come into the courtroom." Appellant then
receive his constitutionally guaranteed right to trial   requested an opportunity to question Ms. Spradlin
by an impartial jury. But if Ms. Spradlin did not        further about her relationship with C.N.T. Again
harbor any actual [**33] bias against appellant, he      the trial judge refused: "I'm not going to permit that
did receive a constitutionally fair trial by an          because you had ample opportunity on voir dire."
impartial jury. Under well-established federal           The State argued that appellant had failed to show
precedent, the defendant must show that the juror        any harm because [**35] there was no indication
had an actual bias against him before he is entitled     that Juror Spradlin would be unfair or partial.
to relief. I would therefore follow federal precedent    Appellant objected again, observing that "the
and abate this case to the trial court to give           reason that there is no evidence of any potential
appellant the opportunity to call Ms. Spradlin and       biases, of course, the Court is preventing me from
question her about her relationship with C.N.T. If       further developing that testimony from that
Ms. Spradlin was actually biased against appellant,      particular juror once that relationship has been
he has suffered constitutional harm. If she was not      established." Appellant's counsel then set out on the
biased, appellant was tried by a fair and impartial      record the questions he would have asked Juror
jury and he has suffered no harm at all, despite the     Spradlin about her relationship with C.N.T. had he
trial court's error.                                     been permitted to do so. These were all appropriate
                                                         questions and appellant should have been allowed
I.                                                       to ask them.
During voir dire in this case, the State asked the       The trial court erred in refusing to allow further
jury panel if anyone knew C.N.T., the complainant        inquiry into the juror's potential bias. In our prior
in this aggravated sexual assault of a child trial. No   opinion, we held that appellant properly preserved
one said they did. Appellant did not inquire further     this error and remanded the case for the court of
and he did not ask C.N.T. to enter the courtroom or      appeals to conduct a harm analysis. 2 On remand,
stand up so the jury panel could see her in person.      the court of appeals held that this was constitutional
After the jury was empaneled, the State called           error because appellant was deprived of his right to
C.N.T. to the witness stand. As soon as C.N.T. took      "question the members of the jury panel in order to
the witness stand, Juror Spradlin passed a note to       intelligently exercise peremptory challenges."
the judge stating that she now recognized C.N.T.          [*363] 3 This seems a peculiar conclusion because
As we stated in our original [**34] opinion in this      appellant could have questioned Ms. Spradlin
case:                                                    during voir dire until the cows came home, but until
Apparently, Juror Spradlin had a daughter in the         Ms. Spradlin saw [**36] C.N.T. she would not
same girl scout troop as C.N.T., and Juror Spradlin      have realized that she knew her.
was that girl scout troop's assistant leader. She had
not recognized the name, but knew C.N.T. when            1 Franklin    v. State, 12 S.W.3d 473, 476 (Tex. Crim. App. 2000).
she saw her. The trial court judge asked Juror
                                                         2 Id.   at 479.
Spradlin if she could listen to the evidence in the
case and base her judgment just on what she heard        3 Franklin    v. State, 23 S.W.3d 81, 83 (Tex. App.-Texarkana 2000).
                                                                                                                               Page 14 of 16
                                   138 S.W.3d 351, *363; 2004 Tex. Crim. App. LEXIS 1118, **36

It seems to me that the problem here has nothing to                       Although there are a few exceptional circumstances
do with voir dire and nothing to do with the                              in which "implied bias" may be presumed as a
exercise of peremptory challenges. Voir dire was                          matter of law, 8 [**39] normally [*364] a party
over when this problem surfaced. Instead, the issue                       seeking a new trial [**38] (or, as in this case, a
is whether a biased juror sat on appellant's jury.                        mistrial) must show a juror's "actual bias." 9
This scenario and the constitutional issue it presents
are very familiar to the federal courts. Therefore, I                     To obtain a new trial for actual juror bias, a
think that we should follow federal precedent in                          defendant must show: 1) that a juror failed to
dealing with this constitutional issue. Under federal                     answer honestly a material question during voir
precedent, the proper remedy is to remand the case                        dire; and 2) that a correct response would have
to the trial court for a hearing. 4                                       provided the basis for a challenge for cause.
                                                                          10 [**41] This is the test applied when a juror

[**37] II.

The Sixth Amendment guarantees the accused the                            7 UnitedStates v. Wood, 299 U.S. 123, 134, 81 L. Ed. 78, 57 S. Ct.
right to a trial by an impartial jury. 5 This right to                    177 (1936).
trial by an impartial jury lies at the heart of due                       8 See Smith v. Phillips, 455 U.S. 209, 222-23, 71 L. Ed. 2d 78, 102 S.
process. 6 The Constitution provides no specific                          Ct. 940 (1982) (O'Connor, J., concurring) (noting that "there are
tests of juror partiality or bias, but the United States                  some extreme situations that would justify a finding of implied bias,"
Supreme Court has stated that "the bias of a juror                        including "a revelation that the juror is an actual employee of the
may be actual or implied; that is, it may be bias in                      prosecuting agency, that the juror is a close relative of one of the
                                                                          participants in the trial or the criminal transaction, or that the juror
fact or bias conclusively presumed as [a] matter of                       was a witness or somehow involved in the criminal transaction"); see
law." 7                                                                   also Solis v. Cockrell, 342 F.3d 392, 395-98 (5th Cir. 2003) (citing
                                                                          cases and analyzing doctrine of "implied" or "presumed" juror bias
                                                                          when juror fails to disclose material information during voir dire;
                                                                          rejecting habeas applicant's claim of implied bias when juror failed
4 Smith  v. Phillips, 455 U.S. 209, 215, 71 L. Ed. 2d 78, 102 S. Ct.      to disclose that he lived not more than two blocks from defendant,
940 (1982) ("this Court has long held that the remedy for allegations     had known him and his family for more than twenty years, and knew
of juror partiality is a hearing in which the defendant has the           that defendant and his brothers "break into people's homes"). In
opportunity to prove actual bias"); McDonough Power Equip., Inc. v.       Solis, the Fifth Circuit noted that the Supreme Court has never
Greenwood, 464 U.S. 548, 551-52, 78 L. Ed. 2d 663, 104 S. Ct. 845         explicitly upheld a claim of implied bias, although it may have
& n.3, 464 U.S. 548, 78 L. Ed. 2d 663, 104 S. Ct. 845 (1984) (stating     implicitly done so. Id. at 395 (discussing Leonard v. United States,
that proper resolution of whether juror's "unrevealed information"        378 U.S. 544, 12 L. Ed. 2d 1028, 84 S. Ct. 1696 (1964)).
during voir dire showed juror bias is to remand case to district court    9 Appellant's argument suggests that this is an instance of "implied"
to conduct a hearing to decide that factual question); Remmer v.
                                                                          or "presumed" juror bias. He states: "Except immediate family
United States, 347 U.S. 227, 230, 98 L. Ed. 654, 74 S. Ct. 450 (1954)
                                                                          members, one could hardly imagine a stronger relationship than that
(remanding case to district court to determine whether attempted
                                                                          which exists between a girl scout and her troop leader." I cannot
bribery of juror influenced him and made him prejudiced); Solis v.
                                                                          accept that premise, but even so, the record in this case indicates that
Cockrell, 342 F.3d 392, 399 (5th Cir. 2003) (post-conviction hearing
                                                                          Ms. Spradlin did not have a close relationship with C.N.T. because
conducted by trial court which turned up no prejudice toward
                                                                          she did not even recognize her name. Appellant provides no legal
defendant by juror protected habeas applicant's right to trial by
                                                                          support for his argument that being a crime victim's assistant girl
impartial jury); Tinsley v. Borg, 895 F.2d 520, 524-26 (9th Cir. 1990)
                                                                          scout leader raises "implied" or "presumed" bias.
(citing Phillips and noting that post-trial hearing is appropriate
mechanism to resolve constitutional claims of juror bias when juror       10 McDonough,   464 U.S. at 556; United States v. Bishop, 264 F.3d
fails to disclose material information during voir dire).                 535, 554 (2001) ("moving party must demonstrate that a juror failed
5 U.S. CONST. amend. VI ("in all criminal prosecutions, the accused       to answer a material voir dire question honestly, and that a correct
shall enjoy the right to a speedy and public trial, by an impartial       response would have been a valid basis for a challenge for cause");
jury").                                                                   United States v. Wilson, 116 F.3d 1066, 1086 (5th Cir. 1997)
                                                                          ("generally, to obtain a new trial for jury bias, a party must
6 Irvin  v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 81 S. Ct. 1639      demonstrate: (1) that a juror failed to answer honestly a material
(1961) ("the right to jury trial guarantees to the criminally accused a   question during voir dire, and (2) that a correct response would have
fair trial by a panel of impartial, 'indifferent' jurors").               provided the basis for a successful challenge for cause"); Dennis v.
                                                                                                                                  Page 15 of 16
                                       138 S.W.3d 351, *364; 2004 Tex. Crim. App. LEXIS 1118, **41

intentionally conceals information. 11 The Supreme                          defendant and a juror had previously had a
Court explained in McDonough that "the motives                              disagreement over a bill was insufficient; 18 and the
for concealing information may vary, but only                               fact that a juror, although questioned repeatedly,
those reasons that affect a juror's impartiality can                        failed to disclose that she had been previously
truly be said to affect the fairness [**40] of a trial."                    convicted of theft and sat on a trial involving
12 Inaccurate responses to voir dire questions are                          federal income tax fraud, was insufficient. 19 There
excused when caused by inattention or when a                                are a plethora of federal cases addressing precisely
query does not elicit the specific information                              the constitutional issue presented in this case. It
relevant to the juror's possible disqualification. 13                       seems to me that we should consult those cases
Even when a juror's failure to disclose information                         before we reverse appellant's conviction on this
on voir dire is dishonest rather than mistaken, "his                        constitutional basis. As the Supreme Court stated in
behavior is not a basis for reversal unless the                             McDonough:
dishonesty appears to be rooted in bias or
prejudice." 14                                                              To invalidate the result of a three-week trial
                                                                            because of a juror's mistaken, though honest
Under the Supreme Court's constitutional standard:                          response to a question, is to insist on something
                                                                            closer to perfection than our judicial system can be
A juror … need not be disqualified merely because                           expected to give. A trial represents an important
he or she knows the defendant or has some                                   investment of private and social resources, and it ill
knowledge about the case. A defendant must show                             serves the important end of finality to wipe the slate
that the knowledge somehow impaired-or had the                              clean simply to recreate the peremptory challenge
ineluctable tendency to impair-the juror's neutrality.                      process because counsel lacked an item of
That is to say, the defendant must show actual, or at                       information which objectively he should have
least likely, prejudice stemming from the
participation of the allegedly biased juror. 15


                                                                            honestly mistaken in her response; nonetheless, mere friendship with
The mere fact that a juror was the former                                   victim does not, by itself, constitute juror bias). As the Fifth Circuit
"paramour" of the defendant's son was insufficient                          noted in Montoya:
to show actual prejudice; 16 the fact that a juror was                      We have found no published opinion upholding a challenge for cause
the friend of the murder victim was insufficient;                           based on a venireperson's mere acquaintance with the victim of the
 [**42] 17 [**43] the fact [*365] that one                                  crime for which the defendant has been charged, and the Texas Court
                                                                            of Criminal Appeals has squarely held that the mere fact that a juror
Mitchell, 354 F.3d 511, 520-21 (6th Cir. 2003) (setting out                 knows the victim is not sufficient basis for disqualification. See
McDonough test).                                                            Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. 1982). In
                                                                            Anderson, the juror was a school teacher at the school where the rape
11 McDonough,       464 U.S. at 556; Dennis v. Mitchell, 354 F.3d at 520.   at issue occurred and knew the victim, who attended the school, and
                                                                            several of the State's witnesses, but did not know the defendant. The
12 McDonough,       464 U.S. at 556.                                        court stated: "Although such knowledge [of the victim] may be the
                                                                            source of an existing bias, 'the mere fact that a juror knows, or is a
13 Bishop,   264 F.3d at 555.                                               neighbor, or an intimate acquaintance of, and on friendly relations
                                                                            with, one of the parties to a suit, is not sufficient basis for
14 Id.
                                                                            disqualification.'"
15 Neron    v. Tierney, 841 F.2d 1197, 1206 (1st Cir. 1988).                65 F.3d at 419-20.

16 Id.   at 1203.                                                           18 United   States v. Uribe, 890 F.2d 554, 561 (1st Cir. 1989).

17 Wilson,116 F.3d at 1086; see also Montoya v. Scott, 65 F.3d 405,         19 Bishop, 264 F.3d at 556 (juror offered a "plausible explanation for
420 (5th Cir. 1995) (juror who did not respond to voir dire question        her failure to answer the juror questionnaire and voir dire inquiries
of whether she knew victim when in fact she did may have been               regarding her criminal history accurately").
                                                                                                                             Page 16 of 16
                                    138 S.W.3d 351, *365; 2004 Tex. Crim. App. LEXIS 1118, **43

obtained from a juror on voir dire examination. 20                         that when a defendant relies upon the United States
                                                                           Constitution for his claim, we should address his
In this case, there is not a scintilla of                                  claim under the United States Constitution and the
suggestion [**44] that Ms. Spradlin "withheld"                             controlling precedent of the United States Supreme
any information. Indeed, the moment she saw                                Court. 23
C.N.T. in person, she immediately informed the
trial judge that she did, in fact, recognize the child,                    Furthermore, there are numerous federal cases,
though she had not recognized the name. Surely                             including McDonough itself, addressing the
this is a common phenomenon to us all. To guard                            appropriate remedy when the trial court has not
against this problem, appellant could easily have                          provided an adequate forum to develop the factual
asked C.N.T. and all of the witnesses to stand up in                       basis for the claim of a biased juror. That remedy is
the courtroom and then ask the venire members if                           to remand the case to the trial court to give the
they recognized any of them. This is frequently                            defendant an opportunity to establish his claim of a
done in Texas courtrooms. Appellant should not be                          biased juror. 24 I, like the Supreme Court, believe
punished for his failure to perform this simple voir                       that a trial represents an important investment of
dire exercise, 21 but neither should he obtain a                           private and social resources, an investment that is
reversal for that failure. As it stands, there is                          the main event, not a try-out on the road to
nothing in this record to suggest that Ms. Spradlin                        appellate speculation about possible juror
was biased against appellant. The problem in this                          bias. [**47] Appellant is entitled to show actual
case is that appellant was prevented from [*366]                           bias, but we ought not assume it without support in
even attempting to explore or establish bias.                              the record.

 [**45] Appellant, the court of appeals, and the                           I respectfully dissent to the majority's failure to
majority cast this constitutional claim as one                             follow federal constitutional law and procedure on
involving the right to make intelligent peremptory                         appellant's federal constitutional claim.
challenges. But there is no federal constitutional
right to peremptory challenges. 22 [**46] I believe                        Cochran, J.

                                                                           Filed: June 30, 2004.

20 McDonough,   464 U.S. at 555.
                                                                              End of Document
21 But see Wilson, 116 F.3d at 1086 (defendant bears burden of
proving that the belated discovery of juror's friendship with the
victim was not due to lack of diligence on his part); cf. Neron, 841
F.2d at 1202 n.6 (noting that allegations of juror bias "which are
frivolous--that is, entirely conclusory or conjectural, contradicted by
the record, inherently incredible, patently false, or obviously
inconsequential--do not trigger any duty of inquiry [by the trial
court] and do not require that a hearing be held").

22 Georgia  v. McCollum, 505 U.S. 42, 57, 120 L. Ed. 2d 33, 112 S.         for its exercise would not exist").
Ct. 2348 (1992) ("it is important to recall that peremptory challenges
are not constitutionally protected fundamental rights; rather, they are    23 InJones v. State, 596 S.W.2d 134 (Tex. Crim. App. 1980), this
but one state -- created means to the constitutional end of an             Court did not address any question of constitutional error or harm
impartial jury and a fair trial. This Court repeatedly has stated that     because the defendant failed to ask any specific questions designed
the right to a peremptory challenge may be withheld altogether             to elicit the fact that the juror had once been employed as a jail
without impairing the constitutional guarantee of an impartial jury        guard. Id. at 136. Because the defendant did not show that the juror
and a fair trial"); Frazier v. United States, 335 U.S. 497, 505, 93 L.     intentionally withheld material information, he failed to show any
Ed. 187, 69 S. Ct. 201 (1948) (stating that the right to peremptory        "misconduct that would warrant reversal." Id. at 137.
challenges "is given in aid of the party's interest to secure a fair and
impartial jury, not for creating ground to claim partiality which but      24 See   supra note 4.
    Caution
As of: September 25, 2017 10:48 PM Z


                                       Packingham v. North Carolina
                                                                                         FILED IN
                                        Supreme Court of the United States        4th COURT   OF APPEALS
                                                                                   SAN ANTONIO, TEXAS
                                 February 27, 2017, Argued; June 19, 2017, Decided09/26/17 5:56:59 PM
                                                                                    KEITH E. HOTTLE
                                                    No. 15-1194.                          CLERK


Reporter
137 S. Ct. 1730 *; 198 L. Ed. 2d 273 **; 2017 U.S. LEXIS 3871 ***; 85 U.S.L.W. 4353; 26 Fla. L. Weekly Fed. S
695; 66 Comm. Reg. (P & F) 1397; 2017 WL 2621313
LESTER GERARD PACKINGHAM, Petitioner v.                   maintain a personal web page, was unconstitutional
                                                          because it impermissibly restricted lawful speech in
NORTH CAROLINA
                                                          violation of the First Amendment's Free Speech
Notice: The LEXIS pagination of this document is          Clause, which was applicable to North Carolina
subject to change pending release of the final            under the Due Process Clause of the Fourteenth
published version.                                        Amendment.

Prior  History: [***1] ON WRIT  OF                        Outcome
CERTIORARI TO THE SUPREME COURT OF                        The Supreme Court reversed the Supreme Court of
NORTH CAROLINA                                            North Carolina's judgment upholding N.C. Gen.
                                                          Stat. § 14-202.5 and remanded the case. 8-0
State v. Packingham, 368 N.C. 380, 777 S.E.2d
                                                          Decision; 1 concurrence.
738, 2015 N.C. LEXIS 1061 (Nov. 6, 2015)
                                                          LexisNexis® Headnotes
Disposition: Reversed and remanded.

Core Terms
                                                             Computer & Internet Law > Content
websites, users, site, internet, Amazon, networking,         Regulation > First Amendment Protections
com, sex offender, profile, sexual, https, www,
media, WebMD, registered sex offender,                       Constitutional Law > ... > Fundamental
communicate, abuser, photographs, convicted,                 Freedoms > Freedom of Speech > Scope
exchanges, visitors, html, facilitates, pages,
message board, advertising, Electronic, customer,         HN1[ ] Content Regulation, First Amendment
minors, child abuse                                       Protections

Case Summary
                                                          A fundamental principle of the First Amendment is
                                                          that all persons have access to places where they
Overview                                                  can speak and listen, and then, after reflection,
HOLDINGS: [1]-N.C. Gen. Stat. § 14-202.5, which           speak and listen once more. The United States
made it a felony for registered sex offenders to          Supreme Court has sought to protect the right to
access commercial social networking websites              speak in this spatial context. A basic rule, for
where a sex offender knew the site allowed minor          example, is that a street or a park is a quintessential
children to become members or to create or                forum for the exercise of First Amendment rights.
                                                                                                  Page 2 of 16
                   137 S. Ct. 1730, *1730; 198 L. Ed. 2d 273, **273; 2017 U.S. LEXIS 3871, ***1

Even in the modern era, these places are still            HN3[ ] Fundamental Freedoms, Freedom of
essential venues for public gatherings to celebrate       Speech
some views, to protest others, or simply to learn
and inquire. While in the past there may have been
difficulty in identifying the most important places       In order to survive intermediate scrutiny, a law
(in a spatial sense) for the exchange of views, today     must be narrowly tailored to serve a significant
the answer is clear. It is cyberspace—the vast            governmental interest. In other words, the law must
democratic forums of the Internet in general, and         not burden substantially more speech than is
social media in particular. Social media offers           necessary to further the government’s legitimate
relatively unlimited, low-cost capacity for               interests.
communication of all kinds, and social media users
employ various websites to engage in a wide array
of protected First Amendment activity on topics as            Criminal Law & Procedure > ... > Sex
diverse as human thought.                                     Crimes > Sexual Assault > Abuse of Children

                                                              Governments > Legislation > Overbreadth
   Computer & Internet Law > Content                      HN4[ ] Sexual Assault, Abuse of Children
   Regulation > First Amendment Protections

   Constitutional Law > ... > Fundamental                 There is no doubt that, as the United States
   Freedoms > Freedom of Speech > Scope                   Supreme Court has recognized, the sexual abuse of
                                                          a child is a most serious crime and an act repugnant
HN2[ ] Content Regulation, First Amendment
                                                          to the moral instincts of a decent people. And it is
Protections
                                                          clear that a legislature may pass valid laws to
                                                          protect children and other victims of sexual assault
The nature of a revolution in thought can be that, in     from abuse. The government, of course, need not
its early stages, even its participants may be            simply stand by and allow these evils to occur. But
unaware of it. And when awareness comes, they             the assertion of a valid governmental interest
still may be unable to know or foresee where its          cannot, in every context, be insulated from all
changes lead. While we now may be coming to the           constitutional protections.
realization that the Cyber Age is a revolution of
historic proportions, we cannot appreciate yet its
full dimensions and vast potential to alter how we            Business & Corporate
think, express ourselves, and define who we want              Compliance > ... > Computer & Internet
to be. The forces and directions of the Internet are          Law > Content Regulation > State Statutes
so new, so protean, and so far reaching that courts
must be conscious that what they say today might              Constitutional Law > ... > Fundamental
be obsolete tomorrow.                                         Freedoms > Freedom of Speech > Scope

                                                              Computer & Internet Law > Content
                                                              Regulation > First Amendment Protections
   Constitutional Law > Bill of
   Rights > Fundamental Freedoms > Freedom of             HN5[ ] Content Regulation, State Statutes
   Speech

   Governments > Legislation > Overbreadth                Social media allows users to gain access to
                                                                                                   Page 3 of 16
                   137 S. Ct. 1730, *1730; 198 L. Ed. 2d 273, **273; 2017 U.S. LEXIS 3871, ***1

information and communicate with one another              impermissibly restricted lawful speech in violation
about it on any subject that might come to mind. By       of Federal Constitution's First Amendment.
prohibiting sex offenders from using social media
websites, North Carolina with one broad stroke bars       Summary
access to what for many are the principal sources
                                                          Overview: HOLDINGS: [1]-N.C. Gen. Stat. § 14-
for knowing current events, checking ads for
                                                          202.5, which made it a felony for registered sex
employment, speaking and listening in the modern
                                                          offenders to access commercial social networking
public square, and otherwise exploring the vast
                                                          websites where a sex offender knew the site
realms of human thought and knowledge. Social
                                                          allowed minor children to become members or to
media websites can provide perhaps the most
                                                          create or maintain a personal web page, was
powerful mechanisms available to a private citizen
                                                          unconstitutional because it impermissibly restricted
to make his or her voice heard. They allow a person
                                                          lawful speech in violation of the First Amendment's
with an Internet connection to become a town crier
                                                          Free Speech Clause, which was applicable to North
with a voice that resonates farther than it could
                                                          Carolina under the Due Process Clause of the
from any soapbox. In sum, to foreclose access to
                                                          Fourteenth Amendment.
social media altogether is to prevent the user from
engaging in the legitimate exercise of First              Outcome: The Supreme Court reversed the
Amendment rights. It is unsettling to suggest that
                                                          Supreme Court of North Carolina's judgment
only a limited set of websites can be used even by
                                                          upholding N.C. Gen. Stat. § 14-202.5 and
persons who have completed their sentences. Even
                                                          remanded the case. 8-0 Decision; 1 concurrence.
convicted criminals—and in some instances
especially convicted criminals—might receive              Headnotes
legitimate benefits from these means for access to
the world of ideas, in particular if they seek to
reform and to pursue lawful and rewarding lives.           [**274]

                                                          Constitutional Law 938 > FREE SPEECH -- PUBLIC
   Constitutional Law > ... > Fundamental                 FORUM -- STREET OR PARK -- SOCIAL
   Freedoms > Freedom of Speech > Scope                   MEDIA > Headnote:
                                                          LEdHN1.[ ] 1.
HN6[ ] Fundamental Freedoms, Freedom of
Speech                                                    A fundamental principle of the First Amendment is
                                                          that all persons have access to places where they
                                                          can speak and listen, and then, after reflection,
It is well established that, as a general rule, the       speak and listen once more. The United States
government may not suppress lawful speech as the          Supreme Court has sought to protect the right to
means to suppress unlawful speech.                        speak in this spatial context. A basic rule, for
                                                          example, is that a street or a park is a quintessential
Lawyers' Edition Display                                  forum for the exercise of First Amendment rights.
                                                          Even in the modern era, these places are still
Decision                                                  essential venues for public gatherings to celebrate
                                                          some views, to protest others, or simply to learn
 [**273] State statute, which made it felony for          and inquire. While in the past there may have been
anyone on state's registry of sex offenders to access     difficulty in identifying the most important places
various websites, including Facebook, if sites were       (in a spatial sense) for the exchange of views, today
known to allow minors to have accounts,                   the answer is clear. It is cyberspace--the vast
                                                                                                  Page 4 of 16
                   137 S. Ct. 1730, *1730; 198 L. Ed. 2d 273, **274; 2017 U.S. LEXIS 3871, ***1

democratic forums of the Internet in general, and         ABUSE -- PROTECTION OF CHILDREN > Headnote:
social media in particular. Social media offers           LEdHN4.[ ] 4.
relatively unlimited, low-cost capacity for
communication of all kinds, and social media users        There is no doubt that, as the United States
employ various websites to engage in a wide array         Supreme Court has recognized, the sexual abuse of
of protected First Amendment activity on topics as        a child is a most serious crime and an act repugnant
diverse as human thought. (Kennedy, J., joined by         to the moral instincts of a decent people. And it is
Ginsburg, Breyer, Sotomayor, and Kagan, JJ.)              clear that a legislature may pass valid laws to
                                                          protect children and other victims of sexual assault
                                                          from abuse. The government, of course, need not
                                                          simply stand by and allow these evils to occur. But
 Constitutional Law 938 > FREE SPEECH --                  the assertion of a valid governmental interest
INTERNET > Headnote:                                      cannot, in every context, be insulated from all
LEdHN2.[ ] 2.                                             constitutional protections. (Kennedy, J., joined by
                                                          Ginsburg, Breyer, Sotomayor, and Kagan, JJ.)
The nature of a revolution in thought can be that, in
its early stages, even its participants may be             [**275]
unaware of it. And when awareness comes, they
still may be unable to know or foresee where its          Constitutional Law 961.5 > FREE SPEECH -- SEX
changes lead. While we now may be coming to the           OFFENDERS -- SOCIAL MEDIA WEBSITES --
realization that the Cyber Age is a revolution of         STATE STATUTE > Headnote:
historic proportions, we cannot appreciate yet its        LEdHN5.[ ] 5.
full dimensions and vast potential to alter how we
think, express ourselves, and define who we want          Social media allows users to gain access to
to be. The forces and directions of the Internet are      information and communicate with one another
so new, so protean, and so far reaching that courts       about it on any subject that might come to mind. By
must be conscious that what they say today might          prohibiting sex offenders from using social media
be obsolete tomorrow. (Kennedy, J., joined by             websites, North Carolina with one broad stroke bars
Ginsburg, Breyer, Sotomayor, and Kagan, JJ.)              access to what for many are the principal sources
                                                          for knowing current events, checking ads for
                                                          employment, speaking and listening in the modern
                                                          public square, and otherwise exploring the vast
Constitutional Law 935 > SPEECH RESTRICTION --            realms of human thought and knowledge. Social
NARROW TAILORING > Headnote:                              media websites can provide perhaps the most
LEdHN3.[ ] 3.                                             powerful mechanisms available to a private citizen
                                                          to make his or her voice heard. They allow a person
In order to survive intermediate scrutiny, a law
                                                          with an Internet connection to become a town crier
must be narrowly tailored to serve a significant
                                                          with a voice that resonates farther than it could
governmental interest. In other words, the law must
                                                          from any soapbox. In sum, to foreclose access to
not burden substantially more speech than is
                                                          social media altogether is to prevent the user from
necessary to further the government's legitimate
                                                          engaging in the legitimate exercise of First
interests. (Kennedy, J., joined by Ginsburg, Breyer,
                                                          Amendment rights. It is unsettling to suggest that
Sotomayor, and Kagan, JJ.)
                                                          only a limited set of websites can be used even by
                                                          persons who have completed their sentences. Even
                                                          convicted criminals--and in some instances
Constitutional Law 961 > FREE SPEECH -- SEXUAL            especially convicted criminals--might receive
                                                                                                  Page 5 of 16
                   137 S. Ct. 1730, *1730; 198 L. Ed. 2d 273, **275; 2017 U.S. LEXIS 3871, ***1

legitimate benefits from these means for access to        where they can speak and listen, and then, after
the world of ideas, in particular if they seek to         reflection, speak and listen once more. Today, one
reform and to pursue lawful and rewarding lives.          of the most important places to exchange views is
(Kennedy, J., joined by Ginsburg, Breyer,                 cyberspace, particularly [***2] social media,
Sotomayor, and Kagan, JJ.)                                which offers “relatively unlimited, low-cost
                                                          capacity for communication of all kinds,” Reno v.
                                                          American Civil Liberties Union, 521 U. S. 844,
                                                          870, 117 S. Ct. 2329, 138 L. Ed. 2d 874, to users
Constitutional Law 930 > LAWFUL AND
                                                          engaged in a wide array of protected First
UNLAWFUL SPEECH > Headnote:
                                                          Amendment activity on any number of diverse
LEdHN6.[ ] 6.
                                                          topics. The Internet's forces and directions are so
It is well established that, as a general rule, the       new, so protean, and so far reaching that courts
government may not suppress lawful speech as the          must be conscious that what they say today may be
means to suppress unlawful speech. (Kennedy, J.,          obsolete tomorrow. Here, in one of the first cases
joined by Ginsburg, Breyer, Sotomayor, and                the Court has taken to address the relationship
Kagan, JJ.)                                               between the First Amendment and the modern
                                                          Internet, the Court must exercise extreme caution
Syllabus                                                  before suggesting that the First Amendment
                                                          provides scant protection for access to vast
                                                          networks in that medium. Pp. ___ - ___, 198 L. Ed.
 [**276] [*1731] North Carolina law makes it a            2d, at 279-280.
felony for a registered sex offender “to access a
commercial social networking Web site where the           (b) This background informs the analysis of the
sex offender knows that the site permits minor            statute at issue. Even assuming that the statute is
children to become members or to create or                content neutral and thus subject to intermediate
maintain personal Web pages.” N. C. Gen. Stat.            scrutiny, the provision is not “ ' “narrowly tailored
Ann. §§14-202.5(a), (e). According to sources cited       to serve a significant governmental interest.” ' ”
to the Court, the State has prosecuted over 1,000         McCullen v. Coakley, 573 U. S. ___, ___, 134 S.
people for violating this law, including petitioner,      Ct. 2518, 189 L. Ed. 2d 502, 514, 520, 535. Like
who was indicted after posting a statement on his         other inventions heralded as advances in human
personal Facebook profile about a positive                progress, the Internet and social media will be
experience in traffic court. The trial court denied       exploited by the criminal mind. It is also clear that
petitioner's motion to dismiss the indictment on the      “sexual abuse of a child is a most serious crime and
ground that the law violated the First Amendment.         an act repugnant to the moral instincts of a decent
He was convicted and given a suspended prison             people,” Ashcroft v. Free Speech Coalition, 535 U.
sentence. On appeal, the State Court of Appeals           S. 234, 244, 122 S. Ct. 1389, 152 L. Ed. 2d 403,
struck down §14-202.5 on First Amendment                  and that a legislature “may pass valid laws to
grounds, but the State Supreme Court reversed.            protect children” [***3] and other sexual assault
                                                          victims, id., at 245, 122 S. Ct. 1389, 152 L. Ed. 2d
Held: The North Carolina statute impermissibly            403. However, the assertion of a valid
restricts lawful speech in violation of the First         governmental interest “cannot, in every context, be
Amendment. Pp. ___ - ___, 198 L. Ed. 2d, at 279-          insulated from all constitutional protections.”
283.                                                      Stanley v. Georgia, 394 U. S. 557, 563, 89 S. Ct.
                                                          1243, 22 L. Ed. 2d 542.
 [*1732] (a) A fundamental First Amendment
principle is that all persons have access to places       Two assumptions are made in resolving this case.
                                                                                                   Page 6 of 16
                    137 S. Ct. 1730, *1732; 198 L. Ed. 2d 273, **276; 2017 U.S. LEXIS 3871, ***3

First, while the Court need not decide the statute's       Ed. 2d 5. The better analogy is Board of Airport
 [**277] precise scope, it is enough to assume that        Comm’rs of Los Angeles v. Jews for Jesus, Inc.,
the law applies to commonplace social networking           482 U. S. 569, 107 S. Ct. 2568, 96 L. Ed. 2d 500. If
sites like Facebook, LinkedIn, and Twitter. Second,        an ordinance prohibiting any “First Amendment
the Court assumes that the First Amendment                 activities” at a single Los Angeles airport could be
permits a State to enact specific, narrowly-tailored       struck down because it covered all manner of
laws that prohibit a sex offender from engaging in         protected, nondisruptive behavior, including
conduct that often presages a sexual crime, like           “talking and reading, or the wearing of campaign
contacting a minor or using a website to gather            buttons [***5] or symbolic clothing,” id., at 571,
information about a minor.                                 575, 107 S. Ct. 2568, 96 L. Ed. 2d 500, it follows
                                                           with even greater force that the State may not enact
Even with these assumptions, the statute here              this complete bar to the exercise of First
enacts a prohibition uprecedented in the scope of          Amendment rights on websites integral to the fabric
First Amendment speech it burdens. Social media            of modern society and culture. Pp. ___ - ___, 198
allows users to gain access to information and             L. Ed. 2d, at 282-283.
communicate with one another on any subject that
might come to mind. With one broad stroke, North           368 N. C. 380, 777 S. E. 2d 738, reversed and
Carolina bars access to what for many are the              remanded.
principal sources for knowing current events,
checking ads for employment, speaking and                  Counsel: David T. Goldberg argued the cause for
listening in the modern public square, and                 petitioner.
otherwise exploring the vast realms of human
                                                           Robert C. Montgomery argued the cause for
thought and knowledge. Foreclosing [***4] access
                                                           respondent:
to social media altogether thus prevents users from
engaging in the legitimate exercise of First               Judges: Kennedy, J., delivered the opinion of the
Amendment rights. Even convicted criminals--and            Court, in which Ginsburg, Breyer, Sotomayor, and
in some instances especially convicted criminals--         Kagan, JJ., joined. Alito, J., filed an opinion
might receive legitimate benefits from these means
                                                           concurring in the judgment, in which Roberts, C. J.,
for access to the world of ideas, particularly if they
                                                           and Thomas, J., joined. Gorsuch, J., took no part in
seek to reform and to pursue lawful and rewarding
                                                           the consideration or decision of the case.
lives. Pp. ___ - ___, 198 L. Ed. 2d, at 280-282.
                                                           Opinion by: KENNEDY
(c) The State has not met its burden to show that
this sweeping law is necessary or legitimate to
                                                           Opinion
serve its purpose of keeping convicted sex
offenders away from vulnerable victims. No case or
holding of [*1733] this Court has approved of a             [**278] Justice Kennedy delivered the opinion of
statute as broad in its reach. The State relies on         the Court.
Burson v. Freeman, 504 U. S. 191, 112 S. Ct. 1846,
119 L. Ed. 2d 5, but that case considered a more           In 2008, North Carolina enacted a statute making it
limited restriction--prohibiting campaigning within        a felony for a registered sex offender to gain access
100 feet of a polling place--in order to protect the       to a number of websites, including commonplace
fundamental right to vote. The Court noted,                social media websites like Facebook and Twitter.
moreover, that a larger buffer zone could “become          The question presented is whether that law is
an impermissible burden” under the First                   permissible under the First Amendment’s Free
Amendment. Id., at 210, 112 S. Ct. 1846, 119 L.            Speech Clause, applicable to the States under the
                                                                                                    Page 7 of 16
                   137 S. Ct. 1730, *1733; 198 L. Ed. 2d 273, **278; 2017 U.S. LEXIS 3871, ***5

Due Process Clause of the Fourteenth Amendment.           violating it. Brief for Petitioner 6-8.
I                                                         B
A                                                         In 2002, petitioner Lester Gerard Packingham—
                                                          then a 21-year-old college student—had sex with a
North Carolina law makes it a felony for a
                                                          13-year-old girl. He pleaded guilty to taking
registered sex offender “to access a commercial
                                                          indecent liberties with a child. Because this crime
social networking Web site where the sex offender
                                                          qualifies as “an offense against a minor,” petitioner
knows that the site permits minor children to
                                                          was required to register as a sex offender—a status
become members or to create or maintain personal
                                                          that can endure for 30 years or more. See §14-
Web pages.” N. C. Gen. Stat. Ann. §§14-202.5(a),
                                                          208.6A; see §14-208.7(a). As a registered sex
(e) (2015). A “commercial social networking Web
site” is defined [***6] as a website that meets four      offender, petitioner was barred under §14-202.5
criteria. First, it “[i]s operated by a person who        from gaining access to commercial social
                                                          networking sites.
derives revenue from membership fees, advertising,
or other sources related to the operation of the          In 2010, a state court dismissed a [**279] traffic
 [*1734] Web site.” §14-202.5(b). Second, it              ticket against petitioner. In response, he logged on
“[f]acilitates the social introduction between two or     to Facebook.com and posted the following
more persons for the purposes of friendship,              statement on his personal profile:
meeting other persons, or information exchanges.”
Ibid. Third, it “[a]llows users to create Web pages            “Man God is Good! How about I got so much
or personal profiles that contain information such             favor they dismissed the ticket before court
as the name or nickname of the user, photographs               even started? No fine, no court cost, no nothing
placed on the personal Web page by the user, other             spent. . . . . .Praise be to GOD, WOW! Thanks
personal information about the user, and links to              JESUS!” App. 136.
other personal Web pages on the commercial social
networking Web site of friends or associates of the       At the time, a member of the Durham [***8]
user that may be accessed by other users or visitors      Police Department was investigating registered sex
to the Web site.” Ibid. And fourth, it “[p]rovides        offenders who were thought to be violating §14-
users or visitors . . . mechanisms to communicate         202.5. The officer noticed that a “‘J. R. Gerrard’”
with other users, such as a message board, chat           had posted the statement quoted above. 368 N. C.
room, electronic mail, or instant messenger.” Ibid.       380, 381, 777 S. E. 2d 738, 742 (2015). By
                                                          checking court records, the officer discovered that a
The statute includes two express exemptions. The          traffic citation for petitioner had been dismissed
statutory bar does not extend to websites that            around the time of the post. Evidence obtained by
“[p]rovid[e] only one of the following discrete           search warrant confirmed the officer’s suspicions
services: photo-sharing, electronic mail, instant         that petitioner was J. R. Gerrard.
messenger, or chat room or message board
                                                          Petitioner was indicted by a grand jury for violating
platform.” §14-202.5(c)(1). The law also does not
                                                          §14-202.5. The trial court denied his motion to
encompass websites [***7] that have as their
                                                          dismiss the indictment on the grounds that the
“primary purpose the facilitation of commercial
                                                          charge against him violated the First Amendment.
transactions involving goods or services between
                                                          Petitioner was ultimately convicted and given a
[their] members or visitors.” §14-202.5(c)(2).
                                                          suspended prison sentence. At no point during trial
According to sources cited to the Court, §14-202.5        or sentencing did the State allege that petitioner
applies to about 20,000 people in North Carolina          contacted a minor—or committed any other illicit
and the State has prosecuted over 1,000 people for        act—on the Internet.
                                                                                                    Page 8 of 16
                    137 S. Ct. 1730, *1734; 198 L. Ed. 2d 273, **279; 2017 U.S. LEXIS 3871, ***8

Petitioner appealed to the Court of Appeals of             Racism, 491 U. S. 781, 796, 109 S. Ct. 2746, 105
North Carolina. That court struck down §14-202.5           L. Ed. 2d 661 (1989). Even in the modern era, these
on First Amendment grounds, explaining that the            places are still essential venues for public
law is not narrowly tailored to serve the State’s          gatherings to celebrate some views, to protest
 [*1735] legitimate interest in protecting minors          others, or simply to learn and inquire.
from sexual abuse. 229 N. C. App. 293, 304, 748 S.
E. 2d 146, 154 (2013). Rather, the law “arbitrarily        While in the past there may have been difficulty in
burdens all registered sex offenders by preventing a       identifying the most important places (in a spatial
wide range of communication and expressive                 sense) for the exchange of views, today the answer
activity unrelated to achieving [***9] its purported       is clear. It is cyberspace—the “vast democratic
goal.” Ibid. The North Carolina Supreme Court              forums of the Internet” in general, Reno v.
reversed, concluding that the law is “constitutional       American Civil Liberties Union, 521 U. S. 844,
in all respects.” 368 N. C., at 381, 777 S. E. 2d, at      868, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), and
741. Among other things, the court explained that          social media in particular. Seven in ten American
the law is “carefully tailored . . . to prohibit           adults use at least one Internet social networking
registered sex offenders from accessing only those         service. Brief for Electronic Frontier Foundation et
Web sites that allow them the opportunity to gather        al. as Amici Curiae 5-6. One of the most popular of
information about minors.” Id., at 389, 777 S. E.          these sites is Facebook, the site used by petitioner
2d, at 747. The court also held that the law leaves        leading to his conviction in this case. According to
open adequate alternative means of communication           sources cited to the Court in this case, Facebook
because it permits petitioner to gain access to            has 1.79 billion active users. Id., at 6. This is about
websites that the court believed perform the “same         three times the population of North America.
or similar” functions as social media, such as the         Social media offers “relatively unlimited, low-cost
Paula Deen Network and the website for the local           capacity for communication of all kinds.” Reno,
NBC affiliate. Id., at 390, 777 S. E. 2d, at 747. Two      supra, at 870, 117 S. Ct. 2329, 138 L. Ed. 2d 874.
justices dissented. They stated that the law               On Facebook, for example, users can debate
impermissibly “creates a criminal prohibition of           religion and politics with their friends and
alarming breadth and extends well beyond the evils         neighbors or share [***11] vacation photos. On
the State seeks to combat.” Id., at 401, 777 S. E. 2d,     LinkedIn, users can look for work, advertise for
at 754 (opinion of Hudson, J.) (alteration, citation,      employees, or review tips on entrepreneurship. And
and internal quotation marks omitted).                     on Twitter, users can petition their elected
The Court granted certiorari, 580 U. S. ___, 137 S.        representatives and otherwise engage with them in
Ct. 368, 196 L. Ed. 2d 283 (2016), and now                 a direct manner. Indeed, Governors in all 50 States
reverses.                                                  and almost every Member of Congress have set up
                                                           accounts for this purpose. See Brief for Electronic
II                                                         Frontier Foundation 15-16. In short, social media
HN1[ ] LEdHN[1][ ] [1] A fundamental                       users employ these websites to engage in a wide
principle of the First Amendment is that all persons       array of protected First Amendment [*1736]
                                                           activity on topics “as diverse as human thought.”
have access to places where they can speak and
                                                           Reno, supra, at 870, 117 S. Ct. 2329, 138 L. Ed. 2d
listen, and then, after reflection, speak and listen
                                                           874 (internal quotation marks omitted).
once more. The Court has sought to protect the
right to speak in this [***10] spatial context. A          HN2[ ] LEdHN[2][ ] [2] The nature of a
basic rule, for example, is that a [**280] street or       revolution in thought can be that, in its early stages,
a park is a quintessential forum for the exercise of       even its participants may be unaware of it. And
First Amendment rights. See Ward v. Rock Against
                                                                                                   Page 9 of 16
                   137 S. Ct. 1730, *1736; 198 L. Ed. 2d 273, **280; 2017 U.S. LEXIS 3871, ***11

when awareness comes, they still may be unable to         soon, can become instruments used to commit
know or foresee where its changes lead. Cf. D.            serious crimes. The railroad is one example, see M.
Hawke, Benjamin Rush: Revolutionary Gadfly 341            Crichton, The Great Train Robbery, p. xv (1975),
(1971) (quoting Rush as observing: “‘The                  and the telephone another, see 18 U. S. C. §1343.
American war is over; but this is far from being the      So it will be with the Internet and social media.
case with the American revolution. On the contrary,
nothing but the first act of the great drama is       HN4[ ] LEdHN[4][ ] [4] There is also no doubt
closed’”). So too here. While we now may be           that, as this Court has recognized, “[t]he sexual
coming to the realization that the Cyber Age is a     abuse of a child is a most serious crime and an act
revolution of historic proportions, we cannot         repugnant to the moral instincts of a decent
appreciate yet its full [***12] dimensions and vast   people.” Ashcroft v. Free Speech Coalition, 535 U.
potential to alter how we think, express ourselves,   S. 234, 244, 122 S. Ct. 1389, 152 L. Ed. 2d 403
and define who we want to be. The forces and          (2002). And it is clear that a legislature “may pass
directions of the Internet are so new, so protean,    valid laws to protect children” and other victims of
and so far reaching that courts must be conscious     sexual assault “from abuse.” See id., at 245; accord,
that what they say today might be obsolete            New York v. Ferber, 458 U. S. 747, 757, 102 S. Ct.
tomorrow.                                             3348, 73 L. Ed. 2d 1113 (1982). The government,
                                                      of course, need not simply stand by and allow these
This case is one of the first this Court has taken to evils to occur. But the assertion of a valid
address the relationship between the First governmental interest “cannot, in every context, be
Amendment and the modern Internet. As a result, insulated from all constitutional protections.”
the Court must exercise extreme caution before Stanley v. Georgia, 394 U. S. 557, 563, 89 S. Ct.
suggesting that the First Amendment provides scant 1243, 22 L. Ed. 2d 542 (1969).
protection for access to vast networks in that
medium.                                               It is necessary to make two assumptions to resolve
                                                      this case. First, given the broad wording of the
III                                                   North Carolina statute at issue, it might well bar
This background informs the analysis [**281] of access not only to commonplace social media
the North Carolina statute at issue. Even making websites but also to websites as varied as
the assumption that the statute is content neutral Amazon.com,             Washingtonpost.com,         and
and thus subject to intermediate scrutiny, the Webmd.com. See post, at ___ - ___, 198 L. Ed. 2d,
provision cannot stand. HN3[ ] LEdHN[3][ ] [3] at 286-288; see also Brief for Electronic Frontier
In order to survive intermediate scrutiny, a law Foundation [*1737] 24-27; Brief for Cato Institute
must be “narrowly tailored to serve a significant et al. as Amici Curiae 10-12, [***14] and n. 6. The
governmental interest.” McCullen v. Coakley, 573 Court need not decide the precise scope of the
U. S. ___, ___, 134 S. Ct. 2518, 189 L. Ed. 2d 502, statute. It is enough to assume that the law applies
520 (2014) (internal quotation marks omitted). In (as the State concedes it does) to social networking
other words, the law must not “burden substantially sites “as commonly understood”—that is, websites
more speech than is necessary to further the like Facebook, LinkedIn, and Twitter. See Brief for
government’s legitimate interests.” Id., at ___, 134 Respondent 54; Tr. of Oral Arg. 27.
S. Ct. 2518, 189 L. Ed. 2d 502, 520 (internal             Second, this opinion should not be interpreted as
quotation marks omitted).                                 barring a State from enacting more specific laws
                                                          than the one at issue. Specific criminal acts are not
For centuries now, inventions heralded as advances
                                                          protected speech even if speech is the means for
in human progress have been exploited by the
                                                          their commission. See Brandenburg v. Ohio, 395
criminal mind. New [***13] technologies, all too
                                                                                                   Page 10 of 16
                   137 S. Ct. 1730, *1737; 198 L. Ed. 2d 273, **281; 2017 U.S. LEXIS 3871, ***14

U. S. 444, 447-449, 89 S. Ct. 1827, 23 L. Ed. 2d          criminals—and in some instances especially
430 (1969) ( per curiam). Though the issue is not         convicted criminals—might receive legitimate
before the Court, it can be assumed that the First        benefits from these means for access to the world
Amendment permits a State to enact specific,              of ideas, in particular if they seek to reform and to
narrowly tailored laws that prohibit a sex offender       pursue lawful and rewarding lives.
from engaging in conduct that often presages a            IV
sexual crime, like contacting a minor or using a
website to gather information about a minor. Cf.          The primary response from the State is that the law
Brief for Respondent 42-43. Specific laws of that         must be this broad to serve its preventative purpose
type must be the State’s first resort to ward off the     of keeping convicted sex offenders away from
serious harm that sexual crimes inflict. [**282]          vulnerable victims. The State has not, however, met
(Of importance, the troubling fact that the law           its burden to show that this sweeping law is
imposes severe restrictions on persons who already        necessary or legitimate to serve that purpose. See
have served their sentence and are no longer subject      McCullen, 573 U. S., at ___, 134 S. Ct. 2518, 189
to the supervision of the criminal justice system is      L. Ed. 2d 502, 525.
also [***15] not an issue before the Court.)
                                                        It is instructive that no case or holding of this Court
Even with these assumptions about the scope of the has approved of a statute as broad in its reach. The
law and the State’s interest, the statute here enacts a closest analogy that the State has cited is Burson v.
prohibition unprecedented in the scope of First Freeman, 504 U. S. 191, 112 S. Ct. 1846, 119 L.
Amendment speech it burdens. HN5[ ] Ed. 2d 5 (1992). There, the Court upheld a
LEdHN[5][ ] [5] Social media allows users to prohibition on campaigning within [*1738] 100
gain access to information and communicate with feet of a polling place. That case gives little or no
one another about it on any subject that might come support to the State. The law in Burson was a
to mind. Supra, at ___, 198 L. Ed. 2d, at 280. By limited restriction that, in a context consistent with
prohibiting sex offenders from using those constitutional tradition, was enacted to protect
websites, North Carolina with one broad stroke bars another fundamental right—the right to vote. The
access to what for many are the principal sources restrictions there were far less onerous than those
for knowing current events, checking ads for the State seeks to impose here. The law in Burson
employment, speaking and listening in the modern meant only that the last few seconds before voters
public square, and otherwise exploring the vast entered a polling place were “their [***17] own, as
realms of human thought and knowledge. These free from interference as possible.” Id., at 210, 112
websites can provide perhaps the most powerful S. Ct. 1846, 119 L. Ed. 2d 5. And the Court noted
mechanisms available to a private citizen to make that, were the buffer zone larger than 100 feet, it
his or her voice heard. They allow a person with an “could effectively become an impermissible
Internet connection to “become a town crier with a burden” under the First Amendment. Ibid.
voice that resonates farther than it could from any
soapbox.” Reno, 521 U. S., at 870, 117 S. Ct. 2329, The better analogy to this case is Board of Airport
138 L. Ed. 2d 874.                                      Comm’rs of Los Angeles [**283] v. Jews for
                                                        Jesus, Inc., 482 U. S. 569, 107 S. Ct. 2568, 96 L.
In sum, to foreclose access to social media Ed. 2d 500 (1987), where the Court struck down an
altogether is to prevent the user from engaging in ordinance prohibiting any “First Amendment
the legitimate exercise of First Amendment rights. activities” at Los Angeles International Airport
It is unsettling to suggest that only a limited set of because the ordinance covered all manner of
websites can be used even by persons who have protected, nondisruptive behavior including
completed their sentences. [***16] Even convicted “talking and reading, or the wearing of campaign
                                                                                                   Page 11 of 16
                   137 S. Ct. 1730, *1738; 198 L. Ed. 2d 273, **283; 2017 U.S. LEXIS 3871, ***17

buttons or symbolic clothing,” id., at 571, 575, 107      First Amendment.
S. Ct. 2568, 96 L. Ed. 2d 500. If a law prohibiting
“all protected expression” at a single airport is not   I cannot join the opinion of the Court, however,
constitutional, id., at 574, 107 S. Ct. 2568, 96 L.     because of its undisciplined dicta. The Court is
Ed. 2d 500 (emphasis deleted), it follows with even     unable to resist musings that seem to equate the
greater force that the State may not enact this         entirety of the internet with public streets and
complete bar to the exercise of First Amendment         parks. Ante, at ___ - ___, 198 L. Ed. 2d, at 279-280.
rights on websites integral to the fabric of our        And this language is bound to be interpreted by
modern society and culture.                             some to mean that the States are largely powerless
                                                        to restrict even the most dangerous sexual predators
***                                                     from visiting any internet sites, including, for
HN6[ ] LEdHN[6][ ] [6] It is well established example, teenage dating sites and sites designed to
that, as a general rule, the Government “may not permit minors to discuss personal problems with
suppress lawful speech as the means to suppress their peers. I am troubled by the implications of the
unlawful speech.” Ashcroft v. Free Speech Court’s [***19] unnecessary rhetoric.
Coalition, 535 U. S., at 255, 122 S. Ct. 1389, 152 I
L. Ed. 2d 403. That is what North Carolina has A
done here. Its law must be held invalid.
                                                        The North Carolina law at issue makes it a felony
The judgment of the North Carolina Supreme Court
                                                        for a registered sex offender “to [*1739] access a
is reversed, and the case is remanded for further commercial social networking Web site where the
proceedings not inconsistent with this opinion.         sex offender knows that the site permits minor
It is so ordered. [***18]                               children to become members [**284] or to create
                                                        or maintain personal Web pages.” N. C. Gen. Stat.
Justice Gorsuch took no part in the consideration or Ann. §§14-202.5(a), (e) (2015). And as I will
decision of this case.                                  explain, the statutory definition of a “commercial
                                                        social networking Web site” is very broad.
Concur by: ALITO
                                                        Packingham and the State debate the analytical
Concur                                                  framework that governs this case. The State argues
                                                        that the law in question is content neutral and
                                                        merely regulates a “place” (i.e., the internet) where
Justice Alito, with whom The Chief Justice and convicted sex offenders may wish to engage in
Justice Thomas join, concurring in the judgment.        speech. See Brief for Respondent 20-25. Therefore,
                                                        according to the State, the standard applicable to
The North Carolina statute at issue in this case was
                                                        “time, place, or manner” restrictions should apply.
enacted to serve an interest of “surpassing
                                                        See Ward v. Rock Against Racism, 491 U. S. 781,
importance.” New York v. Ferber, 458 U. S. 747,
                                                        791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989).
757, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)—
                                                        Packingham responds that the challenged statute is
but it has a staggering reach. It makes it a felony for
                                                        “unlike any law this Court has considered as a time,
a registered sex offender simply to visit a vast array
                                                        place, or manner restriction,” Brief for Petitioner
of websites, including many that appear to provide
                                                        37, and he advocates a more demanding standard of
no realistic opportunity for communications that
                                                        review, id., at 37-39.
could facilitate the abuse of children. Because of
the law’s extraordinary breadth, I agree with the Like the Court, I find it unnecessary to resolve this
Court that it violates the Free Speech Clause of the dispute because the law in question cannot satisfy
                                                                                                             Page 12 of 16
                   137 S. Ct. 1730, *1739; 198 L. Ed. 2d 273, **284; 2017 U.S. LEXIS 3871, ***19

the standard applicable to a content-neutral              offenders easy access to their personal
regulation of the place [***20] where speech may          information—by, for example, communicating with
occur.                                                    strangers and allowing sites to [**285] disclose
                                                          their location. 1 Second, the internet provides
B
                                                          previously unavailable ways          [*1740]     of
A content-neutral “time, place, or manner”                communicating with, stalking, and ultimately
restriction must serve a “legitimate” government          abusing children. An abuser can create a false
interest, Ward, supra, at 798, 109 S. Ct. 2746, 105       profile that misrepresents the abuser’s age and
L. Ed. 2d 661, and the North Carolina law easily          gender. The abuser can lure the minor into
satisfies this requirement. As we have frequently         engaging in sexual conversations, sending explicit
noted, “[t]he prevention of sexual exploitation and       photos, or even meeting in person. And an abuser
abuse of children constitutes a government                can use a child’s location posts on the internet to
objective of surpassing importance.” Ferber, supra,       determine the pattern of the child’s day-to-day
at 757, 102 S. Ct. 3348, 73 L. Ed. 2d 1113. “Sex          activities—and even the child’s location at a given
offenders are a serious threat,” and “the victims of      moment. Such uses of the internet are already well
sexual assault are most often juveniles.” McKune v.       documented, both in research 2 and in reported
Lile, 536 U. S. 24, 32, 122 S. Ct. 2017, 153 L. Ed.       decisions. 3
2d 47 (2002) (plurality opinion); see Connecticut
Dept. of Public Safety v. Doe, 538 U. S. 1, 4, 123 S.
                                                          1 See  Pew Research Center, Teens, Social Media, and Privacy 5
Ct. 1160, 155 L. Ed. 2d 98 (2003). “[T]he . . .
                                                          (May 21, 2013), http://www.pewinternet.org/files/2013/05/PIP_
interest [of] safeguarding the physical and
                                                          TeensSocialMediaandPrivacy_PDF.pdf (all internet materials as last
psychological well-being of a minor . . . is a            visited June 16, 2017); J. Wolak, K. Mitchell, & D. Finkelhor,
compelling one,” Globe Newspaper Co. v. Superior          National Center for Missing & Exploited Children, Online
Court, County of Norfolk, 457 U. S. 596, 607, 102         Victimization of Youth: Five Years Later 7 (2006) (prepared by
                                                          Univ. of N. H., Crimes Against Children Research Center),
S. Ct. 2613, 73 L. Ed. 2d 248 (1982), and “we have
                                                          http://www.unh.edu/ccrc/pdf/CV138.pdf.
sustained legislation aimed at protecting the
                                                          2 See
physical and emotional well-being of youth even                 id., at 2-3; Wolak, Finkhor, Mitchell, & Ybarra, Online
when the laws have operated in the sensitive area of      “Predators” and Their Victims, 63 Am. Psychologist 111, 112 (Feb.-
                                                          Mar. 2008).
constitutionally protected rights,” Ferber, supra, at
757, 102 S. Ct. 3348, 73 L. Ed. 2d 1113.                  3 For example, in State v. Gallo, 275 Ore. App. 868, 869, 365 P. 3d
                                                          1154, 1154-1155 (2015), a 32-year-old defendant posing as a 15-
Repeat sex offenders pose an especially grave risk        year-old boy used a social networking site to contact and befriend a
to children. “When convicted sex offenders reenter        16-year-old autistic girl. “He then arranged to meet the victim, took
                                                          her to a park, and sexually abused her.” Ibid., 365 P. 3d, at 1155. In
society, they are much more likely than any other         United States v. Steele, 664 Fed. Appx. 260, 261 (CA3 2016), the
type of offender to be rearrested for a new rape or       defendant “began interacting with a minor [victim] on the gay social
sexual assault.” McKune, supra, at 33, 122 S. Ct.         networking cell phone application ‘Jack’d.’” He eventually met the
2017, 153 L. Ed. 2d 47 (plurality opinion); see           14-year-old victim and sexually abused him. Ibid. Sadly, these cases
                                                          are not unique. See, e.g., Himko v. English, 2016 U.S. Dist. LEXIS
United States v. Kebodeaux, 570 U. S. ___, ___-           180814, 2016 WL 7645584, *1 (ND Fla., Dec. 5, 2016) (a convicted
___, 133 S. Ct. 2496, 186 L. Ed. 2d 540, 549              rapist and registered sex offender “contacted a sixteen-year-old girl
(2013).                                                   using . . . Facebook” and then exchanged explicit text messages and
                                                          photographs with her), report and recommendation adopted, 2017
The State’s interest in protecting children from          U.S. Dist. LEXIS 1016, 2017 WL 54246 (Jan. 4, 2017); Roberts v.
                                                          United States, 2015 U.S. Dist. LEXIS 158012, 2015 WL 7424858,
recidivist sex offenders plainly applies to internet
                                                          *2-*3 (SD Ohio, Nov. 23, 2015) (the defendant “met a then 14-year-
use. Several factors make [***21] the internet a          old child online via a social networking website called
powerful tool for the would-be child abuser. First,       vampirefreaks.com” and then enticed the child to his home and
children often use the internet in a way that gives       “coerced the child to perform oral sex on him”), report and
                                                          recommendation adopted, 2016 U.S. Dist. LEXIS 2503, 2016 WL
                                                                                                                    Page 13 of 16
                         137 S. Ct. 1730, *1740; 198 L. Ed. 2d 273, **285; 2017 U.S. LEXIS 3871, ***21

Because protecting children from abuse is a                             statement or comment that may be read by other
compelling state interest and sex offenders can (and                    visitors. Today, [***23] a great many websites
do) use the internet to engage in such abuse, it is                     include this feature.
legitimate and entirely reasonable for States to try
to stop abuse from occurring before it happens.                         Third, a website must “[a]llo[w] users to create
                                                                        Web pages or personal profiles that contain
C                                                                       information such as the name or nickname of the
1                                                                       user, photographs placed on the personal Web page
                                                                        by the user, other personal information about the
It is not enough, [***22] however, that the law                         user, and links to other personal Web pages on the
before us is designed to serve a compelling state                       commercial social networking Web site of friends
interest; it also must not “burden substantially more                   or associates of the user that may be accessed by
speech than is necessary to further the                                 other users or visitors to the Web site.” §14-
government’s legitimate interests.” Ward, 491 U.                        202.5(b)(3) (emphasis added). This definition
S., at 798-799, 109 S. Ct. 2746, 105 L. Ed. 2d 661;                     covers websites that allow users to create anything
see also McCullen v. Coakley, 573 U. S. ___, ___-                       that can be called a “personal profile,” i.e., a short
___, 134 S. Ct. 2518, 189 L. Ed. 2d 502, 514, 520,                      description of the user. 4 Contrary to the argument
535 (2014)). The North Carolina law fails this                          of the State, Brief for Respondent 26-27,
requirement.                                                            everything that follows the phrase “such as” is an
                                                                        illustration of features that a covered website or
A straightforward reading of the text of N. C. Gen.
                                                                        personal profile may (but need not) include.
Stat. Ann. §14-202.5 compels the conclusion that it
prohibits sex offenders from accessing an enormous                      Fourth, in order to fit within the statute, a website
number of websites. The law defines a “commercial                       must “[p]rovid[e] users or visitors . . . mechanisms
social networking [**286] Web site” as one with                         to communicate with other users, such as a
four characteristics. First, the website must be                        message board, chat room, electronic mail, or
“operated by a person who derives revenue from                          instant messenger.” §14-202.5(b)(4) (emphasis
membership fees, advertising, or other sources                          added). This requirement seems to demand no more
related to the operation of the Web site.” §14-                         than that a website allow back-and-forth comments
202.5(b)(1). Due to the prevalence of advertising                       between users. And since a comment [***24]
on websites of all types, this requirement does little                  function is undoubtedly a “mechanis[m] to
to limit the statute’s reach.                                           communicate with other users,” ibid., it appears to
                                                                        follow that any website with such a function
Second, the website must “[f]acilitat[e] the social
                                                                        satisfies this requirement.
introduction between two or [*1741] more persons
for the purposes of friendship, meeting other                           2
persons, or information exchanges.” §14-
                                                                        The fatal problem for §14-202.5 is that its wide
202.5(b)(2). The term “social introduction” easily
                                                                        sweep precludes access to a large number of
encompasses any casual exchange, and the term
                                                                        websites that are most unlikely to facilitate the
“information exchanges” seems to apply to any site
                                                                        commission of a sex crime against a child. A
that provides an opportunity for a visitor to post a
                                                                        handful of examples illustrates this point.

112647 (Jan. 8, 2016), certificate of appealability denied, No. 16-     Take, for example, the popular retail website
3050 (CA6 June 15, 2016); State v. Murphy, 2016-0901, p. 3 (La.
App. 1 Cir. 10/28/16), 206 So. 3d 219, 224 (a defendant “initiated
conversations” with his 12-year-old victim “on a social network chat    4 See New Oxford American Dictionary 1394 (3d ed. 2010);
site called ‘Kik’” and later sent sexually graphic photographs of       Webster’s Third New International Dictionary 1811 (2002); 12
himself to the victim and received sexually graphic photos from her).   Oxford English Dictionary 576 (2d ed. 1989).
                                                                                                                        Page 14 of 16
                         137 S. Ct. 1730, *1741; 198 L. Ed. 2d 273, **286; 2017 U.S. LEXIS 3871, ***24

Amazon.com, which allows minors to use its                              Many news websites are also covered by this
services 5 and meets all four requirements of §14-                      definition. For example, the Washington Post’s
202.5’s definition of a commercial social                               website gives minors access 9 and satisfies the four
networking website. First, as a seller of products,                     elements that define a commercial social
Amazon unquestionably derives revenue from the                          networking website. The website (1) derives
operation of its website. Second, the Amazon site                       revenue from ads and (2) facilitates social
facilitates the social introduction of people for the                   introductions for the purpose of information
purpose of information exchanges. When someone                          exchanges. Users of the site can comment on
 [**287] purchases a product on Amazon, the                             articles, reply to other users’ comments, and
purchaser can review the product and upload                             recommend another user’s comment. 10 Users can
photographs, and other buyers can then respond to                       also (3) create personal profiles that include a name
the review. 6 This information exchange about                           or nickname and a photograph. The photograph and
products that Amazon sells undoubtedly fits within                      name will then appear next to every comment the
the definition in §14-202.5. It is the equivalent of                    user leaves on an article. Finally (4), the back-and-
passengers on a bus comparing notes about                               forth comment section is a mechanism for users to
products they have purchased. Third, Amazon                             communicate among themselves. The site thus falls
allows a user to create a personal profile,                             within §14-202.5 and is accordingly off limits for
which [***25] is then associated with the product                       registered sex offenders in North Carolina.
reviews that [*1742] the user uploads. Such a
profile can contain an assortment of information,                       Or consider WebMD—a website that contains
including the user’s name, e-mail address, and                          health-related resources, [***26] from tools that
picture. 7 And fourth, given its back-and-forth                         help users find a doctor to information on
comment function, Amazon satisfies the final                            preventative care and the symptoms associated with
statutory requirement. 8                                                particular medical problems. WebMD, too, allows
                                                                        children on the site. 11 And it exhibits the four
                                                                        hallmarks of a “commercial social networking”
                                                                        website. It obtains revenue [**288] from
5 See    Amazon, Conditions of Use (June 21,                  2016),    advertisements. 12 It facilitates information
https://www.amazon.         com       /      gp     /           help    exchanges—via message boards that allow users to
/customer/display.html/ref=help_search_1-2?ie=UTF8&                     engage in public discussion of an assortment of
nodeId=201909000&qid=1490898710&sr=1-2.
6 See Amazon, About Customer Reviews, https://www.amazon.com/
                                                                        9 See   Washington Post, Terms of Service (July 1, 2014),
gp/help/customer/display.html/ref
=hp_left_v4_sib?ie=UTF8&nodeId= 201967050; Amazon, About                https://www.                       washingtonpost.com/terms-of-
Public Activity, https://www.amazon.com/ gp/ help/ customer/            service/2011/11/18/gIQAldiYiN_story.html?
display.html / ref = hp_left_v4_sib?ie = UTF8&nodeId =                  utm_term=.9be5851f95.
202076150.                                                              10 See  Washington Post, Ad choices (Nov. 21, 2011), https://www.
7 See  Amazon, About Your Profile, https://www.amazon.com/              washingtonpost.com/ how -can -i- opt-out-of-online-advertising-
gp/help/customer/display.html/ref                                       cookies                   /               2011                   /
=hp_left_v4_sib?ie=UTF8&nodeId= 202076210; Amazon, About                11/18/gIQABECbiN_story.html?utm_term=3da1f56d67e7;
Public           Information,      https://www.amazon.com/              Washington      Post,    Privacy   Policy   (May     2,     2017),
gp/help/customer/display.html/ref        =help_search_1-2?ie            https://www.washingtonpost.com/ privacy-policy / 2011 / 11 / 18 /
=UTF8&nodeId = 202076170&qid=1490835739&sr=1-2.                         gIQASIiaiN _ story.html ? utm_term = .8252a76f8df2.
                                                                        11 See  WebMD, Terms and Conditions of Use (Nov. 2, 2016),
8 Amazon   does not appear to fall within the statute’s exemption for
                                                                        https://www. webmd.com/about-webmd-policies/about-terms-and-
websites that have as their “primary purpose the facilitation of
                                                                        conditions-of-use.
commercial transactions involving goods or services between its
members or visitors.” §14-202.5(c)(2). Amazon’s primary purpose         12 WebMD,     Advertising  Policy   (June      9,     2016),
seems to be the facilitation of commercial transactions between its     http://www.webmd.com/ about-webmd-policies/about-advertising-
users and itself.                                                       policy.
                                                                                                                      Page 15 of 16
                       137 S. Ct. 1730, *1742; 198 L. Ed. 2d 273, **288; 2017 U.S. LEXIS 3871, ***26

health issues. 13 It allows users to create basic                  II
profile pages: Users can upload a picture and some
basic information about themselves, and other users   While I thus agree with the Court that the particular
can see their aggregated comments and “likes.” 14     law at issue in this case violates the First
WebMD also provides message boards, which are         Amendment, I am troubled by the Court’s loose
specifically mentioned in the statute as a            rhetoric. After noting that “a street or [***28] a
“mechanis[m] to communicate with other users.”        park is a quintessential forum for the exercise of
N. C. Gen. Stat. Ann. §14-202.5(b)(4).                First Amendment rights,” the Court states that
                                                      “cyberspace” and “social media in particular” are
As these examples illustrate, the North Carolina now “the most important places (in a spatial sense)
law has a very broad reach and [*1743] covers for the exchange of views.” Ante, at ___ - ___, 198
websites that are ill suited for use in stalking or L. Ed. 2d, at 279-280. The Court declines to
abusing children. The focus of the discussion on explain what this means with respect to free speech
these sites—shopping, news, health—does not law, and the Court holds no more than that the
provide a convenient jumping off point for North Carolina law fails the test for content-neutral
conversations that may lead to abuse. In addition, “time, place, [**289] and manner” restrictions.
the social exchanges facilitated by these websites But if the entirety of the internet or even just
occur in the open, and this reduces [***27] the “social media” sites 16 are the 21st century
possibility of a child being secretly lured into an equivalent of public streets and parks, then States
abusive situation. These websites also give sex may have little ability to restrict the sites that may
offenders little opportunity to gather personal be visited by even the most dangerous sex
details about a child; the information that can be offenders. May a State preclude an adult previously
listed in a profile is limited, and the profiles are convicted of molesting children from visiting a
brief. What is more, none of these websites make it dating site for teenagers? Or a site where minors
easy to determine a child’s precise location at a communicate with each other about personal
given moment. For example, they do not permit problems? The Court should be more attentive to
photo streams (at most, a child could upload a the implications of its rhetoric for, contrary to the
single profile photograph), and they do not include Court’s suggestion, there are important differences
up-to-the minute location services. Such websites between cyberspace and the physical world.
would provide essentially no aid to a would-be
child abuser.                                         I will mention a few that are relevant to internet use
                                                      by sex offenders. First, it is easier for parents to
Placing this set of websites categorically off limits monitor the physical [***29] locations that their
from registered sex offenders prohibits them from children visit and the individuals with whom they
receiving or engaging in speech that the First speak in person than it is to monitor their internet
Amendment protects and does not appreciably use. Second, if a sex offender is seen approaching
advance the State’s goal of protecting children from children or loitering in a place frequented by
recidivist sex offenders. I am therefore compelled children, this conduct may be observed by parents,
to conclude that, while the law before us addresses teachers, or others. Third, the internet offers an
a critical problem, it sweeps far too broadly to unprecedented degree of anonymity and easily
satisfy the demands of the Free Speech Clause. 15
                                                                   15 Iexpress no view on whether a law that does not reach the sort of
                                                                   sites discussed above would satisfy the First Amendment. Until such
13 WebMD,Message Board Overview (Sept. 22, 2016), http://www.      a law is before us, it is premature to address that question.
webmd.com/about-webmd-policies/about-community-overview.           16 As the law at issue here shows, it is not easy to provide a precise
14 See
    WebMD, Change Your Profile Settings (Feb. 19, 2014), http://   definition of a “social media” site, and the Court makes no effort to
www.webmd.com/about-webmd-policies/profile.                        do so. Thus, the scope of its dicta is obscure.
                                                                                                    Page 16 of 16
                    137 S. Ct. 1730, *1743; 198 L. Ed. 2d 273, **289; 2017 U.S. LEXIS 3871, ***29

permits [*1744] a would-be molester to assume a
false identity.

The Court is correct that we should be cautious in
applying our free speech precedents to the internet.
Ante, at ___, 198 L. Ed. 2d, at 280. Cyberspace is
different from the physical world, and if it is true,
as the Court believes, that “we cannot appreciate
yet” the “full dimensions and vast potential” of “the
Cyber Age,” ibid., we should proceed
circumspectly, taking one step at a time. It is
regrettable that the Court has not heeded its own
admonition of caution.

References
U.S.C.S., Constitution, Amendment 1
The Prosecution and Defense of Sex Crimes §
43.04 (Matthew Bender)
L Ed Digest, Constitutional Law § 961.5
L Ed Index, Children and Minors
Supreme Court's views as to overbreadth of
legislation in connection with First Amendment
rights. 45 L. Ed. 2d 725.
Comment Note.--What provisions of the Federal
Constitution's Bill of Rights are applicable to the
states. 18 L. Ed. 2d 1388, 23 L. Ed. 2d 985.
The Supreme Court and the right of free
speech [***30] and press. 93 L. Ed. 1151, 2 L. Ed.
2d 1706, 11 L. Ed. 2d 1116, 16 L. Ed. 2d 1053, 21
L. Ed. 2d 976.


  End of Document
    Caution
As of: September 26, 2017 3:16 PM Z


                                        Pena-Rodriguez v. Colorado
                                                                                        FILED IN
                                        Supreme Court of the United States       4th COURT   OF APPEALS
                                                                                  SAN ANTONIO, TEXAS
                                 October 11, 2016, Argued; March 6, 2017, Decided09/26/17 5:56:59 PM
                                                                                   KEITH E. HOTTLE
                                                    No. 15-606.                          CLERK


Reporter
137 S. Ct. 855 *; 197 L. Ed. 2d 107 **; 2017 U.S. LEXIS 1574 ***; 85 U.S.L.W. 4071; 102 Fed. R. Evid. Serv.
(Callaghan) 1084; 26 Fla. L. Weekly Fed. S 445; 2017 WL 855760
MIGUEL ANGEL PENA-RODRIGUEZ,                              be reviewed under Colo. R. Evid. 606(b), even
                                                          though a juror told other jurors he believed
Petitioner v. COLORADO
                                                          defendant was guilty because, in his experience as a
Notice: The LEXIS pagination of this document is          former law enforcement officer, "Mexican men had
subject to change pending release of the final            a bravado that caused them to believe they could do
published version.                                        whatever they wanted with women"; [2]-Although
                                                          Colo. R. Evid. 606(b) restricted inquiry into the
Prior  History: [***1] ON WRIT  OF                        validity of a jury's verdict, the Sixth Amendment to
CERTIORARI TO THE SUPREME COURT OF                        the U.S. Constitution required that the so-called
COLORADO                                                  "no-impeachment rule" give way in order to permit
Pena-Rodriguez v. People, 350 P.3d 287, 2015              a trial court to consider evidence of a juror’s
Colo. LEXIS 440, 2015 CO 31 (2015)                        statement and any resulting denial of the jury trial
                                                          guarantee in cases where a juror made a clear
Disposition: 350 P. 3d 287, 2015 CO 31, reversed          statement which indicated that he or she relied on
and remanded.                                             racial stereotypes or animus to convict a defendant.

Core Terms                                                Outcome
                                                          The Supreme Court reversed the Supreme Court of
juror, racial bias, no-impeachment, deliberations,        Colorado's judgment upholding defendant's
cases, bias, voir dire, jury’s, impeach, impartiality,    convictions and remanded the case for further
questions, jurisdictions, harassment, safeguards,         proceedings. 5-3 Decision; 2 Dissents.
biased, jury room, misconduct, decisions, rules of
evidence, jury deliberations, juror misconduct, jury      LexisNexis® Headnotes
system, common law, courts, right to a jury trial,
trial court, approaches, common-law, extraneous,
partiality                                                   Constitutional Law > ... > Fundamental
                                                             Rights > Criminal Process > Right to Jury Trial
Case Summary
                                                             Criminal Law &
Overview                                                     Procedure > Trials > Defendant's
HOLDINGS: [1]-Colorado courts erred when they                Rights > Right to Jury Trial
found that a jury's verdict convicting defendant of
                                                          HN1[ ] Criminal Process, Right to Jury Trial
harassment and unlawful sexual contact could not
                                                                                                   Page 2 of 35
                    137 S. Ct. 855, *855; 197 L. Ed. 2d 107, **107; 2017 U.S. LEXIS 1574, ***1

The jury is a central foundation of our justice               Rights > Right to Jury Trial
system and our democracy. Whatever its
imperfections in a particular case, the jury is a         HN3[ ] Criminal Process, Right to Jury Trial
necessary check on governmental power. The jury,
over the centuries, has been an inspired, trusted,
                                                          Like all human institutions, the jury system has its
and effective instrument for resolving factual
                                                          flaws, yet experience shows that fair and impartial
disputes and determining ultimate questions of guilt
                                                          verdicts can be reached if the jury follows the
or innocence in criminal cases. Over the long
                                                          court’s instructions and undertakes deliberations
course its judgments find acceptance in the
                                                          that are honest, candid, robust, and based on
community, an acceptance essential to respect for
                                                          common sense. A general rule has evolved to give
the rule of law. The jury is a tangible
                                                          substantial protection to verdict finality and to
implementation of the principle that the law comes
                                                          assure jurors that, once their verdict has been
from the people.
                                                          entered, it will not later be called into question
                                                          based on the comments or conclusions they
                                                          expressed during deliberations. This principle, itself
   Constitutional Law > ... > Fundamental
                                                          centuries old, is often referred to as the "no-
   Rights > Criminal Process > Right to Jury Trial
                                                          impeachment rule."
   Criminal Law &
   Procedure > Trials > Defendant's
   Rights > Right to Jury Trial                               Criminal Law & Procedure > Juries &
                                                              Jurors > Jury Deliberations > Privacy of
HN2[ ] Criminal Process, Right to Jury Trial                  Deliberations

                                                          HN4[ ] Jury            Deliberations,   Privacy     of
In the era of our Nation’s founding, the right to a       Deliberations
jury trial already had existed and evolved for
centuries, through and alongside the common law.
The jury was considered a fundamental safeguard           Like its federal counterpart, Colo. R. Evid. 606(b)
of individual liberty. The right to a jury trial in       generally prohibits a juror from testifying as to any
criminal cases was part of the Constitution as first      statement made during deliberations in a
drawn, and it was restated in the Sixth Amendment.        proceeding inquiring into the validity of the verdict.
U.S. Const. art. III, § 2, cl. 3; amend. VI. By           Fed. R. Evid. 606(b). The Colorado rule provides
operation of the Fourteenth Amendment, it is              that upon an inquiry into the validity of a verdict or
applicable to the States.                                 indictment, a juror may not testify as to any matter
                                                          or statement occurring during the course of the
                                                          jury’s deliberations or to the effect of anything
   Constitutional Law > ... > Fundamental                 upon his or any other juror’s mind or emotions as
   Rights > Criminal Process > Right to Jury Trial        influencing him to assent to or dissent from the
                                                          verdict or indictment or concerning his mental
   Criminal Law & Procedure > Juries &                    processes in connection therewith. But a juror may
   Jurors > Jury Deliberations > Privacy of               testify about (1) whether extraneous prejudicial
   Deliberations                                          information was improperly brought to the jurors’
                                                          attention, (2) whether any outside influence was
   Criminal Law &                                         improperly brought to bear upon any juror, or (3)
   Procedure > Trials > Defendant's                       whether there was a mistake in entering the verdict
                                                                                                   Page 3 of 35
                    137 S. Ct. 855, *855; 197 L. Ed. 2d 107, **107; 2017 U.S. LEXIS 1574, ***1

onto the verdict form. A juror’s affidavit or             the States.
evidence of any statement by the juror may not be
received on a matter about which the juror would
be precluded from testifying. Colo. R. Evid. 606(b).          Constitutional Law > Equal
                                                              Protection > National Origin & Race

   Constitutional Law > ... > Fundamental                     Criminal Law & Procedure > ... > Challenges to
   Rights > Criminal Process > Right to Jury Trial            Jury Venire > Equal Protection
                                                              Challenges > Equal Protection Rule
   Criminal Law & Procedure > Juries &
   Jurors > Jury Deliberations > Privacy of                   Constitutional Law > ... > Fundamental
   Deliberations                                              Rights > Criminal Process > Right to Jury Trial

   Criminal Law &                                             Criminal Law &
   Procedure > Trials > Defendant's                           Procedure > Trials > Defendant's
   Rights > Right to Jury Trial                               Rights > Right to Jury Trial

HN5[ ] Criminal Process, Right to Jury Trial                  Criminal Law &
                                                              Procedure > Trials > Defendant's
                                                              Rights > Right to Fair Trial
The United States Supreme Court's recognition in
Warger v. Shauers that there may be extreme cases         HN7[ ] Equal Protection, National Origin &
where the jury trial right requires an exception to       Race
the no-impeachment rule must be interpreted in
context as a guarded, cautious statement. This
                                                          The duty to confront racial animus in the justice
caution is warranted to avoid formulating an
                                                          system is not the legislature’s alone. Time and
exception that might undermine the jury dynamics
                                                          again, the United States Supreme Court has been
and finality interests the no-impeachment rule seeks
                                                          called upon to enforce the Constitution’s guarantee
to protect.
                                                          against state-sponsored racial discrimination in the
                                                          jury system. Beginning in 1880, the Court
                                                          interpreted the Fourteenth Amendment to prohibit
   Constitutional Law > Equal
                                                          the exclusion of jurors on the basis of race, and the
   Protection > National Origin & Race
                                                          Court has repeatedly struck down laws and
HN6[ ] Equal Protection, National Origin &                practices that systematically exclude racial
Race                                                      minorities from juries. To guard against
                                                          discrimination in jury selection, the Court has ruled
                                                          that no litigant may exclude a prospective juror on
It must become the heritage of our Nation to rise         the basis of race. In an effort to ensure that
above racial classifications that are so inconsistent     individuals who sit on juries are free of racial bias,
with our commitment to the equal dignity of all           the Court has held that the Constitution at times
persons. This imperative to purge racial prejudice        demands that defendants be permitted to ask
from the administration of justice was given new          questions about racial bias during voir dire. The
force and direction by the ratification of the Civil      unmistakable principle underlying these precedents
War Amendments. The central purpose of the                is that discrimination on the basis of race, odious in
Fourteenth Amendment was to eliminate racial              all aspects, is especially pernicious in the
discrimination emanating from official sources in         administration of justice. The jury is to be a
                                                                                                    Page 4 of 35
                      137 S. Ct. 855, *855; 197 L. Ed. 2d 107, **107; 2017 U.S. LEXIS 1574, ***1

criminal defendant’s fundamental protection of life         justice. The United States Supreme Court’s
and liberty against race or color prejudice.                decisions demonstrate that racial bias implicates
Permitting racial prejudice in the jury system              unique historical, constitutional, and institutional
damages both the fact and the perception of the             concerns. An effort to address the most grave and
jury’s role as a vital check against the wrongful           serious statements of racial bias is not an effort to
exercise of power by the state.                             perfect the jury but to ensure that our legal system
                                                            remains capable of coming ever closer to the
                                                            promise of equal treatment under the law that is so
    Constitutional Law > Equal                              central to a functioning democracy. Racial bias is
    Protection > National Origin & Race                     distinct in a pragmatic sense as well.

    Criminal Law & Procedure > Juries &
    Jurors > Jury Deliberations > Ability to Follow             Constitutional Law > Equal
    Instructions                                                Protection > National Origin & Race
    Constitutional Law > ... > Fundamental                      Criminal Law & Procedure > ... > Challenges to
    Rights > Criminal Process > Right to Jury Trial             Jury Venire > Equal Protection
                                                                Challenges > Equal Protection Rule
    Criminal Law &
    Procedure > Trials > Defendant's                            Constitutional Law > ... > Fundamental
    Rights > Right to Jury Trial                                Rights > Criminal Process > Right to Jury Trial
    Criminal Law & Procedure > Juries &                         Criminal Law &
    Jurors > Jury Deliberations > Privacy of                    Procedure > Trials > Defendant's
    Deliberations                                               Rights > Right to Jury Trial
HN8[ ] Equal Protection, National Origin &                      Criminal Law &
Race                                                            Procedure > Trials > Defendant's
                                                                Rights > Right to Fair Trial
Racial bias in a criminal trial differs in critical ways    HN9[ ] Equal Protection, National Origin &
from the compromise verdict in McDonald v. Pless,           Race
the drug and alcohol abuse in Tanner v. United
States, or the pro-defendant bias in Warger v.
Shauers. The behavior in those cases is troubling           In past cases, the United States Supreme Court has
and unacceptable, but each involved anomalous               relied on procedural safeguards to protect the right
behavior from a single jury—or juror—gone off               to an impartial jury. Some of those safeguards, to
course. Jurors are presumed to follow their oath,           be sure, can disclose racial bias. Voir dire at the
and neither history nor common experience show              outset of trial, observation of juror demeanor and
that the jury system is rife with mischief of these or      conduct during trial, juror reports before the
similar kinds. To attempt to rid the jury of every          verdict, and nonjuror evidence after trial are
irregularity of this sort would be to expose it to          important mechanisms for discovering bias. Yet
unrelenting scrutiny. It is not at all clear that the       their operation may be compromised, or they may
jury system could survive such efforts to perfect it.       prove insufficient. The recognition that certain of
The same cannot be said about racial bias, a                the safeguards the Court identified in Tanner v.
familiar and recurring evil that, if left unaddressed,      United States may be less effective in rooting out
would risk systemic injury to the administration of         racial bias than other kinds of bias is not
                                                                                                  Page 5 of 35
                    137 S. Ct. 855, *855; 197 L. Ed. 2d 107, **107; 2017 U.S. LEXIS 1574, ***1

dispositive. All forms of improper bias pose              and resulting verdict. To qualify, the statement
challenges to the trial process. But there is a sound     must tend to show that racial animus was a
basis to treat racial bias with added precaution. A       significant motivating factor in the juror’s vote to
constitutional rule that racial bias in the justice       convict. Whether that threshold showing has been
system must be addressed—including, in some               satisfied is a matter committed to the substantial
instances, after the verdict has been entered—is          discretion of the trial court in light of all the
necessary to prevent a systemic loss of confidence        circumstances, including the content and timing of
in jury verdicts, a confidence that is a central          the alleged statements and the reliability of the
premise of the Sixth Amendment trial right.               proffered evidence. The practical mechanics of
                                                          acquiring and presenting such evidence will no
                                                          doubt be shaped and guided by state rules of
   Constitutional Law > Equal                             professional ethics and local court rules, both of
   Protection > National Origin & Race                    which often limit counsel’s post-trial contact with
                                                          jurors.
   Criminal Law & Procedure > Juries &
   Jurors > Jury Deliberations > Privacy of
   Deliberations                                              Constitutional Law > Equal
                                                              Protection > National Origin & Race
   Constitutional Law > ... > Fundamental
   Rights > Criminal Process > Right to Jury Trial            Criminal Law & Procedure > Juries &
                                                              Jurors > Jury Deliberations > Privacy of
   Criminal Law &
                                                              Deliberations
   Procedure > Trials > Defendant's
   Rights > Right to Jury Trial                               Constitutional Law > ... > Fundamental
                                                              Rights > Criminal Process > Right to Jury Trial
   Criminal Law &
   Procedure > Trials > Defendant's                           Criminal Law &
   Rights > Right to Fair Trial                               Procedure > Trials > Defendant's
                                                              Rights > Right to Jury Trial
HN10[ ] Equal Protection, National Origin &
Race                                                          Criminal Law &
                                                              Procedure > Trials > Defendant's
                                                              Rights > Right to Fair Trial
Where a juror makes a clear statement that
indicates he or she relied on racial stereotypes or       HN11[ ] Equal Protection, National Origin &
animus to convict a criminal defendant, the Sixth         Race
Amendment requires that the no-impeachment rule
give way in order to permit the trial court to
consider the evidence of the juror’s statement and        The Nation must continue to make strides to
any resulting denial of the jury trial guarantee. Not     overcome race-based discrimination. The progress
every offhand comment indicating racial bias or           that has already been made underlies the United
hostility will justify setting aside the no-              States Supreme Court’s insistence that blatant racial
impeachment bar to allow further judicial inquiry.        prejudice is antithetical to the functioning of the
For the inquiry to proceed, there must be a showing       jury system and must be confronted in egregious
that one or more jurors made statements exhibiting        cases despite the general bar of the no-
overt racial bias that cast serious doubt on the          impeachment rule. It is the mark of a maturing legal
fairness and impartiality of the jury’s deliberations     system that it seeks to understand and to implement
                                                                                                  Page 6 of 35
                     137 S. Ct. 855, *855; 197 L. Ed. 2d 107, **107; 2017 U.S. LEXIS 1574, ***1

the lessons of history.                                    Jury 1 > JUSTICE SYSTEM -- GUILT OR
                                                           INNOCENCE > Headnote:
Lawyers' Edition Display                                   LEdHN1[ ] 1

                                                     The jury is a central foundation of our justice
Decision
                                                     system and our democracy. Whatever its
[**107]
                                                     imperfections in a particular case, the jury is a
Where juror made clear statement indicating that necessary check on governmental power. The jury,
juror relied on racial stereotypes or animus to over the centuries, has been an inspired, trusted,
convict accused, Federal Constitution's Sixth and effective instrument for resolving factual
Amendment required no-impeachment rule to give disputes and determining ultimate questions of guilt
way to permit trial court to consider evidence of or innocence in criminal cases. Over the long
juror's statement and any resulting denial of Sixth course its judgments find acceptance in the
Amendment's jury-trial guarantee.                    community, an acceptance essential to respect for
                                                     the rule of law. The jury is a tangible
Summary                                              implementation of the principle that the law comes
                                                     from the people. (Kennedy, J., joined by Ginsburg,
 [**108] Overview: HOLDINGS: [1]-Colorado Breyer, Sotomayor, and Kagan, JJ.)
courts erred when they found that a jury's verdict
convicting defendant of harassment and unlawful
sexual contact could not be reviewed under Colo.
R. Evid. 606(b), even though a juror told other Constitutional Law 38Jury 3 > JURY TRIAL --
jurors he believed defendant was guilty because, in COMMON LAW -- STATES > Headnote:
                                                     LEdHN2[ ] 2
his experience as a former law enforcement officer,
“Mexican men had a bravado that caused them to In the era of our nation's founding, the right to a
believe they could do whatever they wanted with jury trial already had existed and evolved for
women”; [2]-Although Colo. R. Evid. 606(b) centuries, through and alongside the common law.
restricted inquiry into the validity of a jury's The jury was considered a fundamental safeguard
verdict, the Sixth Amendment to the U.S. of individual liberty. The right to a jury trial in
Constitution required that the so-called “no- criminal cases was part of the Constitution as first
impeachment rule” give way in order to permit a drawn, and it was restated in the Sixth Amendment.
trial court to consider evidence of a juror's U.S. Const. Art. III, § 2, cl. 3; Amend. VI. By
statement and any resulting denial of the jury trial operation of the Fourteenth Amendment, it is
guarantee in cases where a juror made a clear applicable to the states. (Kennedy, J., joined by
statement which indicated that he or she relied on Ginsburg, Breyer, Sotomayor, and Kagan, JJ.)
racial stereotypes or animus to convict a defendant.

Outcome: The Supreme Court reversed the
Supreme Court of Colorado's judgment upholding             Trial 342 > VERDICT --
defendant's convictions and remanded the case for          IMPEACHMENT > Headnote:
further proceedings. 5-3 Decision; 2 Dissents.             LEdHN3[ ] 3

Headnotes                                                  Like all human institutions, the jury system has its
                                                           flaws, yet experience shows that fair and impartial
                                                           verdicts can be reached if the jury follows the
                                                           court's instructions and undertakes deliberations
                                                                                                   Page 7 of 35
                     137 S. Ct. 855, *855; 197 L. Ed. 2d 107, **108; 2017 U.S. LEXIS 1574, ***1

that are honest, candid, robust, and based on              The United States Supreme Court's recognition in
common sense. A general rule has evolved to give           Warger v. Shauers that there may be extreme cases
substantial protection to verdict finality and to          where the jury trial right requires an exception to
assure jurors that, once their verdict has been            the no-impeachment rule must be interpreted in
entered, it will not later be called into question         context as a guarded, cautious statement. This
based on the comments or conclusions they                  caution is warranted to avoid formulating an
expressed during deliberations. This principle, itself     exception that might undermine the jury dynamics
centuries old, is often referred to as the “no-            and finality interests the no-impeachment rule seeks
impeachment rule.” (Kennedy, J., joined by                 to protect. (Kennedy, J., joined by Ginsburg,
Ginsburg, Breyer, Sotomayor, and Kagan, JJ.)               Breyer, Sotomayor, and Kagan, JJ.)

[**109]

Trial 351 > JUROR TESTIMONY CONCERNING                     Civil Rights 2 > FOURTEENTH AMENDMENT --
DELIBERATIONS -- STATE EVIDENTIARY                         RACIAL DISCRIMINATION > Headnote:
RULE > Headnote:                                           LEdHN6[ ] 6
LEdHN4[ ] 4
                                                           It must become the heritage of our nation to rise
Like its federal counterpart, Colo. R. Evid. 606(b)        above racial classifications that are so inconsistent
generally prohibits a juror from testifying as to any      with our commitment to the equal dignity of all
statement made during deliberations in a                   persons. This imperative to purge racial prejudice
proceeding inquiring into the validity of the verdict.     from the administration of justice was given new
Fed. R. Evid. 606(b). The Colorado rule provides           force and direction by the ratification of the Civil
that upon an inquiry into the validity of a verdict or     War Amendments. The central purpose of the
indictment, a juror may not testify as to any matter       Fourteenth Amendment was to eliminate racial
or statement occurring during the course of the            discrimination emanating from official sources in
jury's deliberations or to the effect of anything upon     the states. (Kennedy, J., joined by Ginsburg,
his or any other juror's mind or emotions as               Breyer, Sotomayor, and Kagan, JJ.)
influencing him to assent to or dissent from the
verdict or indictment or concerning his mental
processes in connection therewith. But a juror may
                                                           Civil Rights 8Civil Rights 8.5 > JURY -- RACIAL
testify about (1) whether extraneous prejudicial
                                                           DISCRIMINATION -- VOIR DIRE > Headnote:
information was improperly brought to the jurors'
                                                           LEdHN7[ ] 7
attention, (2) whether any outside influence was
improperly brought to bear upon any juror, or (3)          The duty to confront racial animus in the justice
whether there was a mistake in entering the verdict        system is not the legislature's alone. Time and
onto the verdict form. A juror's affidavit or              again, the United States Supreme Court has been
evidence of any statement by the juror may not be          called upon to enforce the Constitution's guarantee
received on a matter about which the juror would           against state-sponsored racial discrimination in the
be precluded from testifying. Colo. R. Evid. 606(b).       jury system. Beginning in 1880, the court
(Kennedy, J., joined by Ginsburg, Breyer,                  interpreted the Fourteenth Amendment to prohibit
Sotomayor, and Kagan, JJ.)                                 the exclusion of jurors on the basis of race, and the
                                                           court has repeatedly struck down laws and practices
                                                           that systematically exclude racial minorities from
Trial 351 > NO-IMPEACHMENT RULE > Headnote:                juries. To guard against discrimination in jury
LEdHN5[ ] 5                                                selection, the court has ruled that no litigant may
                                                                                                    Page 8 of 35
                      137 S. Ct. 855, *855; 197 L. Ed. 2d 107, **109; 2017 U.S. LEXIS 1574, ***1

exclude a prospective juror on the basis of race. In        remains capable of coming ever closer to the
an effort to insure that individuals who sit on juries      promise of equal treatment under the law that is so
are free of racial bias, the court has held that the        central to a functioning democracy. Racial bias is
Constitution at times demands that defendants be            distinct in a pragmatic sense as well. (Kennedy, J.,
permitted to ask questions about racial bias during         joined by Ginsburg, Breyer, Sotomayor, and
voir dire. The unmistakable principle underlying            Kagan, JJ.)
these precedents is that discrimination on the basis
of race, odious in all aspects, is especially
pernicious in the administration of justice. The jury
                                                            Trial 343 > JUROR -- RACIAL BIAS --
is to be a criminal defendant's fundamental
                                                            ADDRESSING ISSUE AFTER VERDICT > Headnote:
protection of life and liberty against race or color
                                                            LEdHN9[ ] 9
prejudice. Permitting racial prejudice in the jury
system damages both the fact and the perception of          In past cases, the United States Supreme Court has
the jury's role as a vital check against the wrongful       relied on procedural safeguards to protect the right
exercise of power by the state. (Kennedy, J., joined        to an impartial jury. Some of those safeguards, to
by Ginsburg, Breyer, Sotomayor, and Kagan, JJ.)             be sure, can disclose racial bias. Voir dire at the
                                                            outset of trial, observation of juror demeanor and
[**110]
                                                            conduct during trial, juror reports before the
Civil Rights 8 > JURORS -- RACIAL                           verdict, and nonjuror evidence after trial are
BIAS > Headnote:                                            important mechanisms for discovering bias. Yet
LEdHN8[ ] 8                                                 their operation may be compromised, or they may
                                                            prove insufficient. The recognition that certain of
Racial bias in a criminal trial differs in critical ways    the safeguards the Court identified in Tanner v.
from the compromise verdict in McDonald v. Pless,           United States may be less effective in rooting out
the drug and alcohol abuse in Tanner v. United              racial bias than other kinds of bias is not
States, or the pro-defendant bias in Warger v.              dispositive. All forms of improper bias pose
Shauers. The behavior in those cases is troubling           challenges to the trial process. But there is a sound
and unacceptable, but each involved anomalous               basis to treat racial bias with added precaution. A
behavior from a single jury--or juror--gone off             constitutional rule that racial bias in the justice
course. Jurors are presumed to follow their oath,           system must be addressed--including, in some
and neither history nor common experience show              instances, after the verdict has been entered--is
that the jury system is rife with mischief of these or      necessary to prevent a systemic loss of confidence
similar kinds. To attempt to rid the jury of every          in jury verdicts, a confidence that is a central
irregularity of this sort would be to expose it to          premise of the Sixth Amendment trial right.
unrelenting scrutiny. It is not at all clear that the       (Kennedy, J., joined by Ginsburg, Breyer,
jury system could survive such efforts to perfect it.       Sotomayor, and Kagan, JJ.)
The same cannot be said about racial bias, a
familiar and recurring evil that, if left unaddressed,       [**111]
would risk systemic injury to the administration of
                                                            Trial 351 > JURY VERDICT -- NO-IMPEACHMENT
justice. The United States Supreme Court's
                                                            BAR -- TESTIMONY AS TO RACIAL
decisions demonstrate that racial bias implicates
                                                            BIAS > Headnote:
unique historical, constitutional, and institutional
                                                            LEdHN10[ ] 10
concerns. An effort to address the most grave and
serious statements of racial bias is not an effort to       Where a juror makes a clear statement that
perfect the jury but to ensure that our legal system        indicates he or she relied on racial stereotypes or
                                                                                                   Page 9 of 35
                    137 S. Ct. 855, *855; 197 L. Ed. 2d 107, **111; 2017 U.S. LEXIS 1574, ***1

animus to convict a criminal defendant, the Sixth         Syllabus
Amendment requires that the no-impeachment rule
give way in order to permit the trial court to
consider the evidence of the juror's statement and         [**112] [*857] A Colorado jury convicted
any resulting denial of the jury trial guarantee. Not     petitioner Pea-Rodriguez of harassment and
every offhand comment indicating racial bias or           unlawful sexual contact. Following the discharge of
hostility will justify setting aside the no-              the jury, two jurors told defense counsel that,
impeachment bar to allow further judicial inquiry.        during deliberations, Juror H. C. had expressed
For the inquiry to proceed, there must be a showing       anti-Hispanic bias toward petitioner and petitioner's
that one or more jurors made statements exhibiting        alibi witness. Counsel, with the trial court's
overt racial bias that cast serious doubt on the          supervision, obtained affidavits from the two jurors
fairness and impartiality of the jury's deliberations     describing a number of biased statements by H. C.
and resulting verdict. To qualify, the statement          The court acknowledged H. C.'s apparent bias but
must tend to show that racial animus was a                denied petitioner's motion for a new trial on the
significant motivating factor in the juror's vote to      ground that Colorado Rule of Evidence 606(b)
convict. Whether that threshold showing has been          generally prohibits a juror from testifying as to
satisfied is a matter committed to the substantial        statements made during deliberations in a
discretion of the trial court in light of all the         proceeding inquiring into the validity of the verdict.
circumstances, including the content and timing of        The Colorado Court of Appeals affirmed, agreeing
the alleged statements and the reliability of the         that H. C.'s alleged statements did not fall within an
proffered evidence. The practical mechanics of            exception to Rule 606(b). The Colorado Supreme
acquiring and presenting such evidence will no            Court also affirmed, relying on Tanner v. United
doubt be shaped and guided by state rules of              States, 483 U. S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d
professional ethics and local court rules, both of        90, and Warger v. Shauers, 574 U. S. ___, 135 S.
which often limit counsel's post-trial contact with       Ct. 521, 190 L. Ed. 2d 422, both of which rejected
jurors. (Kennedy, J., joined by Ginsburg, Breyer,         constitutional challenges to the federal no-
Sotomayor, and Kagan, JJ.)                                impeachment [*858] rule as applied to evidence of
                                                          juror misconduct or bias.

                                                          Held: Where a juror makes a clear statement
Trial 351 > JURY VERDICT -- NO-IMPEACHMENT                indicating that he or she relied on racial
BAR -- TESTIMONY AS TO RACIAL                             stereotypes [***2] or animus to convict a criminal
BIAS > Headnote:                                          defendant, the Sixth Amendment requires that the
LEdHN11[ ] 11                                             no-impeachment rule give way in order to permit
                                                          the trial court to consider the evidence of the juror's
The nation must continue to make strides to               statement and any resulting denial of the jury trial
overcome race-based discrimination. The progress          guarantee. Pp. ___ - ___, 197 L. Ed. 2d, at 118-127.
that has already been made underlies the United
States Supreme Court's insistence that blatant racial     (a) At common law jurors were forbidden to
prejudice is antithetical to the functioning of the       impeach their verdict, either by affidavit or live
jury system and must be confronted in egregious           testimony. Some American jurisdictions adopted a
cases despite the general bar of the no-                  more flexible version of the no-impeachment bar,
impeachment rule. It is the mark of a maturing legal      known as the “Iowa rule,” which prevented jurors
system that it seeks to understand and to implement       from testifying only about their own subjective
the lessons of history. (Kennedy, J., joined by           beliefs, thoughts, or motives during deliberations.
Ginsburg, Breyer, Sotomayor, and Kagan, JJ.)              An alternative approach, later referred to as the
                                                                                                   Page 10 of 35
                     137 S. Ct. 855, *858; 197 L. Ed. 2d 107, **112; 2017 U.S. LEXIS 1574, ***2

federal approach, permitted an exception only for          U. S., at 127, 107 S. Ct. 2739, 97 L. Ed. 2d 90. The
events extraneous to the deliberative process. This        Court also outlined existing, significant safeguards
Court's early decisions did not establish a clear          for the defendant's [***4] right to an impartial and
preference for a particular version of the no-             competent jury beyond post-trial juror testimony:
impeachment rule, appearing open to the Iowa rule          members of the venire can be examined for
in United States v. Reid, 53 U.S. 361, 12 How. 361,        impartiality during voir dire; juror misconduct may
13 L. Ed. 1023, and Mattox v. United States, 146 U.        be observed the court, counsel, and court personnel
S. 140, 13 S. Ct. 50, 36 L. Ed. 917, but                   during the trial; and jurors themselves can report
 [**113] rejecting that approach in McDonald v.            misconduct to the court before a verdict is
Pless, 238 U. S. 264, 35 S. Ct. 783, 59 L. Ed. 1300.       rendered. In Warger, a civil case where the
                                                           evidence indicated that the jury forewoman failed
The common-law development of the rule reached             to disclose a prodefendant bias during voir dire, the
a milestone in 1975 when Congress adopted                  Court again put substantial reliance on existing
Federal Rule of Evidence 606(b), which sets out a          safeguards for a fair trial. But the Court also
broad no-impeachment rule, with only limited               warned, as in Reid and McDonald, that the no-
exceptions. This version of the no-impeachment             impeachment rule may admit of exceptions for
rule has substantial merit, promoting full and             “juror bias so extreme that, almost by definition,
vigorous discussion by jurors [***3] and providing         the jury trial right has been abridged.” [*859] U.
considerable assurance that after being discharged         S., at ___-___, n. 3, 135 S Ct. 521, 529, 190 L. Ed.
they will not be summoned to recount their                 422, 432. Reid, McDonald, and Warger left open
deliberations or otherwise harassed. The rule gives        the question here: whether the Constitution requires
stability and finality to verdicts. Pp. ___ - ___, 197     an exception to the no-impeachment rule when a
L. Ed. 2d, at 118-120.                                     juror's statements indicate that racial animus was a
(b) Some version of the no-impeachment rule is             significant motivating factor in his or her finding of
followed in every State and the District of                guilt. Pp. ___ - ___, 197 L. Ed. 2d, at 120-122.
Columbia, most of which follow the Federal Rule.           (c) The imperative to purge racial prejudice from
At least 16 jurisdictions have recognized an               the administration of justice was given new force
exception for juror testimony about racial bias in         and direction by the ratification of the Civil War
deliberations. Three Federal Courts of Appeals             Amendments. “[T]he central purpose of the
have also held or suggested there is a constitutional      Fourteenth Amendment was to eliminate
exception for evidence of racial bias.                     racial [***5] discrimination emanating from
In addressing the common-law no-impeachment                official sources in the States.” McLaughlin v.
rule, this Court noted the possibility of an exception     Florida, 379 U. S. 184, 192, 85 S. Ct. 283, 13 L.
in the “gravest and most important cases.” United          Ed. 2d 222. Time and again, this Court [**114] has
States v. Reid, supra, at 366, 12 How. 361, 13 L.          enforced the Constitution's guarantee against state-
Ed. 1023; McDonald v. Pless, supra, at 269, 35 S.          sponsored racial discrimination in the jury system.
Ct. 783, 59 L. Ed. 1300. The Court has addressed           The Court has interpreted the Fourteenth
the question whether the Constitution mandates an          Amendment to prohibit the exclusion of jurors
exception to Rule 606(b) just twice, rejecting an          based on race, Strauder v. West Virginia, 100 U. S.
exception each time. In Tanner, where the evidence         303, 305-309, 25 L. Ed. 664; struck down laws and
showed that some jurors were under the influence           practices that systematically exclude racial
of drugs and alcohol during the trial, the Court           minorities from juries, see, e.g.,Neal v. Delaware,
identified “long-recognized and very substantial           103 U. S. 370, 26 L. Ed. 567; ruled that no litigant
concerns” supporting the no-impeachment rule. 483          may exclude a prospective juror based on race, see,
                                                           e.g., Batson v. Kentucky, 476 U. S. 79, 106 S. Ct.
                                                                                                  Page 11 of 35
                     137 S. Ct. 855, *859; 197 L. Ed. 2d 107, **114; 2017 U.S. LEXIS 1574, ***5

1712, 90 L. Ed. 2d 69; and held that defendants            showing has been satisfied is committed to the
may at times be entitled to ask about racial bias          substantial discretion of the [***7] trial court in
during voir dire, see, e.g., Ham v. South Carolina,        light of all the circumstances, including the content
409 U. S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46. The         and timing of the alleged statements and the
unmistakable principle of these precedents is that         reliability of the proffered evidence.
discrimination on the basis of race, “odious in all
aspects, is especially pernicious in the                   The practical mechanics of acquiring and
administration of justice,” Rose v. Mitchell, 443 U.       presenting such evidence will no doubt be shaped
S. 545, 555, 99 S. Ct. 2993, 61 L. Ed. 2d 739,             and guided by state rules of [*860] professional
damaging “both the fact and the perception” of the         ethics and local court rules, both of which often
jury's role as “a vital check against the wrongful         limit counsel's post-trial contact with jurors. The
exercise of power by the State,” Powers v. Ohio,           experience of those jurisdictions that have already
499 U. S. 400, 411, 111 S. Ct. 1364, 113 L. Ed. 2d         recognized a racial-bias exception to the no-
411. Pp. ___ - ___, 197 L. Ed. 2d, at 122-123.             impeachment rule, and the experience of courts
                                                           going forward, will inform the proper exercise of
(d) This case lies at the intersection of the Court's      trial judge discretion. The Court need not ad-
decisions endorsing the no-impeachment rule and             [**115] dress what procedures a trial court must
those seeking to eliminate racial bias in the jury         follow when confronted with a motion for a new
system. Those lines of precedent need not conflict.        trial based on juror testimony of racial bias or the
Racial bias, unlike the behavior in McDonald,              appropriate standard for determining when such
Tanner,       or   Warger,      implicates      unique     evidence is sufficient to require that the verdict be
historical, [***6] constitutional, and institutional       set aside and a new trial be granted. Standard and
concerns and, if left unaddressed, would risk              existing safeguards may also help prevent racial
systemic injury to the administration of justice. It is    bias in jury deliberations, including careful voir
also distinct in a pragmatic sense, for the Tanner         dire and a trial court's instructions to jurors about
safeguards may be less effective in rooting out            their duty to review the evidence, deliberate
racial bias. But while all forms of improper bias          together, and reach a verdict in a fair and impartial
pose challenges to the trial process, there is a sound     way, free from bias of any kind. [***8] Pp. ___ -
basis to treat racial bias with added precaution. A        ___, 197 L. Ed. 2d, at 125-127.
constitutional rule that racial bias in the justice
system must be addressed--including, in some               350 P. 3d 287, 2015 CO 31, reversed and
instances, after a verdict has been entered--is            remanded.
necessary to prevent a systemic loss of confidence
                                                           Counsel: Jeffrey L. Fisher argued the cause for
in jury verdicts, a confidence that is a central
                                                           petitioner.
premise of the Sixth Amendment trial right. Pp. ___
- ___, 197 L. Ed. 2d, at 123-125.                          Frederick R. Yarger argued the cause for
                                                           respondent.
(e) Before the no-impeachment bar can be set aside
to allow further judicial inquiry, there must be a         Rachel P. Kovner argued the cause for the United
threshold showing that one or more jurors made             States, as amicus curiae, by special leave of court.
statements exhibiting overt racial bias that cast
serious doubt on the fairness and impartiality of the      Judges: Kennedy, J., delivered the opinion of the
jury's deliberations and resulting verdict. To             Court, in which Ginsburg, Breyer, Sotomayor, and
qualify, the statement must tend to show that racial       Kagan, JJ., joined. Thomas, J., filed a dissenting
animus was a significant motivating factor in the          opinion. Alito, J., filed a dissenting opinion, in
juror's vote to convict. Whether the threshold             which Roberts, C. J., and Thomas, J., joined.
                                                                                                  Page 12 of 35
                    137 S. Ct. 855, *860; 197 L. Ed. 2d 107, **115; 2017 U.S. LEXIS 1574, ***8

Opinion by: Kennedy                                       based on the comments or conclusions they
                                                          expressed during deliberations. This principle, itself
Opinion                                                   centuries old, is often referred to as the no-
                                                          impeachment rule. The instant case presents the
                                                          question whether there is an exception to the no-
Justice Kennedy delivered the opinion of the              impeachment rule when, after the jury is
Court.                                                    discharged, a juror comes forward with compelling
HN1[ ] LEdHN[1][ ] [1] The jury is a central              evidence that another juror made clear and explicit
foundation of our justice system and our                  statements indicating that racial animus [**116]
democracy. Whatever its imperfections in a                was a significant motivating factor in his or her
particular case, the jury is a necessary check on         vote to convict.
governmental power. The jury, over the centuries,         I
has been an inspired, trusted, and effective
instrument for resolving factual disputes and             State prosecutors in Colorado brought criminal
determining ultimate questions of guilt or                charges against petitioner, Miguel [***10] Angel
innocence in criminal cases. Over the long course         Peña-Rodriguez, based on the following
its judgments find acceptance in the community, an        allegations. In 2007, in the bathroom of a Colorado
acceptance essential to respect for the rule of law.      horse-racing facility, a man sexually assaulted two
The jury is a tangible implementation of the              teenage sisters. The girls told their father and
principle that the law comes from the people.             identified the man as an employee of the racetrack.
                                                          The police located and arrested petitioner. Each girl
HN2[ ] LEdHN[2][ ] [2] In the era of our                  separately identified petitioner as the man who had
Nation’s founding, the right to a jury trial already      assaulted her.
had existed and evolved for centuries, through and
alongside the common law. The jury was             The State charged petitioner with harassment,
considered a fundamental safeguard of individual   unlawful sexual contact, and attempted sexual
liberty. See The Federalist No. 83, p. 451 (B.     assault on a child. Before the jury was empaneled,
Warner ed. 1818) (A. Hamilton). [***9] The right   members of the venire were repeatedly asked
to a jury trial in criminal cases was part of the  whether they believed that they could be fair and
Constitution as first drawn, and it was restated inimpartial in the case. A written questionnaire asked
the Sixth Amendment. Art. III, §2, cl. 3; Amdt. 6. if there was “anything about you that you feel
 [*861]    By operation of the Fourteenth          would make it difficult for you to be a fair juror.”
Amendment, it is applicable to the States. Duncan  App. 14. The court repeated the question to the
v. Louisiana, 391 U. S. 145, 149-150, 88 S. Ct.    panel of prospective jurors and encouraged jurors
1444, 20 L. Ed. 2d 491 (1968).                     to speak in private with the court if they had any
                                                   concerns about their impartiality. Defense counsel
HN3[ ] LEdHN[3][ ] [3] Like all human likewise asked whether anyone felt that “this is
institutions, the jury system has its flaws, yet simply not a good case” for them to be a fair juror.
experience shows that fair and impartial verdicts Id., at 34. None of the empaneled jurors expressed
can be reached if the jury follows the court’s any reservations based on racial or any other bias.
instructions and undertakes deliberations that are And none asked to speak with the trial
honest, candid, robust, and based on common judge. [***11]
sense. A general rule has evolved to give
substantial protection to verdict finality and to After a 3-day trial, the jury found petitioner guilty
assure jurors that, once their verdict has been of unlawful sexual contact and harassment, but it
entered, it will not later be called into question failed to reach a verdict on the attempted sexual
                                                                                                  Page 13 of 35
                    137 S. Ct. 855, *861; 197 L. Ed. 2d 107, **116; 2017 U.S. LEXIS 1574, ***11

assault charge. When the jury was discharged, the         was “‘an illegal.’” Ibid. (In fact, the witness
court gave them this instruction, as mandated by          testified during trial that he was a legal resident of
Colorado law:                                             the United States.)

    “The question may arise whether you may now           After reviewing the affidavits, the trial court
    discuss this case with the lawyers, defendant,        acknowledged H. C.’s apparent bias. But the court
    or other persons. For your guidance the court         denied petitioner’s motion for a new trial, noting
    instructs you that whether you talk to anyone is      that “[t]he actual deliberations [***13] that occur
    entirely your own decision. . . . If any person       among the jurors are protected from inquiry under
    persists in discussing the case over your             [Colorado Rule of Evidence] 606(b).” Id., at 90.
    objection, or becomes critical of your service        HN4[ ] LEdHN[4][ ] [4] Like its federal
    either before or after any discussion has begun,      counterpart, Colorado’s Rule 606(b) generally
    please report it to me.” Id., at 85-86.               prohibits a juror from testifying as to any statement
                                                          made during deliberations in a proceeding inquiring
Following the discharge of the jury, petitioner’s         into the validity of the verdict. See Fed. Rule Evid.
counsel entered the jury room to discuss the trial        606(b). The Colorado Rule reads as follows:
with the jurors. As the room was emptying, two
jurors remained to speak with counsel in private.              “(b) Inquiry into validity of verdict or
They stated that, during deliberations, another juror          indictment. Upon an inquiry into the validity of
had expressed anti-Hispanic bias toward petitioner             a verdict or indictment, a juror may not testify
and petitioner’s alibi witness. Petitioner’s counsel           as to any matter or statement occurring during
reported this to the court and, with the court’s               the course of the jury’s deliberations or to the
supervision, obtained sworn affidavits from the two            effect of anything upon his or any other juror’s
jurors.                                                        mind or emotions as influencing him to assent
                                                               to or dissent from the verdict or indictment or
 [*862] The affidavits by the two jurors described a           concerning his mental processes in connection
number of biased statements [***12] made by                    therewith. But a juror may testify about (1)
another juror, identified as Juror H. C. According to          whether extraneous prejudicial information was
the two jurors, H. C. told the other jurors that he            improperly brought to the jurors’ attention, (2)
“believed the defendant was guilty because, in [H.             whether any outside influence was improperly
C.’s] experience as an ex-law enforcement officer,             brought to bear upon any juror, or (3) whether
Mexican men had a bravado that caused them to                  there was a mistake in entering the verdict onto
believe they could do whatever they wanted with                the verdict form. A juror’s affidavit or evidence
women.” Id., at 110. The jurors reported that H. C.            of any statement by the juror may not be
stated his belief that Mexican men are physically              received on a matter about which the juror
controlling of women because of their sense of                 would be precluded from testifying.” [***14]
entitlement, and further stated, “‘I think he did it           Colo. Rule Evid. 606(b) (2016).
because he’s Mexican and Mexican men take
whatever they [**117] want.’” Id., at 109.                The verdict deemed final, petitioner was sentenced
According to the jurors, H. C. further explained          to two years’ probation and was required to register
that, in his experience, “nine times out of ten           as a sex offender. A divided panel of the Colorado
Mexican men were guilty of being aggressive               Court of Appeals affirmed petitioner’s conviction,
toward women and young girls.” Id., at 110.               agreeing that H. C.’s alleged statements did not fall
Finally, the jurors recounted that Juror H. C. said       within an exception to Rule 606(b) and so were
that he did not find petitioner’s alibi witness           inadmissible to undermine the validity of the
credible because, among other things, the witness         verdict. ___ P. 3d ___, 2012 COA 193, 2012 WL
                                                                                                  Page 14 of 35
                    137 S. Ct. 855, *862; 197 L. Ed. 2d 107, **117; 2017 U.S. LEXIS 1574, ***14

5457362.                                               their verdict, either by affidavit or live testimony.
                                                       This rule originated in Vaise v. Delaval, 1 T. R. 11,
The Colorado Supreme Court affirmed by a vote of 99 Eng. Rep. 944 (K. B. 1785). There, Lord
4 to 3. 350 P. 3d 287, 2015 CO 31 (2015). The Mansfield excluded juror testimony that the jury
prevailing opinion relied on two decisions of this had decided the case through a game of chance.
Court rejecting constitutional challenges to the The Mansfield rule, as it came to be known,
federal no-impeachment rule as applied to evidence prohibited jurors, after the verdict was entered,
of juror misconduct or bias. See Tanner v. United from testifying either about their subjective mental
States, 483 U. S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d processes or about objective events that occurred
90 (1987); Warger v. Shauers, U. S. ___, 135 S. during deliberations.
Ct. 521, 190 L. Ed. 2d 422 (2014). After reviewing
those precedents, the court could find no “dividing American courts adopted the Mansfield rule as a
line between different types of juror bias or matter of common law, though not in every detail.
misconduct,” and thus no basis for permitting Some jurisdictions adopted a different, more
impeachment of the verdicts in petitioner’s trial, flexible version of the no-impeachment bar known
notwithstanding H. C.’s apparent racial bias. 350 P. as the “Iowa rule.” Under that rule, [***16] jurors
3d, at 293. This Court [*863] granted certiorari to were prevented only from testifying about their
decide whether there is a constitutional exception to own subjective beliefs, thoughts, or motives during
the no-impeachment rule for instances of racial deliberations. See Wright v. Illinois & Miss. Tel.
bias. 578 U. S. ___, 136 S. Ct. 1513, 194 L. Ed. 2d Co., 20 Iowa 195 (1866). Jurors could, however,
602 (2016).                                            testify about objective facts and events occurring
                                                       during deliberations, in part because other jurors
Juror H. C.’s bias was based on petitioner’s could corroborate that testimony.
Hispanic identity, which [**118] the Court in
prior cases has referred to as ethnicity, and that may An alternative approach, later referred to as the
be an instructive term here. [***15] See, e.g., federal approach, stayed closer to the original
Hernandez v. New York, 500 U. S. 352, 355, 111 S. Mansfield rule. See Warger, supra, at ___, 135 S.
Ct. 1859, 114 L. Ed. 2d 395 (1991) (plurality Ct. 521, 190 L. Ed. 2d 422 . Under this version of
opinion). Yet we have also used the language of the rule, the no-impeachment bar permitted an
race when discussing the relevant constitutional exception only for testimony about events
principles in cases involving Hispanic persons. See, extraneous to the deliberative process, such as
e.g., ibid.; Fisher v. University of Tex. at Austin, reliance on outside evidence—newspapers,
570 U. S. ___, 133 S. Ct. 2411, 186 L. Ed. 2d 474 dictionaries, and the like—or personal investigation
(2013); Rosales-Lopez v. United States, 451 U. S. of the facts.
182, 189-190, 101 S. Ct. 1629, 68 L. Ed. 2d 22
(1981) (plurality opinion). Petitioner and This Court’s early decisions did not establish a
respondent both refer to race, or to race and clear preference for a particular version of the no-
ethnicity, in this more expansive sense in their impeachment rule. In United States v. Reid, 53 U.S.
briefs to the Court. This opinion refers to the nature 361, 12 How. 361, 13 L. Ed. 1023 (1852), the Court
of the bias as racial in keeping with the primary appeared open to the admission of juror testimony
terminology employed by the parties and used in that the jurors had consulted newspapers during
our precedents.                                        deliberations, but in the end it barred the evidence
                                                       because the newspapers “had not the slightest
II                                                     influence” on the verdict. Id., at 366, 12 How. 361,
A                                                      13 L. Ed. 1023. The Reid Court warned that juror
                                                       testimony “ought always to be received with great
At common law jurors were forbidden to impeach
                                                                                                  Page 15 of 35
                    137 S. Ct. 855, *863; 197 L. Ed. 2d 107, **118; 2017 U.S. LEXIS 1574, ***16

caution.” Ibid. Yet it added an important                 quotation marks omitted).
admonition: “cases might arise in which [***17] it
would be impossible to refuse” juror testimony             The common-law development of the no-
“without violating the plainest principles of             impeachment rule reached a milestone in 1975,
justice.” Ibid.                                           when Congress adopted the Federal Rules of
                                                          Evidence, including Rule 606(b). Congress, like the
In a following case the Court required the                McDonald Court, rejected the Iowa rule. Instead it
admission of juror affidavits stating that the jury       endorsed a broad no-impeachment rule, with only
consulted [**119] information that [*864] was             limited exceptions.
not in evidence, including a prejudicial newspaper
article. Mattox v. United States, 146 U. S. 140, 151,     The version of the rule that Congress adopted was
13 S. Ct. 50, 36 L. Ed. 917 (1892). The Court             “no accident.” Warger, U. S., at ___, 135 S. Ct.
suggested, furthermore, that the admission of juror       521, 527, 190 L. Ed. 2d 422, 430. The Advisory
testimony might be governed by a more flexible            Committee at first drafted a rule reflecting the Iowa
rule, one permitting jury testimony even where it         approach, prohibiting admission of juror testimony
did not involve consultation of prejudicial               only as it related to jurors’ mental processes in
extraneous information. Id., at 148-149, 13 S. Ct.        reaching a verdict. The Department of Justice,
50, 36 L. Ed. 917; see also Hyde v. United States,        however, expressed concern over the preliminary
225 U. S. 347, 382-384, 32 S. Ct. 793, 56 L. Ed.          rule. The Advisory Committee then drafted the
1114 (1912) (stating that the more flexible Iowa          more stringent version now in effect, prohibiting all
rule “should apply,” but excluding evidence that the      juror testimony, with exceptions only where the
jury reached the verdict by trading certain               jury had considered prejudicial extraneous evidence
defendants’ acquittals for others’ convictions).          or was subject to other [***19] outside influence.
                                                          Rules of Evidence for United States Courts and
Later, however, the Court rejected the more lenient       Magistrates, 56 F. R. D. 183, 265 (1972). The
Iowa rule. In McDonald v. Pless, 238 U. S. 264, 35        Court adopted this second version and transmitted
S. Ct. 783, 59 L. Ed. 1300 (1915), the Court              it to Congress.
affirmed the exclusion of juror testimony about
objective events in the jury room. There, the jury        The House favored the Iowa approach, but the
allegedly had calculated a damages award by               Senate expressed concern that it did not sufficiently
averaging the numerical submissions of each               address the public policy interest in the finality of
member. Id., at 265-266, 35 S. Ct. 783, 59 L. Ed.         verdicts. S. Rep. No. 93-1277, pp. 13-14 (1974).
1300. As the Court explained, admitting that              Siding with the Senate, the Conference Committee
evidence would have “dangerous consequences”:             adopted, Congress enacted, and the President
“no verdict would be safe” and the practice would         signed the Court’s proposed rule. The substance of
“open the door to the most pernicious arts and            the Rule has not changed since 1975, except for
tampering with [***18] jurors.” Id., at 268, 35 S.         [**120] a 2006 modification permitting evidence
Ct. 783, 59 L. Ed. 1300 (internal quotation marks         of a clerical mistake on the verdict form. See 574
omitted). Yet the Court reiterated its admonition         U. S., at ___, 135 S. Ct. 521, 190 L. Ed. 2d 422.
from Reid, again cautioning that the no-                  The current version of Rule 606(b) states as
impeachment rule might recognize exceptions “in           follows:
the gravest and most important cases” where
exclusion of juror affidavits might well violate “the          “(1) Prohibited Testimony or Other Evidence.
plainest principles of justice.” 238 U. S., at 269, 35         During an inquiry into the validity of a verdict
S. Ct. 783, 59 L. Ed. 1300 (quoting Reid, supra, at            or indictment, a juror may not testify about any
366, 12 How. 361, 13 L. Ed. 1023; internal                     statement made or incident that occurred during
                                                                                                  Page 16 of 35
                    137 S. Ct. 855, *864; 197 L. Ed. 2d 107, **120; 2017 U.S. LEXIS 1574, ***19

    the jury’s deliberations; the effect of anything      recognize an exception for racial bias. See
    on that juror’s or another juror’s [*865] vote;       Commonwealth v. Steele, 599 Pa. 341, 377-379,
    or any juror’s mental processes concerning the        961 A. 2d 786, 807-808 (2012).
    verdict or indictment. The court may not
    receive a juror’s affidavit or evidence of a          The federal courts, for their part, are governed by
    juror’s statement on these matters.                   Federal Rule 606(b), but their interpretations
                                                          deserve further comment. Various Courts of
    “(2) Exceptions. A juror may testify about            Appeals have had occasion to consider a racial bias
    whether:                                              exception and have reached different conclusions.
                                                          Three have held or suggested there is a
        “(A) extraneous prejudicial information           constitutional exception for evidence of racial bias.
        was improperly brought to the jury’s              See United States v. Villar, 586 F. 3d 76, 87-88
        attention; [***20]                                (CA1 2009) (holding the Constitution demands a
        “(B) an outside influence was improperly          racial-bias exception); United States v. Henley, 238
        brought to bear on any juror; or                  F. 3d 1111, 1119-1121 (CA9 2001) (finding
                                                          persuasive arguments in favor of an exception but
        “(C) a mistake was made in entering the           not deciding the issue); Shillcutt v. Gagnon, 827 F.
        verdict on the verdict form.”                     2d 1155, 1158-1160 (CA7 1987) (observing that in
                                                          some cases fundamental fairness could require an
This version of the no-impeachment rule has               exception). One Court of Appeals has declined to
substantial merit. It promotes full and vigorous          find an exception, reasoning that other safeguards
discussion by providing jurors with considerable          inherent [**121] in the trial process suffice to
assurance that after being discharged they will not       protect defendants’ constitutional interests. See
be summoned to recount their deliberations, and           United States v. Benally, 546 F. 3d 1230, 1240-
they will not otherwise be harassed or annoyed by         1241 (CA10 2008). Another has suggested as
litigants seeking to challenge the verdict. The rule      much, holding in the habeas context that an
gives stability and finality to verdicts.                 exception for racial bias was not clearly established
B                                                         but indicating in dicta that no such exception exists.
                                                          See Williams v. Price, 343 F. 3d 223, 237-239
Some version of the no-impeachment rule is                (CA3 2003) (Alito, J.). And one Court of Appeals
followed in every State and the District of               has held that evidence of racial bias is excluded by
Columbia.       Variations     make     classification    Rule 606(b), without addressing whether [***22]
imprecise, but, as a general matter, it appears that      the Constitution may at times demand an exception.
42 jurisdictions follow the Federal Rule, while 9         See Martinez v. Food City, Inc., 658 F. 2d 369,
follow the Iowa Rule. Within both classifications         373-374 (CA5 1981).
there is a diversity of approaches. Nine jurisdictions
that follow the Federal Rule have codified                C
exceptions other than those listed in Federal Rule        In addressing the scope of the common-law no-
606(b). See Appendix, infra. At least 16                  impeachment rule before Rule 606(b)’s adoption,
jurisdictions, 11 of which follow the Federal Rule,       the Reid and McDonald Courts noted the possibility
have recognized an exception to the no-                   of an exception to the rule in the “gravest and most
impeachment bar under the circumstances the Court          [*866] important cases.” Reid, 12 How., at 366,
faces here: juror testimony that racial bias played a     12 How. 361, 13 L. Ed. 1023; McDonald, 238 U.
part in deliberations. [***21] Ibid. According to         S., at 269, 35 S. Ct. 783, 59 L. Ed. 1300. Yet since
the parties and amici, only one State other than          the enactment of Rule 606(b), the Court has
Colorado has addressed this issue and declined to         addressed the precise question whether the
                                                                                                    Page 17 of 35
                     137 S. Ct. 855, *866; 197 L. Ed. 2d 107, **121; 2017 U.S. LEXIS 1574, ***22

Constitution mandates an exception to it in just two       pertaining to the jury’s inebriated state. Ibid.
instances.
                                                           The second case to consider the general issue
In its first case, Tanner, 483 U. S. 107, 107 S. Ct.       presented here was [**122] Warger, 574 U. S.
2739, 97 L. Ed. 2d 90, the Court rejected a Sixth          ___, 135 S. Ct. 521, 190 L. Ed. 2d 422. The Court
Amendment exception for evidence that some                 again rejected the argument that, in the
jurors were under the influence of drugs and               circumstances there, the jury trial right required an
alcohol during the trial. Id., at 125, 107 S. Ct. 2739,    exception to the no-impeachment rule. Warger
97 L. Ed. 2d 90. Central to the Court’s reasoning          involved a civil case where, [***24] after the
were the “long-recognized and very substantial             verdict was entered, the losing party sought to
concerns” supporting “the protection of jury               proffer evidence that the jury forewoman had failed
deliberations from intrusive inquiry.” Id., at 127,        to disclose prodefendant bias during voir dire. As
107 S. Ct. 2739, 97 L. Ed. 2d 90. The Tanner Court         in Tanner, the Court put substantial reliance on
echoed McDonald’s concern that, if attorneys could         existing safeguards for a fair trial. The Court stated:
use juror testimony to attack verdicts, jurors would       “Even if jurors lie in voir dire in a way that
be “harassed and beset by the defeated party,” thus        conceals bias, juror impartiality is adequately
destroying “all frankness and freedom of discussion        assured by the parties’ ability to bring to the court’s
and conference.” 483 U. S., at 120, 107 S. Ct. 2739,       attention any evidence of bias before the verdict is
97 L. Ed. 2d 90 (quoting McDonald, supra, at 267-          rendered, and to employ nonjuror evidence even
268, 35 S. Ct. 783, 59 L. Ed. 1300). The Court was         after the verdict is rendered.” 574 U. S., at ___, 135
concerned, moreover, that attempts to impeach a            S. Ct. 521, 529, 190 L. Ed. 2d 422, 432 .
verdict would “disrupt the finality of the process”
and undermine both “jurors’ willingness to return      In Warger, however, the Court did reiterate that the
an unpopular verdict” and “the [***23]                 no-impeachment rule may admit exceptions. As in
community’s trust in a system that relies on the       Reid and McDonald, the Court warned of “juror
decisions of laypeople.” 483 U. S., at 120-121, 107    bias so extreme that, almost by definition, the jury
S. Ct. 2739, 97 L. Ed. 2d 90.                          trial right has been abridged.” 574 U. S., at ___-
                                                       ___, n. 3, 135 S. Ct. 521, 529, 190 L. Ed. 2d 422,
The Tanner Court outlined existing, significant 432. “If and when such a case arises,” the Court
safeguards for the defendant’s right to an impartial indicated it would “consider whether the usual
and competent jury beyond post-trial juror safeguards are or are not sufficient to protect the
testimony. At the outset of the trial process, voir integrity of the process.” Ibid.
dire provides an opportunity for the court and
counsel to examine members of the venire for HN5[ ] LEdHN[5][ ] [5] The recognition in
impartiality. As a trial proceeds, the court, counsel, Warger that there may be extreme cases where the
and court personnel have some opportunity to learn jury trial [*867] right requires an exception to the
of any juror misconduct. And, before the verdict, no-impeachment rule must be interpreted in context
jurors themselves can report misconduct to the as a guarded, cautious statement. This caution is
court. These procedures do not undermine the warranted to avoid formulating [***25] an
stability of a verdict once rendered. Even after the exception that might undermine the jury dynamics
trial, evidence of misconduct other than juror and finality interests the no-impeachment rule seeks
testimony can be used to attempt to impeach the to protect. Today, however, the Court faces the
verdict. Id., at 127, 107 S. Ct. 2739, 97 L. Ed. 2d question that Reid, McDonald, and Warger left
90. Balancing these interests and safeguards against open. The Court must decide whether the
the defendant’s Sixth Amendment interest in that Constitution requires an exception to the no-
case, the Court affirmed the exclusion of affidavits impeachment rule when a juror’s statements
                                                                                                  Page 18 of 35
                    137 S. Ct. 855, *867; 197 L. Ed. 2d 107, **122; 2017 U.S. LEXIS 1574, ***25

indicate that racial animus was a significant         HN7[ ] LEdHN[7][ ] [7] The duty to confront
motivating factor in his or her finding of guilt.     racial animus in the justice system is not the
                                                      legislature’s alone. Time and again, this Court has
III
                                                      been called upon to enforce the Constitution’s
HN6[ ] LEdHN[6][ ] [6] It must become the guarantee                  against     state-sponsored       racial
heritage of our Nation to rise above racial discrimination in the jury system. Beginning in
classifications that are so inconsistent with our 1880, the Court interpreted the Fourteenth
commitment to the equal dignity of all persons. Amendment to prohibit the exclusion [***27] of
This imperative to purge racial prejudice from the jurors on the basis of race. Strauder v. West
administration of justice was given new force and Virginia, 100 U. S. 303, 305-309, 25 L. Ed. 664
direction by the ratification of the Civil War (1880). The Court has repeatedly struck down laws
Amendments.                                           and practices that systematically exclude racial
                                                      minorities from juries. See, e.g., Neal v. Delaware,
“[T]he central purpose of the Fourteenth 103 U. S. 370, 26 L. Ed. 567 (1881); Hollins v.
Amendment was to eliminate racial discrimination Oklahoma, 295 U. S. 394, 55 S. Ct. 784, 79 L. Ed.
emanating from official sources in the States.” 1500 (1935) (per curiam); Avery v. Georgia, 345
McLaughlin v. Florida, 379 U. S. 184, 192, 85 S. U. S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953);
Ct. 283, 13 L. Ed. 2d 222 (1964). In the years Hernandez v. Texas, 347 U. S. 475, 74 S. Ct. 667,
before and after the ratification of the Fourteenth 98 L. Ed. 866 (1954); Castaneda v. Partida, 430 U.
Amendment, it became clear that racial S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). To
discrimination in the jury system posed a particular guard against discrimination in jury selection, the
threat both to the promise of the Amendment and to Court has ruled that no litigant may exclude a
the integrity of the jury trial. “Almost immediately prospective juror on the basis of race. Batson v.
after the Civil War, the South began a practice that Kentucky, 476 U. S. 79, 106 S. Ct. 1712, 90 L. Ed.
would continue for many decades: All-white juries 2d 69 (1986); [*868] Edmonson v. Leesville
punished black defendants [***26] particularly Concrete Co., 500 U. S. 614, 111 S. Ct. 2077, 114
harshly, while simultaneously refusing to punish L. Ed. 2d 660 (1991); Georgia v. McCollum, 505
violence by whites, including Ku Klux Klan U. S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992).
members, against blacks and Republicans.” In an effort to ensure that individuals who sit on
Forman, Juries and Race in the Nineteenth Century, juries are free of racial bias, the Court has held that
113 Yale L. J. 895, 909-910 (2004). To take one the Constitution at times demands that defendants
example, just in the years 1865 and 1866, all-white be permitted to ask questions about racial bias
juries in Texas decided a total of 500 prosecutions during voir dire. Ham v. South Carolina, 409 U. S.
of white [**123] defendants charged with killing 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973);
African-Americans. All 500 were acquitted. Id., at Rosales-Lopez, 451 U. S. 182, 101 S. Ct. 1629, 68
916. The stark and unapologetic nature of race- L. Ed. 2d 22; Turner v. Murray, 476 U. S. 28, 106
motivated outcomes challenged the American S. Ct. 1683, 90 L. Ed. 2d 27 (1986).
belief that “the jury was a bulwark of liberty,” id.,
at 909, and prompted Congress to pass legislation The unmistakable principle underlying these
to integrate the jury system and to bar persons from precedents is that discrimination on the basis of
eligibility for jury service if they had conspired to race, “odious in all aspects, is especially pernicious
deny the civil rights of African-Americans, id., at in the administration of justice.” Rose v. Mitchell,
920-930. Members of Congress stressed that the 443 U. S. 545, 555, 99 S. Ct. 2993, 61 L. Ed. 2d
legislation was necessary to preserve the right to a 739 (1979). The jury is to be “a criminal
fair trial and to guarantee the equal protection of defendant’s fundamental ‘protection of life and
the laws. Ibid.                                       liberty against race or color prejudice.’” McCleskey
                                                                                                   Page 19 of 35
                     137 S. Ct. 855, *868; 197 L. Ed. 2d 107, **123; 2017 U.S. LEXIS 1574, ***27

v. Kemp, 481 U. S. 279, 310, 107 S. Ct. 1756, 95 L.        racial bias is not an effort to perfect the jury but
Ed. 2d 262 (1987) (quoting Strauder, supra, at 309,        to [***29] ensure that our legal system remains
25 L. Ed. 664). Permitting racial prejudice in the         capable of coming ever closer to the promise of
jury system damages “both the fact and the                 equal treatment under the law that is so central to a
perception” of the jury’s role as “a vital check           functioning democracy.
against the wrongful exercise of power by the
State.” Powers v. Ohio, 499 U. S. 400, 411, 111 S.         Racial bias is distinct in a pragmatic sense as well.
Ct. 1364, 113 L. Ed. 2d 411 (1991); cf. Aldridge v.        HN9[ ] LEdHN[9][ ] [9] In past cases this Court
United States, 283 U. S. 308, 315, 51 S. Ct. 470, 75       has relied on other safeguards to protect the right to
L. Ed. 1054 (1931); Buck v. Davis, ante, at ___,           an impartial jury. Some of those safeguards, to be
137 S. Ct. 759, 197 L. Ed. 2d 1.                           sure, can disclose racial bias. Voir dire at the outset
                                                           of trial, observation of juror demeanor and conduct
[**124] IV                                                 during trial, juror reports before the verdict, and
                                                           nonjuror evidence after trial are important
A
                                                           mechanisms for discovering bias. Yet their
This case lies at the intersection of the Court’s          operation may be compromised, or they may prove
decisions endorsing the no-impeachment rule and            insufficient. [*869] For instance, this Court has
its decisions seeking [***28] to eliminate racial          noted the dilemma faced by trial court judges and
bias in the jury system. The two lines of precedent,       counsel in deciding whether to explore potential
however, need not conflict.                                racial bias at voir dire. See Rosales-Lopez, supra;
                                                           Ristaino v. Ross, 424 U. S. 589, 96 S. Ct. 1017, 47
HN8[ ] LEdHN[8][ ] [8] Racial bias of the kind             L. Ed. 2d 258 (1976). Generic questions about juror
alleged in this case differs in critical ways from the     impartiality may not expose specific attitudes or
compromise verdict in McDonald, the drug and               biases that can poison jury deliberations. Yet more
alcohol abuse in Tanner, or the pro-defendant bias         pointed questions “could well exacerbate whatever
in Warger. The behavior in those cases is troubling        prejudice might exist without substantially aiding in
and unacceptable, but each involved anomalous              exposing it.” Rosales-Lopez, supra, at 195, 101 S.
behavior from a single jury—or juror—gone off              Ct. 1629, 68 L. Ed. 2d 22 (Rehnquist, J., concurring
course. Jurors are presumed to follow their oath, cf.      in result).
Penry v. Johnson, 532 U. S. 782, 799, 121 S. Ct.
1910, 150 L. Ed. 2d 9 (2001), and neither history          The stigma that attends racial bias may make it
nor common experience show that the jury system            difficult [***30] for a juror to report inappropriate
is rife with mischief of these or similar kinds. To        statements during the course of juror deliberations.
attempt to rid the jury of every irregularity of this      It is one thing to accuse a fellow juror of having a
sort would be to expose it to unrelenting scrutiny.        personal experience that improperly influences her
“It is not at all clear . . . that the jury system could   consideration of the case, as would have been
survive such efforts to perfect it.” Tanner, 483 U.        required in Warger. It is quite another to call her a
S., at 120, 107 S. Ct. 2739, 97 L. Ed. 2d 90.              bigot.

The same cannot be said about racial bias, a               The recognition that certain of the Tanner
familiar and recurring evil that, if left unaddressed,     safeguards may be less effective in rooting out
would risk systemic injury to the administration of        racial bias than other kinds of bias is not
justice. This Court’s decisions demonstrate that           dispositive. All forms of improper bias pose
racial    bias    implicates     unique     historical,    challenges to the trial process. But there [**125]
constitutional, and institutional concerns. An effort      is a sound basis to treat racial bias with added
to address the most grave and serious statements of        precaution. A constitutional rule that racial bias in
                                                                                                   Page 20 of 35
                    137 S. Ct. 855, *869; 197 L. Ed. 2d 107, **125; 2017 U.S. LEXIS 1574, ***30

the justice system must be addressed—including, in        These limits seek to provide jurors some protection
some instances, after the verdict has been entered—       when they return to their daily affairs after the
is necessary to prevent a systemic loss of                verdict has been entered. But while a juror can
confidence in jury verdicts, a confidence that is a       always tell counsel they do not wish to discuss the
central premise of the Sixth Amendment trial right.       case, jurors in some instances may come forward of
                                                          their own accord.
B
                                                           [*870] That is what happened here. In this case
For the reasons explained above, the Court now
                                                          the alleged statements by a juror were egregious
holds that HN10[ ] LEdHN[10][ ] [10] where a
                                                          and unmistakable in their reliance on racial bias.
juror makes a clear statement that indicates he or
                                                          Not only did juror H. C. deploy a dangerous racial
she relied on racial stereotypes or animus to convict
                                                          stereotype to conclude petitioner was guilty and his
a criminal defendant, the Sixth Amendment
                                                          alibi witness should not be believed, but he also
requires that the no-impeachment rule give way in
                                                          encouraged other jurors to join him in convicting
order to permit the trial court to consider the
                                                          on that basis.
evidence of the juror’s statement and any
resulting [***31] denial of the jury trial guarantee.     Petitioner’s counsel did not seek out the two jurors’
Not every offhand comment indicating racial bias          allegations of racial bias. Pursuant to Colorado’s
                                                          mandatory jury instruction, the trial court had set
or hostility will justify setting aside the no-
                                                          limits on juror contact and encouraged jurors to
impeachment bar to allow further judicial inquiry.
                                                          inform the court if anyone harassed them about
For the inquiry to proceed, there must be a showing
                                                          their role in the case. Similar limits on juror contact
that one or more jurors made statements exhibiting
                                                          can be found in other jurisdictions that recognize a
overt racial bias that cast serious doubt on the
                                                          racial-bias exception. See, e.g., Fla. Standard Jury
fairness and impartiality of the jury’s deliberations
and resulting verdict. To qualify, the statement          Instrs. in Crim. [***33] Cases No. 4.2 (West 2016)
                                                          (“Although you are at liberty to speak with anyone
must tend to show that racial animus was a
                                                          about your deliberations, you are also at liberty to
significant motivating factor in the juror’s vote to
                                                          refuse to speak to anyone”); [**126] Mass. Office
convict. Whether that threshold showing has been
                                                          of Jury Comm’r, Trial Juror’s Handbook (Dec.
satisfied is a matter committed to the substantial
                                                          2015) (“You are not required to speak with anyone
discretion of the trial court in light of all the
                                                          once the trial is over. . . . If anyone tries to learn
circumstances, including the content and timing of
                                                          this confidential information from you, or if you
the alleged statements and the reliability of the
                                                          feel harassed or embarrassed in any way, you
proffered evidence.
                                                          should report it to the court . . . immediately”); N. J.
The practical mechanics of acquiring and                  Crim. Model Jury Charges, Non 2C Charges,
presenting such evidence will no doubt be shaped          Dismissal of Jury (2014) (“It will be up to each of
and guided by state rules of professional ethics and      you to decide whether to speak about your service
local court rules, both of which often limit              as a juror”).
counsel’s post-trial contact with jurors. See 27 C.
                                                          With the understanding that they were under no
Wright & V. Gold, Federal Practice and Procedure:
                                                          obligation to speak out, the jurors approached
Evidence §6076, pp. 580-583 (2d ed. 2007)
                                                          petitioner’s counsel, within a short time after the
(Wright); see also Variations of ABA Model Rules
                                                          verdict, to relay their concerns about H. C.’s
of Professional Conduct, [***32] Rule 3.5 (Sept.
                                                          statements. App. 77. A similar pattern is common
15, 2016) (overview of state ethics rules); 2
                                                          in cases involving juror allegations of racial bias.
Jurywork Systematic Techniques §13:18 (2016-
                                                          See, e.g., Villar, 586 F. 3d, at 78 (juror e-mailed
2017) (overview of Federal District Court rules).
                                                                                                  Page 21 of 35
                    137 S. Ct. 855, *870; 197 L. Ed. 2d 107, **126; 2017 U.S. LEXIS 1574, ***33

defense counsel within hours of the verdict); Kittle      (“One racist juror would be enough”).
v. United States, 65 A. 3d 1144, 1147 (D. C. 2013)        D
(juror wrote a letter to the judge the same day the
court discharged the jury); Benally, 546 F. 3d, at        It is proper to observe as well that there are
1231 (juror approached defense counsel the day            standard and existing processes designed to prevent
after the jury announced its verdict). Pursuant to        racial bias in jury deliberations. The advantages of
local court rules, petitioner’s [***34] counsel then      careful voir dire have already been noted. And
sought and received permission from the court to          other safeguards deserve mention.
contact the two jurors and obtain affidavits limited
to recounting the exact statements made by H. C.          Trial courts, often at the outset of the case and
that exhibited racial bias.                               again in their final jury instructions, explain the
                                                          jurors’ duty [**127] to review the evidence and
While the trial court concluded that Colorado’s           reach a verdict in a fair and impartial way, free
Rule 606(b) did not permit it even to consider the        from bias of any kind. Some instructions are
resulting affidavits, the Court’s holding today           framed by trial judges based on their own learning
removes that bar. When jurors disclose an instance        and experience. Model jury instructions likely take
of racial bias as serious as the one involved in this     into account these continuing developments and are
case, the law must not wholly disregard its               common across jurisdictions. See, e.g., 1A K.
occurrence.                                               O’Malley, J. Grenig, & W. Lee, Federal Jury
C                                                         Practice and Instructions, Criminal §10:01, p. 22
                                                          (6th ed. 2008) (“Perform these duties [***36]
As the preceding discussion makes clear, the Court        fairly. Do not let any bias, sympathy or prejudice
relies on the experiences of the 17 jurisdictions that    that you may feel toward one side or the other
have recognized a racial-bias exception to the no-        influence your decision in any way”). Instructions
impeachment rule—some for over half a century—            may emphasize the group dynamic of deliberations
with no signs of an increase in juror harassment or       by urging jurors to share their questions and
a loss of juror willingness to engage in searching        conclusions with their colleagues. See, e.g., id.,
and candid deliberations.                                 §20:01, at 841 (“It is your duty as jurors to consult
                                                          with one another and to deliberate with one another
The experience of these jurisdictions, and the            with a view towards reaching an agreement if you
experience of the courts going forward, will inform       can do so without violence to individual
the proper exercise of trial judge discretion in these    judgment”).
and related matters. This case does not ask, and the
Court need not address, what procedures a trial           Probing and thoughtful deliberation improves the
court must follow when confronted with a motion           likelihood that other jurors can confront the flawed
for a new trial based on juror testimony of racial        nature of reasoning that is prompted or influenced
bias. See 27 Wright 575-578 (noting a                     by improper biases, whether racial or otherwise.
divergence [***35] of authority over the necessity        These dynamics can help ensure that the exception
and scope of an evidentiary hearing on alleged juror      is limited to rare cases.
misconduct). The Court also does not decide the           ***
appropriate standard for determining when
evidence of racial bias is sufficient to require that     HN11[ ] LEdHN[11][ ] [11] The Nation must
the verdict be set aside and a new trial be granted.      continue to make strides to overcome race-based
Compare, [*871] e.g., Shillcutt, 827 F. 2d, at 1159       discrimination. The progress that has already been
(inquiring whether racial bias “pervaded the jury         made underlies the Court’s insistence that blatant
room”), with, e.g., Henley, 238 F. 3d, at 1120            racial prejudice is antithetical to the functioning of
                                                                                                   Page 22 of 35
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the jury system and must be confronted in                  Evidence of Racial Bias
egregious cases like this one despite the general bar
of the no-impeachment rule. It is the mark of a             [**128] See State v. Santiago, 245 Conn. 301,
maturing legal system that it seeks to understand          323-340, 715 A. 2d 1, 14-22 (1998); Kittle v.
and to implement [***37] the lessons of history.           United States, 65 A. 3d 1144, 1154-1156 (D. C.
The Court now seeks to strengthen the broader              2013); Fisher v. State, 690 A. 2d 917, 919-921, and
principle that society can and must move forward           n. 4 (Del. 1996) (Appendix to opinion), Powell v.
by achieving the thoughtful, rational dialogue at the      Allstate Ins. Co., 652 So. 2d 354, 357-358 (Fla.
foundation of both the jury system and the free            1995); Spencer v. State, 260 Ga. 640, 643-644, 398
society that sustains our Constitution.                    S. E. 2d 179, 184-185 (1990); State v. Jackson, 81
                                                           Haw. 39, 48-49, 912 P. 2d 71, 80-81 (1996);
The judgment of the Supreme Court of Colorado is           Commonwealth v. Laguer, 410 Mass. 89, 97-98,
reversed, and the case is remanded for further             571 N. E. 2d 371, 376 (1991); State v. Callender,
proceedings not inconsistent with this opinion.            297 N. W. 2d 744, 746 (Minn. 1980); Fleshner v.
                                                           Pepose Vision Inst., P. C., 304 S. W. 3d 81, 87-90
It is so ordered.                                          (Mo. 2010); State v. Levitt, 36 N. J. 266, 271-273,
886 contd                                                  176 A. 2d 465, 467-468 (1961); People v. Rukaj,
                                                           123 App. Div. 2d 277, 280-281, 506 N. Y. S. 2d
[EDITOR'S NOTE: The page numbers of this                   677, 679-680 (1986); State v. Hidanovic, 2008 ND
document may appear to be out of sequence;                 66, ¶¶21-26, 747 N. W. 2d 463, 472-474; State v.
however, this pagination accurately reflects the           Brown, 62 A. 3d 1099, 1110 (R. I. 2013); State v.
pagination of the original published document.]            Hunter, 320 S. C. 85, 88, 463 S. E. 2d 314, 316
                                                           (1995); Seattle v. Jackson, 70 Wash. 2d 733, 738,
APPENDIX
                                                           425 P. 2d 385, 389 (1967); After Hour Welding,
Codified Exceptions in Addition to Those                   Inc. v. Laneil Management Co., 108 Wis. 2d 734,
Enumerated in Fed. Rule Evid. 606(b)                       739-740, 324 N. W. 2d 686, 690 (1982).

See Ariz. Rules Crim. Proc. 24.1(c)(3), (d) (2011)         Dissent by: Thomas; Alito
(exception for evidence of misconduct, including
verdict by game of chance or intoxication); Idaho          Dissent
Rule Evid. 606(b) (2016) (game of chance); Ind.
Rule Evid. 606(b)(2)(A) (Burns 2014) (drug or
alcohol use); Minn. Rule Evid. 606(b) (2014)                [*871contd]
(threats of violence or violent acts); Mont. Rule          [EDITOR'S NOTE: The page numbers of this
Evid. 606(b) (2015) (game of chance); N. D. Rule           document may appear to be out of sequence;
Evid. 606(b)(2)(C) (2016-2017) (same); Tenn. Rule          however, this pagination accurately reflects the
Evid. 606(b) (2016) (quotient verdict or game of           pagination of the original published document.]
chance); Tex. Rule Evid. 606(b)(2)(B) (West 2016)
(rebutting claim juror was unqualified); Vt. Rule          Justice Thomas, dissenting.
Evid. 606(b) (Cum. Supp. 2016) (juror
communication with nonjuror); see also 27 C.               The Court today holds that the Sixth Amendment
Wright & V. Gold, Federal Practice and Procedure:          requires the States to provide a criminal defendant
Evidence §6071, p. 447, and n. 66 (2d ed. 2007);           the opportunity to impeach a jury’s guilty verdict
id., at 451, and n. 70; id., at 452, and n. 72.            with juror testimony about a juror’s alleged racial
                                                           bias, notwithstanding a state procedural rule
Judicially [***38]    Recognized      Exceptions     for   forbidding such testimony. I agree with Justice
                                                                                                              Page 23 of 35
                     137 S. Ct. 855, *871; 197 L. Ed. 2d 107, **128; 2017 U.S. LEXIS 1574, ***38

Alito that the Court’s decision is incompatible with       interest of their own affected, and no personal bias,
the text of the Amendment it purports to interpret         or pre-possession, in favor [of] or against either
and with our precedents. I write separately to             party.” Pettis v. Warren, 1 Kirby 426, 427 (Conn.
explain that the Court’s holding also cannot be            Super. 1788).
squared with the original understanding of the Sixth       II
or Fourteenth Amendments.
I                                                          The common-law right to a jury trial did not,
                                                           however, guarantee a defendant the right [***40]
The Sixth Amendment’s protection of the right,             to impeach a jury verdict with juror testimony
“[i]n all criminal prosecutions,” [*872] to a “trial,      about juror misconduct, including “a principal
by an impartial jury,” is limited to the protections       species of [juror] misbehaviour”—“notorious
that existed at common law when the Amendment              partiality.” 3 Blackstone 388. Although partiality
was ratified. See, e.g., Apprendi v. New Jersey, 530       was a ground for setting aside a jury verdict, ibid.,
U. S. 466, 500, 120 S. Ct. 2348, 147 L. Ed. 2d 435,        the English common-law rule at the time the Sixth
and n. 1 (2000) (Thomas, J., concurring); 3 J. Story,      Amendment was ratified did not allow jurors to
Commentaries on the Constitution of the United             supply evidence of that misconduct. In 1770, Lord
States §1773, pp. 652-653 (1833) (Story)                   Mansfield refused to receive a juror’s affidavit to
(explaining that “the trial by jury in criminal cases”     impeach a verdict, declaring that such an affidavit
protected by the Constitution is the same “great           “can’t be read.” Rex v. Almon, 5 Burr. 2687, 98
privilege” that was “a part of that admirable              Eng. Rep. 411 (K. B.). And in 1785, Lord
common law” of England); cf. 5 St. G. Tucker,              Mansfield solidified the doctrine, holding that
Blackstone’s [***39] Commentaries 349, n. 2                “[t]he Court [could not] receive such an affidavit
(1803). It is therefore “entirely proper to look to the    from any of the jurymen” to prove that the jury had
common law” to ascertain whether the Sixth                 cast lots to reach a verdict. Vaise v. Delaval, 1 T. R.
Amendment requires the result the Court today              11, 99 Eng. Rep. 944 (K. B.). 1
reaches. Apprendi, supra, at 500, n. 1, 120 S. Ct.
2348, 147 L. Ed. 2d 435.                                   At the time of the founding, the States took mixed
                                                           approaches to this issue. See Cluggage v. Swan, 4
The Sixth Amendment’s specific guarantee of                Binn. 150, 156 (Pa. 1811) (opinion of Yeates, J.)
impartiality   incorporates    the     common-law          (“The opinions of American judges . . . have greatly
understanding of that term. See, e.g., 3 W.                differed on the point in question”); Bishop v.
Blackstone, Commentaries on the Laws of England            Georgia, 9 Ga. 121, 126 (1850) (describing the
365 (1769) (Blackstone) (describing English trials         common law in 1776 on this question as “in a
as “impartially just” because of their “caution            transition state”). Many States followed [*873]
against all partiality and bias” in the jury). The         Lord Mansfield’s no-impeachment rule and refused
common law required a juror to have “freedome of
mind” and to be “indifferent as hee stands
unsworne.” 1 E. Coke, First Part of the Institutes of      1 Prior to 1770, it appears that juror affidavits were sometimes
the Laws of England §234, p. 155a [**129] (16th            received to impeach a verdict on the ground of juror misbehavior,
ed. 1809); accord, 3 M. Bacon, A New Abridgment            although only “with great caution.” McDonald v. Pless, 238 U. S.
of the Law 258 (3d ed. 1768); cf. T. Cooley, A             264, 268, 35 S. Ct. 783, 59 L. Ed. 1300 (1915); see, e.g., Dent v. The
                                                           Hundred of Hertford, 2 Salk. 645, 91 Eng. Rep. 546 (K. B. 1696);
Treatise on the Constitutional Limitations Which           Philips v. Fowler, Barnes. 441, 94 Eng. Rep. 994 (K. B. 1735). But
Rest Upon the Legislative Power of the States of           “previous to our Revolution, and at least as early as 1770, the
the American Union 319 (1868) (“The jury must be           doctrine in England was distinctly ruled the other way, and has so
indifferent between the prisoner and the                   stood ever since.” 3 T. Waterman, A Treatise on the Principles of
                                                           Law and Equity Which Govern Courts in the Granting of New Trials
commonwealth”). Impartial jurors could “have no            in Cases Civil and Criminal 1429 (1855).
                                                                                                            Page 24 of 35
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to receive juror affidavits. See, e.g., Brewster v.       in the United States an adherence almost
Thompson, 1 N. J. L. 32 (1790) (per curiam);              unquestioned”); J. Proffatt, A Treatise on Trial by
Robbins v. Windover, 2 Tyl. 11, 14 (Vt. 1802);            Jury §408, p. 467 (1877) (“It is a well established
Taylor v. Giger, 3 Ky. 586, 597-598 (1808); Price         rule of law that no affidavit shall be received from a
v. McIlvain, 2 Tread. 503, 504 (S. C. 1815); Tyler        juror to impeach his verdict”). The vast majority of
v. Stevens, 4 N. H. 116, 117 (1827); 1 Z. Swift, A        States adopted the no-impeachment rule as a matter
Digest of the Laws of [***41] the State of                of common law. See, e.g., Bull v. Commonwealth,
Connecticut 775 (1822) (“In England, and in the           55 Va. 613, 627-628 (1857) (“[T]he practice
courts of the United States, jurors are not permitted     appears to be now generally settled, to reject the
to be witnesses respecting the misconduct of the          testimony of jurors when offered to impeach their
jury . . . and this is, most unquestionably, the          verdict. The cases on the subject are too numerous
correct principle”). Some States, however,                to be cited”); Tucker v. Town Council of South
permitted juror affidavits about juror misconduct.        Kingstown, 5 R. I. 558, 560 (1859) (collecting
See, e.g., Crawford v. State, 10 Tenn. 60, 68             cases); State v. Coupenhaver, 39 Mo. 430 (1867)
(1821); Cochran v. Street, 1 Va. 79, 81, 1 Wash. 79       (“The law is well settled that a traverse juror cannot
(1792). And others initially permitted such               be a witness to prove misbehavior in the jury in
evidence but quickly reversed course. Compare,            regard to their verdict”); Peck v. Brewer, 48 Ill. 54,
e.g., Smith v. Cheetham, 3 Cai. R. 57, 59-60 (N. Y.       63 (1868) (“So far back as . . . 1823, the doctrine
 [**130] 1805) (opinion of Livingston, J.)                was held that the affidavits of jurors cannot be
(permitting juror testimony), with Dana v. Tucker,        heard to impeach their verdict”); Heffron v.
4 Johns. 487, 488-489 (N. Y. 1809) (per curiam)           Gallupe, 55 Me. 563, 566 (1868) (ruling
(overturning Cheetham); compare also Bradley’s            inadmissible “depositions of . . . jurors as to what
Bradley's Lessee v. Bradley, 4 U.S. 112, 4 Dall.          transpired in the jury room”); Withers v. Fiscus, 40
112, 1 L. Ed. 763 (Pa. 1792) (permitting juror            Ind. 131, 131-132 (1872) (“In the United States it
affidavits), with, e.g., Cluggage, supra, at 156-158      seems to be settled, notwithstanding a few
(opinion of Yeates, J.) (explaining that Bradley was      adjudications to the contrary . . ., that such
incorrectly reported and rejecting affidavits);           affidavits cannot be received”). 2
compare also Talmadge v. Northrop, 1 Root 522
(Conn. 1793) (admitting juror testimony), with             [*874] The Court today acknowledges that the
State v. Freeman, 5 Conn. 348, 350-352 (1824)             States “adopted [***43] the Mansfield rule as a
(“The opinion of almost the whole legal world is          matter of common law,” ante, at __, 197 L. Ed. 2d,
adverse to the reception of the testimony in              at 118, but ascribes no significance to that fact. I
question; and, in my opinion, on invincible               would hold that it is dispositive. Our common-law
foundations”).                                            history does not establish that—in either 1791
                                                          (when the Sixth Amendment was ratified) or 1868
By the time the Fourteenth Amendment was                  (when the Fourteenth Amendment was ratified)—a
ratified, Lord Mansfield’s no-impeachment rule had        defendant had the right to impeach a verdict with
become firmly entrenched in American law. See             juror testimony of juror misconduct. In fact, it
Lettow, New Trial for Verdict Against Law: Judge-         strongly suggests that such evidence was
Jury Relations in Early-Nineteenth Century                prohibited. In the absence of a definitive common-
America, 71 Notre Dame L. Rev. 505, 536 (1996)
(“[O]pponents of juror affidavits had largely won
out by the middle of the century”); 8 J.                  2 Although  two States declined to follow the rule in the mid-19th
Wigmore, [***42] Evidence in Trials at Common             century, see Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, 210
Law §2352, p. 697 (J. McNaughton rev. 1961)               (1866); Perry v. Bailey, 12 Kan. 539, 544-545 (1874), “most of the
                                                          state courts” had already “committed themselves upon the subject,” 8
(Wigmore) (Lord Mansfield’s rule “came to receive         Wigmore §2354, at 702.
                                                                                                   Page 25 of 35
                     137 S. Ct. 855, *874; 197 L. Ed. 2d 107, **130; 2017 U.S. LEXIS 1574, ***43

law tradition permitting impeachment by juror              this loss entails.
testimony, we have no basis to [**131] invoke a
constitutional provision that merely “follow[s] out        The present case concerns a rule like those just
the established course of the common law in all            mentioned, namely, the age-old rule against
trials for crimes,” 3 Story §1785, at 662, to overturn     attempting to overturn or “impeach” a jury’s
Colorado’s decision to preserve the no-                    verdict by offering statements made by jurors
impeachment rule, cf. Boumediene v. Bush, 553 U.           during the course of deliberations. For
S. 723, 832-833, 128 S. Ct. 2229, 171 L. Ed. 2d 41         centuries, [***45] it has been the judgment of
(2008) (Scalia, J., dissenting).                           experienced judges, trial attorneys, scholars, and
                                                           lawmakers that allowing jurors to testify after a trial
***                                                        about what took place in the jury room would
Perhaps good reasons exist to curtail or abandon the       undermine the system of trial by jury that is integral
no-impeachment rule. Some States have done so,             to our legal system.
see Appendix to majority opinion, ante, and others         Juries occupy a unique place in our justice system.
have not. Ultimately, that question is not for us to       The other participants in a trial—the presiding
decide. It should be left to the political process         judge, the attorneys, the witnesses—function in an
described by Justice Alito. See post, at ___ - ___,        arena governed by strict rules of law. Their every
197 L. Ed. 2d, at 133-135 (dissenting opinion). In         word is recorded and may be closely scrutinized for
its attempt to stimulate a “thoughtful, rational           missteps.
dialogue” on race relations, ante, at ___, 197 L. Ed.
2d, at 127, the Court today [***44] ends the               When jurors retire to deliberate, however, they
political process and imposes a uniform, national          enter a space that is not regulated in the same way.
rule. The Constitution does not require such a rule.       Jurors are ordinary people. They are expected to
Neither should we.                                         speak, debate, argue, and make decisions the way
                                                           ordinary people do in their daily lives. Our
I respectfully dissent.                                    Constitution places great value on this way of
Justice Alito, with whom THE CHIEF JUSTICE                 thinking, speaking, and deciding. The jury trial
                                                           right protects parties in [*875] court cases from
and Justice Thomas join, dissenting.
                                                           being judged by a special class of trained
Our legal system has many rules that restrict the          professionals who do not speak the language of
admission of evidence of statements made under             ordinary people and may [**132] not understand
circumstances in which confidentiality is thought to       or appreciate the way ordinary people live their
be essential. Statements made to an attorney in            lives. To protect that right, the door to the jury
obtaining legal advice, statements to a treating           room has been locked, and the confidentiality of
physician, and statements made to a spouse or              jury deliberations has [***46] been closely
member of the clergy are familiar examples. See            guarded.
Trammel v. United States, 445 U. S. 40, 51, 100 S.
                                                           Today, with the admirable intention of providing
Ct. 906, 63 L. Ed. 2d 186 (1980). Even if a criminal
                                                           justice for one criminal defendant, the Court not
defendant whose constitutional rights are at stake
                                                           only pries open the door; it rules that respecting the
has a critical need to obtain and introduce evidence
                                                           privacy of the jury room, as our legal system has
of such statements, long-established rules stand in
                                                           done for centuries, violates the Constitution. This is
the way. The goal of avoiding interference with
                                                           a startling development, and although the Court
confidential communications of great value has
                                                           tries to limit the degree of intrusion, it is doubtful
long been thought to justify the loss of important
                                                           that there are principled grounds for preventing the
evidence and the effect on our justice system that
                                                           expansion of today’s holding.
                                                                                                                Page 26 of 35
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The Court justifies its decision on the ground that                     428 (2014) . Lord Mansfield’s approach “soon took
the nature of the confidential communication at                         root in the United States,” ibid., and “[b]y the
issue in this particular case—a clear expression of                     beginning of [the 20th] century, if not earlier, the
what the Court terms racial bias 1—is uniquely                          near-universal and firmly established common-law
harmful to our criminal justice system. And the                         rule in the United States flatly prohibited the
Court is surely correct that even a tincture of racial                  admission of juror testimony to impeach a jury
bias can inflict great damage on that system, which                     verdict,” Tanner v. United States, 483 U. S. 107,
is dependent on the public’s trust. But until today,                    117, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987); see
the argument that the Court now finds convincing                        27 C. Wright [***48] & V. Gold, Federal Practice
has not been thought to be sufficient to overcome                       and Procedure: Evidence §6071, p. 431 (2d ed.
confidentiality rules like the one at issue here.                       2007) (Wright & Gold) [**133] (noting that the
                                                                        Mansfield approach “came to be accepted in almost
Suppose that a prosecution witness gives                                all states”).
devastating but false testimony against a defendant,
and suppose that the witness’s motivation is racial                     In McDonald v. Pless, 238 U. S. 264, 35 S. Ct. 783,
bias. Suppose that the witness admits [***47] this                      59 L. Ed. 1300 (1915), this Court adopted a strict
to his attorney, his spouse, and a member of the                        no-impeachment rule for [*876] cases in federal
clergy. Suppose that the defendant, threatened with                     court. McDonald involved allegations that the jury
conviction for a serious crime and a lengthy term of                    had entered a quotient verdict—that is, that it had
imprisonment, seeks to compel the attorney, the                         calculated a damages award by taking the average
spouse, or the member of the clergy to testify about                    of the jurors’ suggestions. Id., at 265-266, 35 S. Ct.
the witness’s admissions. Even though the                               783, 59 L. Ed. 1300. The Court held that evidence
constitutional rights of the defendant hang in the                      of this misconduct could not be used. Id., at 269, 35
balance, the defendant’s efforts to obtain the                          S. Ct. 783, 59 L. Ed. 1300. It applied what it said
testimony would fail. The Court provides no good                        was “unquestionably the general rule, that the
reason why the result in this case should not be the                    losing party cannot, in order to secure a new trial,
same.                                                                   use the testimony of jurors to impeach their
I                                                                       verdict.” Ibid. The Court recognized that the
                                                                        defendant had a powerful interest in demonstrating
Rules barring the admission of juror testimony to                       that the jury had “adopted an arbitrary and unjust
impeach a verdict (so-called “no-impeachment                            method in arriving at their verdict.” Id., at 267, 35
rules”) have a long history. Indeed, they pre-date                      S. Ct. 783, 59 L. Ed. 1300. “But,” the Court
the ratification of the Constitution. They are                          warned, “let it once be established that verdicts . . .
typically traced back to Vaise v. Delaval, 1 T. R.                      can be attacked and set aside on the testimony of
11, 99 Eng. Rep. 944 (K. B. 1785), in which Lord                        those who took part in their publication and all
Mansfield declined to consider an affidavit from                        verdicts could be, and many would be, followed by
two jurors who claimed that the jury had reached its                    an inquiry in the hope of discovering something
verdict by lot. See Warger v. Shauers, 574 U. S.                        which might invalidate the finding.” Ibid. This
___, ___, 135 S. Ct. 521, 526, 190 L. Ed. 2d 422,                       would lead to “harass[ment]” of [***49] jurors and
                                                                        “the destruction of all frankness and freedom of
1 The
                                                                        discussion and conference.” Id., at 267-268, 35 S.
      bias at issue in this case was a “bias against Mexican men.”
App. 160. This might be described as bias based on national origin or
                                                                        Ct. 783, 59 L. Ed. 1300. Ultimately, even though
ethnicity. Cf. Hernandez v. New York, 500 U. S. 352, 355, 111 S. Ct.    the no-impeachment rule “may often exclude the
1859, 114 L. Ed. 2d 395 (1991) (plurality opinion); Hernandez v.        only possible evidence of misconduct,” relaxing the
Texas, 347 U. S. 475, 479, 74 S. Ct. 667, 98 L. Ed. 866 (1954).         rule “would open the door to the most pernicious
However, no party has suggested that these distinctions make a
substantive difference in this case.
                                                                        arts and tampering with jurors.” Id., at 268, 35 S.
                                                                                                                              Page 27 of 35
                             137 S. Ct. 855, *876; 197 L. Ed. 2d 107, **133; 2017 U.S. LEXIS 1574, ***49

Ct. 783, 59 L. Ed. 1300 (internal quotation marks                           [*877] Committee ultimately produced a revised
omitted).                                                                  draft that retained the well-established federal
                                                                           approach. Tanner, supra, at 122, 107 S. Ct. 2739,
The firm no-impeachment approach taken in                                  97 L. Ed. 2d 90; see Committee on Rules of
McDonald came to be known as “the federal rule.”                           Practice and Procedure of the Judicial Conference
This approach categorically bars testimony about                           of the United States, Revised Draft of Proposed
jury deliberations, except where it is offered to                          Rules of Evidence for the United States Courts and
demonstrate that the jury was subjected to an                              Magistrates 73 (Oct. 1971). Expressly repudiating
extraneous influence (for example, an attempt to                           the Iowa rule, the new draft provided that jurors
bribe a juror). Warger, supra, at ___, 135 S. Ct.                          generally could not testify “as to any matter or
521, 190 L. Ed. 2d 422 (slip op., at 5); Tanner,                           statement occurring during the course of the jury’s
supra, at 117, 107 S. Ct. 2739, 97 L. Ed. 2d 90; 2                         deliberations.” Ibid. This new version was
see 27 Wright & Gold §6071, at 432-433.                                    approved by the Judicial Conference and sent to
Some jurisdictions, notably Iowa, adopted a more                           this Court, which adopted the rule and referred it to
permissive rule. Under the Iowa rule, jurors were                          Congress. 56 F. R. D. 183, 265-266 (1972).
generally permitted to testify about any subject    Initially, the House rejected this Court’s version of
except their “subjective intentions and thought     Rule 606(b) and instead reverted to the earlier (and
processes in reaching a verdict.” Warger, supra, at narrower) Advisory Committee draft. Tanner,
___, 135 S. Ct. 521, 526, 190 L. Ed. 2d 422, 428.   supra, at 123, 107 S. Ct. 2739, 97 L. Ed. 2d 90; see
Accordingly, the Iowa rule allowed jurors to        H. R. Rep. No. 93-650, pp. 9-10 (1973)
“testify as to events or conditions which might have(criticizing [***51] the Supreme Court draft for
improperly influenced the verdict, even if these    preventing jurors from testifying about “quotient
took place during deliberations within the jury     verdict[s]” and other “irregularities which occurred
room.” 27 Wright & Gold §6071, at 432.              in the jury room”). In the Senate, however, the
Debate between proponents of the federal rule Judiciary Committee favored this Court’s rule. The
and [***50] the Iowa rule emerged during the Committee Report observed that the House draft
framing and adoption of Federal Rule of Evidence broke with “long-accepted Federal law” by
606(b). Both sides had their supporters. The allowing verdicts to be “challenge[d] on the basis
contending arguments were [**134] heard and of what happened during the jury’s internal
considered, and in the end the strict federal deliberations.” S. Rep. No. 93-1277, p. 13 (1974)
approach was retained.                              (S. Rep.). In the view of the Senate Committee, the
                                                    House rule would have “permit[ted] the harassment
An early draft of the Advisory Committee on the of former jurors” as well as “the possible
Federal Rules of Evidence included a version of the exploitation of disgruntled or otherwise badly-
Iowa rule, 51 F. R. D. 315, 387-388 (1971). That
draft was forcefully criticized, however, 3 and the considerations continue to support” the federal approach and that
                                                                           “[r]ecent experience has shown that the danger of harassment of
                                                                           jurors by unsuccessful litigants warrants a rule which imposes strict
                                                                           limitations on the instances in which jurors may be questioned about
2 As  this Court has explained, the extraneous influence exception         their verdict.” Letter from R. Kliendienst, Deputy Attorney General,
“do[es] not detract from, but rather harmonize[s] with, the weighty        to Judge A. Maris (Aug. 9, 1971), 117 Cong. Rec. 33648, 33655
government interest in insulating the jury’s deliberative process.”        (1971). And Senator McClellan, an influential member of the Senate
Tanner, 483 U. S., at 120, 107 S. Ct. 2739, 97 L. Ed. 2d 90. The           Judiciary Committee, insisted that the “mischief in this Rule ought to
extraneous influence exception, like the no-impeachment rule itself,       be plain for all to see” and that it would be impossible “to conduct
is directed at protecting jury deliberations against unwarranted           trials, particularly criminal prosecutions, as we know them today, if
interference. Ibid.                                                        every verdict were followed by a post-trial hearing into the conduct
                                                                           of the juror’s deliberations.” Letter from Sen. J. McClellan to Judge
3 In   particular, the Justice Department observed that “[s]trong policy   A. Maris (Aug. 12, 1971), id., at 33642, 33645.
                                                                                                   Page 28 of 35
                     137 S. Ct. 855, *877; 197 L. Ed. 2d 107, **134; 2017 U.S. LEXIS 1574, ***51

motivated ex-jurors.” Id., at 14. This result would        Warger, 574 U. S., at ___, 135 S. Ct. 521, 526, 190
have undermined the finality of verdicts, violated         L. Ed. 2d 422, 428).
“common fairness,” and prevented jurors from               II
“function[ing] effectively.” Ibid. The Senate
rejected the House version of the rule and returned        A
to the Court’s rule. A Conference Committee
                                                           Recognizing the importance of Rule 606(b), this
adopted the Senate version, see H. R. Conf. Rep.
                                                           Court has twice rebuffed efforts to create a Sixth
No. 93-1597, p. 8 (1974), and this version was
                                                           Amendment exception—first in Tanner and then,
passed by both Houses and was signed into law by
                                                           just two Terms ago, in Warger.
the President.
                                                           The Tanner petitioners were convicted of
As this summary shows, the process that
                                                           committing mail fraud and conspiring to defraud
culminated in the adoption of Federal Rule of
                                                           the United States. 483 U. S., at 109-110, 112-113,
Evidence 606(b) was the epitome of reasoned
                                                           107 S. Ct. 2739, 97 L. Ed. 2d 90. After the trial,
democratic rulemaking. The “distinguished,
                                                           two jurors came forward with disturbing stories of
Supreme [***52] Court-appointed” members of
                                                           juror misconduct. One claimed that several jurors
the Advisory Committee went through a 7-year
                                                           “consumed alcohol during lunch breaks . . . causing
drafting process, “produced two well-circulated
                                                           them to sleep through the afternoons.” Id., at 113,
 [**135] drafts,” and “considered numerous
                                                           107 S. Ct. 2739, 97 L. Ed. 2d 90. The second added
comments from persons involved in nearly every
                                                           that jurors also smoked marijuana and ingested
area of court-related law.” Rothstein, The Proposed
                                                           cocaine during the trial. Id., at 115-116, 107 S. Ct.
Amendments to the Federal Rules of Evidence, 62
                                                           2739, 97 L. Ed. 2d 90. This Court held that
Geo. L. J. 125 (1973). The work of the Committee
                                                           evidence of this bacchanalia could properly be
was considered and approved by the experienced
                                                           excluded under Rule 606(b). Id., at 127, 107 S. Ct.
appellate and trial judges serving on the Judicial
                                                           2739, 97 L. Ed. 2d 90.
Conference and by our predecessors on this Court.
After that, the matter went to Congress, which             The Court noted that “[s]ubstantial policy
“specifically understood, considered, and rejected a       considerations support the common-law rule
version of [the rule] that would have allowed jurors       against the admission of jury testimony to impeach
to testify on juror conduct during deliberations.”         a verdict.” Id., at 119, 107 S. Ct. 2739, 97 L. Ed. 2d
Tanner, 483 U. S., at 125, 107 S. Ct. 2739, 97 L.          90. While there is “little doubt that postverdict
Ed. 2d 90. The judgment of all these participants in       investigation into juror misconduct would in some
the process, which was informed by their                   instances lead to the invalidation of verdicts
assessment of an empirical issue, i.e., the effect that    reached after irresponsible or improper juror
the competing Iowa rule would have had on the              behavior,” the Court observed, it is “not at all clear
jury system, is entitled to great respect.                 . . . that the jury system could survive such efforts
                                                           to perfect it.” Id., at 120,107 S. Ct. 2739, 97 L. Ed.
Colorado considered this same question, made the
                                                           2d 90. Allowing such post-verdict inquiries
same judgment as the participants in the federal
                                                           would [***54] “seriously disrupt the finality of the
process, and adopted a very similar rule. In doing
                                                           process.” Ibid. It would also undermine “full and
so, it joined [*878] the overwhelming majority of
                                                           frank discussion in the jury room, jurors’
States. Ante, at ___, 197 L. Ed. 2d, at 119. In the
                                                           willingness to return an unpopular verdict, and the
great majority of jurisdictions, strong no-
                                                           community’s trust in a system that relies on the
impeachment rules continue to be “viewed as both
                                                           decisions of laypeople.” Id., at 120-121, 107 S. Ct.
promoting the finality of verdicts [***53] and
                                                           2739, 97 L. Ed. 2d 90.
insulating the jury from outside influences.”
                                                                                                              Page 29 of 35
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The Tanner petitioners, of course, had a Sixth            that her daughter had once caused a deadly car
Amendment right “to ‘a [**136] tribunal both              crash, and the foreperson expressed the belief that a
impartial and mentally competent to afford a              lawsuit would have ruined her daughter’s life. Ibid.
hearing.’” Id., at 126, 107 S. Ct. 2739, 97 L. Ed. 2d
90 (quoting Jordan v. Massachusetts, 225 U. S.            In seeking to use this testimony to overturn the
167, 176, 32 S. Ct. 651, 56 L. Ed. 1038 (1912)).          jury’s verdict, the plaintiff’s primary contention
The question, however, was whether they also had          was that Rule 606(b) does not apply to evidence
a right to an evidentiary hearing featuring “one          concerning a juror’s alleged misrepresentations
particular kind of evidence inadmissible under the        during voir dire. If otherwise interpreted, the
Federal Rules.” 483 U. S., at 126-127, 107 S. Ct.         plaintiff    maintained,       the     rule    would
2739, 97 L. Ed. 2d 90. Turning to that question, the      threaten [***56] his right to trial by an impartial
Court noted again that “long-recognized and very          jury. 4 The Court disagreed, in part because “any
substantial concerns support the protection of jury       claim that Rule 606(b) is unconstitutional in
deliberations from intrusive inquiry.” Id., at 127,       circumstances such as these is foreclosed by our
107 S. Ct. 2739, 97 L. Ed. 2d 90. By contrast,            decision in Tanner.” Id., at ___, 135 S. Ct. 521,
“[p]etitioners’ Sixth Amendment interests in an           529, 190 L. Ed. 2d 422, 432 ). The Court explained
unimpaired jury . . . [were] protected by several         that “[e]ven if jurors lie in voir dire in a way that
aspects of the trial process.” Ibid.                      conceals bias, juror impartiality is adequately
                                                          assured by” two of the other Tanner safeguards:
The Court identified four mechanisms that protect         pre-verdict reports by the jurors and non-juror
defendants’ Sixth Amendment rights. First, jurors         evidence. 574 U. S., at ___135 S. Ct. 521, 529, 190
can be “examined during voir dire.” Ibid. Second,         L. Ed. 2d 422, 432 (slip op., at 10).
“during the trial the jury is observable by the court,
by counsel, and by court personnel.” Ibid. Third,         Tanner and Warger fit neatly into this Court’s
“jurors are observable by each other, and may             broader        jurisprudence      concerning       the
report inappropriate juror behavior to the court          constitutionality of evidence rules. As the Court has
before [***55] they render a verdict.” Ibid. And          explained, [**137] “state and federal rulemakers
fourth, “after the trial a party may seek to impeach      have broad latitude under the Constitution to
the verdict by nonjuror evidence of misconduct.”          establish rules excluding evidence from criminal
Ibid. These “other sources of protection of               trials.” Holmes v. South Carolina, 547 U. S. 319,
petitioners’ right to a competent jury” convinced         324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)
the Court that the juror testimony was properly           (internal quotation marks and alteration omitted).
excluded. Ibid.                                           Thus, evidence rules of this sort have been
                                                          invalidated only if they “serve no legitimate
Warger involved a negligence suit arising from a          purpose or . . . are disproportionate to the ends that
motorcycle crash. 574 U. S., at ___, 135 S. Ct. 521,      they are asserted to promote.” Id., at 326, 26 S. Ct.
190 L. Ed. 2d 422 (slip op., at 1). During voir dire,     1727, 164 L. Ed. 2d 503. Tanner and Warger
 [*879] the individual who eventually became the          recognized that Rule 606(b) serves vital purposes
jury’s foreperson said that she could decide the case     and does not impose a disproportionate burden on
fairly and impartially. Id., at ___, 135 S. Ct. 521,      the jury trial right.
190 L. Ed. 2d 422 (slip op., at 2). After the jury
returned a verdict in favor of the defendant, one of      Today, for the first time, the Court creates a
the jurors came forward with evidence that called
into question the truthfulness of the foreperson’s        4 Although   Warger was a civil case, we wrote that “[t]he
responses during voir dire. According to this juror,      Constitution guarantees both criminal and civil litigants a right to an
the foreperson revealed during the deliberations          impartial jury.” 574 U. S., at ___, 135 S. Ct. 521, 528, 190 L. Ed. 2d
                                                          422, 431 ).
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constitutional exception to no-impeachment rules.                        First, the Court contends that the effectiveness of
Specifically, the Court holds that no-                                   voir dire is questionable in cases involving racial
impeachment [***57] rules violate the Sixth                              bias because pointed questioning about racial
Amendment to the extent that they preclude courts                        attitudes may highlight racial issues and thereby
from considering evidence of a juror’s racially                          exacerbate prejudice. Ibid. It is far from clear,
biased comments. Ante, at ___, 197 L. Ed. 2d, at                         however, that careful voir dire cannot surmount this
124. The Court attempts to distinguish Tanner and                        problem. Lawyers may use questionnaires or
Warger, but its efforts fail.                                            individual questioning of prospective jurors 6 in
                                                                         order to elicit frank answers that a juror might be
Tannerand Warger rested on two basic                                     reluctant to voice in [**138] the presence of other
propositions. First, no-impeachment rules advance                        prospective jurors. 7 Moreover, practice guides are
crucial interests. Second, the right to trial by an                      replete with advice on conducting effective voir
impartial jury is adequately protected by                                dire on the subject of race. They outline a variety of
mechanisms other than the use of juror testimony                         subtle and nuanced approaches that avoid pointed
regarding jury deliberations. The first of these                         questions. 8 And of course, if an attorney is
propositions applies regardless of the nature of the
juror misconduct, and the Court does not argue
                                                                         6 Bothof those techniques were used in this case for other purposes.
otherwise. Instead, it contends that, in cases
                                                                         App. 13-14; Tr. 56-78 (Feb. 23, 2010, morning session).
involving racially biased jurors, the safeguards are
less effective and the defendant’s Sixth                                 7 See People v. Harlan, 8 P. 3d 448, 500 (Colo. 2000) (“The trial
Amendment interests are more profound. Neither                           court took precautions at the outset of the trial to foreclose the
argument is persuasive.                                                  injection of improper racial considerations by including questions
                                                                         concerning racial issues in the jury questionnaire”); Brewer v.
B                                                                        Marshall, 119 F. 3d 993, 996 (CA1 1997) (“The judge asked each
                                                                         juror, out of the presence of other jurors, whether they had any bias
As noted above, identified four “aspects of the trial                    or prejudice for or against black persons or persons of Hispanic
                                                                         origin”); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal
process” that protect a defendant’s Sixth
                                                                         Procedure §22.3(a), p. 92 (4th ed. 2015) (noting that “[j]udges
Amendment rights: (1) voir dire; (2) observation by                      commonly allow jurors to approach the bench and discuss sensitive
the court, counsel, and court personnel; (3) pre-                        matters there” and are also free to conduct “in chambers
verdict reports by the jurors; and (4) non-juror                         discussions”).
evidence. [*880] 483 U. S., at 127, 107 S. Ct.                           8 See, e.g., J. Gobert, E. Kreitzberg, & C. Rose, Jury Selection: The
2739, 97 L. Ed. 2d 90. 5 Although the Court insists                      Law, Art, and Science of Selecting a Jury §7:41, pp. 357-358 (3d ed.
that that these mechanisms “may be compromised”                          2014) (explaining that “the issue should be approached more
in cases involving allegations of racial bias, it                        indirectly” and suggesting the use of “[o]pen-ended questions” on
                                                                         subjects like “the composition of the neighborhood in which the
addresses only two of them and [***58] fails to                          juror lives, the juror’s relationship with co-workers or neighbors of
make a sustained argument about either. Ante, at                         different races, or the juror’s past experiences with persons of other
___, 197 L. Ed. 2d, at 124.                                              races”); W. Jordan, Jury Selection §8.11, p. 237 (1980) (explaining
                                                                         that “the whole matter of prejudice” should be approached
1                                                                        “delicately and cautiously” and giving an example of an indirect
                                                                         question that avoids the word “prejudice”); R. Wenke, The Art of
                                                                         Selecting a Jury 67 (1979) (discussing questions that could identify
                                                                         biased jurors when “your client is a member of a minority group”);
5 The majority opinion in this case identifies a fifth mechanism: jury   id., at 66 (suggesting that instead of “asking a juror if he is
instructions. It observes that, by explaining the jurors’                ‘prejudiced’” the attorney should “inquire about his ‘feeling,’
responsibilities, appropriate jury instructions can promote “[p]robing   ‘belief’ or ‘opinion’”); 2 National Jury Project, Inc., Jurywork:
and thoughtful deliberation,” which in turn “improves the likelihood     Systematic Techniques §17.23 (E. Krauss ed., 2d ed. 2010) (listing
that other jurors can confront the flawed nature of reasoning that is    sample questions about racial prejudice); A. Grine & E. Coward,
prompted or influenced by improper biases.” Ante, at ___ - ___, 197      Raising Issues of Race in North Carolina Criminal Cases, p. 8-14
L. Ed. 2d, at 127. This mechanism, like those listed in , can help to    (2014) (suggesting that attorneys “share a brief example about a
prevent bias from infecting a verdict.                                   judgment shaped by a racial stereotype” to make it easier for jurors
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                           137 S. Ct. 855, *880; 197 L. Ed. 2d 107, **138; 2017 U.S. LEXIS 1574, ***58

concerned that a juror is concealing bias, a                              “the ease with which [the] risk [of racial bias] could
peremptory strike may be used. 9                                          have been minimized” through voir dire). Even the
                                                                          majority recognizes the “advantages of careful voir
 [*881] The suggestion that voir dire is ineffective                      dire” as a “proces[s] designed to prevent racial bias
in unearthing bias runs counter to decisions of this                      in jury deliberations.” Ante, at ___, 197 L. Ed. 2d,
Court holding that voir dire on the subject of race is                    at 126. And reported decisions substantiate that voir
constitutionally required in some cases, mandated                         dire can be effective in this regard. E.g., Brewer v.
as a matter of federal supervisory authority in                           Marshall, 119 F. 3d 993, 995-996 (CA1 1997);
others, and typically advisable in any case [***59]                       United States v. Hasting, 739 F. 2d 1269, 1271
if a defendant requests it. See Turner v. Murray,                         (CA7 1984); People v. Harlan, 8 P. 3d 448, 500
476 U. S. 28, 36-37, [**139] 106 S. Ct. 1683, 90                          (Colo. 2000); see Brief for Respondent 23-24, n. 7
L. Ed. 2d 27 (1986); Rosales-Lopez v. United                              (listing additional cases). Thus, while voir dire is
States, 451 U. S. 182, 192, 101 S. Ct. 1629, 68 L.                        not a magic cure, there are good reasons to think
Ed. 2d 22 (1981) (plurality opinion); Ristaino v.                         that it is a valuable tool.
Ross, 424 U. S. 589, 597, n. 9, 96 S. Ct. 1017, 47 L.
Ed. 2d 258 (1976). If voir dire were not useful in                        In any event, the critical point for present purposes
identifying racial prejudice, those decisions would                       is that the effectiveness of voir dire is a debatable
be pointless. Cf. Turner, supra, at 36, 106 S. Ct.                        empirical proposition. Its assessment should be
1683, 90 L. Ed. 2d 27 (plurality opinion) (noting                         addressed in the process of developing federal and
                                                                          state evidence rules. Federal and state rulemakers
                                                                          can try a variety of approaches, and they can make
to         share        their         own         biased       views),    changes in response to the insights provided by
http://defendermanuals.sog.unc.edu/race/8-addressing-race-trial (as
last visited Mar. 3, 2017); id., at 8-15 to 8-17 (suggesting additional
                                                                          experience and research. The approach taken by
strategies and providing sample questions); T. Mauet, Trial               today’s majority—imposing a federal constitutional
Techniques 44 (8th ed. 2010) (suggesting that “likely beliefs and         rule     on     the     entire     country—prevents
attitudes are more accurately learned through indirection”); J.           experimentation [***60]       and makes change
Lieberman & B. Sales, Scientific Jury Selection 114-115 (2007)
(discussing research suggesting that “participants were more likely to
                                                                          exceedingly hard. 10
admit they were unable to abide by legal due process guarantees           2
when asked open-ended questions that did not direct their
responses”).
                                                                          The majority also argues—even more cursorily—
9 To  the extent race does become salient during voir dire, there is      that “racial bias may make it difficult for a juror to
social science research suggesting that this may actually combat          report inappropriate statements during the course of
rather than reinforce the jurors’ biases. See, e.g., Lee, A New           juror deliberations.” [*882] Ante, at ___, 197 L.
Approach to Voir Dire on Racial Bias, 5 U. C. Irvine L. Rev. 843,
861 (2015) (“A wealth of fairly recent empirical research has shown
                                                                          Ed. 2d, at 124. This is so, we are told, because it is
that when race is made salient either through pretrial publicity, voir    difficult to “call [another juror] a bigot.” Ibid.
dire questioning of prospective jurors, opening and closing
arguments, or witness testimony, White jurors are more likely to          Since the Court’s decision mandates the admission
treat similarly situated Black and White defendants the same way”).
See also Sommers & Ellsworth, White Juror Bias: An Investigation
of Prejudice Against Black Defendants in the American Courtroom,          10 Itis worth noting that, even if voir dire were entirely ineffective at
7 Psychology, Pub. Pol’y, & L. 201, 222 (2001); Sommers &                 detecting racial bias (a proposition no one defends), that still would
Ellsworth, How Much Do We Really Know About Race and Juries?              not suffice to distinguish this case from Warger v. Shauers, 574 U.
A Review of Social Science Theory and Research, 78 Chi.-Kent L.           S. ___, 135 S. Ct. 521, 190 L. Ed. 2d 422 (2014). After all, the
Rev. 997, 1013-1014, 1027 (2003); Schuller, Kazoleas, &                   allegation in Warger was that the foreperson had entirely
Kawakami, The Impact of Prejudice Screening Procedures on Racial          circumvented voir dire by lying in order to shield her bias. The
Bias in the Courtroom, 33 Law & Human Behavior 320, 326 (2009);           Court, nevertheless, concluded that even where “jurors lie in voir
Cohn, Bucolo, Pride, & Somers, Reducing White Juror Bias: The             dire in a way that conceals bias, juror impartiality is adequately
Role of Race Salience and Racial Attitudes, 39 J. Applied Soc.            assured” through other means. Id., at ___, 135 S. Ct. 521, 529, 190
Psychology 1953, 1964-1965 (2009).                                        L. Ed. 2d 422, 429).
                                                                                                                Page 32 of 35
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of the testimony of one juror about a statement           the argument is “not dispositive”); ante, at ___, 197
made by another juror during deliberations, what          L. Ed. 2d, at 124 (stating [***62] that the
the Court must mean in making this argument is            operation of the safeguards “may be compromised,
that jurors are less willing to report biased             or they may prove insufficient”).
comments by fellow jurors prior to the beginning of       III
deliberations (while they are still sitting with the
biased juror) than they are after the verdict is          A
announced and the jurors have gone home. But this
                                                          The real thrust of the majority opinion is that the
is also a questionable empirical assessment, and the
                                                          Constitution is less tolerant of racial bias than other
Court’s seat-of-the-pants judgment is no better than
                                                          forms of juror misconduct, but it is hard to square
that of those with the responsibility of drafting and
                                                          this argument with the nature of the Sixth
adopting federal and state evidence rules. There is
                                                          Amendment right on which petitioner’s argument
no question that jurors do report biased comments
                                                          and the Court’s holding are based. What the Sixth
made by fellow jurors prior to the beginning of
                                                          Amendment protects is the right to an “impartial
deliberations. See, e.g., United States v. McClinton,
                                                          jury.” Nothing in the text or history of the
135 F. 3d 1178, 1184-1185 (CA7 1998); United
                                                          Amendment or in the inherent nature of the jury
States v. Heller, 785 F. 2d 1524, 1525-1529 (CA11
                                                          trial right suggests that the extent of the protection
1986); Tavares v. [**140] Holbrook, 779 F. 2d 1,
                                                          provided by the Amendment depends on the nature
1-3 (CA1 1985) (Breyer, J.); see Brief for
                                                          of a jury’s partiality or bias. As the Colorado
Respondent 31-32, n. 10; Brief for United [***61]
                                                          Supreme Court aptly put it, it is hard to “discern a
States as Amicus Curiae 31. And the Court
                                                          dividing line between different types of juror bias
marshals no evidence that such pre-deliberation
                                                          or misconduct, whereby one form of partiality
reporting is rarer than the post-verdict variety.
                                                          would implicate a party’s Sixth Amendment right
Even if there is something to the distinction that the    while another would not.” 350 P. 3d 287, 293, 2015
Court makes between pre- and post-verdict                 CO 31 (2015). 11
reporting, it is debatable whether the difference is
                                                           [*883] Nor has the Court found any decision of
significant enough to merit different treatment. This
                                                          this Court suggesting that the Sixth Amendment
is especially so because post-verdict reporting is
                                                          recognizes some sort of hierarchy of partiality or
both more disruptive and may be the result of
                                                          bias. The Court points to a line of cases holding
extraneous influences. A juror who is initially in
                                                          that, in some narrow circumstances, the
the minority but is ultimately persuaded by other
                                                          Constitution requires trial courts to conduct voir
jurors may have second thoughts after the verdict is
                                                          dire on the subject of race. Those decisions,
announced and may be angry with others on the
                                                          however, were [***63] not based on a ranking of
panel who pressed for unanimity. In addition, if a
                                                          types of partiality but on the Court’s conclusion
verdict is unpopular with a particular juror’s family,
                                                          that in certain cases racial bias was especially
friends, employer, co-workers, or neighbors, the
                                                          likely. See Turner, 476 U. S., at 38, n. 12, 106 S.
juror may regret his or her vote and may feel
pressured to rectify what the jury has done.
                                                          11 The majority’s reliance on footnote 3 of Warger, ante, at ___ -
In short, the Court provides no good reason to            ___, 197 L. Ed. 2d, at 121-122, is unavailing. In that footnote, the
depart from the calculus made in and Warger.              Court noted that some “cases of juror bias” might be “so extreme” as
Indeed, the majority itself uses hedged language          to prompt the Court to “consider whether the usual safeguards are or
                                                          are not sufficient to protect the integrity of the process.” 574 U. S., at
and appears to recognize that this “pragmatic”            ___-___, n. 3, 135 S. Ct. 521, 529, 190 L. Ed. 2d 422, 432 )
argument is something of a makeweight. Ante, at           (emphasis added). Considering this question is very different from
___ - ___, 197 L. Ed. 2d, at 124-125 (noting that         adopting a constitutionally based exception to long-established no-
                                                          impeachment rules.
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                         137 S. Ct. 855, *883; 197 L. Ed. 2d 107, **140; 2017 U.S. LEXIS 1574, ***63

Ct. 1683, [**141] 90 L. Ed. 2d 27 (plurality                        Court would say: “Even if you did not have an
opinion) (requiring voir dire on the subject of race                impartial jury, you must stay in prison because
where there is “a particularly compelling need to                   sports rivalries are not a major societal issue.”
inquire into racial prejudice” because of a
qualitatively higher “risk of racial bias”); Ristaino,              This disparate treatment is unsupportable under the
424 U. S., at 596, 96 S. Ct. 1017, 47 L. Ed. 2d 258                 Sixth Amendment. If the Sixth Amendment
(explaining that the requirement applies only if                    requires the admission of juror testimony about
there is a “constitutionally significant likelihood                 statements or conduct during deliberations that
that, absent questioning about racial prejudice, the                show one type of juror partiality, then statements or
jurors would not be [impartial]”). 12 Thus, this line               conduct showing any type of partiality should be
of cases does not advance the majority’s argument.                  treated the same way.
                                                                    B
It is undoubtedly true that “racial bias implicates
unique historical, constitutional, and institutional                Recasting this as an equal protection case would
concerns.” Ante, at ___, 197 L. Ed. 2d, at 124. But                 not [***65] provide a ground for limiting the
it is hard to see what that has to do with the scope                holding to cases involving racial bias. At a
of an individual criminal defendant’s Sixth                         minimum, cases involving bias based on any
Amendment right to be judged impartially. The                       suspect classification—such as national origin 13 or
Court’s efforts to reconcile its decision with                      religion 14—would merit equal treatment. So, I
McDonald, Tanner, and Warger illustrate the                         think, would [*884] bias based on sex, United
problem. The Court writes that the misconduct in                    States v. [**142] Virginia, 518 U. S. 515, 531,
those cases, while “troubling and unacceptable,”                    116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996), or the
was “anomalous.” Ante, at ___, 197 L. Ed. 2d, at                    exercise of the First Amendment right to freedom
124. By contrast, racial bias, the Court says, is a                 of expression or association. See Regan v. Taxation
“familiar and recurring evil” that causes “systemic                 With Representation of Washington, 461 U. S. 540,
injury to the administration [***64] of justice.”                   545, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983).
Ante, at ___, 197 L. Ed. 2d, at 124.                                Indeed, convicting a defendant on the basis of any
                                                                    irrational classification would violate the Equal
Imagine two cellmates serving lengthy prison
                                                                    Protection Clause.
terms. Both were convicted for homicides
committed in unrelated barroom fights. At the trial                 Attempting to limit the damage worked by its
of the first prisoner, a juror, during deliberations,               decision, the Court says that only “clear”
expressed animosity toward the defendant because                    expressions of bias must be admitted, ante, at ___,
of his race. At the trial of the second prisoner, a                 197 L. Ed. 2d, at 125, but judging whether a
juror, during deliberations, expressed animosity                    statement is sufficiently “clear” will often not be
toward the defendant because he was wearing the                     easy. Suppose that the allegedly biased juror in this
jersey of a hated football team. In both cases, jurors              case never made reference to Peña-Rodriguez’s
come forward after the trial and reveal what the                    race or national origin but said that he had a lot of
biased juror said in the jury room. The Court would
say to the first prisoner: “You are entitled to
introduce the jurors’ testimony, because racial bias                13 SeeCleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 440,
is damaging to our society.” To the second, the                     105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985).

                                                                    14 See,e.g., United States v. Armstrong, 517 U. S. 456, 464, 116 S.
                                                                    Ct. 1480, 134 L. Ed. 2d 687 (1996); Burlington Northern R. Co. v.
12 Inaddition, those cases did not involve a challenge to a long-   Ford, 504 U. S. 648, 651, 112 S. Ct. 2184, 119 L. Ed. 2d 432 (1992);
established evidence rule. As such, they offer little guidance in   New Orleans v. Dukes, 427 U. S. 297, 303, 96 S. Ct. 2513, 49 L. Ed.
performing the analysis required by this case.                      2d 511 (1976) (per curiam).
                                                                                                              Page 34 of 35
                    137 S. Ct. 855, *884; 197 L. Ed. 2d 107, **142; 2017 U.S. LEXIS 1574, ***65

experience with “this macho type” and knew that           of this opinion. 15
men of this kind felt that they could get their way
with women. Suppose that other jurors testified that       [*885] Where post-verdict approaches are
they were certain that “this macho type” was meant         [**143] permitted or occur, there is almost certain
to refer to Mexican or Hispanic men. Many other           to be an increase in harassment, arm-twisting, and
similarly suggestive statements can easily be             outright coercion. See McDonald, supra, at 267, 35
imagined, and under today’s decision it will be           S. Ct. 783, 59 L. Ed. 1300; S. Rep., at 14
difficult for judges to discern the dividing              (explaining that a laxer rule “would permit the
line [***66] between those that are “clear[ly]”           harassment of former jurors by losing parties as
based on racial or ethnic bias and those that are at      well as the possible exploitation of disgruntled or
least somewhat ambiguous.                                 otherwise badly-motivated ex-jurors”); 350 P. 3d,
                                                          at 293. As one treatise explains, “[a] juror who
IV                                                        reluctantly joined a verdict is likely to be
Today’s decision—especially if it is expanded in          sympathetic to overtures by the loser, and
the ways that seem likely—will invite the harms           persuadable to the view that his own consent rested
that no-impeachment rules were designed to                on false or impermissible considerations, and the
prevent.                                                  truth will be hard to know.” 3 C. Mueller & L.
                                                          Kirkpatrick, Federal Evidence §6:16, p. 75 (4th ed.
First, as the Court explained in Tanner,                  2013).
“postverdict scrutiny of juror conduct” will inhibit
                                                          The majority’s approach will also undermine the
“full and frank discussion in the jury room.” 483 U.
                                                          finality of verdicts. “Public policy requires a
S., at 120-121, 107 S. Ct. 2739, 97 L. Ed. 2d 90;
                                                          finality to litigation.” S. Rep., at 14. And
see also McDonald, 238 U. S., at 267-268, 35 S. Ct.
                                                          accusations of juror bias—which may be “raised
783, 59 L. Ed. 1300 (warning that the use of juror
                                                          for the first time days, weeks, or months after the
testimony about misconduct during deliberations
                                                          verdict”—can “seriously disrupt [***68] the
would “make what was intended to be a private
                                                          finality of the process.” Tanner, supra, at 120, 107
deliberation, the constant subject of public
                                                          S. Ct. 2739, 97 L. Ed. 2d 90. This threatens to
investigation—to the destruction of all frankness
                                                          “degrad[e] the prominence of the trial itself” and to
and freedom of discussion and conference”). Or, as
                                                          send the message that juror misconduct need not be
the Senate Report put it: “[C]ommon fairness
                                                          dealt with promptly. Engle v. Isaac, 456 U. S. 107,
requires that absolute privacy be preserved for
                                                          127, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982). See
jurors to engage in the full and free debate
necessary to the attainment of just verdicts. Jurors
will not be able to function effectively if their         15 The  majority’s emphasis on the unique harms of racial bias will
deliberations are to be scrutinized in post-trial         not succeed at cabining the novel exception to no-impeachment
litigation.” S. Rep., at 14.                              rules, but it may succeed at putting other kinds of rules under threat.
                                                          For example, the majority approvingly refers to the widespread rules
Today’s ruling will also prompt losing parties and        limiting attorneys’ contact with jurors. Ante, at ___ - ___, 197 L. Ed.
                                                          2d, at 125-126. But under the reasoning of the majority opinion, it is
their friends, supporters, and attorneys to contact
                                                          not clear why such rules should be enforced when they come into
and seek to question jurors, and this pestering may       conflict with a defendant’s attempt to introduce evidence of racial
erode citizens’ willingness to serve on juries. Many      bias. For instance, what will happen when a lawyer obtains clear
jurisdictions now [***67] have rules that prohibit        evidence of racist statements by contacting jurors in violation of a
                                                          local rule? (Something similar happened in Tanner. 483 U. S., at
or restrict post-verdict contact with jurors, but
                                                          126, 107 S. Ct. 2739, 97 L. Ed. 2d 90.) It remains to be seen whether
whether those rules will survive today’s decision is      rules of this type—or other rules which exclude probative evidence,
an open question—as is the effect of this decision        such as evidentiary privileges—will be allowed to stand in the way
on privilege rules such as those noted at the outset      of the “imperative to purge racial prejudice from the administration
                                                          of justice.” Ante, at ___, 197 L. Ed. 2d, at 122.
                                                                                                   Page 35 of 35
                     137 S. Ct. 855, *885; 197 L. Ed. 2d 107, **143; 2017 U.S. LEXIS 1574, ***68

H. R. Conf. Rep. No. 93-1597, at 8 (“The                   S. Ct. 2739, 97 L. Ed. 2d 90.
Conferees believe that jurors should be encouraged
to be conscientious in promptly reporting to the           I respectfully dissent.
court misconduct that occurs during jury
deliberations”).
                                                           References
                                                           U.S.C.S. Court Rules, Federal Rules of Evidence,
The Court itself acknowledges that strict no-
                                                           Rule 606(b)
impeachment rules “promot[e] full and vigorous
discussion,” protect jurors from “be[ing] harassed         12 Moore's Federal Practice § 59.13 (Matthew
or annoyed by litigants seeking to challenge the           Bender 3d ed.)
verdict,” and “giv[e] stability and finality to            L Ed Digest, Trial § 351
verdicts.” Ante, at ___, 197 L. Ed. 2d, at 119. By
the majority’s own logic, then, imposing exceptions        L Ed Index, New Trial
on no-impeachment rules will tend to defeat full           Use of peremptory challenges to exclude persons
and vigorous discussion, expose jurors to                  from jury on basis of race or color--Supreme Court
harassment, and deprive verdicts of stability.             cases. 131 L. Ed. 2d 1123.
The Court’s only response is that some jurisdictions       Effect of accused's federal constitutional rights on
already make an exception for racial bias, and the         scope of voir dire examination of prospective
Court detects no signs of “a loss of juror                 jurors--Supreme Court cases. 114 L. Ed. 2d 763.
willingness to engage in searching and candid              Group or class discrimination in selection
deliberations.” Ante, at ___, 197 L. Ed. 2d, at 126.       of [***70] grand or petit jury as prohibited by
One wonders what sort of outward signs the Court           Federal Constitution--Supreme Court cases. 33 L.
would expect to see if jurors in these jurisdictions       Ed. 2d 783.
do not speak as freely in the jury room as their
counterparts [***69] in jurisdictions with strict no-      Comment Note.--What provisions of the Federal
impeachment rules. Gathering and assessing                 Constitution's Bill of Rights is applicable to the
evidence regarding the quality of jury deliberations       states. 18 L. Ed. 2d 1388, 23 L. Ed. 2d 985.
in different jurisdictions would be a daunting             Race discrimination--Supreme Court cases. 94 L.
enterprise, and the Court offers no indication that        Ed. 1121, 96 L. Ed. 1291, 98 L. Ed. 882, 100 L. Ed.
anybody has undertaken that task.                          488, 3 L. Ed. 2d 1556, 6 L. Ed. 2d 1302, 10 L. Ed.
                                                           2d 1105, 15 L. Ed. 2d 990, 21 L. Ed. 2d 915.
In short, the majority barely bothers to engage with
the policy issues implicated by no-impeachment
rules. But even if it had carefully grappled with             End of Document

those issues, it still would have no basis for exalting
its own judgment over that of the many expert
policymakers who have endorsed broad no-
impeachment rules.

[**144] V

The Court’s decision is well-intentioned. It seeks to
remedy a flaw in the jury trial system, but as this
Court said some years ago, it is questionable
whether our system of trial by jury can endure this
attempt to perfect it. Tanner, 483 U. S., at 120, 107
