Jury Room Racism Is Protected. It Shouldn't Be.
APRIL 5, 2016 11:55 AM EST
By Noah Feldman
Law and tradition say that a jury verdict shouldn't be overturned on the basis of something jurors say in their deliberations, no matter how ignorant or offensive.
But what if there’s strong evidence that the jury deliberations were racially biased? Does the defendant’s right to a fair trial supersede the tradition of letting the verdict stand? The Supreme Court has agreed to hear this fascinating question in a sexual assault case where one juror, a former cop, told the others that Mexican men "do whatever they want" with women.
Odds are that the court will decide that the sanctity of the jury room trumps racial fairness – but it’s far from clear that would be the right result.
Most traditions are invented. What’s fascinating about the tradition of refusing to consider post-trial stories by jurors of their own misconduct is that we know exactly when it was invented, and by whom. The year was 1785 and the inventor was Lord Mansfield, generally considered the greatest common law judge in English legal history, who loved to make up efficient new rules.
In the case of Vaise v. Delaval, the jurors, unable to reach a verdict, had "tossed up" – probably a coin -- and agreed to decide the case based on the toss. Until then, courts had generally considered accounts of juror misbehavior.
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http://www.bloombergview.com/articles/2016-04-05/supreme-court-should-curb-racism-in-the-jury-room