Amdt6.3.2.1.1 Right to an Impartial Jury: Current Doctrine

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The requirement of an impartial jury is secured not only by the Sixth Amendment, which is as applicable to the states as to the Federal Government,¹ but also by the Due Process and Equal Protection Clauses of the Fourteenth Amendment,² and perhaps by the Due Process Clause of the Fifth Amendment. In addition, the Court’s has directed its supervisory power over the federal system to the issue.³ Even before the Court extended the right to a jury trial to state courts, it was firmly established that, if a state chose to provide juries, the juries had to be impartial.⁴

Impartiality is a two-fold requirement. First, the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.⁵ This requirement applies only to jury panels or venires from which petit juries are chosen, and not to the composition of the petit juries themselves.⁶ In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.⁷ Further, once a plaintiff demonstrates a prima facie violation, the defendant faces a formidable burden: the jury selection process may be sustained under the Sixth Amendment only if those aspects of the process that result in the disproportionate exclusion of a distinctive group, such as exemption criteria, manifestly and primarily advance a significant state interest.⁸ Thus, in one case the Court voided a selection system under which no woman would be called for jury duty unless she had previously filed a written declaration of her desire to be subject to service, and, in another it invalidated a state selection system granting women who so requested an automatic exemption from jury service.⁹

Second, there must be assurance that the jurors chosen are unbiased, i.e., willing to decide the case on the basis of the evidence presented. The Court has held that in the absence of an actual showing of bias, a defendant in the District of Columbia is not denied an impartial jury when he is tried before a jury composed primarily of government employees.¹⁰ A violation of a defendant’s right to an impartial jury does occur, however, when the jury or any of its members is subjected to pressure or influence which could impair freedom of action; the trial judge should conduct a hearing in which the defense participates to determine whether impartiality has been undermined.¹¹ Exposure of the jury to possibly prejudicial material and disorderly courtroom activities may deny impartiality and must be inquired into.¹² Private communications, contact, or tampering with a jury, or the creation of circumstances raising the dangers thereof, is not to be condoned.¹³ When the locality of the trial has been saturated with publicity about a defendant, so that it is unlikely that he can obtain a disinterested jury, he is constitutionally entitled to a change of venue.¹⁴ It is undeniably a violation of due process to subject a defendant to trial in an atmosphere of mob or threatened mob domination.¹⁵

Because it is too much to expect that jurors can remain uninfluenced by evidence they receive even though they are instructed to use it for only a limited purpose and to disregard it for other purposes, the Court will not permit a confession to be submitted to the jury without a prior determination by the trial judge that it is admissible. A defendant is denied due process, therefore, if he is convicted by a jury that has been instructed to first determine the voluntariness of a confession and then to disregard the confession if it is found to be inadmissible.¹⁶ Similarly invalid is a jury instruction in a joint trial to consider a confession only with regard to the defendant against whom it is admissible, and to disregard that confession as against a co-defendant which it implicates.¹⁷

Nonetheless, there are limits on the extent to which an inquiry can be made into whether a criminal defendant’s right to a jury trial has been denied by a biased jury. With origins dating from the English common law, a rule of evidence has been adopted by the federal rules of evidence¹⁸ and by the vast majority of the states¹⁹ that forbids the impeachment or questioning of a verdict by inquiring into the internal deliberations of the jury.²⁰ The no impeachment rule, which aims to promote full and vigorous discussion by jurors and to preserve the stability of jury verdicts, has limited the ability of criminal defendants to argue that a jury’s internal deliberations demonstrated bias amounting to a deprivation of the right to a jury trial.²¹ Indeed, the Court has held that the Sixth Amendment justifies an exception to the no impeachment rule in only the gravest and most important cases.²² As a result, the Court has rejected a Sixth Amendment exception to the rule when evidence existed that jurors were under the influence of alcohol and drugs during the trial.²³ Likewise, the Court concluded that the no-impeachment rule prevented evidence from being introduced indicating that a jury forewoman had failed to disclose a prodefendant bias during jury selection (voir dire) and allegedly influenced the jury with such bias.²⁴ In the Court’s view, three safeguards - (1) the voir dire process, (2) the ability for the court and counsel to observe the jury during trial, and (3) the potential for jurors to report untoward behavior to the court before rendering a verdict - adequately protect Sixth Amendment interests while preserving the values underlying the no impeachment rule.²⁵

However, in Pena-Rodriguez v. Colorado , the Court for the first time recognized a Sixth Amendment exception to the no-impeachment rule.²⁶ In that case, a criminal defendant contended that his conviction by a Colorado jury for harassment and unlawful sexual contact should be overturned on constitutional grounds because evidence from two jurors revealed that a fellow juror had expressed anti-Hispanic bias toward the petitioner and his alibi witness during deliberations.²⁷ The Court agreed, concluding that where a juror makes a clear statement indicating that he relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way . . . .²⁸ In so holding, Pena-Rodriguez emphasized the imperative to purge racial prejudice from the administration of justice that underlies the Fourteenth Amendment, which, in turn, makes the Sixth Amendment applicable to the states.²⁹ Contrasting the instant case from earlier rulings that involved anomalous behavior from a single jury—or juror—gone off course, the Court noted that racial bias in the judicial system was a familiar and recurring evil that required the judiciary to prevent systematic injury to the administration of justice.³⁰ Moreover, the Court emphasized pragmatic rationales for its holding, noting that other checks on jury bias, such as questioning during voir dire or jurors reporting inappropriate statements during the course of deliberations, unlikely would disclose racial bias.³¹

Inquiries into jury basis have arisen in the context of the imposition of the death penalty. In Witherspoon v. Illinois ,³² the Court held that the exclusion in capital cases of jurors conscientiously scrupled about capital punishment, without inquiring whether they could consider the imposition of the death penalty in the appropriate case, violated a defendant’s constitutional right to an impartial jury. A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.³³ A jury, the Court wrote, must express the conscience of the community on the ultimate question of life or death, and the automatic exclusion of all with generalized objections to the death penalty stacked the deck and made of the jury a tribunal organized to return a verdict of death.³⁴ A court may not refuse a defendant’s request to examine potential jurors to determine whether they would vote automatically to impose the death penalty; general questions about fairness and willingness to follow the law are inadequate.³⁵

In Wainwright v. Witt , the Court held that the proper standard for exclusion is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’³⁶ Thus, to be excluded, a juror need not indicate that he would automatic[ally] vote against the death penalty, nor need his bias be proved with ‘unmistakable clarity.’³⁷Instead, a juror may be excused for cause where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.³⁸ Persons properly excludable under Witherspoon may also be excluded from the guilt/innocence phase of a bifurcated capital trial.³⁹ It had been argued that to exclude such persons from the guilt/innocence phase would result in a jury somewhat more predisposed to convict, and that this would deny the defendant a jury chosen from a fair cross-section. The Court rejected this argument, concluding that it is simply not possible to define jury impartiality . . . by reference to some hypothetical mix of individual viewpoints.⁴⁰ Moreover, the state has an entirely proper interest in obtaining a single jury that could impartially decide all of the issues in [a] case, and need not select separate panels and duplicate evidence for the two distinct but interrelated functions.⁴¹ For the same reasons, there is no violation of the right to an impartial jury if a defendant for whom capital charges have been dropped is tried, along with a codefendant still facing capital charges, before a death qualified jury.⁴²

In Uttecht v. Brown ,⁴³ the Court summed up four principles that it derived from Witherspoon and Witt : First a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes. Third, to balance these interests, a juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible. Fourth, in determining whether the removal of a potential juror would vindicate the State's interest without violating the defendant's right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.⁴⁴ If there is ambiguity in a prospective juror’s statement, a court is entitled to resolve it in favor of the State.⁴⁵

Exclusion of one juror qualified under Witherspoon constitutes reversible error, and the exclusion may not be subjected to harmless error analysis.⁴⁶ However, a court’s error in refusing to dismiss for cause a prospective juror prejudiced in favor of the death penalty does not deprive a defendant of his right to trial by an impartial jury if he is able to exclude the juror through exercise of a peremptory challenge.⁴⁷ The relevant inquiry is on the jurors who ultimately sat, the Court declared, rejecting as overly broad the assertion in Gray that the focus instead should be on ‘whether the composition of the jury panel as a whole could have been affected by the trial court’s error.’⁴⁸

It is the function of the voir dire to give the defense and the prosecution the opportunity to inquire into, or have the trial judge inquire into, possible grounds of bias or prejudice that potential jurors may have, and to acquaint the parties with the potential jurors.⁴⁹ It is good ground for challenge for cause that a juror has formed an opinion on the issue to be tried, but not every opinion which a juror may entertain necessarily disqualifies him. The judge must determine whether the nature and strength of the opinion raise a presumption against impartiality.⁵⁰ It suffices for the judge to question potential jurors about their ability to put aside what they had heard or read about the case, listen to the evidence with an open mind, and render an impartial verdict; the judge’s refusal to go further and question jurors about the contents of news reports to which they had been exposed did not violate the Sixth Amendment.⁵¹

Under some circumstances, it may be constitutionally required that questions specifically directed to the existence of racial bias must be asked. Thus, in a situation in which defendant, a black man, alleged that he was being prosecuted on false charges because of his civil rights activities in an atmosphere perhaps open to racial appeals, prospective jurors must be asked about their racial prejudice, if any.⁵² A similar rule applies in some capital trials, where the risk of racial prejudice is especially serious in light of the complete finality of the death sentence. A defendant accused of an interracial capital offense is entitled to have prospective jurors informed of the victim’s race and questioned as to racial bias.⁵³ But in circumstances not suggesting a significant likelihood of racial prejudice infecting a trial, as when the facts are merely that the defendant is black and the victim white, the Constitution is satisfied by a more generalized but thorough inquiry into the impartiality of the veniremen.⁵⁴

Although government is not constitutionally obligated to allow peremptory challenges,⁵⁵ typically a system of peremptory challenges has existed in criminal trials, in which both prosecution and defense may, without stating any reason, excuse a certain number of prospective jurors.⁵⁶ Although, in Swain v. Alabama ,⁵⁷ the Court held that a prosecutor’s purposeful exclusion of members of a specific racial group from the jury would violate the Equal Protection Clause, it posited so difficult a standard of proof that defendants could seldom succeed. The Swain standard of proof was relaxed in Batson v. Kentucky ,⁵⁸ with the result that a defendant may establish an equal protection violation resulting from a prosecutor’s use of peremptory challenges to systematically exclude black prospective jurors.⁵⁹ A violation can occur whether or not the defendant and the excluded jurors are of the same race.⁶⁰ Racially discriminatory usebarr of peremptory challenges does not, however, constitute a violation of the Sixth Amendment, the Court ruled in Holland v. Illinois .⁶¹ The Sixth Amendment no more forbids the prosecutor to strike jurors on the basis of race than it forbids him to strike them on the basis of innumerable other generalized characteristics.⁶² To rule otherwise, the Court reasoned, would cripple the device of peremptory challenge and thereby undermine the Amendment’s goal of impartiality with respect to both contestants.⁶³