Miguel Aguilar, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: September 26, 2017
• Docket: 04-16-00508-CR
• Status: Published

Opinion

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. §

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 35 137 S. Ct. 855, *871; 197 L. Ed. 2d 107, **127; 2017 U.S. LEXIS 1574, ***36

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 35 137 S. Ct. 855, *873; 197 L. Ed. 2d 107, **129; 2017 U.S. LEXIS 1574, ***40

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 35 137 S. Ct. 855, *875; 197 L. Ed. 2d 107, **132; 2017 U.S. LEXIS 1574, ***46

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 35 137 S. Ct. 855, *878; 197 L. Ed. 2d 107, **135; 2017 U.S. LEXIS 1574, ***54

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 ). Page 30 of 35 137 S. Ct. 855, *879; 197 L. Ed. 2d 107, **137; 2017 U.S. LEXIS 1574, ***56

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 Page 31 of 35 137 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 35 137 S. Ct. 855, *882; 197 L. Ed. 2d 107, **139; 2017 U.S. LEXIS 1574, ***60

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. Page 33 of 35 137 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