It is not often that the Supreme Court creates constitutionally required exceptions to established evidentiary rules. For that reason, when the Court created a racial bias exception to the centuries-old no-impeachment rule in Peña-Rodriguez v. Colorado, the decision was billed as a significant step in addressing racial bias in jury deliberations. But nearly a decade later, the decision has fallen far short of its promise. This Essay explains why.
This Essay argues that two structural impediments—juror non-disclosure instructions and no-contact rules—combine to make juror racial bias effectively undetectable and as a result, irremediable. Recognizing that relaxing no-contact rules or instructing jurors to report bias each comes with serious tradeoffs, this Essay does not propose a single reform. Instead, it calls on trial courts to serve as laboratories of racial justice, experimenting with locally tailored approaches to surface juror racial prejudice while balancing competing values.
Ultimately, if the legal system is committed to ensuring defendants are judged for what they are accused of and not the color of their skin, courts must confront not only the substance of bias but also the hidden procedural barriers that keep it from ever coming to light.
