we'll hear argument next in case fifteen six zero six and you're right greig is versus colorado mr fisher mr chief justice and may it please the court roughly half the trials in this country from new york to california to south carolina already conducted under the rule we seek today namely a requirement that judges consider evidence of racial bias when it's offered to prove a violation of the sixth amendment right to an impartial jury this court should require cow colorado to follow the same rule indeed colorado already has a turnkey system for implementing an exception to racial bias like every other jurisdiction across the land colorado already has multiple exceptions to the principle of jury secrecy so all colorado has to do is use that same system already in place to administer an exception for rape what about religious bias same thing in this case except it's it's not you know this is how mexicans act this is this is how catholics would use act so they're obviously guilty wouldn't that also come under your exception well those obviously mr chief justice frequently an overlap between race and religion and so for that reason religion might be viewed very similar all right well that seems to be avoiding the question let's say there is i don't  impermissible permissible enough i guess that we will pierce the jury confidentiality well the next case is going to be religion so whatever we say on race is going to have to have either a limiting principle that makes sense or it's going to open up a broad category of cases i don't deny that there may be subsequent cases if you decide this one in my favor but i'm saying two things to the court first of all you can and should do what the court's done in previous situations like this which is start with race and the reason why is because the court has said time and again in cases like rose against mitchell in cases like ham against south carolina that race is different race is unique it is the unique so sometimes we start with race you're not being very helpful to the courtin as we start with race and then the next case involves religion now how would you distinguish religion from race if we were to reach an opposite conclusion on the religious case what you would do in that case justice alito is conduct the same analysis your ass and you're being asked to conduct here which is look at the tanner factors and ask how effective other safeguards are this is really you know why par why would you ask that one i mean you know the chief says this is not an equal protection case but the six amendment applies to the states to the fourteenth amendment correct yes i always thought the most per discrimination in our law is based on race i agree with that all right so why is a rule that is given any exceptions we recognize since the eighteen hundreds that have said that race is the most privileges thing in our justice system why can't we limit this just to race using the principles of the fourteenth amendment as well i'm not denying  can and of course the constitution needs to be read structurally so not only do you think it's going to us to have the same sort of discrimination against someone because he's a muslim say or he practices faith you say he's he's a  muslim of course you know given this i know how muslims behave he committed this crime is that not sufficiently like racial discrimination that it should be carved out it may well be your honor it certainly is odious and so not right sexual orientation somebody gives speech you know a bigoted speech in the jury room about sexual orientation and how the particular types of people are more likely to commit crimes like the one before them is that sufficiently odious it's quite odious but whether it would satisf balancing test for setting forth today would be did need to decide i have to have an answer for this reason no one on the other side thinks anything but this is terrible jury misbehavior that's a given across the is not a question of the validity of the behavior it's invalid the question is the timing of when somebody has to object and their point is they have to object before the verdict comes in because if you don't have that rule you will in fact open the door to all kinds of evils which they mention all right that's their argument so what we're really asking for is your reply to that argument and it doesn't really replied to say maybe you're going to have a bunch of other things too because then that strengthens their argument and on the other hand maybe that's what you think that i mean the whole question is is that in the evidently opening the door to these other things which will mean to tell the jury jury if somebody says a racist comment write me a note the judge says before you reach a verdict and you get the point that's why the questions being asked and so that's why i too would like an answer so i think you've asked more specific question about objecting and in the more general question that we've been talking about i'm not drawing lines so for objecting let me just say it's impossible for the defendant to object to the misconduct in this case because the defendant is not in the jury room to hear it and there's never been a right that depends on mr jurors themselves please concentrate on the question just i'm sorry ok ok which is answer his question he's talking about the general principle he says everybody's are free to open the door all right and to the extent that your answer is simply the door is open once you rule for me there's another bias is go same it's going to hurt you that's what justice brier said so tell me why that fear is not that i think there's two reasons why one is you can look at the court's cases that i've described already things like rose against mitchell am against south carolina where we have race specific rules that have never been extended beyond race and the second reason is because i know this isn't strictly speaking an equal protection case but the same values of the fourteenth amendment infused the sixth amendment and i think a help said that a lawyer has to be allowed to ask on full idea about bias does that is that only true of racial bias or is that true of any other kind of bias as well i do this court's cases only race and remember ham decided in one nine hundred seventy three so there's been plenty of time for that issue to percolate and i don't know of any lower court decisions that i think it's and again gender i'm sorry is that is that right i'm sorry just race you're so i believe so it's just race and then would be race and gender is that right that's right i think bateson is another helpful analogy first of all in batson itself you wrote an opinion about race and of course the question of gender came back several years later there were three dissenters in that case it didn't automatically follow from the first and there was a different analysis that i would suggest you would conduct here as well you asked about the tenor factors and the other factors the state has pointed out things like the composition of ordinary juries look very different when you're talking about sex than  know it's a terrible driver suppose that well you would ask the same questions we're asking today but you to ask it through a different record in a different sort of balancing you might conclude and i'm not going to deny  the court might conclude as it did in batson that you should extend the sex but you might not conclude that and that would be a separate case and maybe now i can make my tears of scrutiny point because remember sex discrimination is treated differently under the equal protection clause than race discrimination and under a similar analogy it's not that one is more odious than the other or one is better or one doesn't satisfy one doesn't violate the amendment it's that different tools must be available to root out different kinds of discrimination and that's the whole point of strict scrutiny is that we do for gender discrimination you must have an exceedingly persuasive justification i think of course justice ginsburg that's correct and i'm just trying to give this court an analogy that it might use to think about the problem of how to apply t sticks the memmott two different kinds of alleged bias well it's not just alleged bias it's bias based on the innate characteristics of the offensive remarks but the question is what is most likely due to or a significant risk of depriving the defendant of a fair trial and it seems to me there are statements that have nothing to do with race or gender or sexual orientation or anything that might have a far greater impact and i'm wondering why do we don't allow impeachment of the  jury verdict in those cases someone i don't know comes in and says i know that witness that witness lies all of the time believe me you can't take anything he says i mean that in a certain in a particular case could have a greater impact so why don't we allow him pietschmann of the jury processes in that case i think it's a very important question that goes to the heart of the case because i think you could also use the hypotheticals from cases like weight on weekends plus in tanner and worker in the reason why is because the court has said time and again that race is different there's a difference between a bias harmful though it may be that affects only a private litigant compared to racial bias which is a stain on the entire judicial system and the integrity that i built upon and that is the difference the court said in rose against mitchell is the difference the court said in hamburg in south carolina it's what the court has talked about in its batson line of cases it's that stain on the system but it would have that many states partner would have the twent states do the twenty started this is actually eighteen states into federal jurisdictions but those jurisdictions have all limited there there are exceptions to race if that's what you're asking and remember some of those exceptions have been around in new york it's been around since the sixty's and minnesota's been around since the seventy's so we have a vast experience in the states and when all the arguments are made on the other side which i would respectfully say are all theoretical arguments about the harm that would come from adopting a rule and stressed to the court this is not a theoretical question there's an empirical answer that is available to the court based on the experience across the country residents of all jurisdictions race is different for some purposes but why is it different from other things for sixth amendment purposes with the sixth amendment protects is the right to a fair trial to an impartial jury and if we allow the exception that you are advocating what  say to the defendant who the prisoner who is going to be spending the rest of his life in prison as a result of the jury verdict that was determined by flipping a coin i think i give you the same answer i gave to the chief justice earlier which is that is woefully unfair but when the court does its balancing of the harm to on the one side to the judicial system the defendant against the state interest the balance is different when it comes to race  add is how does that connect with the right to an impartial jury a jury can be partial for racial reasons it can be right marshall for some other reason because the values of the fourteenth amendment are read into the sixth amendment as well and if i could give the court an analogy think of bowling against sharpe where the courts have asked whether the due process clause applies to the federal government i'm sorry that the equal protection clause applies to the federal government which it doesn't by its terms but the court said you know what the due process clause in the fifth amendment does and that should be infused with the values of equal protection and the particular harms of racial discrimination should be read into that amendment and all that's all we're asking here  incorporation you know i think justice ginsburg another example would just be hammered remember that the volunteer line of cases are all due process cases there's nothing in the due process clause that singles out race but this court's opinion does and it says that the structure of the constitution and the unique problem of race in our history in our society require special medicine do you not take the entire body of law that we have developed in connection with racial discrimination when the equal protection clause is the issue and apply that to your case for example here you have a very obviously offensive and direct appeal to race what if it's oh you know he's from that neighborhood i know people from that and the people from that neighborhood always commit crimes like this now obviously that could well be challenged as based on race or images that also do you impeach the juries the secrecy of the jury proceedings for something like that but i think the analysis would be similar to what you do under the equal protection clause but it wouldn't have to be lock tells you when what's the difference between a stray remark and something that has impact right and so both are required just to sort of my or i'm sorry if i was confusing about that first you asked whether or not it was racial bias as to post some other kind of bias second you ask whether it went to the evidence in the case of the defendant's guilt or whether it was an off color joke made during a break or something like that and let me stress two things one is the jurisdictions that exist already do this in even jurisdictions like colorado already do this go back to the first but i think back to justice briar's question if a juror had sent a note out five minutes before the verdict in this case or any other describing racial bias the judge would make all the same inquiries we're asking i see the problem there what's actually bring me is to write this on paper somebody could say well you know on on request the defense attorney can get a instruction send us a note before you reach the year that could happen that you want to go beyond that and impeach the verdict the real reason i suspect is even though we can imagine cases that are just as unfair flipping a separate that part of the purpose of these amendments is to create a judicial system that is seen as fair beyond the individual case and indeed being seen as fair beyond the individual case means that it is more likely to be fair in other cases as well now if i'm really honest i think yeah that's probably right and then the history and everything become relevant but if you found any support for that for what exactly just is that what we're doing here in creating the exception despite the fact that we can think of justice alito as case which is just as unfair though it doesn't involve race is we're trying to create a fair system in general and one that will be perceived as such and their race is especially a problem so so i wonder if you and if i could write  it would make sense but i'm asking you is there support for such a thing yes you almost spoke verbatim out of the result as lopez opinion which draws from the united states opinion in one nine hundred thirty one so this is a principle that goes quite a ways back jurisprudence which is the perception of fairness when it comes to race racial bias racial discrimination is paramount and justified if i could add something i got two points about your question which we return to about what if what if the jury could be instructed to send a note out well there's two problems with that first is remember the jurors are always instructed as they were in this case to use their common sense experience in the jury room to draw on that and remember how these comments are couched as is often the case  sees personal experience that mexican men blah blah blah blah and so a jury instruction at best is going to be cross cutting against another jury instruction and not always work and even in the much easier case of extraneous evidence and improper influence which are exceptions the colorado recognizes as does the federal system and everyone else jurors are always instructed not to do those things and yet they do sometimes and the system demands that we give a remedy when jurors don't follow those instructions what is it that the preceeding that you would have i mean if we accept your proposal and interview the jurors subject them to what do you what do you ask them so there's two there's two steps mr chief justice versus a threshold showing that i was fired earlier that there was a statement ok you've got to leave the facts are as as alleged here i guess what do you do once you have that in the record what's next so that the judge asked exactly the same question the judge would ask what other kinds of jury misconduct like extraneous evidence the judge asked where there's a reasonable possibility that the verdict was influenced by that bias so if the other jurors come in and they testify you know there's testimony and everybody says yes that's what he said they said well what would you do but of course the guy was guilty no doubt about it in the other eleven say of course he was guilty it was very offensive would you know h t whatever it was said but of course he was guilty everybody we agreed to you know in five minutes right does that make a difference so i think you've asked two questions there the first is is one juror enough in the second is to look at the strength of the government's case on the first question whether one biased your is enough the court's parker against gladden decision in one thousand nine hundred sixty six quite clearly says yes which of course is in line with the way  treated a multimedia decision making body last term in williams now the question on whether you look at the strength of the government's case as to whether to grant relief i will tell this court that's the one issue on which the twenty jurisdictions across the country are divided some say the mere fact that a single racially biased juror took that into account and did in issuing his verdict is enough for relief and some other states will look at the overall strength of the government's case for i think obvious reasons the court need not resolve that here in this case  so some of your testimony is required to bring out who said what and in what context once that's determined the judge asked what is a reasonable probability of a verdict was infected by racial bias and that question justice ginsburg is purely objective it's very much like what courts do every day when there's a bad jury instruction they don't bring all the jurors in and have them testify how they instruct how they interpret the jury instruction or the like to ask an objective test saying with those improper statements brought into the jury room would the juror have it's a reasonable probability the juror would have heard in that way they decided the idea would be the judge would say well look at all this other evidence against the defendant i think that they would have found him guilty of regardless no i that was that the issue i was talking about chief justice on which courts are divided we think the court might hold in a future case that it's enough to have a racially biased juror another look at that might be a kind of structural and that would be the question a court would ask what i meant when i said look at the other facts i meant the context in which a statement was made during deliberations so it might be that somebody said something and then somebody immediately spoke up and corrected that person he said oh that's not what i meant i meant something else and the judge as they do every day in jurisdictions across the country would hear this evidence and decide people to the races what would happen if one of the jurors has the sensibility of a lot of current college students and thinks that one of the something that said in the jury room that falls into one of those improper on a college campus today and then another juror thinks that that that shows intentional racial bias no i think as i said it's an objective test even of the courts you can protection jurisprudence the court hasn't tried you know how old judge decide how will the judge decide whether the statement is is racist well i think it's the same analysis a judge would conduct an equal protection case which is is the statement asking to decide directly and intentionally on its face the case based on race presumably that's all you need to presumably the judge faces the same situation if a juror comes in during proceedings is that right and then the judge asked to make that decision whether this is something we are not precisely right justice kagan or after proceedings remember jurors can walk out the courthouse steps as they were told in this case it's entirely proper to discuss the basis for your verdict so if that afternoon jurors are saying this is how we decided the case the judge might be asked to make the exact same inquiry so there's nothing new about the inquiry we're would be the same case in minnesota which is the one place where i think there is a case about a lawyer breaking the rules in terms of talking to ridge or there's a situation where it's a different case than this in the end the judge might deny relief i could reserve the remainder of my this younger thank you mr chief justice and may it please the court everyone including petitioner agrees that the citizen jury system requires safeguards to ensure a full and fair debate in the jury room to prevent juror harassment and tampering germs conduct and bias and position has not shown mr you're going let's let's assume that that's true that the state interests are basically the same and also let's assume that the safeguards for de are don't operate particularly different all right so just give you what what i think is the strongest argument on mr fischer side which is that the that the interests in preventing unfairness of this kind are much greater that that's really the difference is the fact that verdicts based on race discrimination pose a harm that verdicts based on other kinds of unfairness is which exist in the world and are terrible but still that it's just not the same kind of harm and we certainly don't dispute that that racial bias is a particular problem and a particular problem in the constitution but i don't think it's it's correct that other forms of bias won't cause the same types of institutional harms that of course this course recognized that in j v versus alabama when it extended bats and to claims of gender bias and certainly a verdict based on the fact that a defendant is a muslim or catholic or a mormon or or any religious group would just as significantly call into question the one question is whether identity based harms are different than other kinds of unfairnesses as we've talked about in the in the war for example or the one before that and then another question is whether race racial bias is different from other identity based bias right but but would you would you c that identity based bias is different from like you know the kinds of bias that we've discussed in other cases i wouldn't concede that in this specific context where you're dealing with an individual defendant's sixth amendment right to an impartial jury in a fair trial set against the important and vital interest that the no impeachment rule serves to allow the jury to do its job well it's true that this is a sixth amendment case but it seems artificial not to think about the sixth amendment issue as informed by the principles of the will protection clause and and those principles as we've always understood them says that there's a special kind of harm in treating people worse and but i mean certainly in punishing people because of their race you know maybe especially because race is so associate ca did with particular stereotypes respecting criminality but that's about the worst thing that you can do to a person and it's also the worst thing that you can suggest about the criminal justice system that allows that to happen so both of those two things the harm to the individual for being punished because of your race and the harm to society writ large and that would i think be the it's like yes you're right the state interests are exactly the same line for deer functions pretty similarly but it's just a different kind of harm i think it would be difficult in the context of the sixth amendment in the same courthouse in colorado to tell one defendant that that defend against impeach the verdict because the error that happened to occur during deliberations was racial whereas across the hall it was religious or was simply the jurors disrespecting their jury system enough to flip a coin and that's the problem in all of these cases in which rule six or sixty is going to apply you're going to be putting the individual defendant sixth amendment right government of the united states can then make this argument that the person and we executed despite what we know happened in the jury room well your honor i think the certainly this isn't a capital case and that might raise different issues there are cases set in the briefing necessary to allow them to fully and fairly deliberate the issues it auto apply in that context as well but again i don't think that question needs to be confronted her answer is you have any evidence that in the twenty jurisdictions that permit this this challenge that they've been overwhelmed with cases your honor there i think there are two responses to that first of all we don't agree with that count of jurisdictions or how it breaks down  but second of all petitioner does does point to jurisdictions in which this exception was made but he doesn't link that up with evidence that this is not occurring that the harassment and the effects on full infertile liberation are not being well you can't prove a negative that's so that's almost impossible so i want you to tell me the positive is there evidence of some run amok sort of number of motions filed in any particular case based on racial discrimination rampant jury harassment any of the evils that are predicting in your brief what we do have your honor a specific examples in these particular cases where the  very real problems specifically with respect to racial bias where after all twelve jurors are a large number jurors are pulled into the courtroom it's determined that the affidavit issue was manufactured by  the attorney and that the allegations were untrue and an example to give us look here case for massachusetts the other thing i'd say is that the iowa rule the most profound permissive version of the no impeachment rule certainly was on the table in one nine hundred seventy five when this court and congress considered adopting rule six zero six b all those arguments were the same then all those arguments were made in tanner and made in war and what congress and this court decided and the vast majority of states decided was that the strict version mean that the exception is limited only to racial bias and six states that acknowledge a sixth amendment exception don't apply a categorical rule that allows evidence of racial bias to come in in every case in which it's alleged they  cases that we've seen do only deal with racial bias but we've seen extreme instances of other types of bias religious bias against jews and muslims and certainly i think those courts would have a hard time not extending whatever particular rule they've post trial the courts still say well the importance of the no impeachment rule still applies here and we're not going to create an exception of course that's exactly what the seventh circuit board what exception would you recognize as far back as read we have said qualif six zero six p s predecessors at six o six b wagner synod there might be a case so extreme that we would not apply this rule if race is st what in your judgment would be your honor i think the line that could be drawn consistent with that footnote would be whether or not the other safeguards that are necessary to assure a fair trial were made available in that particular case so for example there are cases in which word you're on race or religious bias was not made available that would be a case in which if evidence surfaced post trial that that kind of misconduct influenced the deliberations an exception might be necessary the same if a court was given some hint that bias crept in to the jury deliberations and didn't do anything about it that would be possibly a situation in which the note no impeachment rule should yield but as before focused on that balance between right now we didn't permit or require questioning on bias except for race in for deer so where does your exception work well in because things do creep in but we don't make exceptions for those things well i think that's precisely right we don't make exceptions and we expect counsel and board year to be the mechanism through which we explore all of these biases  you know it is more rare than common that would a question is asked is anyone bias that most yours won't raise their hand and your honor i think the same challenges arises with regard to nearly any bias that is crucial to a defendant's sixth amendment rights which is precisely why the practice guys the defendant himself sides or position himself so i'd say asking the general question is is generally not the best way to expose those types of biases during board year and here not even the general question was asked about the race of the defendant in this case what other types of questions would what types of questions would you propound if you were trying to elicit whether there was  the part of a prospective juror i would prepare the same types of questions the petitioner's counsel used below as to other issues people's experiences on the subject whether they believe that racial issues still persist in this country and what their attitudes are it's  that many of the lawyers won't ask that question even if they could because that just by asking the question you'll putting way in the minds of the juries and you'd rather not do that that's certainly the argument the petitioner makes here but what experience has shown is that a careful and mature of ward your own race is not likely to infuse racism into jurors in fact quite the opposite has been observed to happen when jurors are respectfully confronted with racial issues at the outset of a trial they tend to counter any racial bias whether explicit or implicit that might come up during the thought process and if you know how do you know that that's the research that we said possible professor summers in the briefing courts of have have looked at that research the macallan case from massachusetts they said precisely the same thing for dear is a good time and a good mechanism to raise these issues to ensure that they don't well but that's that's one of the problems here it may be a good time to alert people who have this bias we've got to talk about it it seems to me that's a very hard thing to measure  of bias and i mean one question i guess is whether impeaching the verdict in this way will cause people with biases like that to keep quiet about it and yet still have the same sort of permissions effect on the verdict well and that's one of our conserves concerns mr chief justice and petitioner acknowledges i think it's page sixteen of his reply brief that allowing this type of inquiry only on issues of racial bias might in fact drive racial bias underground he says that's  unlikely the florida supreme court said it might happen and it strikes us and it strikes colorado that if the effect of a racial bias only exception to the no impeachment rule drives racism underground where it can't be confronted it can't be reported to the judge the balance that colorado strikes by not carving out subject matter exceptions to the no impeachment rule is a good one well it is serious or why isn't that you know there's a lot of talk about political correctness or not and some people think it's a negative thing and others think it's a positive thing but if an individual is harboring racial bias isn't it better t than in fact the whole everyone else the sister deliberations on the basis of it if you're not saying every mexican commits this kind of crime but you're forced to argue the evidence to convince your jurors isn't that exactly what we want or don't we want to liberations on evidence and not deliberations on someone's stereotypes and feelings about the race of the that is absolutely what we want to so why shouldn't we try to drive it underground well your honor i with respect i think that if if the juror harbors that bias and is on the jury that's going to influence the verdict one way or the other soon i mean that jurors can impeach everday justice ginsburg what jurors do know when they enter the deliberation room is that that's a secret proceeding and they're told after they leave that they can talk to people as much or as little as they want about what goes on in the jury room so calling them back in and calling multiple jurors back in to take the stand under penalty of perjury and cross examination to be examined about what was said during those deliberations will have a significant effect on the deliberative climate in the jury room can you can you still me just as a matter of what goes on and in the bar in your state in colorado particularly i take it that in civil cases  lawyers who may be trying the similar case all the time questioned jurors after after the fact after the verdict you know to see how to improve their arguments etc in civil cases and criminal cases is this a problem generally and  question are there articles and statistics about the prevalence of this and whether or not this is disruptive to the legal system the specific post trial sort of conversation between house hunters i haven't seen anything like that that is a common practice in the state of colorado  but one concern is that certainly a skilled lawyer in every case is going to present evidence of a legit bias as if it were volunteered to that that attorney and and it's only after actually inquiring of the jurors putting multiple jurors on the stand to get to the bottom of those allegations but what was said when it was said and what it was meant in context will you get to whether this this actually exposed racial bias on the part of a juror whether it was something else and by that point you misconduct of the juror and i think that reflects the tension that we were talking about earlier which is it doesn't matter what kind of bias arises in the course of proceedings all of it has significant sixth amendment concerns for individual defendants and drawing the  racial bias but to no other type of misconduct would disserve the rule and wouldn't give an adequate reason not to draw further lines down the road and i think that would lead to the constitutional ization of the most permissive form of the role the i would rule which this court and congress in the vast majority of states have have rejected your honour's if they're no further questions thank you counsel skulker mr chief justice and may please the court racial bias is a real problem that the united states is committed to eradicating but there are ways to address that problem without undermining structural protections of the jury system that have withstood legal challenges for hundreds of years to petitioners principal submission here to be very different rules should apply under the sixth amendment when a particular form of bias is an issue i just want to take a moment to underscore how that's really without foundation in this court cases and we will miss coburn or i misunderstood there are two lines of cases which in which we've recognized that racial bias in a jury room is an especially important problem and that there need to be special rules to address that problem  first line of cases is the ones that on for dear say that a lawyer who wants to ask about racial bias on one two year has to be able to ask about racial bias and that we've applied to nothing else except for racial bias and the second is batson line of cases where we've said we're going to prevent lawyers from doing what we otherwise allow them to do when striking jurors will lead  to may lead to race bias in the jury room now here we have like screaming race bias in the jury room we have the best smoking gun evidence you're ever going to see about race bias in the jury room and not withstanding that in these two lines of cases we've said there need to be special rules to address this prevalent and toxic problem in our criminal justice system here we're not going to do that and the question is why would this category of cases be different from those other two so your honor we think this court has never treated some sixth amendment violations as more serious than others and to talk about these two lines of cases that your honor raises  looks i think of what the court was doing in the volunteer cases race was the particular issue that it confronted there but it was indicating and it's indicated in other cases you have to conduct the kind of wad year that's reasonably calculated to detect the biases that may be present  particular case so those particular kinds of cases involve the high risk of racial bias and that's why the court said why do your own race is required there and to i think answer the question your honor asked of co counsel i think the court has applied that principle in other contexts in the capital context the court has indicated under the sixth amendment you sometimes need to ask questions about ability to consider mitigation evidence and lower courts have said that same principle requires what your other topics and then the second area you run a race the equal protection area and we think even there the court does not distinguish among different types of constitutional violations and said we're going to treat some violations of the constitution as particularly serious what the court said in those cases we think your honor is that there has to be special care taken when the government acts based on race and so some conduct that wouldn't be unconstitutional at all if it were taken based on some other criteria is unconstitutional when it's taken based on race reason then i think would the sixth amendment as all criminal prosecutions the shell enjoy the right to a trial by an impartial jury i agree with you that racial comments in the room can be equivalent to other comments but there may be that's why i wanted to know a prophylactic aspect that if you want impartial juries in general you have to deal with the problem of racial confidence in the work of the jury and that's a reason stemming from the language of the amendment to treat race specially and we have twenty states that have done so without the reasons for a limitation swamping the process that's what i understand is a tech school argument and purposive that would in fact allow constitutional protection of the kind they're asking for so i think when considered i think your honor when considering a prophylactic approach to preventing six then violations important to consider both the costs of this rule and the other alternative mechanisms that are available because those are things that the court  mechanisms that your honor mentioned so in why dear as justice kagan is questions alluded to there is a well settled principle and it's the law in colorado that you are going to have the opportunity to ask these questions about race and there's also been a lot of study and thinking that's gone into how to effectively detect bias with respect to race in particular and then your honor alludes to mitra reporting and things can be done to strengthen that safeguard i think your honor alluded to some of the things that can be done about particular instructions but in general jurors are instructed that this kind of bias in general isn't permissible and they can be instructed that racial bias in particular isn't permissible and even to contact the judge on the cost side of the ledger your honor this court has always recognized that there's a very high danger and a fair trial danger if you are trying to reconstruct after the fact of jury deliberations with us or he said she said about what was said that that can really undermine confidence in the jury system and we think that that risk may be particularly acute when you're talking about a very sensitive allegation like that racial bias occurred and i think we know as time goes on that racial bias can be expressed in subtle ways and particularly after a jury verdict is rendered and somebody goes back into the community where a sensitive issue has been debated and they're trying to recall what was said really serious issue and that it ought to be addressed through the kinds of safeguard the score is always a but we think that to the extent that the court has recognized dangers they're present here and so to take for instance the danger of impeding full and fair jury room deliberations we think that's a particular risk when you're talking about this kind of very allegation that contains a very high degree of social program attached to it so your honor i mean there may be cases in which race is discussed in the jury room because it's appropriate because the claim involves racial bias because there's allegations surrounding police misconduct in which race is often discussed and that's different from for example coin flipping or intoxication where there's never going to be any reason why those things should go on this is really the kind of allegation it's most likely that opening the door to is most likely to impede full and fair debate in the jury room and that's one of the does strike me though that given that one of the rules is that a juror can during deliberations say something appropriate something inappropriate is happening here to the extent that there is this chilling effect and well why doesn't that produce the exact same chilling effect i mean i think you're right i mean it's seems like it's such on the margins what you're saying i think you know for tampering and harassment but there's also just really the risk that jurors regret their decision in a case they start to second guess what they did and as a result they start to misremember or they're subject to community pressures that aren't present when the trial is occurring honor we're not suggesting that this is not a serious issue and even one that jurisdictions including this court when it sits as a rule making body can study and consider it's a difficult balance but with this court is generally said with respect to rules of evidence is that states have a lot of  make the same argument in the couple cases we think a couple cases do present eighth amendment considerations they're not present here the court is often suggested and eat them in different sets of rules apply and there may be different considerations in that context  we think to the extent the court regards the rule as problematic or is one that deserves further study the appropriate way to do that is a rule making body which is it another way in which this court considers and continually exercise oversight of the role of evidence but it should impose a new constitutional rule there require i think it's a mix some of these jurisdictions are jurisdictions that employ basically the iowa rule so they let in a lot of evidence about what was said in jury deliberations they just have a broader role some have said under our state law we think this is an exception that has to exist to the rule and some of came out later that the jurors in the penalty phase in the capital case that we don't really care what the law is we just want to impose capital punishment or they flip the coin but would you do if there were a special one for capital cases would you draw the distinction based on race but i don't think so your honor i don't think that if there are if there were a couple roe we think it would go to whether it's thank you council five minutes mr fisher thank you i'd like to make four points please first just to pick up where that conversation left off the extent my friends on the other side are saying that in a capital case the eighth amendment would become relevant that's exactly the kind of commonsense structural constitutional argument that we're making in the other side is suggesting is improper that when you look at the sixth amendment right to an impartial jury you also consider other elements of the constitution like the fourteenth amendment secondly with respect to the prophylactic measures that the other side propounds and specifically of or dear to points first is the studies they point to are studies where race is already infused in the case from the outset cases like ham against south carolina or the defense is all about the person's race and in those settings a question of or dear is almost incumbent on defense lawyers and sometimes has some good effect but that's not what the question really before the court today is if they're saying that for dear is a cure all for this situation what they're saying is that in every single criminal case it's shoplifting whether it's white collar crime whether it's a dui any case a defense lawyer is in is really required to interject race into the case from the outset and so as between interject ing race into the case from the outset potentially offending jurors potentially suggesting race is relevant or doesn't exist and our solution which is just simply having a constitutional failsafe for the once in a blue moon where you have this grave problem we think our solution actually does a lot less upheaval to the system than an opinion from this court that says vor dear is the answer here next let me say something we agree with the other side i think i heard both counsel for the other side say this is a balance and we agree that's what the courts of cases dictate and that's what six zero six bean itself strikes is a balance between the interest of justice and the principle of jury secrecy i would suggest to this court though that when you conduct that balance where we disagree with the other side let me solicitor general's brief they say the court's duty here is to choose the lesser of two evils racial bias is never the lesser evil the court has never said that racial bias is a lesser evil than something like the public policy considerations here and i know the court is concerned about line drawing it's obvious in a case in a situation like this where you announce a new rule as a constitutional matter that you're wondering what cases are going to come next but i respectfully submit that the court has never refused to remedy and teach an intentional race discrimination in the criminal justice system for fear of having to address other questions down the line and if you look at the court's cases whether the hamline of cases whether the batson line of cases or anything else the court will have a tools and ample time to decide down the road whether other situations are the same or whether they're different our submission here though is that race is unique race is a particular poison and that the experience of the twent that have this rule shows that implementing the rule or asking will not create any significant problems with the rest of the state interests or the administrators of mr fisher it's not a fear of confronting issues down the road it's a question of understanding the scope of the rule that you are asking us to adopt and i'll give you one last chance you will not tell us today whether your rule applies to discrimination on the basis of religion or gender or sexual orientation or to an another one political affiliations of the jurors if it came out the jurors sent this person is democrat send him to jail that would be a different result you will not tell us whether the same with the rule would apply in this situation i think it's easy to say justice alito that category is covered in the equal protection clause by rational basis analysis but not require the rule or seeking today i'm trying to be forthright with the court by saying it wouldn't apply to that but in what way is is race unique ray's race is unique in terms of our history in constitutional structure and in terms of the more practical considerations of rooting it out but the prophylactic measures we've discussed the briefing is filled with citations and examples of why race is particularly hard to get at through the tanner factors as compared to even something like other kinds of discrimination and the tears of scrutiny analysis i think is a good place for the court to look because it's not that we're saying that other forms of discrimination are ok under the constitution whereas race cremation is unconstitutional we're saying that different tools need to be available more searching inquiries need to be done when it comes to race and that's why we think that the rule of evidence here gives way in a situation where it might not in other cases