Juror Testimony of Racial Bias in Jury Deliberations: United States V. Benally and the Obstacle of Federal Rule of Evidence 606(b)

I. INTRODUCTION In the Tenth Circuit's recent decision United States v. Benally,1 the court held that post-verdict juror testimony of racist comments made by fellow jurors during deliberations is inadmissible under Federal Rule of Evidence 606(b) ("Rule 606(b)").2 According to the court, Rule 606(b) stands as a nearly insurmountable obstacle to the admission of any post-verdict juror testimony on statements made during jury deliberations, regardless of how objectionable or offensive those statements may be.3 In effect, the jury room is "a black box: the inputs (evidence and argument) are carefully regulated by law and the output (the verdict) is publicly announced, but the inner workings and deliberation of the jury are deliberately insulated from subsequent review."4 This Note will explore the Tenth Circuit's decision United States v. Benally and argue that the court misapplied Rule 606(b) by relying on precedent that only tangentially addressed these issues. Further, this Note will investigate whether the Tenth Circuit, by holding that juror testimony of racial bias during deliberations is inadmissible under Rule 606(b), has advanced an interpretation of Rule 606(b) that potentially conflicts with the criminal defendant's Sixth Amendment right to an impartial jury. II. FACTS AND PROCEDURAL HISTORY In 2007, Defendant Kerry Dean Benally was "charged with forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon."5 Prior to his trial, Mr. Benally, a member of the Ute Mountain Ute tribe, asked several voir dire questions focused on revealing any potential prejudice towards Native Americans.6 Two of his submissions were used by the court: "'Would the fact that the defendant is a Native American affect your evaluation of the case?' and 'Have you ever had a negative experience with any individuals of Native American descent? And, if so, would that experience affect your evaluation of the facts of this case?'"7 None of those eventually impaneled as jurors answered affirmatively to these questions.8 On October 10, 2007, Mr. Benally was found guilty of the charged offense.9 The day after the announcement of the jury verdict, however, one juror contacted defense counsel and informed them that "the jury deliberation had been improperly influenced by racist claims about Native Americans."10 According to the juror, the foreman stated that he had personally observed persons on an Indian Reservation and that "'[w]hen Indians get alcohol, they all get drunk,' and that when they get drunk, they get violent."11 The juror further alleged that, although she argued with the foreman, other jurors appeared to have agreed with the foreman's racist assertions.12 The juror further alleged that in the course of deliberations some jurors spoke of the need to "'send a message back to the reservation'" that you can't "'mess with police officers and get away with it.'"13 Defense counsel obtained a signed affidavit from the juror and located one other juror who corroborated some of the first juror's allegations.14 Based on the testimony of these two jurors, Mr. Benally moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.15 The trial court granted the motion in light of the prospect that some jurors had allegedly failed to answer voir dire questions concerning racial bias truthfully and had considered information not in evidence.16 The trial court noted that although Rule 606(b) generally forbids a juror from testifying as to the content of a jury's deliberations, under the exceptions to the rule, a juror is allowed to testify "'whether extraneous prejudicial information was improperly brought to the jury's attention, [or] whether any outside influence was improperly brought to bear upon any juror.'"17 III. SIGNIFICANT LEGAL BACKGROUND A. Rule 606(b) The primary obstacle to the admission of juror testimony concerning evidence of racial bias that surfaces during jury deliberations is Federal Rule of Evidence 606(b). …