Sacrificing Secrecy

Juries have deliberated in secret since medieval times. Thehistorical reason for the secrecy is that it promotes impartiality,which in turn protects a defendant’s right to a fair trial. But asit turns out, jurors are not always impartial. Lurid examplesexist of jurors condemning defendants based on the defendant’srace, sexuality, ethnicity, and religion.Generally speaking, courts cannot hear evidence of whattranspired during deliberations.

In 2017, however, the U.S.Supreme Court created an exception to this rule, holding thatthe Sixth Amendment requires courts to hear evidence of jurorsmaking racially biased statements. But this exception meanslittle if defendants have no way to uncover the bias. Andbecause juries deliberate in private, it is incredibly difficult fordefendants to discover what the jury discussed duringdeliberations.This Article questions the wisdom of secret deliberations. Ittraces the history of jury secrecy and the public policyconsiderations that support secret deliberations, and it catalogspast attempts to record deliberations.

It then discusses theracial bias exception to the jury no-impeachment rule createdby the U.S. Supreme Court and explains how it is insufficientbecause it does not provide a mechanism for detecting bias.This Article then proposes a unique fix: that deliberations bememorialized and made part of the record in criminal cases. Attimes, secret deliberations frustrate, rather than promote,defendants’ fair trial rights. Accordingly, the practice of secretdeliberations should be revisited.