During jury deliberations in a Colorado state courtroom where a defendant of Mexican descent was being tried for sexually assaulting two sisters, one juror told the others that he thought the defendant “did it because he’s Mexican and Mexican men take whatever they want,” in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls,” and that he did not believe an alibi witness because the witness was “an illegal.” After the jury rendered a guilty verdict on some counts and was discharged, the defendant’s counsel, who had entered the jury room to discuss the verdict, was approached by two jurors as the discussion was concluding and told privately about the racially-colored statements.

The trial judge denied the defendant’s motion for a new trial based on affidavits provided by these jurors. Although he agreed that the defendant had proved the juror’s bias, he held that Colorado’s Rule 606(b)—patterned after Federal Rule of Evidence 606(b)—prevented him from considering juror testimony about anything occurring in the jury room, the so-called “no-impeachment rule.” Both the Colorado Court of Appeals and the Colorado Supreme Court affirmed the denial, but in a ground-breaking 5-3 decision written by Justice Kennedy, the United States Supreme Court reversed, in Pena-Rodriguez v. Colorado (March 6, 2017).

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