From Circuit Splits:

Federal Rule of Civil Procedure 606(b) generally prohibits jurors from testifying about their “mental processes concerning the verdict or indictment” when the validity of their verdict or indictment has been called into question. Yesterday the Third Circuit addressed “a split of authority as to whether and when Rule 606(b) is constitutional when applied to bar testimony about jury racial bias.” United States v. Shalhout, Nos. 12-1076 & 12-1077 (3d Cir. Dec. 18, 2012) (nonprecedential).

Writing for the panel, Judge Thomas Hardiman summarized the split as follows:

The Courts of Appeals for the First and Seventh Circuits have found that Rule 606(b) is sometimes unconstitutional when applied to bar testimony about racial bias. See Villar, 586 F.3d at 87; Shillcutt, 827 F.2d at 1159. On the other hand, the Tenth Circuit has suggested, without explicitly finding, that Rule 606(b) is always constitutional. See Benally, 546 F.3d at 1241.

The court ultimately avoided widening the 2-1 split, explaining,

We need not decide which approach is correct because we find that Rule 606(b) is constitutional as applied to bar the evidence of racial bias in this case. The courts in both Villar and Shillcuttfound that Rule 606(b) would be unconstitutional only in “rare” cases where the evidence of racial bias would be strong enough to call into question whether the defendant received a fair trial. See Villar, 586 F.3d at 88; Shillcutt, 827 F.2d at 1159.

Both courts found that stray comments do not render Rule 606(b) unconstitutional. See Villar, 586 F.3d at 87 (“[W]e emphasize that not every stray or isolated off-base statement made during deliberations requires a hearing at which jury testimony is taken.”); Shillcutt, 827 F.2d at 1159 (finding that Rule 606(b) was constitutional as applied to bar evidence of a single juror’s comment that: “Let’s be logical; he’s a black, and he sees a seventeen year old white girl—I know the type.”).

Here, the Shalhouts’ evidence consists of one racial statement by Juror 62, a non- deliberating alternate juror. The Shalhouts have also presented Halliday’s vague allegations that two or three deliberating jurors made racial comments. However, Halliday could not remember anything about any of the deliberating jurors who allegedly made the racial statements apart from the fact that they were male. Thus, the Shalhouts’ evidence squarely falls within the category of stray comments that can be constitutionally barred by Rule 606(b). See Villar, 586 F.3d at 87.

You can read the full opinion here: United States v. Shalhout, Nos. 12-1076 & 12-1077 (3d Cir. Dec. 18, 2012) (nonprecedential).