Richard Jolly (New York University (NYU), School of Law – Civil Jury Project) has posted The New Impartial Jury Mandate (117 Michigan Law Review _ (2019 Forthcoming)) on SSRN.

Here is the abstract:

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures which secure a jury that is more likely to reach verdicts impartially. But in Peña-Rodriguez v. Colorado, 137 S.Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not provide a standard for determining when evidence of partiality is sufficient to set aside a verdict, but made clear that an otherwise procedurally adequate decision may fall to substantive deficiencies.

This Article advances a structural theory of the Constitution’s Impartial Jury Mandate, focusing on the interplay between its ex-ante procedural and ex-post substantive components.

The Article argues that the mandate has traditionally taken shape as a collection of procedural guarantees because of a common law prohibition on reviewing the substance of jury deliberations. Pena-Rodriguez tosses this constraint, allowing judges for the first time to review the rationales upon which jurors base their verdicts. The Article then offers a novel approach for applying substantive impartiality more broadly by looking to the Equal Protection Clause’s tiers of scrutiny. It concludes that ex-ante procedural rules and ex-post substantive review can operate in conjunction to tease out undesirable, impermissible forms of jury bias, while still allowing for desirable, permissible forms of jury bias.