In my last post, I argued that Justice Thomas’s dissenting originalist opinion in Pena-Rodriguez v. Colorado required that one view the Constitution as written in the language of the law. Thomas viewed the Sixth Amendment right to an impartial jury as deriving its content from the common law that existed at the time of the Constitution. I agree with Thomas that the Sixth Amendment does have the legal meaning of the common law right at the time.
But was Thomas right about the content of the common law right in 1791? Is it clear that it did not allow juror statements of bias to be admitted after the verdict was rendered?
Justice Thomas argues that such statements cannot be introduced based on two decisions by Judge Mansfield. Here is what Justice Thomas says in his opinion:
The common-law right to a jury trial did not, however, guarantee a defendant the right to impeach a jury verdict with juror testimony about juror misconduct, including “a principal species of [juror] misbehaviour”—“notorious partiality.” 3 Blackstone 388. Although partiality was a ground for setting aside a jury verdict, ibid., the English common-law rule at the time the Sixth Amendment was ratified did not allow jurors to supply evidence of that misconduct. In 1770, Lord Mansfield refused to receive a juror’s affidavit to impeach a verdict, declaring that such an affidavit “can’t be read.” Rex v. Almon, 5 Burr. 2687, 98 Eng. Rep. 411 (K. B.). And in 1785, Lord Mansfield solidified the doctrine, holding that “[t]he Court [could not] receive such an affidavit from any of the jurymen” to prove that the jury had cast lots to reach a verdict. Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B.). …
This seems like reasonable evidence, but do two opinions by Lord Mansfield constitute the common law at the time? While two decisions by the Supreme Court today might constitute the law, that was not necessarily true at the time of the Constitution. In those days, the common law had less of a positivist, stare decisis character, where a single decision of a high court stated the law. Instead, while such decisions were evidence of the law, it was really a series of decisions that was said to be strong evidence or perhaps to constitute the law. But Thomas does not suggest that a series of decisions supported this result. Two does not a series make. Moreover, prior to the 1770 decision, the English common law rule differed, allowing evidence from jurors of juror misbehavior if introduced “with great caution.”
Further complicating Justice Thomas’s position is that the rule in the U.S., as opposed to England, was mixed. As Justice Thomas writes:
At the time of the founding, the States took mixed approaches to this issue. See Cluggage v. Swan, 4 Binn. 150, 156 (Pa. 1811) (opinion of Yeates, J.) (“The opinions of American judges . . . have greatly differed on the point in question”) . . . . Many States followed Lord Mansfield’s no-impeachment rule and refused to receive juror affida-vits. See, e.g., Brewster v. Thompson, 1 N. J. L. 32 (1790) (per curiam); Robbins v. Windover, 2 Tyl. 11, 14 (Vt. 1802) . . . . Some States, however, permitted juror affidavits about juror misconduct. See, e.g., Crawford v. State, 10 Tenn. 60, 68(1821); Cochran v. Street, 1 Va. 79, 81 (1792). And others initially permitted such evidence but quickly reversed course.
Eventually, however, “by the time the Fourteenth Amendment was ratified, Lord Mansfield’s no-impeachment rule had become firmly entrenched in American law.”
It is not clear which common law – England or America or both – was relevant. But even if it was the English Common law, as Justice Story argued, there was not a series of decisions resolving the matter. And if the common law of the different states matter, there was even more disagreement.
So how should one decide the matter? This is a difficult and complicated matter. But I believe that the Supreme Court should interpret the constitutional right as a common law judge at the time would have decided the case (subject to a limitation noted here.). In that event, the fact that England was leaning toward it and it was the majority view in the US suggests that it is the correct answer.
But that is not dispositive. One would need to apply the common law as people at the time would have. One would look not merely at the precedent, but at the pattern of decisions more generally. And one might have to look at what reason required. The meaning of this requirement is a matter of dispute, with some arguing it merely meant the absence of contradictions in the law and others arguing that it was referring to what might be regarded as policy considerations, albeit policy based on values at the time. (There are other possibilities as well).
In the end, it appears that the question might be more complicated than Thomas makes it out to be. That said, I doubt that the majority’s decision – holding that evidence of racial bias, but not other types of bias, should be admitted – can be justified under the common law at the time. Racial bias did not have the special importance that we attribute to it today. And by the time of the 14th Amendment (which might apply to state prosecutions), the rule seems to have been clear that no juror evidence of bias could be admitted.