Superior Court of Pennsylvania Finds Jurors’ Jokes About Italian and Irish People Inadmissible to Impeach Their Verdicts When Defendant Was Neither Italian Nor Irish

Similar to its federal counterpart, Pennsylvania Rule of Evidence 606(b) states that

Upon an inquiry into the validity of a verdict, including a sentencing verdict pursuant to 42 Pa.C.S.A. § 9711 (relating to capital sentencing proceedings), a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

That said, in Pena-Rodriguez v. California, the U.S. Supreme Court held that “that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” But what happens when jurors make ethnic jokes about people of different ethnicities than the defendant, defense counsel, and the witnesses? That was the question addressed by the Superior Court of Pennsylvania in its recent opinion in Commonwealth v. Rosenthal, 233 A.3d 880 (Pa.Super. 2020).

In Rosenthal, Jeffrey Alan Rosenthal was convicted of various crimes after a jury trial. Thereafter,

Juror Number 5 wrote to the trial court that “there is a lot that troubles me about the deliberation portion of this trial.” Supplemental Certified Record, Docket Number 5. The juror continued:

In honesty, I do not agree with some of the charges that I voted for conviction on; I consented because I was worn down from arguing with the other members of the jury. I cannot shake the reasonable doubt in the back of my head. However, a more troubling issue arose during the time that I spent with the other jurors.

During this trial, I’ve sat in on ethnic “jokes,” negative comments about the city and people who live in it and my reservations are part of a larger feeling that the deliberations are anything but fair and [im]partial….

Juror Number 5 related that one juror joked about “Italian men beating their wives,” another said “she thought Italian men wanted sex all the time,” and a third told a story about how her mother scolded her for dating an Irish person based upon a “ridiculous stereotype.”…Juror Number 5 then stated that “[w]hile, I understand the defendant is not a part of either of these groups, stereotypes may be influencing their votes as well.”

The Superior Court of Pennsylvania, however, found that evidence of juror bias was inadmissible because

Juror Number 5 did not state that these jokes and stories were directed towards Appellant or any other participant in the trial or that the jurors relied on these stereotypes in rendering their verdict. Furthermore, there is nothing of record to indicate that Appellant, his attorney, or any of his witnesses at trial belonged to either of these ethnic groups. While the comments Juror Number 5 overheard led her to question whether the jury rendered a fair and impartial verdict, this conclusion arose out of Juror Number 5’s speculation as to her fellow jurors’ thought processes rather than on the content of the comments themselves. Thus, the statements at issue here are the type of “offhand comment[s]” evincing racial prejudice but not directly calling into question the integrity of verdict that Pena-Rodriguez stated fall outside the Sixth Amendment exception to the no impeachment rule.

-CM