The Supreme Court has gone to great lengths to prevent jurors from holding defendants\u2019 silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a \u201cno adverse inference\u201d instruction even over a defense objection; and (3) the judge must give a \u201cno adverse inference\u201d instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant\u2019s silence against him, and lower courts have ruled against recognizing such a right to jury impeachment.<\/p>\n
Meanwhile, the Supreme Court has addressed the issue of juror racial bias in reverse. In 2017, the Court ruled in Pena-Rodriguez v. Colorado<\/em> that jurors must be allowed to impeach their verdict based on jurors holding a defendant\u2019s race against him. But the Court has never held that there is a right to an implicit bias jury instruction, and no lower court has ever recognized such a right.\u00a0<\/span><\/p>\n In Pena-Rodriguez, however, the Supreme Court recognized that the right to an impartial jury not only addresses \u201cunique historical, constitutional, and institutional concerns,\u201d but also requires \u201c[a] constitutional rule.\u201d Specifically, the Pena-Rodriguez<\/em> Court concluded that \u201c[a] constitutional rule that racial bias in the justice system must be addressed\u2014including, in some instances, after the verdict has been entered\u2014is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.\u201d\u00a0<\/span><\/p>\n This Article contends that this rule must go further and address juror racial bias on both the back end and the front end. For the same reasons that the Supreme Court created the right to a jury instruction that jurors must not hold a defendant\u2019s silence against him, it should recognize the constitutional right\u00a0<\/span><\/p>\n