Publication Date



Juries have deliberated in secret since medieval times. The
historical reason for the secrecy is that it promotes impartiality,
which in turn protects a defendant’s right to a fair trial. But as
it turns out, jurors are not always impartial. Lurid examples
exist of jurors condemning defendants based on the defendant’s
race, sexuality, ethnicity, and religion.
Generally speaking, courts cannot hear evidence of what
transpired during deliberations. In 2017, however, the U.S.
Supreme Court created an exception to this rule, holding that
the Sixth Amendment requires courts to hear evidence of jurors
making racially biased statements. But this exception means
little if defendants have no way to uncover the bias. And
because juries deliberate in private, it is incredibly difficult for
defendants to discover what the jury discussed during
This Article questions the wisdom of secret deliberations. It
traces the history of jury secrecy and the public policy
considerations that support secret deliberations, and it catalogs
past attempts to record deliberations. It then discusses the
racial bias exception to the jury no-impeachment rule created
by the U.S. Supreme Court and explains how it is insufficient
because it does not provide a mechanism for detecting bias.
This Article then proposes a unique fix: that deliberations be
memorialized and made part of the record in criminal cases. At
times, secret deliberations frustrate, rather than promote,
defendants’ fair trial rights. Accordingly, the practice of secret
deliberations should be revisited.