Brett V. Ries


Discrimination against LGBTQ+ individuals persists within the United States criminal justice system, which is no surprise given the history of LGBTQ+ discrimination in the United States. Evidence of jurors convicting LGBTQ+ defendants—or, in some extreme cases, sentencing them to death—because of the defendant’s queer identity is especially concerning.

Standing in the way of protecting LGBTQ+ defendants from LGBTQ+ bias in jury deliberations is Federal Rule of Evidence 606(b), which prohibits defendants from using juror testimony regarding jury deliberations to impeach the jury’s verdict. However, in 2017, the Supreme Court in Peña-Rodriguez v. Colorado provided an exception to this “no-impeachment rule” for clear statements of racial bias that significantly motivated the juror’s decision. The Supreme Court has a history of extending protections against racial discrimination in the jury context to sex discrimination, and, in 2020, the Supreme Court ruled in Bostock v. Clayton County that the prohibition against sex discrimination in employment under Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation and gender identity. Thus, there may be multiple constitutional avenues to expanding the protection granted in Peña-Rodriguez to LGBTQ+ bias in jury deliberations.

This Note argues that such an expansion can soundly be constitutionally granted, particularly when analyzed from an intersectional perspective. Only then can the criminal justice system ensure that LGBTQ+ defendants are punished for what they do, not who they are or who they love.

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