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Comment
Fleshner v. Pepose Vision Institute:
Eviscerating the Mansfield Rule

ROBERT BUCHHOLZ*
ABSTRACT

Within our judicial system, litigants enjoy a constitutional right to a fair

and impartial jury. It has been said that such a right is the touchstone of
due process. Nonetheless, important policy considerations, such as finality
and candor during jury deliberations, have caused most U.S. jurisdictions
to adopt a rule that prohibits receiving juror testimony to impeach verdicts
allegedly tainted by juror bias. This rule is known as the Mansfield Rule.
Some courts, however, are beginning to resist blanket application of
this rule in certain situations. Specifically, in Fleshner v. Pepose Vision
Institute the Missouri Supreme Court held that an independent exception to
the Mansfield Rule should be recognized in situations where overt racial,
ethnic, or religious comments are made during jury deliberations.
However, the Fleshner courts rationale is flawed in that the supposed
narrowness of the new exception rests precariously on an arbitrary
distinction between racial, ethnic, and religious bias and other forms of
partiality. To the extent that other types of bias are equally detrimental to
parties rights to a fair and impartial tribunal, the exception created by the
Fleshner court threatens to consume the Mansfield Rule entirely. Although
the Fleshner courts nominal distinction is presently self-contained, the
neatness of the decision is sure to dissolve as future courts, applying less
arbitrary conventions of legal analysis, look beyond the form of the bias
and extend the spirit of Fleshner to other types of prejudice.

* Candidate for Juris Doctor, New England Law | Boston (2012). B.A., English, cum
laude, Saint Anselm College (2006). I would like to thank my wife, Lindsey, for her constant
support throughout the writing process. I would also like to thank the Law Review staff for
their editing assistance.

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INTRODUCTION

f there were a judicial corollary to the familiar adage, What happens in

Vegas, stays in Vegas,1 it would be: what happens in the jury room,
stays in the jury room.2 In 1785, in the English case of Vaise v. Delaval,3
Lord Mansfield gave common law expression to the latter maxim by
strictly prohibiting parties from relying on juror affidavits or testimony to
impeach verdicts,4 thereby recognizing the impervious sanctity of the jury
room.5 Since that time, the Mansfield Rule has been adopted in most U.S.
jurisdictions with only minor qualification.6
However, blanket application of the Mansfield Rule has raised the
pressing question of how to balance litigants constitutional rights to a fair
and impartial trial7 with interests of finality and candor in the jury
room.8 This balancing act is especially difficult when the subject matter of
the alleged juror misconduct involves racial, ethnic, or religious bias. 9

1 Las Vegas Convention & Visitors Auth., LAS VEGAS OFFICIAL LAS VEGAS TOURISM
WEBSITE (Nov. 3, 2010), http://www.visitlasvegas.com/vegas/index.jsp.
2

See W. Dudley McCarter, The Right to a Fair Jury Trial Not a Perfect One, 53 J. MO. B. 170,
171 (1997) (A jurors testimony or affidavit may not be used to impeach the verdict as to
misconduct inside or outside the jury room, whether before or after the jury is discharged.);
see also Jason R. Mudd, Note, Liberalizing the Mansfield Rule in Missouri: Making Sense of the
Extraneous Evidence Exception After Travis v. Stone, 69 MO. L. REV. 779, 782-83 (2004).
3 (1785) 99 Eng. Rep. 944 (K.B.).
4 *I+mpeachment of verdict is defined as *a+ partys attack on a verdict, alleging
impropriety by a member of the jury. BLACKS LAW DICTIONARY 821 (9th ed. 2009).
5
6

See Mudd, supra note 2, at 782-83.

See id.; see also FED. R. EVID. 606(b) stating in relevant part:
[A] juror may not testify as to any matter or statement occurring during
the course of the jurys deliberations or to the effect of anything upon that
or any other jurors mind or emotions as influencing the juror to assent to
or dissent from the verdict or indictment or concerning the jurors mental
processes in connection therewith.

Rule 606(b) is rooted in the Mansfield Rule and strikes a balance between promoting justice
through verdicts rendered by impartial juries and promoting the stability and finality of the
jury decision-making process. Mudd, supra note 2, at 784.
7

The Sixth Amendment provides that *i+n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of the State . . . . U.S. CONST.
amend. VI.
8 Kent A. Lambert, Evidentiary Hearings on Juror Bias, LITIG. NEWS, Summer 2010, at 2, 3.
9 See Fleshner v. Pepose Vision Inst., 304 S.W.3d 81, 88 (Mo. 2010) (The *Mansfield+ *R+ule
competes with the desire and duty of the judicial system to avoid injustice and to redress the
grievances of private litigants. . . . The court [must] balance[] the interest of privacy for juror
discussion against the right to a fair trial . . . . (quoting After Hour Welding, Inc. v. Laneil
Mgmt. Co., 324 N.W.2d 686, 689 (Wis. 1982))); Developments in the Law, Race and the Criminal

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Recognition of the unique evils associated with racism10 and the evil of
state-supported racial prejudice11 has caused some legal scholars to
proposeand some courts to adoptan independent exception to the
Mansfield Rule that permits juror testimony for the purpose of impeaching
verdicts tainted by racial, ethnic, or religious bias.12
Recognition of such an exception, however, draws an unprincipled
distinction between types of bias and, in doing so, overlooks the harmful
effect that such a distinction will have on the continued vitality of the
Mansfield Rule.13 This Comment argues that the Missouri Supreme Courts
recent decision in Fleshner v. Pepose Vision Institute is founded precisely on
this arbitrary dividing line: It elevates the form of the bias over its
functionality and fails to recognize that all overt bias in the jury room is
detrimental to the judicial process.14 In this regard, the courts recognition
of a special exception in cases of racial, ethnic, or religious bias provides a
glaring pretense for future judicial inroads into the jury deliberation room
and threatens to swallow the Mansfield Rule in its entirety.15
Process, 101 HARV. L. REV. 1473, 1595-96 (1988) [hereinafter Race and the Criminal
Process](stating that many jurors harbor racial prejudicesboth subtle and overtand that
attempts to find legal redress for such bias are often rebuked by the evidentiary rules that
prevent inquiry into jurors mental processes).
10

Race and the Criminal Process, supra note 9, at 1598.

See Victor Gold, Juror Competency to Testify That a Verdict Was the Product of Racial Bias, 9
ST. JOHNS J. LEGAL COMMENT. 125, 141 (1993).
12 Fleshner, 304 S.W.3d at 88; see also Powell v. Allstate Ins. Co., 652 So. 2d 354, 357 (Fla.
1995) (explaining that jurors may testify about overt acts that might have prejudicially affected
the jurys verdict including appeals to racial bias made openly among jurors); After Hour
Welding, Inc., 324 N.W.2d at 689 (While the rule against impeachment of a jury verdict is
strong and necessary, it is not written in stone nor is it a door incapable of being opened.
(citation omitted)); Evans v. Galbraith-Foxworth Lumber Co., 31 S.W.2d 496, 499-500 (Tex.
App. 1929) (holding that where a juror made anti-Semitic comments during jury deliberations,
litigant did not receive a fair and impartial trial by jury); Race and the Criminal Process, supra
note 9, at 1599 (stating that courts that refuse to admit juror testimony regarding racist
conduct in the deliberation room emphasize the policy concerns embodied in Rule 606(b)).
13 See United States v. Benally, 546 F.3d 1230, 1236-38 (10th Cir. 2008) (holding that it was
an abuse of discretion to admit evidence of racial comments in the jury room under Rule
606(b) because only Congress has the authority to expand the scope of the rules extrinsicevidence exception, which does not currently permit such testimony). But see Gold, supra note
11, at 141 (noting that there are sound policy reasons to draw a bright line permitting courts to
consider under [the Mansfield Rule] evidence of racial bias while excluding evidence of other
biases).
14 See infra Part III.B.
11

15

Nor does there seem to be a principled reason to limit the exception only
to claims of bias, when other types of jury misconduct undermine a fair
trial as well. If a jury does not follow the jury instructions, or ignores
relevant evidence, or flips a coin, or falls asleep, then surely that

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Part I discusses how the Missouri courts have approached the issue of
overt juror misconduct prior to Fleshner. In particular, it: (1) the traditional
Missouri rule that juror testimony about matters affecting jury deliberation
may not be used to impeach the jurys verdict; (2) the exception to this rule
that allows jurors to testify about juror misconduct outside the courtroom;
and (3) Missouri courts procedure for assessing juror prejudice at post-trial
hearings. Part II takes a detailed look at the Fleshner courts decision and
explains: (1) the background facts; (2) the procedural history; and (3) the
courts holding that racial, ethnic, or religious comments during jury
deliberations automatically warrant a new trial. Part III argues that the
courts decision wrongly created an independent exception to the
Mansfield Rule by drawing an artificial line between which types of
inquiries into the deliberation process are permissible and which ones are
not based solely on the form of the alleged bias.
I.

Historical Development of the Mansfield Rule and Related

Procedures for Vetting Juror Bias
A. The Mansfield Rule in Missouri

Traditionally, Missouri courts have strictly adhered to the Mansfield

Rule by prohibiting parties from utilizing juror affidavits or juror
testimony to impeach a jurys verdict.16 Use of juror affidavits or testimony
received for the purpose of impeaching a verdict is improper if it merely
alleges that jurors acted on improper motives, reasoning, beliefs, or mental
operations, also known as matters inherent in the verdict.17 The Missouri
Supreme Court has interpreted matters inherent in the verdict to include
a juror not understanding the law as stated in the instructions, a juror not
joining in the verdict, a juror voting a certain way due to misconception of
the evidence, a juror misunderstanding the statements of a witness, and a

defendants right to a fair trial would be aggrieved, just as Mr. Benallys

was . . . . How could we deny that defendant a chance to use juror
testimony to seek a new trial, simply because the jury misconduct did not
involve racial prejudice? But if every claim that, if factually supported,
would be sufficient to demand a new trial warrants an exception to Rule
606(b), there would be nothing left of the Rule, and the great benefit of
protecting jury decision-making from judicial review would be lost.
See Benally, 546 F.3d at 1241 (citation omitted); Gold, supra note 11, at 141 (noting that racial
bias could be used as a pretense for reviewing the jurys use of other less offensive values
and admitting evidence thereof).
16 Fleshner, 304 S.W.3d at 87; Mudd, supra note 2, at 782.
17 Fleshner, 304 S.W.3d at 87 (quoting Neighbors v. Wolfson, 926 S.W.2d 35, 37 (Mo. Ct.
App. 1996)).

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juror being mistaken in his calculations,18 as well as other matters resting

alone in the jurors breast.19 The general effect of this rule is to preclude
juror testimony regarding any misconduct occurring inside the jury room. 20
The policy rationales for this rule are varied and well established. 21
First, the rule is advanced as a means of preventing juror fraud by
disallowing a juror to falsely testify that she concurred in the verdict due
to bias, mistake, or other improper motive.22 Second, the rule draws on the
concern that without such a formal prohibition, counsel will harass jurors
after a verdict is returned in hopes of eliciting some kernel of juror
impropriety upon which to base an appeal.23 Third, the rule is said to
effectuate the judicial values of finality and verdict stability.24 Fourth, the
rule is justified due to the inherent evidentiary conundrum of
corroborating a jurors mental processes.25 Lastly, the rule pays homage to
the belief that preventing juror testimony for impeachment purposes
protects the privacy of the jurys deliberation generally.26
B. The Extrinsic-Evidence Exception in Missouri
Although general application of the Mansfield Rule renders juror
affidavits and testimony incompetent to impeach a verdict, over the years
an exception to the rule has developed in situations involving juror

18

Id. at 87 n.4 (citing Baumle v. Smith, 420 S.W.2d 341, 348 (Mo. 1967)).
Baumle, 420 S.W.2d at 348 (quoting Wright v. Ill. & Miss. Tel. Co., 20 Iowa 195, 210 (1866)
(internal quotation marks omitted). A juror who has reached his conclusions on the basis of
the evidence presented for his consideration may not have his mental processes and
innermost thoughts put on a slide for examination under the judicial microscope. Id.
19

20

Travis v. Stone, 66 S.W.3d 1, 4 (Mo. 2002) (*Juror testimony+ is permissible to elicit

testimony about juror misconduct that occurred outside the jury room.); see also infra Part I.B.
21 See Gold, supra note 11, at 129-39 (providing multiple policy justifications for Rule
606(b), i.e., the federal statutory expression of the Mansfield Rule).
22 Id. at 129.
23 Id. at 130.
24 Id. at 131; Race and the Criminal Process, supra note 9, at 1599 (quoting Shillcutt v. Gagnon,
827 F.2d 1155, 1158 (7th Cir. 1987)).
25 See Baumle v. Smith, 420 S.W.2d 341, 348 (Mo. 1967) (*P+roof of his mental process is
locked in the breast of the juror, and is not capable of refutation or corroboration.).
26

Gold, supra note 11, at 135. In Tanner v. United States, the Court explained:
Jurors would be harassed and beset by the defeated party in an effort to
secure from them evidence of facts which might establish misconduct
sufficient to set aside a verdict. If evidence thus secured could be thus
used, the result would be to make what was intended to be a private
deliberation, the constant subject of public investigationto the
destruction of all frankness and freedom of discussion and conference.

483 U.S. 107, 120 (1987) (quoting McDonald v. Pless, 238 U.S. 264, 267-68 (1915)).

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misconduct occurring outside the courtroom.27 Missouri courts permit

jurors to test[ify] about juror misconduct that occurred outside the jury
room28 such as where a juror, on her own accord, gathers evidence
extrinsic to that admitted by the court. 29 For example, in Travis v. Stone a
juror visited the scene of a car accident, which was at the crux of the
lawsuit.30 The Missouri Supreme Court held that it is permissible to elicit
testimony about juror misconduct that occurred outside the jury room for
the purpose of impeaching the verdict.31 As a result, the juror was
permitted to testify regarding the effect that the external influence had on
her ability to remain impartial.32
C. Procedure for Vetting Allegations of Juror Misconduct in Missouri
In the event that the extrinsic-evidence exception is deemed applicable,
Missouri case law requires the trial court [to] conduct[] a hearing to
determine whether the extrinsic evidence prejudiced the verdict.33 At that
27 Fleshner v. Pepose Vision Inst., 304 S.W.3d 81, 88 (Mo. 2010); see FED. R. EVID. 606(b)
(*A] juror may testify about (1) whether extraneous prejudicial information was improperly
brought to the jurys attention, [and] (2) whether any outside influence was improperly
brought to bear upon any juror . . . .).
28 Travis v. Stone, 66 S.W.3d 1, 4 (Mo. 2002); Stotts v. Meyer, 822 S.W.2d 887, 889 n.4 (Mo.
Ct. App. 1991) (Appellant tacitly invokes the narrow [extrinsic-evidence] exception to the
Mansfield rule provided by Federal Rules of Evidence, Rule 606(b) . . . .).
29

See Middleton v. Kansas City Pub. Serv. Co., 152 S.W.2d 154, 157 (Mo. 1941) (involving a
situation where a juror visited several used-car dealerships measuring the type of car
involved in the accident at trial); Neighbors v. Wolfson, 926 S.W.2d 35, 37 (Mo. Ct. App. 1996)
(involving a situation where a juror brought a medical booklet into the jury room and
discussed, in a positive light, the use of a drug involved in the medical malpractice case);
Stotts, 822 S.W.2d at 890 (involving a situation where a juror visited the accident scene
involved in the case). Missouri case law is unclear whether the extraneous evidence exception
is available only in situations where the party complaining of the testimony fails to make a
timely and proper objection or whether failure to object to such testimony and extraneous
evidence constitutes independent exceptions to the Mansfield Rule. Compare Neighbors, 926
S.W.2d at 37 (holding that failure of the opposing party to object and the existence of extrinsic
evidence were conditions that had to be met before juror testimony was competent to impeach
the verdict), with Stotts, 822 S.W.2d at 891 (holding that juror testimony was admissible under
two independent theories: (1) the testimony related to a jurors gathering of extraneous
evidence, and (2) the opposing party failed to object). For a discussion of the two
interpretations, see generally Mudd, supra note 2, at 779.
30 66 S.W.3d at 3 (*The juror+ obtained evidence outside of that presented at trial, which
bore directly on the issue of the *defendants+ sight distance, an issue hotly contested at trial
and which was the subject of the testimony from both sides expert witnesses.).
31 Id. at 4.
32 Id. at 5 (stating that the juror in question testified that her observations did not enter into
the deliberations).
33

Fleshner v. Pepose Vision Inst., 304 S.W.3d 81, 88 (Mo. 2010) (citing Travis, 66 S.W.3d at

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hearing, the party moving for a new trial on the basis of juror misconduct
must offer evidence that establishes the existence of such misconduct. 34 If
the evidence shows that the alleged juror misconduct actually occurred
(i.e., the moving party makes a prima facie case of juror misconduct), the
Missouri courts presume that the moving party was prejudiced.35 The
burden of evidence then shifts to the non-moving party to show that there
was no prejudice to the opposing party.36 Furthermore, in attempting to
counter this strong presumption of prejudice, juror affidavits and juror
testimony, which [tend] . . . to minimize the effect of [the] misconduct,
are entitled to very little weight.37 This suggests that the courts decision
regarding the prejudicial effect of the juror misconduct is made primarily
although not exclusivelyin the abstract.38
II. Fleshner v. Pepose Vision Institute
A. Facts
Michelle Fleshner sued her former employer, Pepose Vision Institute,
P.C. (PVI), for wrongful termination following PVIs decision to fire her
due to her cooperation with a federal investigation into PVIs labor
4).
34 Middleton, 152 S.W.2d at 158 (noting that allegations requiring a new trial must be
supported by proof (citing Sennert v. McKay, 56 S.W.2d 105, 109 (Mo. 1932))).
35 Travis, 66 S.W.3d at 5 (Prejudice to the losing party must be presumed, shifting the
burden of evidence to the respondent to show lack of prejudice to the appellant. (quoting
Middleton, 152 S.W.2d at 158) (internal quotation marks omitted)); Middleton, 152 S.W.2d at 158
(The burden of evidence shifted to plaintiff to show that there was in fact no prejudice to
defendant.).
36 See Middleton, 152 S.W.2d at 158 (It is presumed that error is harmful, unless it is clearly
shown to be otherwise. (quoting State ex rel. Berberich v. Haid, 64 S.W.2d 667, 669 (Mo. 1933)
(internal quotation marks omitted)).
37 See id. at 160.
38 See Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir. 1991); United
States v. Simpson, 950 F.2d 1519, 1521 (10th Cir. 1991); United States v. Delaney, 732 F.2d 639,
643 n.6 (8th Cir. 1984); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir. 1983). But see
Smith v. Phillips, 455 U.S. 209, 217 n.7 (1982) (*A juror+ who is trying as an honest man to live
up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a
certain matter. (quoting Dennis v. United States, 339 U.S. 162, 171 (1950))); United States v.
Rutherford, 371 F.3d 634, 644 (9th Cir. 2004) (holding that in situations involving prosaic
misconduct, a court can and should consider the effect of extraneous information or
improper contacts on a jurors state of mind*+ . . . *or+ any other thoughts a juror might have
about the contacts or conduct at issue (quoting United States v. Elias, 269 F.3d 1003, 1020 (9th
Cir. 2001))); United States v. Pennell, 737 F.2d 521, 533 (6th Cir. 1984) (*I+f a district court
views juror assurances of continued impartiality to be credible, the court may rely upon such
assurances in deciding whether a defendant has satisfied the burden of proving actual
prejudice.).

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practices.39 Specifically, the U.S. Department of Labor (Department)

contacted Fleshner seeking background information relating to its inquiry
into whether PVI was paying overtime compensation to workers working
more than forty hours a week.40 Fleshner provided the Department with
information regarding the number of hours worked by PVI employees.41
The next day Fleshner informed her supervisor about the Departments
questions and that she had provided the relevant information.42 PVI
terminated Fleshner shortly thereafter.43 Fleshner subsequently filed suit
against PVI, and the jury awarded her $125,000.44
B. Procedural History
On appeal, PVI challenged the trial courts denial of PVIs motion for
new trial.45 According to PVI, a juror approached PVIs attorneys after the
trial and claimed that during deliberation another juror had made a series
of anti-Semitic remarks.46 According to the jurors affidavit, a fellow juror
made the following statements about a witness for the defense: She is a
Jewish witch; She is a Jewish bitch; She is a penny-pinching Jew; and
She was such a cheap Jew that she did not want to pay Plaintiff
unemployment compensation.47
Notwithstanding these alleged comments, the trial judge denied PVIs
motion for a new trial.48 The judge concluded that the alleged comments
did not constitute the kind of jury misconduct that would allow the trial
court to set aside the verdict and order a new trial.49 Thus, the courts
decision rested on the Mansfield Rules prohibition against receiving juror
testimony for the purpose of impeaching the jurys verdict.50
C. The Fleshner Court Granted a New Trial in Light of Racial, Ethnic,
and Religious Comments Made During Jury Deliberation.
In Fleshner, the Missouri Supreme Court considered whether the
comments allegedly made by a juror during jury deliberation evincing
39
40
41
42
43
44
45
46
47
48
49
50

Fleshner v. Pepose Vision Inst., 304 S.W.3d 81, 85-86 (Mo. 2010).
Id. at 86.
Id.
Id.
Id.
Id. at 85-86.
Fleshner, 304 S.W.3d at 86.
Id.
Id.
Id.
Id.
Id. at 87.

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racial, ethnic, or religious bias prevented the defendant from receiving a

fair and impartial trial.51 The courts holding was multidimensional.52 First,
the court held that in response to allegations that statements reflecting
racial, ethnic, or religious bias were made during jury deliberations, the
trial court should hold an evidentiary hearing to determine whether . . .
such statements occurred.53 At this hearing, juror testimony regarding
impropriety during the deliberative process should not be permitted if it is
alleged that jurors acted on improper motives, reasoning, beliefs[,] or
mental operations, also known as matters inherent in the verdict.54
However, juror testimony regarding the existence of racial, ethnic, or
religious comments should be permitted.55 Second, upon finding that the
alleged racial, ethnic, or religious comments were made, the trial court
should grant the motion for new trial because the parties would have
been deprived of their right to a trial by [twelve] fair and impartial
jurors.56
In arriving at its decision, the Fleshner court drew heavily from other
jurisdictions that had confronted the same issue and concluded that juror
testimony regarding prejudicial statements during deliberation should be
permitted.57 The court focused on: (1) the overt nature of the prejudicial

51

304 S.W.3d at 86. The Missouri courts have recognized the significance of a fair trial:
The right to unbiased and unprejudiced jurors is foundational to the
judicial process. Speck v. Abell-Howe Co., 839 S.W.2d 623, 626 (Mo. Ct.
App. 1992). It is fundamental that jurors should be thoroughly impartial
as between the parties. The right to unbiased and unprejudiced jurors is
an inseparable and inalienable part of the right to a trial by jury
guaranteed by the Constitution. Id. (citing Kendall v. Prudential Ins. Co.,
327 S.W.2d 174, 177 (Mo. 1959)). Parties to a civil case are always entitled
to a decision based on the honest deliberations of twelve qualified jurors. .
. . When even one unqualified juror is seated, the complaining party is
entitled to a new trial. Petry Roofing Supply, Inc. v. Sutton, 839 S.W.2d
337, 341 (Mo. Ct. App. 1992) (internal quotation marks omitted) (quoting
Brines By and Through Harlan v. Cibis, 784 S.W.2d 201, 204 (Mo. Ct. App.
1989)).

McCarter, supra note 2, at 170.

52 See Fleshner, 304 S.W.3d at 89-90.
53 Id. at 89. This ruling was consistent with prior Missouri case law. See supra Part I.C
(discussing Missouri procedure in cases involving accusations of juror partiality).
54 Fleshner, 304 S.W.3d at 87 (quoting Neighbors v. Wolfson, 926 S.W.2d 35, 37 (Mo. Ct.
App. 1996)).
55

See id. at 89-90.

Id.
57 Id. at 88-90. The court primarily relied upon three cases from other jurisdictions to
support its decision. See Powell v. Allstate Ins. Co., 652 So. 2d 354, 357 (Fla. 1995) (explaining
that jurors may testify about overt acts that might have prejudicially affected the jurys verdict
56

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comments,58 (2) the prejudicial effect of the comments on the other jurors, 59
and (3) the public policy behind the Mansfield Rule.60
First, with respect to the overt nature of a jurors comments, the court
concluded that [w]hen a juror makes statements evincing ethnic or
religious bias or prejudice during deliberations, the juror exposes his
mental processes and innermost thoughts. What used to rest[] alone in the
jurors breast has now been exposed to the other jurors.61 Consequently,
[t]he juror has revealed that he is not fair and impartial.62 Second, in
regard to the prejudicial effect on other jurors, the court concluded that it is
unnecessary to determine whether the alleged statements actually
prejudiced other jurors63 because racial, ethnic, or religious statements are
per se prejudicial and deny the parties their constitutional rights to a trial
by [twelve] fair and impartial jurors and equal protection of the law.64
Finally, addressing the policy underlying the Mansfield Rule, the court
concluded that strict adherence to the rule would deny a party redress in
situations where the jurys verdict was clearly influenced by improper
racial, ethnic, or religious bias. 65 Ultimately, the Fleshner court concluded
that the ethnicity or religion of any party or witness . . . should have no
bearing on the outcome of the trial because such considerations are
unrelated to the evidence.66

including appeals to racial bias made openly among jurors); After Hour Welding, Inc. v.
Laneil Mgmt. Co., 324 N.W.2d 686, 689 (Wis. 1982) (While the rule against impeachment of a
jury verdict is strong and necessary, it is not written in stone nor is it a door incapable of being
opened.); Evans v. Galbraith-Foxworth Lumber Co., 31 S.W.2d 496, 500 (Tex. App. 1929)
(noting that only one juror need be prejudiced in order for a verdict to be invalid).
58

Fleshner, 304 S.W.3d at 89.

Id.
60 See id.
61 Id. (quoting Baumle v. Smith, 420 S.W.2d 341, 348 (Mo. 1967)).
62 Id.
63 Id.
64 Fleshner, 304 S.W.3d at 89. Moreover, *a+ racially or religiously biased individual
harbors certain negative stereotypes which, despite his protestations to the contrary, may well
prevent him or her from making decisions based solely on the facts and law that our jury
system requires. Id. at 90 (quoting United States v. Heller, 785 F.2d 1524, 1527 (11th Cir.
1986)).
59

65

Id. at 89 (*N+either a wronged litigant nor society itself should be without a means to
remedy a palpable miscarriage of justice. (quoting Powell v. Allstate Ins. Co., 652 So. 2d 354,
356 (Fla. 1995))).
66

Id. at 90.

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ANALYSIS
III. The Fleshner Courts Creation of a New Exception to the Mansfield
Rule in Situations Involving Racial, Ethnic, or Religious Bias Drew
an Unprincipled Distinction Between Types of Juror Bias.
In arriving at its decision, the Fleshner court drew an arbitrary
distinction between types of prejudice by focusing on the form 67 of the
alleged bias rather than the functionality of that bias.68 Specifically, the
court created an independent exception69 to the Mansfield Rule on the basis
of racial, ethnic, or religious juror bias without adequately explaining how
such bias is meaningfully distinct from other forms of juror bias. 70 Relying
upon its preconceived rational ordering71 of racial, ethnic, and religious
bias, the courts decision infuses these types of bias with special
significance,72 treating them as distinct from other forms of prejudice
without drawing a significant distinction between the two categories. 73

67

[Legal formalism] meant a scientific system of rules and institutions that

were complete in that the system made right answers available in all
cases; formal in that right answers could be derived from the
autonomous, logical working out of the system; conceptually ordered in
that ground-level rules could all be derived from a few fundamental
principles; and socially acceptable in that the legal system generated
normative allegiance.

See generally Richard H. Pildes, Forms of Formalism, 66 U. CHI. L. REV. 607, 608-09 (1999).
68 Cf. Dixwell L. Pierce, Form Versus Substance, 46 VA. L. REV. 1150, 1151 (1960) (explaining
Justice Douglass dissenting opinion in McLeod v. J.E. Dilworth Co., which argued that the
majoritys reasoning drew upon a formalistic distinction between a sales tax and a use tax,
despite the fact that a use tax and a sales tax applied at the very end of an interstate
transaction have precisely the same economic incidence. (quoting McLeod v. J.E. Dilworth
Co., 322 U.S. 327, 333 (1944))).
69 See infra Part III.A.
70 See Fleshner, 304 S.W.3d at 90 (stating that alleged*ly+ anti-Semitic comments made
during deliberations in this case are not simply a matter of political correctness to be brushed
aside by a thick-skinned judiciary (quoting Powell v. Allstate Ins. Co., 652 So. 2d 354, 358
(Fla. 1995)) (internal quotation marks omitted)).
71 See ROY L. BROOKS, STRUCTURES OF JUDICIAL DECISION MAKING FROM LEGAL FORMALISM
TO CRITICAL THEORY 31 (Carolina Academic Press, 2d ed. 2005) (explaining how rationality
describes the tendency of things to get organized and subjected to rules and orderly
processes (quoting ROLAND N. STROMBERG, EUROPEAN INTELLECTUAL HISTORY SINCE 1789, at
185 (1968))).
72 See id. at 39 (Legal formalism . . . is a process of judicial decision making in which the
use of syllogism creates the false impression that the judicial process is value-free and, hence,
unquestionably correct.).
73 See Fleshner, 304 S.W.3d at 90 (A racially or religiously biased individual harbors certain
negative stereotypes which, despite his protestations to the contrary, may well prevent him or

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Consequently, the courts holding in Fleshner is troublesome to the extent

that it paves the way for future intrusions into the sanctity of the jury room
and the creation of more per se rules against behavior traditionally
understood to be inherent in the verdict.74 Such a liberalization of the
Mansfield Rule threatens to eviscerate the rule entirely.75
A. Racial, Ethnic, and Religious Juror Bias as an Independent Exception
to the Mansfield Rule
The Fleshner court did not expand the already existing extrinsicevidence exceptionit created a new categorical exception to the
Mansfield Rule for situations involving racial, ethnic, or religious juror
bias.76 The court arrived at its new exception in a two-step manner.
First, the court held that racial, ethnic, or religious bias is not inherent
in the verdict.77 Specifically, the court instructed that: The trial court
should hold an evidentiary hearing to determine whether [racial, ethnic, or
religious] statements occurred. Juror testimony about matters inherent in the
verdict should be excluded.78 This language expressly prohibits testimony
regarding matters inherent in the verdict.79 However, it also expressly
permits testimony about racial, ethnic, or religious bias occurring in the
jury room.80 From a technical perspective, it would be illogical to read the
latter clause (Juror testimony about matters inherent in the verdict should
be excluded) as constraining the former clause (The trial court should
hold an evidentiary hearing to determine whether [racial, ethnic, or
religious] statements occurred) because such a reading would defeat the
courts purpose for holding the hearingto determine whether such
comments were made. Thus, it is evident that the court did not consider
such testimony to inhere within the verdict.
This conclusion is further supported by the courts subsequent
statement that [j]urors are encouraged to voice their common knowledge

her from making decisions based solely on the facts and law that our jury system requires.
(quoting United States v. Heller, 785 F.2d 1524, 1527 (11th Cir. 1986))).
74 McCarter, supra note 2, at 170 (*A litigant] is entitled to a fair trial but not a perfect one,
for there are no perfect trials. (quoting McDonough Power Equip., Inc. v. Greenwood, 464
U.S. 548, 548 (1984))).
75

See Mudd, supra note 2, at 797 (noting the liberalizing effect of an extrinsic-evidence
exception to the Mansfield Rule).
76 See Fleshner, 304 S.W.3d at 87-90.
77 See id. at 87 & n.4, 89. But see Substitute Brief of Respondent at 30-31, Fleshner, 304 S.W.3d
81 (No. SC90032).
78
79
80

See Fleshner, 304 S.W.3d at 89 (emphasis added).

See id.
See id.

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and beliefs during deliberations, but common knowledge and beliefs do

not include ethnic or religious bias or prejudice.81 The courts unstated
assumption is that the Mansfield Rule would exclude jurors common
knowledge and beliefs from post hoc review because such considerations
inhere within the verdict. However, by categorically excluding ethnic or
religious bias from common knowledge and beliefs, the Court
necessarily establishes that such bias does not inhere within the verdict
and, thus, exists outside the purview of the Mansfield Rule.82
Assuming that the Mansfield Rule is inapplicable (i.e., juror testimony
about racial, ethnic, or religious bias is competent to impeach the verdict),
it follows that such a determination must be couched within an exception
to the rule.83 However, the courts holding does not fit snugly within the
only acknowledged exception to the Mansfield Rule: the extrinsic-evidence
exception. As discussed above, this exception only applies in situations
where juror misconduct takes place outside the courtroom.84 Here, however,
PVIs appeal was based on prejudicial comments allegedly made inside the
jury room.85 Thus, the Fleshner courts decision to permit juror testimony
regarding racial, ethnic, or religious bias leads to the unavoidable
conclusion that the court created a freestanding exception to the Mansfield
Rule.86
Even so, the court did not explicitly characterize its holding as the
unveiling of a new exception; rather, it couched its creation in terms similar

81

Id. at 90.
See id. at 89.
83 See Mudd, supra note 2, at 786 (noting that Missouri adhered to strict application of the
Mansfield Rule prior to the adoption of the extrinsic-evidence exception).
82

84 See United States v. Benally, 546 F.3d 1230, 1237-38 (10th Cir. 2008) (The statements
about Native Americans in particular were gross generalizations built upon prejudice and had
no place in the jury room. Impropriety alone, however, does not make a statement extraneous.
That would unravel the internal/external distinction and make anything said in jury
deliberations extraneous information so long as it was inappropriate.); Substitute Brief of
Respondent, supra note 77, at 29-30 (noting that exceptions to the common law Mansfield Rule
exist only in extrinsic-evidence situations (citing Neighbors v. Wolfson, 926 S.W.2d 35, 37 (Mo.
Ct. App. 1996))). But see Amended Substitute Brief of Appellant at 40, Fleshner, 304 S.W.3d 81
(No. SC90032) (*O+utright appeals to anti-Semitism constituted overt acts of misconduct and
fall fairly within the scope of extraneous prejudicial information and improper outside
influence, no different than if a juror had relied on outside information obtained about a
witness or a party that was not part of the evidence at trial.).
85 See Fleshner, 304 S.W.3d at 88.
86 See id. (noting that this Court has never considered whether the trial court may hear
testimony about juror statements during deliberations); Substitute Brief of Respondent, supra
note 77, at 29-30 (noting that the petitioners attempt to expand the extraneous-evidence
exception to include comments made by the jurors during deliberations is unsupported by
Missouri case law).

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to the extrinsic-evidence exception.87 Specifically, the court noted that

when a juror makes such comments the juror exposes his mental
processes and innermost thoughts. What used to rest alone in the jurors
breast has now been exposed to the other jurors.88 In this manner, the
court drew an important distinction between inquiry into a jurors internal,
deliberative thought process and overt, affirmative statements made
during jury deliberation.89 In so doing, the Fleshner court recognized a new
exception to the Mansfield Rule applicable in instances where racial, ethnic,
or religious comments are made inside the jury room.90
B. The Courts Rationale for Its New Exception Is Not Functionally
Distinguishable from Other Forms of Bias.
The Fleshner court concludes by acknowledging the courts duty to
safeguard the right to a fair and impartial trial. 91 In discharging that duty,
the court noted: A racially or religiously biased individual harbors certain
negative stereotypes which . . . may well prevent him or her from making
decisions based solely on the facts and law that our jury system requires.92
While this statement surely has merit,93 it fails to explain why litigants
should not be equally insulated from other forms of juror misconduct or
prejudice.94 In this regard, the court evinces an arbitrary mode of judicial
decision making by failing to explain how racial, ethnic, and religious bias
87 See Amended Substitute Brief of Appellant, supra note 84, at 40-41 (If improper bias
manifests itself in the form of a comment made by jurors during deliberations that may affect
the vote of other jurors, the comments are the equivalent of improper outside information. . . .
[T]hey constitute an influence from impermissible factors that are not part of the trial record . .
. .).
88

Fleshner, 304 S.W.3d at 89.

Lambert, supra note 8, at 3. But see Substitute Brief of Respondent, supra note 77, at 30-31
(While the statements, if made, were indeed reprehensible, they clearly fall within the
category of improper motives, reasoning, beliefs or mental operations which are inherent in
the verdict . . . .); see also Shillcutt v. Gagnon, 827 F.2d 1155, 1158 (7th Cir. 1987) (*E+vidence
of discussions among jurors, intimidation or harassment of one juror by another, and other
intra-jury influences on the verdict is within the rule, rather than the exception, and is not
competent evidence to impeach a verdict. (quoting Govt of Virgin Islands v. Gereau, 523
F.2d 140, 150 (3d Cir. 1975))).
90 See Fleshner, 304 S.W.3d at 89.
91 See id. at 90.
92 Id. (quoting United States v. Heller, 785 F.2d 1524, 1527 (11th Cir. 1986)).
93 See id. (*Prejudicial+ comments . . . are not simply a matter of political correctness to be
brushed aside by a thick-skinned judiciary. (internal quotation marks omitted) (quoting
Powell v. Allstate Ins. Co., 652 So. 2d 354, 358 (Fla. 1995))).
89

94

See Gold, supra note 11, at 140-41 (If the judge discovers the verdict was not based on
racial prejudice but employs another value inconsistent with the letter of the law, the judge
might use that inconsistency as a basis to overturn the verdict.).

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are functionally distinguishable from other modes of bias. 95 However, if

one accepts the precept that other forms of bias can equally prevent jurors
from making decisions based solely on the facts and law, the newly created
exception ceases to be an exceptionit becomes the rule.96 Insofar as the
Fleshner courts holding opens the door to the jury room in instances of
racial, ethnic, or religious bias, future application of the rule is warranted
any time overt juror partiality allegedly taints the process. This effectively
eviscerates the Mansfield Rule.97
Consider the following hypothetical.98 A plaintiff sues her employer for
wrongful termination,99 and the jury returns a verdict in her favor.100
Following trial, the employers counsel is informed by Juror A that during
jury deliberations Juror B made the following comment about a defense
witness: I dont like the witnesss X qualities.101 Although the facts are
somewhat innocuous, Juror Bs statement evinces a predisposition against
the defendants witness solely on the basis of her X qualities. Such a

95 LINDA G. MILLS, A PENCHANT FOR PREJUDICE: UNRAVELING BIAS IN JUDICIAL DECISION

MAKING 12 (1999) (defining bias as both the leaning of the mind or an inclination toward one
person or another and positively or negatively prejudiced feelings or spirit toward the
claimants in the cases being heard (quoting 46 AM. JUR. 2D Judges 128 (2d ed. 2006)). There
is a formal dichotomy between bias and impartiality to the extent that the existence of one
has been defined as the absence of the other. Id.
96

Cf. Mudd, supra note 2, at 794 (The extraneous evidence exception would not be an
exception at all if it only applied in the absence of objection.).
97 Cf. Oral Argument at 27:08, Webster v. Reprod. Health Servs., 492 U.S. 490 (No. 88-605),
available at http://www.oyez.org/cases/1980-1989/1988/1988_88_605 (I think the Solicitor
Generals submission is somewhat disingenuous when he suggests to this [C]ourt that he does
not seek to unravel the whole cloth of procreational rights, but merely to pull a thread. It has
always been my personal experience that when I pull a thread, my sleeve falls off. There is no
stopping.).
98 The facts of this hypothetical are modeled after the facts of Fleshner v. Pepose Vision
Institute, 304 S.W.3d 81 (Mo. 2010).
99

Fleshner, 304 S.W.3d at 85.

Id.
101 Here, the purpose of representing Juror Bs statement algebraically is to set forth the
premise that overt bias (in any form) is detrimental to the judicial process. Cf. Reid Hastie,
Algebraic Models of Juror Decision Processes, in INSIDE THE JUROR: THE PSYCHOLOGY OF JUROR
DECISION MAKING 84, 84 (Reid Hastie ed., 1993) (The use of algebraic equations to describe
mental processes has been common in psychology since the field became an empirical
science.). By describing the type of bias in a nonspecific manner, the reader must assess the
prejudicial effect of the statement free from any preexisting, hierarchical notions of bias,
thereby turning the readers attention to the functionality of the bias, not its form. Cf. id. at 8485, 87 (noting that use of numbers concedes that operations on numbers are admissible
models of mental processes and illustrating how a jurors initial presumptions and beliefs
concerning guilt or innocence as well as a jurors tendency to be rigid and unresponsive to
evidence can be captured algebraically).
100

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predisposition is properly characterized as bias.102 Now consider the

following factual adjustment: Juror A reports that during deliberations
Juror B said, I share the same X qualities as the defendant, and I would
never return a verdict against her.103 Again, Juror Bs statement is
indicative of a venireman who is not impartial. 104 His vote will not be based
exclusively on the facts of the case but rather will be impermissibly
informed by his preexisting value judgmentsthis time to the detriment of
the plaintiff.105
When viewed in the abstract, both of the foregoing scenarios suggest
that Juror B is prejudiced and that his vote is therefore tainted. 106 In this
sense, the comments are functionally equivalent 107: both were made during
jury deliberation, both appear to touch on matters inherent in the verdict,
and neither appears to satisfy the extrinsic-evidence exception. Assuming
that both scenarios took place prior to the Fleshner decision, application of
the Mansfield Rule would likely exclude both statements from being used
to impeach the verdict.108
However, in light of the Fleshner decision, a comparison of the discreet
cases that provide the factual underpinnings for the above hypothetical
examples reveals that our assumption regarding parity amongst types of
bias and their corresponding treatment devolves according to the type of
bias considered.109 Consider the first hypothetical, which is based on the

102 See Bernard Gert, Moral Impartiality, MIDWEST STUD. IN PHIL., Sept. 1995, at 102, 104 (A
is impartial in respect R with regard to group G if and only if As actions in respect R are not
influenced at all by which member(s) of G benefit or are harmed by these actions. (emphasis
omitted)). In court interactions, racial and ethnic biases are exhibited by *c+onduct that
overtly communicates biases or na*+ve stereotyping. See JOHN G. RICHARDSON, NATL CTR.
FOR STATE COURTS, BIAS IN THE COURT! FOCUSING ON THE BEHAVIOR OF JUDGES, LAWYERS, AND
COURT STAFF IN COURT INTERACTIONS 1-7 to 1-8 (1997).
103 Cf. Baumle v. Smith, 420 S.W.2d 341, 347 (Mo. 1967) (Following the verdict in a
negligence lawsuit against a truck driver, juror told defendants counsel that *he+ used to
work as truck driver *and+ he wouldnt have brought back a verdict against the truck driver if
he had a thousand feet to stop in.).
104

See RICHARDSON, supra note 102, at 1-7 to 1-8 (stating that bias is exhibited through
*m+istaken conclusions drawn by judges, attorneys or juries about the behavior of litigants or
witnesses, due to ignorance of variation in behavioral norms amongst cultural groups).
105 See id.
106 See Alice H. Eagly & Anne M. Koenig, Gender Prejudice: On the Risks of Occupying
Incongruent Roles, in BEYOND COMMON SENSE: PSYCHOLOGICAL SCIENCE IN THE COURTROOM 63,
63-64 (Eugene Borgida & Susan T. Fiske eds., 2008).
107

See Gert, supra note 102, at 102, 104.

See supra Part I.A.
109 Compare Fleshner v. Pepose Vision Inst., 304 S.W.3d 81, 85 (Mo. 2010), with Baumle v.
Smith, 420 S.W.2d 341, 347-48 (Mo. 1967) (holding that overt comments made by jury foreman
showing a predisposition in favor of the defendant did not constitute grounds for a new trial).
108

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Fleshner decision. Juror As statement, I dont like the witnesss X

qualities, is analogous to the Fleshner jurors comments about the defense
witness: She is a Jewish witch; She is a Jewish bitch; She is a pennypinching Jew.110 Like the hypothetical statement, the implication of these
comments is that the juror did not approve of the witness simply because
she was Jewish (i.e., the juror did not like the witnesss Jewish
qualities).111 Although the juror did not explicitly state that his bias
influenced his vote, the inference is strong that his bias was consciously (or
subconsciously) brought to bear in rendering his decision.112 Accordingly,
the Fleshner court held that such statements are antithetical to [the]
parties rights to a fair and impartial jury and equal protection under the
law.113 The courts solution was to permit post hoc juror testimony to
impeach the verdict.
By way of comparison, the Missouri Supreme Courts decision in
Baumle v. Smith, which provides the basis for the second hypothetical,
arrives at a disparate conclusion.114 In that case, the court considered
whether a jury foremans comments made to plaintiffs counsel following
trial invalidated the verdict.115 According to affidavits, the foreman stated:
I used to work as a truck driverI wouldnt have brought back a verdict
against the truck driver if he had a thousand feet to stop in.116 Like the
hypothetical statement, I share the same X qualities as the defendant,
and I would never return a verdict against her, the foremans comment
encapsulates his lack of neutrality.117 His words not only expressed a
preference for fellow truck drivers, they showed a causal connection
between that preference and the foremans vote.118 The conclusion would

110

Fleshner, 304 S.W.3d at 88.

See RICHARDSON, supra note 102, at 1-7 to 1-8.
112 See Smith v. Phillips, 455 U.S. 209, 221-22 (1982) (OConnor, J., concurring)
(Determining whether a juror is biased or has prejudged a case is difficult, partly because the
juror may have an interest in concealing his own bias and partly because the juror may be
unaware of it. The problem may be compounded when a charge of bias arises from juror
misconduct . . . .).
111

113

Lambert, supra note 8, at 2-3.

420 S.W.2d at 348 (holding that *n+o one is competent to impeach a verdict by the
making of an affidavit as to matters inherent in the verdict).
115 Id. at 347-48.
116 Id. at 347.
117 Cf. MILLS, supra note 95, at 132-41 (describing how social security administrative law
judges reveal their innate biases through the stereotyping of claimants).
114

118 Cf. United States v. Pennell, 737 F.2d 521, 532-33 (6th Cir. 1984) (holding that where
Federal Rule of Evidence 606(b)s exception for extraneous evidence is applicable, a juror may
testify regarding her mental processes). But cf. United States v. Rutherford, 371 F.3d 634, 644
(9th Cir. 2004) (holding that where Rule 606(b)s exception for extraneous evidence is

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be inescapable that a juror whose mind was so constituted would be

prejudiced and disqualified.119 Nonetheless, the Baumle court held that the
foremans statement inhered within the verdict and therefore was
incompetent to impeach the verdict.120
In this regard, the holdings in Fleshner and Baumle are in conflict
notwithstanding their functional equivalence.121 As discussed above, the
Fleshner court created a new exception to the Mansfield Rule in instances of
racial, ethnic, or religious partiality.122 Paradoxically, the Baumle court
refused to recognize the applicability of such an exception in a comparable
instance of juror bias.123 Thus, the court created one set of rules for cases
involving racial matters and another set for all other cases.124
Furthermore, if one accepts the underlying premise that juror bias in
all forms is equally insidious, there are only two ways to reconcile these
competing holdings: (1) accept that the Fleshner courts decision partakes in
arbitrary line drawing and is therefore flawed,125 or (2) accept that the
Fleshner courts decision is correct and permit future intrusions into the
jury room by extending the spirit of the decision to other functionally
equivalent forms of prejudice.126 As between the two, this Comment takes
the stance that the decision in Fleshner was wrongly decided and should be
reversed, so as to preserve and prolong the important policy concerns
encapsulated by the Mansfield Rule.127

CONCLUSION
The Missouri Supreme Courts decision in Fleshner v. Pepose Vision
Institute wrongly created an independent exception to the Mansfield Rule
in situations where overt racial, ethnic, or religious comments are made
during jury deliberation. Specifically, the courts rationale is flawed in that

applicable, a juror is incompetent to testify as to whether an outside influence caused him to

vote in a particular way).
119 Baumle, 420 S.W.2d at 348.
120 See id.
121 Compare Fleshner v. Pepose Vision Inst., 304 S.W.3d 81, 85 (Mo. 2010), with Baumle, 420
S.W.2d at 347-48.
122

See supra Part III.A.

Baumle, 420 S.W.2d at 348.
124 Gold, supra note 11, at 126.
125 But see id. at 141 (explaining [t]hat there are sound policy reasons to draw a bright line
permitting courts to consider under [the Mansfield Rule] evidence of racial bias while
excluding evidence of other biases).
126 See BOSANAC, supra note Error! Bookmark not defined., at 237-38 (describing how
novel decisions are susceptible to slippery slope arguments).
123

127

See supra Part III.A-B.

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the supposed narrowness of the new exception rests precariously on an

arbitrary distinction between racial, ethnic, and religious bias and other
forms of bias. The courts holding seeks to anchor itself by isolating racial,
ethnic, and religious prejudice as particularly insidious forms of bias
which it is.128 However, to the extent that other types of bias are equally
detrimental to parties rights to a fair and impartial tribunal (i.e., they are
functionally equivalent to racial, ethnic, and religious bias) the exception
created by the Fleshner court threatens to consume the Mansfield Rule
entirely. Although the Fleshner courts nominal distinction is presently selfcontained, the neatness of the decision is sure to dissolve as future courts,
applying less arbitrary conventions of legal analysis, look beyond the form
of the bias and extend the spirit of Fleshner to other types of prejudice.129

128

See Race and the Criminal Process, supra note 9, at 1599.

Lambert, supra note 8, at 2-3 (One can only hope that the type of juror prejudice
alleged in [Fleshner+ is the exception, rather than the rule . . . . (quoting Ian Fisher, cochair of
the ABA Section of Litigations Pretrial Practice and Discovery Committee)).
129