Note

Post-Conviction Channeling

­­­­People seeking to vacate their criminal convictions face bleak prospects. The reasons for this are myriad, from deferential standards of review to blanket bans on entire categories of claims. Yet lurking beneath these contributors is another, lesser-studied problem: when petitioners seek post-conviction relief, their cases are often decided by the same judges who presided over their trials or accepted their guilty pleas. That practice—which this Note calls “judge channeling”—is widespread, with most jurisdictions adopting it through either formal rules or informal practices. Proponents argue that judge channeling maximizes judicial economy because the trial judge’s familiarity with a case enables more efficient claim resolution. However, a robust body of social science research reveals a devastating trade-off: unconscious biases prevent judges from recognizing their own errors, hobbling petitioners seeking to challenge their convictions and vindicate meritorious claims. Prior scholarship has emphasized normative problems with judge channeling, but the analysis ends there. This Note intervenes in that narrow discourse by making two novel contributions to existing literature. First, it offers the first comprehensive study of state channeling procedures, explaining what they do and how they differ across jurisdictions. Second, this Note lays out alternative procedures that balance independent review with deliberative efficiency, and it considers which institutions are best poised to bring those procedures to life.

Introduction

In the popular imagination, the life cycle of a criminal case begins with an indictment and ends on appeal. For many defendants, however, exhaustion of direct appeal marks the beginning, not the end. There also exists a vast universe of post-conviction relief, including federal and state habeas corpus, writs of error, actual innocence petitions, and more. Those convicted at trial face a steep uphill battle, with only twelve percent of state convictions1 1.Nicole L. Waters, Anne Gallegos, James Green & Martha Rozsi, U.S. Dep’t of Just., Criminal Appeals in State Courts 1 (2015), https://bjs.ojp.gov/content/pub/pdf/casc.pdf [http‌s://perma.cc/2M64-RMA2].Show More and less than seven percent of federal convictions2 2.Just the Facts: U.S. Courts of Appeals, Admin. Off. of the U.S. Cts. tbl. 2 (Dec. 20, 2016), https://www.uscourts.gov/data-news/judiciary-news/2016/12/20/just-facts-us-courts-a‌ppeals [https://perma.cc/T9C7-5HW7].Show More being reversed on appeal. And if direct appeal is a hill, then post-conviction relief is a mountain: less than one percent of federal habeas petitions succeed,3 3.Nancy J. King & Joseph L. Hoffmann, Envisioning Post-Conviction Review for the Twenty-First Century, 78 Miss. L.J. 433, 437 (2008).Show More and state habeas presents similar challenges.4 4.Aggregated state habeas data is elusive, but studies focused on particular states and case types support this claim. See, e.g., David R. Dow & Jeffrey R. Newberry, Reversal Rates in Capital Cases in Texas, 2000–2020, 68 UCLA L. Rev. Discourse 2, 12 (2020) (finding a 5.6% success rate on state habeas review of death penalty cases in Texas); Mary K. McComb, Off. of the State Pub. Def., California’s Broken Death Penalty: It’s Time to Stop Tinkering with the Machinery of Death 58–59 (2021), https://www.ospd.ca.gov/wp-cont‌ent/uploads/2024/04/White-Paper.pdf [https://perma.cc/5HDM-UHHZ] (finding that the California Supreme Court has granted habeas relief in 4% of state capital cases since 1978).Show More

That dire prognosis makes sense on some level. After a defendant has pled guilty or lost at trial, and after they have benefitted from the rigors of direct appeal, post-conviction relief should be an uncommon remedy. Yet innocent people are convicted and imprisoned notwithstanding these safeguards,5 5.See Charles E. Loeffler, Jordan Hyatt & Greg Ridgeway, Measuring Self-Reported Wrongful Convictions Among Prisoners, 35 J. Quantitative Criminology 259, 259, 261, 276 (2019) (estimating that 6% of non-capital state offenders are factually innocent).Show More so there must be reasons other than guilt that explain their continued incarceration. Many of these reasons are procedural: people seeking habeas relief must navigate a tangled labyrinth of exhaustion requirements, procedural default rules, statutes of limitations, and bars to successive petitions—obstacles that also pervade state law.6 6.See infra Section I.A.Show More Layered atop these rules governing challenges to legally defective convictions are additional rules that make proving innocence exceedingly difficult for those afforded the full panoply of constitutional rights.7 7.See infra Section I.C. See generally Daniel S. Medwed, Barred: Why the Innocent Can’t Get Out of Prison (2022) (exploring procedural barriers to proving innocence after conviction).Show More

These procedural hurdles matter, but hiding in plain sight is another potent factor that shapes case outcomes: who decides the case. The availability of post-conviction relief is often determined by the same judge who presided over the petitioner’s trial or accepted their guilty plea, a phenomenon this Note calls “judge channeling.” The practice is popular, with most jurisdictions having statutes, judicial rules, and informal practices that permit, and in some cases require, the original trial judge to adjudicate petitions for post-conviction relief.8 8.See infra Section II.B; Appendix.Show More Defenders of judge channeling argue that the trial judge’s familiarity with the facts and issues animating a case allows them to dispose of cases more efficiently.9 9.See infra Section II.A.Show More This Note turns that argument on its head: familiarity with the underlying case is precisely the issue, creating blind spots and preventing the correction of judicial errors—sometimes grave and consequential ones.

Despite its popularity among legislatures and courts, judge channeling has long been a target of attack in the academic literature surrounding post-conviction procedure.10 10.See, e.g., Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 679, 699–708 (2005) [hereinafter Medwed, Up the River Without a Procedure]; Daniel S. Medwed, California Dreaming? The Golden State’s Restless Approach to Newly Discovered Evidence of Innocence, 40 U.C. Davis L. Rev. 1437, 1472–75 (2007) [hereinafter Medwed, California Dreaming?]; Eli Paul Mazur, “I’m Innocent”: Addressing Freestanding Claims of Actual Innocence in State and Federal Courts, 25 N.C. Cent. L.J. 197, 230–34 (2003); Stephanie Roberts Hartung, Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases, 10 Stan. J.C.R. & C.L. 55, 61–62 (2014); Joseph M. Bowman, Note, Processing a Motion Attacking Sentence Under Section 2255 of the Judicial Code, 111 U. Pa. L. Rev. 788, 800–02 (1963). As these titles suggest, most prior scholarship addresses innocence claims specifically rather than post-conviction relief more generally.Show More However, no piece of legal scholarship has made post-conviction judge assignment its exclusive or even primary focus. This Note fills that gap. While it leans on past normative critiques, it also makes two novel contributions of its own. The first contribution is descriptive, providing the first comprehensive survey of state post-conviction channeling procedures. The second contribution is prescriptive, introducing and comparing alternative ways of adjudicating post-conviction claims. Prior work begins and ends by pointing out a problem; this Note takes the additional steps of analyzing that problem in detail and offering workable solutions.

This Note proceeds in four parts. Part I broadly surveys post-conviction relief in the United States, paying special attention to habeas corpus, writs of error, and claims of actual innocence. Part II explores the phenomenon of post-conviction judge channeling, describing what it is, how it works across jurisdictions, and the general arguments marshaled in its favor. Part III then pivots from the descriptive to the normative, explaining how judge channeling entrenches bias, ossifies error, and deprives petitioners of meaningful review. Finally, Part IV considers alternative models of post-conviction adjudication that would better allow petitioners to vindicate meritorious claims without forfeiting judicial economy. In doing so, it explores what alternative regimes might look like and how reform might take place.

  1.  Nicole L. Waters, Anne Gallegos, James Green & Martha Rozsi, U.S. Dep’t of Just., Criminal Appeals in State Courts 1 (2015), https://bjs.ojp.gov/content/pub/pdf/casc.pdf [http‌s://perma.cc/2M64-RMA2]. ↑
  2.  Just the Facts: U.S. Courts of Appeals, Admin. Off. of the U.S. Cts. tbl. 2 (Dec. 20, 2016), https://www.uscourts.gov/data-news/judiciary-news/2016/12/20/just-facts-us-courts-a‌ppeals [https://perma.cc/T9C7-5HW7]. ↑
  3.  Nancy J. King & Joseph L. Hoffmann, Envisioning Post-Conviction Review for the Twenty-First Century, 78 Miss. L.J. 433, 437 (2008). ↑
  4.  Aggregated state habeas data is elusive, but studies focused on particular states and case types support this claim. See, e.g., David R. Dow & Jeffrey R. Newberry, Reversal Rates in Capital Cases in Texas, 2000–2020, 68 UCLA L. Rev. Discourse 2, 12 (2020) (finding a 5.6% success rate on state habeas review of death penalty cases in Texas); Mary K. McComb, Off. of the State Pub. Def., California’s Broken Death Penalty: It’s Time to Stop Tinkering with the Machinery of Death 58–59 (2021), https://www.ospd.ca.gov/wp-cont‌ent/uploads/2024/04/White-Paper.pdf [https://perma.cc/5HDM-UHHZ] (finding that the California Supreme Court has granted habeas relief in 4% of state capital cases since 1978). ↑
  5.  See Charles E. Loeffler, Jordan Hyatt & Greg Ridgeway, Measuring Self-Reported Wrongful Convictions Among Prisoners, 35 J. Quantitative Criminology 259, 259, 261, 276 (2019) (estimating that 6% of non-capital state offenders are factually innocent). ↑
  6.  See infra Section I.A. ↑
  7.  See infra Section I.C. See generally Daniel S. Medwed, Barred: Why the Innocent Can’t Get Out of Prison (2022) (exploring procedural barriers to proving innocence after conviction). ↑
  8.  See infra Section II.B; Appendix. ↑
  9.  See infra Section II.A. ↑

  10.  See, e.g., Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 679, 699–708 (2005) [hereinafter Medwed, Up the River Without a Procedure]; Daniel S. Medwed, California Dreaming? The Golden State’s Restless Approach to Newly Discovered Evidence of Innocence, 40 U.C. Davis L. Rev. 1437, 1472–75 (2007) [hereinafter Medwed, California Dreaming?]; Eli Paul Mazur, “I’m Innocent”: Addressing Freestanding Claims of Actual Innocence in State and Federal Courts, 25 N.C. Cent. L.J. 197, 230–34 (2003); Stephanie Roberts Hartung, Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases, 10 Stan. J.C.R. & C.L. 55, 61–62 (2014); Joseph M. Bowman, Note, Processing a Motion Attacking Sentence Under Section 2255 of the Judicial Code, 111 U. Pa. L. Rev. 788, 800–02 (1963). As these titles suggest, most prior scholarship addresses innocence claims specifically rather than post-conviction relief more generally. ↑

Crystals and Mud in International Taxation: Why the Principal Purpose Test’s Impact Will Not Meet Expectations

This Note takes a fresh look at the Principal Purpose Test (“PPT”), which has been added to over 2,300 bilateral tax treaties since 2015 in an effort to fight tax avoidance. Under the PPT, countries may deny treaty benefits—such as lower tax rates on cross-border income—if it is reasonable for them to conclude that a taxpayer arranged a transaction principally to obtain those benefits.

Critics are skeptical of this rule. They argue that it is too vague and that it confers too much power on tax authorities. But this Note argues that those concerns may be overstated for two primary reasons. First, legal history shows that flexible standards like the PPT tend to become clearer over time, as courts and tax administrations develop more consistent—and more rule-like—interpretations. Second, although some countries might deploy the PPT aggressively, others can interpret it narrowly in an effort to continue attracting multinational businesses.

Whatever the PPT’s ultimate effect, the test will not dramatically reshape international taxation schemes. The PPT’s practical impact will not just be about the text of the test—it will be determined by how different countries choose to enforce it.

Introduction

The early 2010s represent perhaps the only time period in which international tax policy regularly filled the pages of the world’s largest newspapers.1 1.See, e.g., Jia Lynn Yang, Post Analysis of Dow 30 Firms Shows Declining Tax Burden as a Share of Profits, Wash. Post (Mar. 26, 2013), https://www.washingtonpost.com/business/eco‌nomy/post-analysis-of-dow-30-firms-shows-declining-tax-burden-as-a-share-of-profits/2013‌/03/26/3dfe5132-7b9a-11e2-82e8-61a46c2cde3d_story.html.Show More With the global economy still reeling from the 2008 financial crisis, national governments in the United States and Europe publicly questioned the tax bills paid by the world’s largest companies.2 2.For a comprehensive discussion of these investigations and the ensuing public response, see Ruth Mason, The Transformation of International Tax, 114 Am. J. Int’l L. 353, 364–65 (2020). Show More The results of these investigations created a push for international tax changes by entities like the Organisation for Economic Co-operation and Development (“OECD”) and the Group of Twenty (“G20”).3 3.See Yariv Brauner, What the BEPS?, 16 Fla. Tax Rev. 55, 56–57, 60 (2014) [hereinafter Brauner, What the BEPS?].Show More

This Note discusses one component of these changes—a provision called the Principal Purpose Test (“PPT”). The PPT purports to target the abuse of tax treaties by allowing tax administrations to deny treaty benefits to a taxpayer if it is reasonable to conclude the taxpayer entered into a transaction principally to obtain those benefits.4 4.See OECD, Model Tax Convention on Income and on Capital art. 29(9) cmt. ¶¶ 176–177 (2017) [hereinafter OECD, 2017 Model], https://www.oecd.org/content/dam/oecd/en/publicat‌ions/reports/2019/04/model-tax-convention-on-income-and-on-capital-2017-full-version_g1‌g972ee/g2g972ee-en.pdf [https://perma.cc/S82G-DH5A].Show More Commentators have described the power of the PPT in the hands of tax administrations in dramatic language, referencing the atomic bomb,5 5.Lee A. Sheppard, The PPT Through the Lens of the India-Mauritius Protocol, 114 Tax Notes Int’l 1147, 1149 (2024); see, e.g., Eran Levy, Is the Principal Purpose Test an “Atomic Bomb” and Should It Be Used Against Treaty Abuse?, Mich. J. Int’l L. Blog (Dec. 2017), http‌s://www.mjilonline.org/eranlevy/ [https://perma.cc/HN4N-5S6N].Show More the COVID-19 pandemic,6 6.See Sheppard, supra note 5, at 1149.Show More and Sauron’s Ring of Power.7 7.See Craig Elliffe, The Meaning of the Principal Purpose Test: One Ring to Bind Them All?, 11 World Tax J. 47 (2019).Show More To those commentators, the PPT promises to fundamentally alter the world of tax treaties for the worse. Their perspective is based upon the PPT’s language, which can be read as broader than most similarly constructed anti-abuse rules;8 8.For example, the United States’ “business purpose” doctrine identifies and disallows transactions where a taxpayer was “motivated by no business purpose other than obtaining tax benefits.” Mixed tax and business purposes are permissible. Austin v. Comm’r, 113 T.C.M. (CCH) 69, 2017 WL 1437879, at *10–11 (Apr. 24, 2017) (first citing Gregory v. Helvering, 293 U.S. 465 (1935); and then citing Rice’s Toyota World, Inc. v. Comm’r, 752 F.2d 89, 91–92 (4th Cir. 1985)).Show More its authors—a large collection of countries—having specifically encouraged a sweeping interpretation;9 9.See OECD, 2017 Model, supra note 4.Show More and its status as a cornerstone of a global tax initiative aimed at transforming international tax.10 10.See Mason, supra note 2, at 364–65 (arguing that the G20/OECD’s project changed international tax’s participants, agenda, institutions, norms, and legal forms).Show More However, a contextualized approach to predicting the PPT’s effects suggests that commentators have overstated the test’s ultimate impact. This Note situates the PPT within the larger framework of tax competition and looks to the literature on legal form to paint what may be a more realistic picture of the provision’s ultimate impact.

This Note proceeds in five parts. Part I provides background on international tax policy, highlighting recent G20/OECD initiatives to change key elements of the international tax system. Part II introduces the PPT, its intended role in curbing treaty abuse, and the praise and criticism it has received. Part III argues that critics’ concerns about legal uncertainties created by the PPT are overstated in terms of the rule’s ultimate impact. The literature on legal form recognizes that standards become more rule-like as part of an everlasting oscillation between the two forms, and there is no reason to believe the PPT—currently a standard—is any different. Therefore, a focus on the PPT’s initial stage may obscure a future time when the provision will be more certain and targeted in scope. Part IV considers the potential moderating impact of tax competition on the interpretation of the PPT. The literature on legal form allows us to understand that the PPT’s open-ended design delegates discretion over its interpretation from the OECD to individual states, some of which wish to encourage defined and manageable corporate tax standards.11 11.See infra Part IV.Show More Thus, while the PPT’s language might raise overbreadth concerns on first reading, an analysis sensitive to international taxation’s competitive structure may indicate a more nuanced story to come. The Conclusion drives home this Note’s central thesis: viewed in proper context, the PPT may ultimately not be the “atomic bomb” of international tax.12 12.See Sheppard, supra note 5, at 1148–49; Levy, supra note 5.Show More

  1.  See, e.g., Jia Lynn Yang, Post Analysis of Dow 30 Firms Shows Declining Tax Burden as a Share of Profits, Wash. Post

    (Mar

    . 26, 2013),

    https://www.washingtonpost.com/business/eco‌nomy/post-analysis-of-dow-30-firms-shows-declining-tax-burden-as-a-share-of-profits/2013‌/03/26/3dfe5132-7b9a-11e2-82e8-61a46c2cde3d_story.html. ↑

  2. F

    or a comprehensive discussion of these investigations and the ensuing public response, see Ruth Mason, The Transformation of International Tax,

    114

    Am. J. Int’l L.

    353, 364–65 (2020).

    ↑

  3.  See Yariv Brauner, What the BEPS?, 16 Fla. Tax Rev.
    55, 56–57, 60 (2014

    ) [hereinafter Brauner, What the BEPS?]. ↑

  4.  See OECD, Model Tax Convention on Income and on Capital art. 29(9) cmt. ¶¶ 176–177 (2017) [hereinafter OECD, 2017 Model], https://www.oecd.org/content/dam/oecd/en/publicat‌ions/reports/2019/04/model-tax-convention-on-income-and-on-capital-2017-full-version_g1‌g972ee/g2g972ee-en.pdf [https://perma.cc/S82G-DH5A]. ↑
  5.  Lee A. Sheppard, The PPT Through the Lens of the India-Mauritius Protocol, 114 Tax Notes Int’l
    1147, 1149 (2024);

    see, e.g., Eran Levy, Is the Principal Purpose Test an “Atomic Bomb” and Should It Be Used Against Treaty Abuse?, Mich. J. Int’l L. Blog (Dec.

    2017

    ), http‌s://www.mjilonline.org/eranlevy/ [https://perma.cc/HN4N-5S6N]. ↑

  6.  See Sheppard, supra note 5, at 1149. ↑
  7.  See Craig Elliffe, The Meaning of the Principal Purpose Test: One Ring to Bind Them All?, 11 World Tax J. 47 (2019). ↑
  8.  For example, the United States’ “business purpose” doctrine identifies and disallows transactions where a taxpayer was “motivated by no business purpose other than obtaining tax benefits.” Mixed tax and business purposes are permissible. Austin v. Comm’r, 113 T.C.M. (CCH) 69, 2017 WL 1437879, at *10–11 (Apr. 24, 2017) (first citing Gregory v. Helvering, 293 U.S. 465 (1935); and then citing Rice’s Toyota World, Inc. v. Comm’r, 752 F.2d 89, 91–92 (4th Cir. 1985)). ↑
  9.  See OECD,
    2017

    Model

    ,

    supra note 4. ↑

  10.  See Mason, supra note 2, at 364–65 (arguing that the G20/OECD’s project changed international tax’s participants, agenda, institutions, norms, and legal forms). ↑
  11.  See infra Part IV. ↑
  12.  See Sheppard, supra note 5, at 1148–49; Levy, supra note 5. ↑

Striking the Peremptory Strike: Why There Is No Freestanding Constitutional Entitlement to Peremptory Challenges

The peremptory challenge—used by parties to remove prospective jurors without the need to provide a reason—has become one of the most controversial features of the modern American jury system. Despite Batson v. Kentucky’s promise to prohibit parties from using peremptory challenges to exclude jurors from serving because of their race, lawyers have learned to adjust their explanations so as to avoid violating the commands of Batson. States have begun to reform their systems of challenging jurors peremptorily in response. While some states have fashioned a list of presumptively invalid race-neutral justifications for exercising peremptory challenges, one state—Arizona—went the furthest by abolishing peremptory challenges altogether. This prompted Professor Richard Jolly to write an article arguing that the complete abolition of the peremptory challenge is unconstitutional. From his review of common law history, early American practice, and the text of the Sixth Amendment, Jolly concludes that peremptory challenges are implicit in the Sixth Amendment’s guarantee of an “impartial jury.” This Note is a direct response to Jolly’s article. It examines over a century of court precedent as well as common law history, early American practice, and the text of the Sixth Amendment to determine if there is a freestanding constitutional entitlement to peremptory challenges. The analysis in this Note reaches the opposite conclusion: the peremptory challenge is unequivocally not required by the Constitution and, as such, Arizona and any other state that decides to abolish the peremptory challenge would not violate the Sixth Amendment.

Introduction

Once hailed by William Blackstone as “a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous,”1 1.4 William Blackstone, Commentaries *353.Show More peremptory challenges have been deemed by modern critics as “the most undemocratic feature of our democratic trial system,”2 2.Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 156 (1989).Show More the “[l]ast [b]est [t]ool of Jim Crow,”3 3.Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809, 827 (1997).Show More and “an instrument that undermines society’s evolving attempts to ensure that juries fairly represent the judgment of the community.”4 4.Raymond J. Broderick, Why the Peremptory Challenge Should Be Abolished, 65 Temp. L. Rev. 369, 399 (1992).Show More Prospective jurors can be struck from the jury venire through two methods: challenges for cause and peremptory challenges. Challenges for cause allow for rejection of venire members “on a narrowly specified, provable and legally cognizable basis of partiality.”5 5.Swain v. Alabama, 380 U.S. 202, 220 (1965).Show More Peremptory challenges, on the other hand, are exercised “without a reason stated, without inquiry and without being subject to the court’s control.”6 6.Id.Show More An unlimited number of potential jurors can be challenged for cause, while only a limited number of potential jurors, as specified by statute, may be challenged peremptorily.7 7.See Thomas Ward Frampton, For Cause: Rethinking Racial Exclusion and the American Jury, 118 Mich. L. Rev. 785, 788 (2020).Show More And while a judge must find that a potential juror is indeed biased before approving a challenge for cause, peremptory strikes receive no such scrutiny unless subject to a Batson challenge.8 8.See id. In Batson v. Kentucky, the Supreme Court held that the Equal Protection Clause prohibits parties from using peremptory strikes to exclude jurors from serving because of their race. 476 U.S. 79 (1986).Show More In an ideal world, the process will end with a right “fundamental to the American scheme of justice”9 9.Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020) (quoting Duncan v. Louisiana, 391 U.S. 145, 149 (1968)).Show More: an impartial jury.

Because peremptory challenges can be employed at the complete discretion of parties and because they do not require a judge’s approval, parties frequently use them to strike potential jurors based on stereotypes that may go beyond their ability to decide a case impartially.10 10.One study found that prosecutors in North Carolina used sixty percent of their peremptory challenges against Black jurors, who constituted only thirty-two percent of the venire, while defense attorneys used eighty-seven percent of their strikes against white jurors, who constituted sixty-eight percent of the venire. Mary R. Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data From One County, 23 Law & Hum. Behav. 695, 697–99 (1999). Another study that examined strikes in 390 jury trials in Jefferson Parish, Louisiana, found that prosecutors struck Black prospective jurors at over three times the rate they struck white prospective jurors. Richard Bourke, Joe Hingston & Joel Devine, La. Crisis Assistance Ctr., Black Strikes: A Study of the Racially Disparate Use of Peremptory Challenges by the Jefferson Parish District Attorney’s Office 4, 7 (2003).Show More While each party is required under Batson v. Kentucky to provide a race-neutral explanation for a peremptory strike if the opponent of the strike makes out a prima facie case of racial discrimination, lawyers have learned to adjust their reasons so as not to violate the commands of Batson.11 11.See Nancy S. Marder, Justice Stevens, the Peremptory Challenge, and the Jury, 74 Fordham L. Rev. 1683, 1706 (2006) (“Although Batson was an earnest attempt to root out discriminatory peremptories, Batson is so easy to circumvent that it allows a charade in the courtroom. Instead of giving race or gender as a reason for excluding jurors, lawyers can give any other reason no matter how ‘silly or superstitious.’” (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam))).Show More As one judge noted, “Surely, new prosecutors are given a manual, probably entitled, ‘Handy Race-Neutral Explanations’ or ‘20 Time-Tested Race-Neutral Explanations.’”12 12.People v. Randall, 671 N.E.2d 60, 65 (Ill. App. Ct. 1996).Show More Such race-neutral explanations can include, and have included, clothing, body language, lack of eye contact, and the way a potential juror wears their hair.13 13.See Marder, supra note 11, at 1706.Show More The ease with which parties are able to avoid Batson violations led Justice Breyer to remark that “the use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before.”14 14.Miller-El v. Dretke, 545 U.S. 231, 270 (2005) (Breyer, J., concurring); see also Hoffman, supra note 3, at 829 (“From Reconstruction through the civil rights movement, the peremptory challenge was an incredibly efficient final racial filter.”); Equal Just. Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy 4 (2010) (“[T]here is perhaps no arena of public life . . . where racial discrimination is more widespread, apparent, and seemingly tolerated than in the selection of juries.”).Show More

The problems prompted by peremptory challenges have led scholars and practitioners alike to call for reform15 15.See, e.g., Charles J. Ogletree, Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges, 31 Am. Crim. L. Rev. 1099 (1994); Annie Sloan, “What to Do About Batson?”: Using a Court Rule to Address Implicit Bias in Jury Selection, 108 Calif. L. Rev. 233 (2020); Robert T. Prior, The Peremptory Challenge: A Lost Cause?, 44 Mercer L. Rev. 579 (1993); Joshua Revesz, Comment, Ideological Imbalance and the Peremptory Challenge, 125 Yale L.J. 2535 (2016); Jere W. Morehead, When a Peremptory Challenge Is No Longer Peremptory: Batson’s Unfortunate Failure to Eradicate Invidious Discrimination From Jury Selection, 43 DePaul L. Rev. 625 (1994); Alafair S. Burke, Prosecutors and Peremptories, 97 Iowa L. Rev. 1467 (2012); Jeffrey Bellin & Junichi P. Semitsu, Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075 (2011).Show More or the complete elimination of peremptory challenges,16 16.E.g., Hoffman, supra note 3, at 810; Marder, supra note 11, at 1684; LaCrisha L.A. McAllister, Closing the Loophole: A Critical Analysis of the Peremptory Challenge and Why It Should Be Abolished, 48 S.U. L. Rev. 303, 304 (2021); Brent J. Gurney, Note, The Case for Abolishing Peremptory Challenges in Criminal Trials, 21 Harv. C.R.-C.L. L. Rev. 227, 230 (1986); Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 Notre Dame L. Rev. 447, 503 (1996); Batson v. Kentucky, 476 U.S. 79, 102–03 (1986) (Marshall, J., concurring) (“The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.”).Show More with some scholars even going so far as to suggest that peremptory challenges are unconstitutional.17 17.See, e.g., Broderick, supra note 4, at 399 (suggesting that peremptory challenges contravene the Equal Protection Clause, the Thirteenth Amendment, and the Sixth Amendment).Show More States have taken heed. In the span of just a few years, various states have reformed their approach to peremptory strikes to attempt to counter discrimination in the selection of juries. The reforms generally fall into two camps.

The first approach is modeled after Washington’s General Rule 37 (“GR 37”).18 18.Wash. Ct. GR 37.Show More GR 37 identifies seven facially race-neutral justifications for a peremptory strike that have been “historically . . . associated with improper discrimination in jury selection” and makes them “presumptively invalid.”19 19.Wash. Ct. GR 37(h).Show More Such “presumptively invalid” justifications include, inter alia, “having prior contact with law enforcement officers” and “having a close relationship with people who have been . . . arrested.”20 20.Wash. Ct. GR 37(h).Show More GR 37 differs from Batson in other key respects. For example, GR 37 does not impose an initial burden of production on one who challenges a peremptory strike,21 21.See Wash. Ct. GR 37(c)–(d).Show More it places restrictions on the invocation of “[c]onduct” to justify a strike,22 22.Wash. Ct. GR 37(i).Show More and it does not require that the challenger prove “purposeful discrimination.”23 23.Wash. Ct. GR 37(f).Show More Other states, including California,24 24.Cal. Civ. Proc. Code § 231.7 (West 2025).Show More New Jersey,25 25.N.J. Stat. Ann § 1:8-3A (West 2025).Show More and Connecticut,26 26.Connecticut Practice Book § 5.12 (2025).Show More have followed Washington’s lead and adopted rules similar to GR 37.

The second approach to reform has been led by Arizona. The state considered two proposals for reform: one similar to Washington’s GR 37 and one that would eliminate peremptory strikes altogether.27 27.See Thomas Ward Frampton & Brandon Charles Osowski, The End of Batson? Rulemaking, Race, and Criminal Procedure Reform, 124 Colum. L. Rev. 1, 39–41 (2024).Show More On January 1, 2022, Arizona eliminated peremptory strikes entirely,28 28.See Order Amending Rules 18.4 and 18.5 of the Rules of Criminal Procedure, and Rule 47(e) of the Rules of Civil Procedure, In re Petition to Amend Rules 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure, No. R-21-0020 (Ariz. Aug. 30, 2021), https://www.azcourts.gov/Portals/0/20/2021%20Rules/‌R-21-0020%20Final%20Rules%20Order.pdf?ver=2021-08-31-105653-157 [https://perma.cc‌/R4XA-CKFH]; Ariz. Rev. Stat. Ann. § 18.4–.5 (2025).Show More in part because of a widespread perception that the Washington-style reform was “too woke.”29 29.See Frampton & Osowski, supra note 27, at 44 (quoting Telephone Interview by Thomas Ward Frampton & Brandon Charles Osowski with Kevin D. Heade, Chair, Cent. Ariz. Nat’l Laws. Guild (Sept. 22, 2022)).Show More Those involved in the decision also noted multiple advantages, many of which were realized by judges in Arizona during the COVID-19 pandemic when the Arizona Supreme Court sharply limited peremptory challenges by emergency administrative order.30 30.Id. at 37–38.Show More First, they stated that the abolition of peremptory strikes would significantly increase judicial efficiency.31 31.Id. at 43.Show More Voir dire can consume more time than the trial itself, often adding significant time and expense to trials and providing a significant advantage to wealthier parties.32 32.April J. Anderson, Peremptory Challenges at the Turn of the Nineteenth Century: Development of Modern Jury Selection Strategies as Seen in Practitioners’ Trial Manuals, 16 Stan. J. C.R. & C.L. 1, 5–6 (2020).Show More Second, they argued that it would eliminate the awkward “‘guesswork’ inherent in” judges’ determinations of lawyers’ motives for exercising strikes.33 33.See Frampton & Osowski, supra note 27, at 43 (quoting Charles W. Gurtler, Jr., Comment of the Committee on Superior Court at 3, In re Petition to Amend Rules 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure, No. R-21-0020 (Ariz. Apr. 12, 2021), https://www.azcourts.gov/DesktopModules/ActiveForu‌ms/viewer.aspx?portalid=0&moduleid=23621&attachmentid=9457 [https://perma.cc/EP8P-3‌NEE]).Show More Third, they noted that the abolition of peremptory strikes would eliminate other forms of discrimination outside of just racial discrimination.34 34.Id. at 43–45.Show More And fourth, they believed it would dispense with the concern that the GR 37 model would create a double standard, whereby defense counsel could use discriminatory strikes against white prospective jurors.35 35.Id. at 46.Show More

In response to Arizona’s change in jury selection procedure, Professor Richard Jolly published an article in the Vanderbilt Law Review arguing that the complete abolition of the peremptory challenge is unconstitutional.36 36.Richard Lorren Jolly, The Constitutional Right to Peremptory Challenges in Jury Selection, 77 Vand. L. Rev. 1529 (2024).Show More Despite the fact that the Supreme Court has “long recognized that peremptory challenges are not of constitutional dimension,”37 37.Ross v. Oklahoma, 487 U.S. 81, 88 (1988).Show More Jolly argues that “there is overwhelming textual, historical, and traditional evidence that peremptory challenges are of federal constitutional dimension.”38 38.Jolly, supra note 36, at 1535–36.Show More From his review of such evidence, Jolly concludes that peremptory challenges are implicit in the Sixth Amendment’s guarantee of an “impartial jury.”39 39.Id. at 1537–38 (quoting U.S. Const. amend. VI).Show More He goes on to argue that the right to challenge peremptorily is “unquestionably secure” in the context of capital offenses and “likely extends” to all criminal cases in which the jury trial right attaches.40 40.Id. at 1555. While Jolly concludes that peremptory challenges are also likely secured by the Seventh Amendment in civil trials, this Note is limited to analyzing the constitutional requirements of the Sixth Amendment.Show More

Jolly’s argument has massive implications for the future of jury selection. Today, nearly one-fifth of the country lives in a jurisdiction where the Batson framework does not govern peremptory strikes,41 41.Frampton & Osowski, supra note 27, at 3.Show More and at least eleven other states are currently considering reform.42 42.See Batson Reform: State by State, Berkeley L. Death Penalty Clinic, https://www.law.be‌rkeley.edu/experiential/clinics/death-penalty-clinic/projects-and-cases/whitewashing-the-jur‌y-box-how-california-perpetuates-the-discriminatory-exclusion-of-black-and-latinx-jurors/ba‌tson-reform-state-by-state/ [https://perma.cc/5LQF-MLA6] (last visited Sept. 28, 2025) (showing that states considering reform include Colorado, Iowa, Kansas, Massachusetts, Mississippi, Missouri, Montana, New York, North Carolina, Oregon, and Utah).Show More If Jolly’s argument is correct, then Arizona and any other state that follows its lead in abolishing the peremptory challenge would be in violation of the Constitution. Given the many calls to eliminate peremptory challenges, the question of whether such challenges are required by the Constitution is one that, as Jolly correctly states, “cannot be ignored.”43 43.Jolly, supra note 36, at 1554.Show More

This Note is a direct response to Jolly’s article. Like his article, this Note examines common law history, early American practice, and the text of the Sixth Amendment to determine if there is a freestanding constitutional entitlement to peremptory challenges. It also examines over a century of case law. The analysis in this Note reaches the opposite conclusion: the peremptory challenge is unequivocally not required by the Constitution and, as such, Arizona and any other state that decides to abolish the peremptory challenge would not violate the Sixth Amendment in doing so.

To make the argument, this Note proceeds in four parts. Part I provides a history of the peremptory challenge both at common law and in early American practice. Part II presents over a century of case law demonstrating that an impartial jury protects against the existence of actual bias on the petit jury. Because peremptory challenges minimize the perception of bias as opposed to actual bias, such challenges fall outside the ambit of the Sixth Amendment’s safeguards. Despite clear precedent from the Supreme Court that the peremptory challenge is not of federal constitutional dimension, Jolly argues that the Court has never fully analyzed its common law history, early American practice, and the text of the Sixth Amendment. Part III does just that. It first argues that peremptory challenges cannot be considered essential to an impartial jury because although criminal defendants had a right to use peremptory challenges in capital cases at common law and in early American practice,44 44.See infra notes 63, 68–72 and accompanying text.Show More no such right existed in noncapital cases.45 45.See infra notes 161–66 and accompanying text.Show More While Jolly attempts to employ a textualist argument to claim that peremptory challenges are nevertheless secured in noncapital cases as well as capital cases, his argument ultimately fails for both textualist and logical reasons. Part III goes on to demonstrate that the modern conception of the relationship between peremptory challenges and the impartial jury requirement is historically incongruous with the original purpose, use, and procedure of the peremptory challenge. Lastly, Part IV briefly discusses the implications of freezing practice at the time of the ratification of the Sixth Amendment to determine what rights are included in the guarantee of an impartial jury, warning that such a jurisprudential approach may actually undermine the safeguards of the Sixth Amendment. Taken together, the case law, as well as historical, practical, and textual evidence, provides overwhelming proof that there is not a freestanding constitutional entitlement to peremptory challenges.

  1.  4 William Blackstone, Commentaries *353. ↑
  2.  Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 156 (1989). ↑
  3.  Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809, 827 (1997). ↑
  4.  Raymond J. Broderick, Why the Peremptory Challenge Should Be Abolished, 65 Temp. L. Rev. 369, 399 (1992). ↑
  5.  Swain v. Alabama, 380 U.S. 202, 220 (1965). ↑
  6.  Id. ↑
  7.  See Thomas Ward Frampton, For Cause: Rethinking Racial Exclusion and the American Jury, 118 Mich. L. Rev. 785, 788 (2020). ↑
  8.  See id. In Batson v. Kentucky, the Supreme Court held that the Equal Protection Clause prohibits parties from using peremptory strikes to exclude jurors from serving because of their race. 476 U.S. 79 (1986). ↑
  9.  Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020) (quoting Duncan v. Louisiana, 391 U.S. 145, 149 (1968)). ↑
  10.  One study found that prosecutors in North Carolina used sixty percent of their peremptory challenges against Black jurors, who constituted only thirty-two percent of the venire, while defense attorneys used eighty-seven percent of their strikes against white jurors, who constituted sixty-eight percent of the venire. Mary R. Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data From One County, 23 Law & Hum. Behav. 695, 697–99 (1999). Another study that examined strikes in 390 jury trials in Jefferson Parish, Louisiana, found that prosecutors struck Black prospective jurors at over three times the rate they struck white prospective jurors. Richard Bourke, Joe Hingston & Joel Devine, La. Crisis Assistance Ctr., Black Strikes: A Study of the Racially Disparate Use of Peremptory Challenges by the Jefferson Parish District Attorney’s Office 4, 7 (2003). ↑
  11.  See Nancy S. Marder, Justice Stevens, the Peremptory Challenge, and the Jury, 74 Fordham L. Rev. 1683, 1706 (2006) (“Although Batson was an earnest attempt to root out discriminatory peremptories, Batson is so easy to circumvent that it allows a charade in the courtroom. Instead of giving race or gender as a reason for excluding jurors, lawyers can give any other reason no matter how ‘silly or superstitious.’” (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam))). ↑
  12.  People v. Randall, 671 N.E.2d 60, 65 (Ill. App. Ct. 1996). ↑
  13.  See Marder, supra note 11, at 1706. ↑
  14.  Miller-El v. Dretke, 545 U.S. 231, 270 (2005) (Breyer, J., concurring); see also Hoffman, supra note 3, at 829 (“From Reconstruction through the civil rights movement, the peremptory challenge was an incredibly efficient final racial filter.”); Equal Just. Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy 4 (2010) (“[T]here is perhaps no arena of public life . . . where racial discrimination is more widespread, apparent, and seemingly tolerated than in the selection of juries.”). ↑
  15.  See, e.g., Charles J. Ogletree, Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges, 31 Am. Crim. L. Rev. 1099 (1994); Annie Sloan, “What to Do About Batson?”: Using a Court Rule to Address Implicit Bias in Jury Selection, 108 Calif. L. Rev. 233 (2020); Robert T. Prior, The Peremptory Challenge: A Lost Cause?, 44 Mercer L. Rev. 579 (1993); Joshua Revesz, Comment, Ideological Imbalance and the Peremptory Challenge, 125 Yale L.J. 2535 (2016); Jere W. Morehead, When a Peremptory Challenge Is No Longer Peremptory: Batson’s Unfortunate Failure to Eradicate Invidious Discrimination From Jury Selection, 43 DePaul L. Rev. 625 (1994); Alafair S. Burke, Prosecutors and Peremptories, 97 Iowa L. Rev. 1467 (2012); Jeffrey Bellin & Junichi P. Semitsu, Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075 (2011). ↑
  16.  E.g., Hoffman, supra note 3, at 810; Marder, supra note 11, at 1684; LaCrisha L.A. McAllister, Closing the Loophole: A Critical Analysis of the Peremptory Challenge and Why It Should Be Abolished, 48 S.U. L. Rev. 303, 304 (2021); Brent J. Gurney, Note, The Case for Abolishing Peremptory Challenges in Criminal Trials, 21 Harv. C.R.-C.L. L. Rev. 227, 230 (1986); Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 Notre Dame L. Rev. 447, 503 (1996); Batson v. Kentucky, 476 U.S. 79, 102–03 (1986) (Marshall, J., concurring) (“The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.”). ↑
  17.  See, e.g., Broderick, supra note 4, at 399 (suggesting that peremptory challenges contravene the Equal Protection Clause, the Thirteenth Amendment, and the Sixth Amendment). ↑
  18.  Wash. Ct. GR 37. ↑
  19.  Wash. Ct. GR 37(h). ↑
  20.  Wash. Ct. GR 37(h). ↑
  21.  See Wash. Ct. GR 37(c)–(d). ↑
  22.  Wash. Ct. GR 37(i). ↑
  23.  Wash. Ct. GR 37(f). ↑
  24.  Cal. Civ. Proc. Code § 231.7 (West 2025). ↑
  25.  N.J. Stat. Ann § 1:8-3A (West 2025). ↑
  26.  Connecticut Practice Book § 5.12 (2025). ↑
  27.  See Thomas Ward Frampton & Brandon Charles Osowski, The End of Batson? Rulemaking, Race, and Criminal Procedure Reform, 124 Colum. L. Rev. 1, 39–41 (2024). ↑
  28.  See Order Amending Rules 18.4 and 18.5 of the Rules of Criminal Procedure, and Rule 47(e) of the Rules of Civil Procedure, In re Petition to Amend Rules 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure, No. R-21-0020 (Ariz. Aug. 30, 2021), https://www.azcourts.gov/Portals/0/20/2021%20Rules/‌R-21-0020%20Final%20Rules%20Order.pdf?ver=2021-08-31-105653-157 [https://perma.cc‌/R4XA-CKFH]; Ariz. Rev. Stat. Ann. § 18.4–.5 (2025). ↑
  29.  See Frampton & Osowski, supra note 27, at 44 (quoting Telephone Interview by Thomas Ward Frampton & Brandon Charles Osowski with Kevin D. Heade, Chair, Cent. Ariz. Nat’l Laws. Guild (Sept. 22, 2022)). ↑
  30.  Id. at 37–38. ↑
  31.  Id. at 43. ↑
  32.  April J. Anderson, Peremptory Challenges at the Turn of the Nineteenth Century: Development of Modern Jury Selection Strategies as Seen in Practitioners’ Trial Manuals, 16 Stan. J. C.R. & C.L. 1, 5–6 (2020). ↑
  33.  See Frampton & Osowski, supra note 27, at 43 (quoting Charles W. Gurtler, Jr., Comment of the Committee on Superior Court at 3, In re Petition to Amend Rules 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure, No. R-21-0020 (Ariz. Apr. 12, 2021), https://www.azcourts.gov/DesktopModules/ActiveForu‌ms/viewer.aspx?portalid=0&moduleid=23621&attachmentid=9457 [https://perma.cc/EP8P-3‌NEE]). ↑
  34.  Id. at 43–45. ↑
  35.  Id. at 46. ↑
  36.  Richard Lorren Jolly, The Constitutional Right to Peremptory Challenges in Jury Selection, 77 Vand. L. Rev. 1529 (2024). ↑
  37.  Ross v. Oklahoma, 487 U.S. 81, 88 (1988). ↑
  38.  Jolly, supra note 36, at 1535–36. ↑
  39.  Id. at 1537–38 (quoting U.S. Const. amend. VI). ↑
  40.  Id. at 1555. While Jolly concludes that peremptory challenges are also likely secured by the Seventh Amendment in civil trials, this Note is limited to analyzing the constitutional requirements of the Sixth Amendment. ↑
  41.  Frampton & Osowski, supra note 27, at 3. ↑
  42.  See Batson Reform: State by State, Berkeley L. Death Penalty Clinic, https://www.law.be‌rkeley.edu/experiential/clinics/death-penalty-clinic/projects-and-cases/whitewashing-the-jur‌y-box-how-california-perpetuates-the-discriminatory-exclusion-of-black-and-latinx-jurors/ba‌tson-reform-state-by-state/ [https://perma.cc/5LQF-MLA6] (last visited Sept. 28, 2025) (showing that states considering reform include Colorado, Iowa, Kansas, Massachusetts, Mississippi, Missouri, Montana, New York, North Carolina, Oregon, and Utah). ↑
  43.  Jolly, supra note 36, at 1554. ↑
  44.  See infra notes 63, 68–72 and accompanying text. ↑

  45.  See infra notes 161–66 and accompanying text. ↑

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