John Siffert and Ben Schwartz have published an article in the August issue of NACDL’s The Champion examining why defense counsel should continue to develop the scope of Peña-Rodriguez v. Colorado and, where appropriate, invoke the racial bias exception to challenge adverse jury verdicts.

Their article comes in the wake of the Judicial Advisory Committee on Evidence Rules’ May 2026 public meeting, at which the Committee tabled a proposal to amend Federal Rule of Evidence 606(b) to create a new racial bias exception to the rule’s general bar on juror testimony about deliberations in post-verdict proceedings.

Although the Committee acknowledged the Supreme Court’s narrow racial bias exception recognized in Peña-Rodriguez, its public discussion reflected a broad view that courts are already applying the decision appropriately. Members also expressed concern that either version of the proposed amendment could have unintended consequences.

Siffert and Schwartz explain why the Committee’s decision should not discourage defense counsel from continuing to press Peña-Rodriguez where the facts support it.