Justice Begins before Trial: How to Nudge Inaccurate Pretrial Rulings Using Behavioral Law and Economic Theory and Uniform Commercial Laws

By Gentithes, Michael | William and Mary Law Review, May 2019 | Go to article overview

Justice Begins before Trial: How to Nudge Inaccurate Pretrial Rulings Using Behavioral Law and Economic Theory and Uniform Commercial Laws


Gentithes, Michael, William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                                2188   I. THE HISTORY AND MECHANICS OF THE CO-CONSPIRATOR      EXCEPTION                                              2196  II. INTUITION AND PRETRIAL EVIDENTIARY RULINGS             2198      A. Criminal Judges' Heavy Dockets                      2199      B. Judicial Reliance on Flawed Intuition               2200      C. Intuition and Inconsistency on Co-Conspirator         Hearsay Issues                                      2203 III. THE NUDGE TOWARD DELIBERATIVE REASONING:      APPLYING UNIFORM COMMERCIAL LAW CONCEPTS TO      THE CO-CONSPIRATOR EXCEPTION                           2209      A. Uniform Commercial Laws and Predictability          2210      B. Uniform Commercial Laws' Applicability to Illicit         and Licit Profit-Motivated Organizations            2215      C. How Uniform Commercial Laws Engage Judges'         Deliberative Faculties                              2218  IV. COMMERCIAL LAW RESOLUTIONS TO COMMON      CO-CONSPIRATOR EXCEPTION PROBLEMS                      2224      A. Concealing a Dissolved Conspiracy                   2224      B. Transactions Unauthorized by a Former         Co-Conspirator                                      2227      C. Collateral Agreements to a Conspiracy               2230      D. Guarantees Among Co-Conspirators                    2232   V. LIMITATIONS AND LIKELY OBJECTIONS                      2233      A. Fear of the Mechanical Judge                        2233      B. The Limited Applicability of Uniform Commercial         Laws                                                2235      C. The Complexity of Uniform Commercial Laws           2235 CONCLUSION                                                  2237 

INTRODUCTION

Andy, Brian, and Devin, longtime cops in the outwardly sleepy town of Anytown, decided to spice things up on routine drug busts. They started small, taking home a dime-bag of marijuana here, selling a few seized pills of ecstasy there. But things changed when a raid led them to arrest Isaac, Devin's old high school football teammate and a major player in Anytown's nascent drug scene. Devin convinced Isaac that he would cut his old friend a break if Isaac would do him just one favor: act as a fence and resell seized drugs for the fledgling criminal enterprise.

Isaac began funneling a growing pipeline of drugs into the black market. Profits grew as Isaac brought heaps of recycled contraband onto Anytown's streets. But trouble loomed. Isaac was picked up on another case that could put him away for years, this time while driving in a nearby county with an unlicensed gun. Unless, the friendly arresting officer suggested, Isaac had information on Anytown's burgeoning drug trade.

Isaac quickly flipped against the corrupt officers and began wearing a wire to their meetings. The case against Andy and Brian solidified; on the wire, they boasted about their drug heists and the prices they hoped Isaac could fetch on resale. But for some reason, Devin stopped attending the meetings. He even texted Isaac to say they might not see each other for a while. When Isaac asked the others about Devin, they insisted he was just overloaded with "official duties" from their pig-headed Chief.

On the next delivery to Isaac, an ambitious prosecutor decided to spring the trap against the crooked cops. The prosecutor caught Andy and Brian red-handed with seized drugs that never made it to the evidence locker. The two quickly accepted plea deals, but they refused to implicate Devin. In fact, both said Devin was too undisciplined to be invited into their scheme, claiming they only told Isaac that his good friend Devin was involved to gain Isaac's trust.

The prosecutor, determined not to let Devin walk, sought to admit Andy's and Brian's recorded conversations against Devin. She argued that the three cops were longtime co-conspirators, and the recorded conversations were made "during the course of" and "in furtherance of" that conspiracy. …

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