JUSTICE BEGINS BEFORE TRIAL: HOW TO NUDGE INACCURATE PRETRIAL RULINGS USING BEHAVIORAL LAW AND ECONOMIC THEORY AND UNIFORM COMMERCIAL LAWS.

• Author: Gentithes, Michael

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. They were thus admissible against Devin under the co-conspirator exception to the hearsay rule. (1)

This problem illustrates a quagmire criminal judges often face: When are an alleged co-conspirator's statements admissible at a defendant's trial? If the co-conspirator refuses to testify, then his conversations with others are hearsay--unless, under Federal Rule of Evidence (FRE) 801(d)(2)(E) and its state analogues, those conversations were made "during and in furtherance of th[at] conspiracy." (2) That vague language is difficult to apply in muddled fact patterns, such as cases in which statements were made after the defendant was expressly disavowed from the conspiracy. (3)

Co-conspirator hearsay issues are one type of many vexing pretrial evidentiary decisions that have dramatic effects on the outcome of a criminal case. (4) Those rulings often dictate which charges the State will pursue. In the vast majority of cases, those rulings establish a baseline for plea bargains that resolve the litigation. (5) For those cases that go to a jury, pretrial evidentiary rulings control the narrative jurors will construct from the evidence, determining the course of litigation and the range of counts upon which the jury will deliberate. (6)

Behavioral law and economic theory accurately predict that such pretrial evidentiary rulings are a cognitive minefield where intuitive "System 1" thinking predominates over deliberative "System 2" reasoning. (7) Criminal judges have punishingly crowded dockets that overburden their cognitive capacities. (8) They also receive precious little guidance on these discretionary issues from higher courts. (9) Yet they must somehow quickly and accurately resolve questions like the co-conspirator hearsay problem above to avoid interminable delays in the cases they handle.

Busy criminal judges faced with these difficult pretrial evidentiary issues tend to rely on intuitive judgments, rather than on deliberative reasoning, to reach rapid rulings. (10) Judgments based upon intuitive heuristics are subject to a plethora of cognitive biases that undermine their reliability. (11) For instance, a judge might rely too much on hindsight to conclude erroneously that the harm a conspiracy would work upon victims was inevitable. (12) Therefore, the judge finds that a defendant's participation in that conspiracy's early activities renders him liable for everything that co-conspirators later did or said, irrespective of his withdrawal or excommunication. (13)

Overreliance on intuition generates inconsistencies in judges' decisions on issues like the co-conspirator hearsay exception. (14) Enterprising prosecutors have capitalized on those inconsistencies to expand the scope of such evidentiary exceptions. (15) Thus, although intuitive evidentiary rulings expedite criminal dockets and preserve judges' analytical capacities, they carry unacceptable costs for criminal justice.

I offer an alternative decision-making path for criminal judges that will restore much-needed consistency to their pretrial rulings, at least in the area of co-conspirator hearsay. By turning to principles contained in uniform commercial laws, criminal judges can fashion normatively sound decision-making models to resolve coconspirator hearsay questions without bringing the machinery of the criminal justice system to a stand still. (16) Multi-factor scripts and checklists can disrupt judges' unexamined reliance upon intuition and encourage deliberative thinking on especially difficult questions. (17) They can guide judges to ask the right questions about a case, leaving room for individual judgment once their deliberative faculties are triggered. (18) By relying on the multi-factored, rule-based thinking required to analyze problems under uniform commercial laws, judges can reduce their dependence on intuitive heuristics with questionable normative bases, (19) yet still find consistent answers relatively quickly. (20) In turn, judges can check the growth of evidentiary exceptions that largely favor prosecutors and preserve the judges' intellectual capital for the ultimate issues of guilt or innocence in the case. (21)

Uniform commercial laws are ripe for application to co-conspirator hearsay questions. Conspiratorial agreements are surprisingly similar to existing commercial arrangements subject to those uniform laws. (22) The authors of those laws sought to enhance the predictability of arms-length economic transactions in part by ensuring that the proper parties within an amorphous, opaque, profit-driven commercial organization are liable for that organization's actions. (23) Similarly, judges can apply uniform commercial law in the criminal context to ensure that the proper party in an amorphous, opaque, profit-driven conspiracy is criminally liable for the illicit activities the conspiracy undertakes. (24) Furthermore, judges can apply those laws through decision trees and checklists that reduce reliance upon intuition in favor of more accurate, deliberative thinking. (25) Because conspiratorial arrangements may reflect new ideas in the organizational structure of a profit-motivated organization, the application of uniform bodies of commercial law to those conspiratorial arrangements can also aid the development of commercial legal theory. (26)

When conspiratorial arrangements are sufficiently analogous to commercial arrangements, criminal judges should apply those uniform commercial laws to resolve co-conspirator hearsay issues. (27) As an example, both the Revised Uniform Partnership Act (RUPA) and the Uniform Commercial Code (UCC) provide ready answers to the hypothetical scenario outlined at the beginning of this Introduction. As detailed further below, (28) RUPA section 703's rule on the liability of a dissociated partner and UCC section 3-403's treatment of the effect of an unauthorized signature each counsel against admitting Andy's and Brian's statements in Devin's trial. (29)

I begin the Article with a discussion of the history and mechanics of the co-conspirator exception to the hearsay rule.'" Next, I discuss how judges typically rely on intuitive judgments rather than on deliberative reasoning to resolve questions under that rule, a dangerous precedent under the theories promulgated by the behavioral law and economics movement. (31) I then argue that uniform commercial law concepts can provide a needed decision-making model for overworked criminal judges facing co-conspirator hearsay questions while preserving neutrality in pretrial evidentiary rulings. (32) Next, I provide...