Balancing Hearsay and Criminal Discovery

and prosecutors. Part I of this Article argues that the conventional theory of hearsaydiscovery balance does not reflect the reality of modem federal practice. An imbalance has arisen because, in the last quarter century, developments in the law of evidence and confrontation are at odds with developments-or one might say nondevelopments-in the law of criminal discovery. Since enactment of the Federal Rules of Evidence in 1975, both the law of evidence and modem Confrontation Clause doctrine have evolved toward broader admission of hearsay in criminal cases. Contrary to conventional theory, that evolution has at least matched-and probably has outpaced-the trend toward more liberal admission of hearsay in civil cases. But while federal courts criminal cases, the rules of criminal discovery show no sign of adapting to that reality. As a result, in comparison to other litigants, federal criminal defendants now face a litigation environment that features both minimum discovery and maximum admissible hearsay. Part II offers some proposals to address that imbalance by expanding a defendant\u27s right to learn in advance what hearsay he must face, and his right to gather ammunition to contest that hearsay. Where appropriate, I have included proposals that would require the amendment of existing rules. But recognizing the practical difficulties facing any rule-making initiative, my principal focus is to suggest more effective means of applying Rule 16, the Jencks Act, and the Brady doctrine-the major discovery tools presently available to criminal defendants-to the task of contesting prosecution hearsay. This Article is not a critique of developments in the law of evidence, nor of the Court\u27s application of the Confrontation Clause to hearsay. It is not an argument that more, or less, hearsay should be admitted in criminal cases. Instead, it takes as a starting point the undeniable reality that, for good or ill, today\u27s federal criminal trials include a wider variety of admissible hearsay than ever before. My aim is to show how the process of criminal discovery can and should adapt to that reality to correct the hearsay-discovery balance when the government relies on hearsay

Confronting the Reluctant Accomplice

The Supreme Court treats the Confrontation Clause as a rule of evidence that excludes unreliable hearsay. But where the hearsay declarant is an accomplice who refuses to testify at defendant\u27s trial, the Court\u27s approach leads prosecutors and defendants to ignore real opportunities for confrontation, while they debate the reliability of hearsay. And even where the Court\u27s doctrine excludes hearsay, it leads prosecutors to purchase the accomplice\u27s testimony through a process that raises equally serious questions of reliability. Thus, the Court\u27s approach promotes neither reliability nor confrontation. This Article advocates an approach that applies the Confrontation Clause to hearsay declarants in much the same way it applies to testifying witnesses. Rather than exclude unreliable hearsay, the Clause guarantees fair adversarial testing of hearsay. Prosecutors cannot introduce accomplice hearsay without using available means to bring about real confrontation. Defendants cannot rely on confrontation rights that they are not willing to exercise. And courts must take a harder look when accomplices assert a blanket right not to testify. Rather than pitting hearsay against confrontation, this approach embraces solutions which allow both hearsay and confrontation

The Breard Case and the Virtues of Forbearance

At a time when the scheduled execution of Angel Francisco Breard made Virginia the focus of a groundbreaking controversy over the reach of internationallaw into the domestic criminal process of the United States, law students and faculty at the University of Richmond had the unique opportunity to consider the case along with Philippe Sands, then a Visiting Allen Chair Professor at the University

Balancing Hearsay and Criminal Discovery

and prosecutors. Part I of this Article argues that the conventional theory of hearsaydiscovery balance does not reflect the reality of modem federal practice. An imbalance has arisen because, in the last quarter century, developments in the law of evidence and confrontation are at odds with developments-or one might say nondevelopments-in the law of criminal discovery. Since enactment of the Federal Rules of Evidence in 1975, both the law of evidence and modem Confrontation Clause doctrine have evolved toward broader admission of hearsay in criminal cases. Contrary to conventional theory, that evolution has at least matched-and probably has outpaced-the trend toward more liberal admission of hearsay in civil cases. But while federal courts criminal cases, the rules of criminal discovery show no sign of adapting to that reality. As a result, in comparison to other litigants, federal criminal defendants now face a litigation environment that features both minimum discovery and maximum admissible hearsay. Part II offers some proposals to address that imbalance by expanding a defendant\u27s right to learn in advance what hearsay he must face, and his right to gather ammunition to contest that hearsay. Where appropriate, I have included proposals that would require the amendment of existing rules. But recognizing the practical difficulties facing any rule-making initiative, my principal focus is to suggest more effective means of applying Rule 16, the Jencks Act, and the Brady doctrine-the major discovery tools presently available to criminal defendants-to the task of contesting prosecution hearsay. This Article is not a critique of developments in the law of evidence, nor of the Court\u27s application of the Confrontation Clause to hearsay. It is not an argument that more, or less, hearsay should be admitted in criminal cases. Instead, it takes as a starting point the undeniable reality that, for good or ill, today\u27s federal criminal trials include a wider variety of admissible hearsay than ever before. My aim is to show how the process of criminal discovery can and should adapt to that reality to correct the hearsay-discovery balance when the government relies on hearsay

Fatal Attraction? The Uneasy Courtship of Brady and Plea Bargaining

Part I of this Article discusses the natural attraction between Brady-a rule requiring disclosure of evidence favorable to a defendant-and plea bargaining-a practice where such information is at a premium for defendants. Part II describes how an increasing number of courts have adapted Brady to fit in the world of a plea bargain, in the process changing Brady\u27s point of reference from the jury\u27s verdict to the defendant\u27s tactical decision to plead guilty. Part ill argues that this change in focus narrows Brady\u27s substantive coverage and renders the rule practically unenforceable following most guilty pleas. Part IV then assesses the value of that diluted version of Brady in relation to the principal goals that rules of disclosure should serve in plea bargaining: the goals of insuring accuracy in guilty pleas and informed choices in bargaining. Brady serves neither goal very well and, ironically, may even stand in the way of disclosure in cases where it is most needed. Finally, Part V considers the potential impact of Brady waivers, explicit provisions in plea agreements that purport to waive Brady disclosure as a condition of the agreement. The waiver process itself may offer more meaningful protection for defendants than a doctrine allowing after-the-fact challenges based on claims of before-the-plea Brady violations. In my view, the unresolved debate over finality and disclosure-the debate that has split the federal circuits-is largely an exercise in futility. I do not believe that the accuracy or fairness of plea bargaining gains anything even if Brady survives a guilty plea. When we allow post-plea Brady challenges, we sacrifice finality to little effect; defendants receive only an illusion of protection in the exchange. We would do better to look for other approaches that do not pit the defendant\u27s interest in disclosure against the finality of a guilty plea. If we are serious about informing defendants during plea bargaining, then we should address the problem of disclosure when it matters most: before the plea

Jimmy Hoffa\u27s Revenge: White-Collar Rights Under the McDade Amendment

I begin the Essay with a bit of comparative history. In Part I, I describe the death and burial of the Sixth Amendment no-contact rule espoused by Jimmy Hoffa. In Part II, I contrast the birth and expansion of an extra-constitutional no-contact rule under Model Rule 4.2 and the McDade Amendment. I begin with these contrasting histories because I believe they illustrate two critical points about the no-contact rule in criminal investigations. First, despite its place in codes of ethics, the no-contact rule in criminal investigations has little to do with ethics. Instead, today\u27s debate over Rule 4.2 is simply the latest chapter in a debate over what is, and what is not, a fair tactic of criminal investigation - a debate that began even before Hoffa\u27s case. Second, this comparative history illustrates that, when it comes to shielding suspects from direct contacts with investigators, we treat whitecollar suspects much more favorably than others, and we treat corporations more favorably than anyone. And that comparison leads to the central questions of Part III: Why should we treat white-collar suspects so differently? And, when we apply a broad no-contact rule to corporations, whose interests are we really protecting

Confronting Death: Sixth Amendment Rights at Capital Sentencing

The Court\u27s fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest on an originalist interpretation of the Sixth Amendment, my thesis relies largely on history, a history that today is well documented by leading legal historians(30) but has been ignored or misread by the Court in fashioning its separate world of capital sentencing rights. Two aspects of that history are central to my argument: (1) unitary capital trials conducted as full adversarial proceedings, and (2) jury verdicts that determined life or death

Jimmy Hoffa\u27s Revenge: White-Collar Rights Under the McDade Amendment

I begin the Essay with a bit of comparative history. In Part I, I describe the death and burial of the Sixth Amendment no-contact rule espoused by Jimmy Hoffa. In Part II, I contrast the birth and expansion of an extra-constitutional no-contact rule under Model Rule 4.2 and the McDade Amendment. I begin with these contrasting histories because I believe they illustrate two critical points about the no-contact rule in criminal investigations. First, despite its place in codes of ethics, the no-contact rule in criminal investigations has little to do with ethics. Instead, today\u27s debate over Rule 4.2 is simply the latest chapter in a debate over what is, and what is not, a fair tactic of criminal investigation - a debate that began even before Hoffa\u27s case. Second, this comparative history illustrates that, when it comes to shielding suspects from direct contacts with investigators, we treat whitecollar suspects much more favorably than others, and we treat corporations more favorably than anyone. And that comparison leads to the central questions of Part III: Why should we treat white-collar suspects so differently? And, when we apply a broad no-contact rule to corporations, whose interests are we really protecting