William & Mary Law Review


Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor defendants. Such intuitive, inconsistent decision-making thereby undermines criminal justice before trial even starts.

In this Article, I argue that criminal judges can rely on an alternative model to decide an especially vexing pretrial evidentiary issue—the admissibility of a co-conspirator’s hearsay statement at the defendant’s trial. Judges can look to principles in uniform commercial laws to resolve this issue in a more deliberative fashion. Uniform commercial laws predictably, accurately, and simply allocate individual liability for the actions of opaque, profit-driven commercial organizations. Those laws can likewise allocate individual liability among members of analogous conspiratorial organizations. Because those laws are also reducible to decision trees and checklists that encourage deliberative reasoning while still generating relatively fast decisions, judges can rely upon them to produce fair results without bringing their dockets to a standstill.

I provide several examples of situations in which illicit organizations are sufficiently analogous to commercial organizations for judges to apply uniform commercial laws when resolving coconspirator hearsay issues. When judges do so, they will check the growth of anti-defendant evidentiary exceptions. Critically, they will also increase the likelihood of just outcomes in criminal cases once the trial begins.