Evidence Rules for Decarceration

24 Pages Posted: 28 Apr 2023

See all articles by Erin Collins

Erin Collins

University of Richmond School of Law

Date Written: April 2023

Abstract

Two observations about the operation of the criminal legal system are so widely accepted that they are seem undeniable: First, it is a system of pleas, not trials. Second, the system is too punitive and must be reformed. One could easily think, therefore, that the Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution. And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, broad criminal statutes), and back end reforms that that seek to lessen the toll of punitive policies (sentencing reform, alternatives to incarceration), markedly fewer have explored how what happens in the middle — adjudication — contributes to mass incarceration.

While this oversight makes sense, it is not justified because it is also equally undeniable that plea bargaining happens in the shadow of trial. This Essay examines how the shadow of trial — specifically, the shadow cast by evidentiary rulings about the accused person’s past — contributes to the perpetuation of an expansive carceral state. It identifies how evidence rules have been relaxed, tweaked, specialized, or unmoored from their foundational principles in ways that facilitate prosecution and conviction or essentially force plea deals – without regard for the truth, fairness, or justice of the outcome. In other words, it identifies ways that evidence law undermines the Rules’ primary purpose, which is to advance fair proceedings “to the end of ascertaining the truth and securing a just determination.”

Suggested Citation

Collins, Erin, Evidence Rules for Decarceration (April 2023). Fordham Urban Law Journal, Vol. 50, 2023, Available at SSRN: https://ssrn.com/abstract=4421585

Erin Collins (Contact Author)

University of Richmond School of Law ( email )

203 Richmond Way
Richmond, VA 23173
United States

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