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Evidence Law in the Age of Plea Bargaining

[I]t’s part of this legal system that one is condemned when one is not only innocent, but also ignorant.1 1.Franz Kafka, The Trial 40 (Mike Mitchell trans., Oxford Univ. Press 2009) (1925).Show More

Introduction

The U.S. Supreme Court’s landmark decision in Brady v. Maryland established the due process requirement that the prosecution disclose material “evidence favorable to an accused.”2 2.373 U.S. 83, 87 (1963). In 1972, the Supreme Court broadened this rule to include some impeachment material. See Giglio v. United States, 405 U.S. 150, 154 (1972).Show More But on December 5, 2022, the promise of Brady reached a legal impasse: the Court denied certiorari in Mansfield v. Williamson County,3 3.30 F.4th 276 (5th Cir. 2022), cert. denied, 143 S. Ct. 486 (2022).Show More leaving unresolved the pressing question of whether Brady’s obligations extend to the plea bargaining stage or apply only at trial.4 4.Id. at 282 & n.9 (Higginbotham, J., concurring) (presenting the circuit split on this issue).Show More The case of Troy Mansfield poignantly illustrates what’s at stake.5 5.See Eza Bella Zakirova, Is It Rational or Not?: When Innocents Plead Guilty in Child Sex Abuse Cases, 82 Alb. L. Rev. 815, 833 n.102 (2019) (detailing the factual background of the Troy Mansfield case).Show More

Proceedings against Troy Mansfield commenced in 1992, when he was charged in Williamson County, Texas, with first-degree aggravated sexual assault and indecency with a child following allegations that he had molested a four-year-old girl. He was twenty-five years old at the time. The prosecutors in Mansfield’s case had evidence that seriously undermined the victim’s credibility and raised doubts about his guilt. Rather than presenting this crucial evidence to Mansfield, the prosecution chose to make an enticing plea offer: 120 days in county jail, ten years of probation, and sex offender registration in exchange for a guilty plea to a lesser charge. Given the alternative of a ninety-nine-year-to-life sentence, Mansfield opted to accept the deal and pleaded guilty. It was nearly a quarter of a century later, in 2014, that Mansfield finally managed to obtain access to the prosecution’s file, where he discovered the favorable evidence that had been withheld from him.6 6.Id.Show More With this newfound information, a Williamson County judge vacated his conviction in 2016.7 7.Ex parte Mansfield, No. 92-435-K277A (Tex. Jud. Dist. Ct. Jan. 19, 2016).Show More However, the damage had already been done. Mansfield spent years of his life labeled a convicted sex offender because of a plea agreement obtained through the suppression of exculpatory evidence, conduct that would have constituted a Brady due process violation had the case proceeded to trial.8 8.Although the court in Mansfield did not decide whether there had been a Brady violation since Mansfield’s case never reached trial, it seems uncontroversial to conclude that the prosecution here withheld material exculpatory evidence upon request. See Mansfield, 30 F.4th at 277–78; Brady v. Maryland, 373 U.S. 83, 87–88 (1963); see also Ex parte Mansfield, slip op. at 5 (holding, independently and by State concession, that the prosecution’s withholding of the victim’s interview notes violated Brady); Sela Brown, Brady in the Plea Era: How U.S. v. Ruiz Should Be Reconstrued in Light of Missouri v. Frye and Lafler v. Cooper, 27 Berkeley J. Crim. L. 1, 3 (2022) (discussing the government’s affirmative duty to share exculpatory and impeachment evidence with the defendant under Brady v. Maryland).Show More

Mansfield’s case underscores a profound tension: while the Brady doctrine mandates the disclosure of favorable evidence material to guilt or punishment, its application has been narrowly interpreted by some courts, notably the Fifth Circuit, as confined to the trial stage.9 9.Alvarez v. City of Brownsville, 904 F.3d 382, 392 (5th Cir. 2018) (en banc). There are federal courts of appeals that have recognized prosecutors’ constitutional obligation to reveal exculpatory evidence to defendants before a guilty plea. See Laura Falk, Note, Brady Rights in a System of Pleas: Analyzing the Ninth Circuit’s “Apparent Position,” 67 Ariz. L. Rev. 241, 246–51 (2025); Michael Nasser Petegorsky, Note, Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining, 81 Fordham L. Rev. 3599, 3625–31 (2013).Show More Consequently, when Mansfield sought civil redress for the earlier suppression, his case was dismissed, a decision the Fifth Circuit upheld, cementing its stance that Brady does not govern the plea bargaining stage.10 10.Mansfield, 30 F.4th at 281; see also Matthew v. Johnson, 201 F.3d 353, 361–62 (5th Cir. 2000) (stating that a Brady violation requires a trial); United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009) (per curiam) (noting that there can be no Brady violation with a guilty plea).Show More The subsequent petition for certiorari, supported by amicus briefs from legal scholars and civil rights organizations, challenged this restrictive interpretation.11 11.Petition for a Writ of Certiorari at 23–25, Mansfield v. Williamson County, 143 S. Ct. 486 (2022) (No. 22-186); Brief of Amici Curiae Law Professors in Support of Petitioner Troy Mansfield at 6–16, Mansfield, 143 S. Ct. 486 (No. 22-186); Brief of Amicus Curiae Professor Colin Miller in Support of Petitioner at 13–14, Mansfield, 143 S. Ct. 486 (No. 22-186); Brief of the Cato Institute as Amicus Curiae Supporting Petitioner at 13–14, Mansfield, 143 S. Ct. 486 (No. 22-186).Show More The Supreme Court’s decision not to grant review effectively maintained the status quo, leaving unresolved the crucial constitutional question of Brady’s reach in the dominant plea bargaining system.12 12.See Montré D. Carodine, Keeping It Real: Reforming the “Untried Conviction” Impeachment Rule, 69 Md. L. Rev. 501, 516 (2010) (noting based on data from 2004 that ninety-seven percent of felony convictions in the seventy-five most populous counties in the United States were obtained through guilty pleas (citing Tracey Kyckelhahn & Thomas H. Cohen, Bureau of Just. Stat., U.S. Dep’t of Just., Felony Defendants in Large Urban Counties, 2004, at 1, 3 (2008), https://static.prisonpolicy.org/scans/bjs/fdluc04.pdf [https://pe‌rma.cc/P4MD-8EKP])); see also Darryl K. Brown, Response, What’s the Matter with Kansas—and Utah?: Explaining Judicial Interventions in Plea Bargaining, 95 Tex. L. Rev. See Also 47, 62 (2017) (noting that some jurisdictions resolved ninety-nine percent of criminal cases with plea agreements).Show More

To further illustrate the limitations of a trial-centric model,13 13.Brady’s disclosure obligations are firmly established within criminal procedure, so their invocation as an example of evidence law’s trial-centricity may prompt hesitation. Yet it is precisely this distinction between a “disclosure right” and a “trial right,” as well as the location of Brady in the realm of criminal procedure—in contradistinction to evidence law—that exemplifies the rigid and deeply ingrained trial-centric architecture of evidentiary doctrine. This Article seeks to interrogate this “division of labor” between evidence law and criminal procedure, exposing it as neither natural nor inevitable, but as a historically manufactured framework that essentially confines evidence law to the stage and formalities of trial. See infra Part I. It is this foundational assumption, that evidence law properly concerns only the regulated drama of the courtroom, that this Article aims to unsettle and ultimately transcend by extending evidentiary principles to the plea stage, where the most determinative decisions concerning conviction and punishment currently occur. See supra note 12 (detailing the dominance of plea bargaining in the current criminal justice system).Show More consider the not infrequent scenario in which law enforcement obtains evidence without a valid warrant or elicits a confession through problematic interrogation tactics.14 14.See Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far?, 99 Mich. L. Rev. 1168, 1168 (2001) (“Virtually all interrogations—or at least virtually all successful interrogations—involve some deception.”); Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425, 425–26 (1996) (observing that lies to induce confessions are commonly reported and discussing some situations in which police avoid getting a proper warrant).Show More Rather than risking challenges to the evidence’s admissibility and the exposure of the unlawful conduct at trial or during pre-trial suppression hearings, prosecutors may offer attractive plea deals.15 15.See Inga Ivsan, To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial System of Justice, 39 N.C. Cent. L. Rev. 135, 137 & n.9 (2017) (citing James F. Parker, Plea Bargaining, 1 Am. J. Crim. L. 187, 204 (1972) (observing that prosecutors may offer especially favorable plea deals to insulate constitutionally defective evidence of questionable admissibility from judicial scrutiny)).Show More Defendants, especially those facing severe penalties, may feel compelled to accept such deals, waiving the opportunity to effectively review the evidence against them.16 16.See id. at 137 (“A defendant arrested on the basis of illegally obtained evidence, and facing the threat of significant jail time, may be pressured to accept a plea agreement without having had any opportunity to review evidence meaningfully.”); id. at 145 (“The plea bargain process enables prosecutors to act on what would otherwise be inadmissible evidence at trial . . . .”).Show More This dynamic means that the exclusionary rule, rather than serving as a robust constitutional safeguard, becomes a “sliding scale of constitutionality,”17 17.Parker, supra note 15, at 205.Show More calibrated more by prosecutorial leverage at plea bargaining than by legal standards and judicial scrutiny.

The trial-centric orientation of evidence law, which treats the trial as the locus of evidentiary regulation and as the primary site of its application,18 18.In the words of Michael Pardo, “The law of evidence regulates the admissibility, the permissible uses, and (to a lesser extent) the weight of evidence in civil and criminal trials.” Michael S. Pardo, Some Remarks on the Importance of Evidence Outside of Trials, 36 Rev. Litig. 443, 443 (2016) (emphasis added).Show More creates a fundamental disconnect between legal doctrine and the realities of the criminal justice system. Such trial fixation reinforces an outdated model of evidence law, one premised on the now-fictional notion that trials remain the central venue of criminal case disposition.19 19.See, e.g., Russell M. Gold, Power Over Procedure, 57 Wake Forest L. Rev. 51, 113 (2022) (“Defendants need not have robust opportunities to discover documentary evidence against them pretrial or depose witnesses, including their accusers, because trial provides the core protection for defendants, the story goes.” (footnote omitted)).Show More The scenarios discussed above highlight the urgent need to rethink this structure and adapt it to a legal landscape where convictions are overwhelmingly secured outside the trial setting.20 20.See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 87 (rev. ed. 2011) (“Nearly all criminal cases are resolved through plea bargaining . . . .”); supra note 12.Show More Absent such adaptation, the power of evidentiary safeguards risks vanishing alongside the trial itself.

More than a quarter of a century ago, Mirjan Damaška diagnosed a fundamental crisis in the world of evidence law. In his seminal book Evidence Law Adrift, he situated the institution of evidence law within the realm of trial.21 21.Mirjan R. Damaška, Evidence Law Adrift 4 (1997) [hereinafter Damaška, Evidence Law Adrift] (identifying the jury trial, temporal concentration of proceedings, and adversarial factfinding as the foundations sustaining common law rules of evidence).Show More Observing the steady decline of courtroom proceedings and fundamental trial elements, Damaška identified “currents of change . . . sweeping” evidence law from its traditional moorings.22 22.Id. at 6.Show More He argued that, in a post-trial world, the institution of evidence law has been “deprived of a convincing theoretical basis,”23 23.Id. at 142.Show More calling into question its increasingly untethered role.24 24.In Damaška’s words, evidence rules are in “danger of becoming antiquated period pieces, intellectual curiosa confined to an oubliette in the castle of justice.” Id. For a similar account of Damaška’s argument, along with a rebuttal that seeks to sever the link he draws between the decline of trials and the erosion of evidence law, see Samuel R. Gross, Law in the Backwaters: A Comment on Mirjan Damaška’s Evidence Law Adrift, 49 Hastings L.J. 369, 369–71 (1998).Show More This Article heeds Damaška’s invitation, not by contesting the relevance of evidence law in an era of vanishing trials, but by challenging the trial-centric paradigm that has long shaped its contours and evolution. It advocates for a radical reimagining of evidence law through its proposed reorganization around pleas and plea bargaining (hereinafter referred to as the pre-plea stage).

The Article proceeds as follows. Part I traces the historical and jurisprudential foundations underlying evidence law’s trial-centricity, locating them in three places: (1) evidence law’s very emergence as a legal institution in the Anglo-American world, (2) against the backdrop of a functional dichotomy between investigation and adjudication, and (3) within the corresponding diminishment of the fact-finder’s investigative capacities. This transformation was catalyzed by two historical developments: the reform of the jury system in the sixteenth and seventeenth centuries and the ascendancy of the adversarial trial in the eighteenth and nineteenth centuries. This Part demonstrates how these historical contingencies delineated the boundaries of evidence law and established trial as its primary site—a framework that persists to this day, continuing to limit our legal imagination and to shape both legal doctrine and scholarly discourse.

Part II offers a descriptive account of the decline of criminal trials in the United States, tracing the rise of plea bargaining to the post-1960s explosion in criminal caseloads and to the doctrinal entrenchment of pleas in Santobello v. New York.25 25.404 U.S. 257, 260 (1971).Show More The transformation of plea bargaining from an informal prosecutorial practice into the primary mechanism for criminal case resolution effectively collapsed the structural and functional divide between investigation and adjudication.

Part III is dedicated to the normative argument. It begins by challenging the common wisdom that the (re)consolidation of adjudicative and investigative capacities in the hands of the prosecutor under plea bargaining signifies a regression to inquisitorial logic and a reversion to the legal environment that predated the emergence of evidence law as an institutional framework in the Anglo-American world. Instead, this Part shows that plea bargaining radically intensifies adversarialism, amplifying partisan advocacy and thereby reinforcing, rather than undermining, the rationale for evidentiary regulation. The discussion calls for extending core evidentiary constructs—such as admissibility, sufficiency, confrontation, cross-examination, and testimony—to the pre-plea stage, where decisions about guilt and punishment are effectively made. This Part concludes by proactively addressing four principal objections that may be leveled against extending evidentiary regulation beyond the courtroom: (1) that rules of evidence applied at trial already effectively regulate the pre-plea stage, given that plea bargains are negotiated in the “shadow of trial”; (2) that trials continue to function as the principal sites of adjudication even within a plea-dominated system by virtue of the formal in-court confession that concludes the plea process; (3) the mirror-image claim that pleas are voluntary agreements rather than factfinding exercises, so their legitimacy derives from the defendant’s consent, not from evidentiary integrity; and (4) that extending evidentiary regulation to the pre-plea stage risks generating deep structural distortions by altering the distribution of error across the criminal justice system, reshaping the incentives of key players, and placing additional pressure on the system’s (already strained) judicial economy.

Part IV is prescriptive in nature and translates the normative framework into a set of concrete doctrinal proposals. It outlines evidentiary safeguards specifically tailored for the pre-plea phase, offering a vision of evidence law reimagined beyond the trial’s traditional boundaries. These proposals include: (1) Mandatory pre-plea evidentiary hearings modeled on prevailing preliminary and suppression hearings but repositioned to occur before plea rather than before trial. These hearings are intended to ensure that plea agreements do not insulate unlawfully obtained evidence and to enforce a minimal standard of proof for a negotiated conviction. (2) Extension of Crawford confrontation rights to the pre-plea stage,26 26.The idea of extending evidentiary protections beyond trial has been compellingly articulated by William Ortman in Confrontation in the Age of Plea Bargaining, 121 Colum. L. Rev. 451, 453 (2021) [hereinafter Ortman, Confrontation]. Ortman’s proposal is discussed in detail in Part IV.Show More allowing defendants to depose and cross-examine key witnesses prior to pleading. This measure would ensure that the factual foundations of negotiated convictions are subjected to meaningful adversarial testing. (3) Extension of Brady obligations to mandate that the prosecution’s entire case file be disclosed to the accused before any plea agreement can be finalized. In essence, this proposal suggests that all relevant evidence be “admitted” into the plea bargaining process, where it serves as the currency shaping the terms of agreement.

  1.  Franz Kafka, The Trial 40 (Mike Mitchell trans., Oxford Univ. Press 2009) (1925). ↑
  2.  373 U.S. 83, 87 (1963). In 1972, the Supreme Court broadened this rule to include some impeachment material. See Giglio v. United States, 405 U.S. 150, 154 (1972). ↑
  3.  30 F.4th 276 (5th Cir. 2022), cert. denied, 143 S. Ct. 486 (2022). ↑
  4.  Id. at 282 & n.9 (Higginbotham, J., concurring) (presenting the circuit split on this issue). ↑
  5.  See Eza Bella Zakirova, Is It Rational or Not?: When Innocents Plead Guilty in Child Sex Abuse Cases, 82 Alb. L. Rev. 815, 833 n.102 (2019) (detailing the factual background of the Troy Mansfield case). ↑
  6.  Id. ↑
  7.  Ex parte Mansfield, No. 92-435-K277A (Tex. Jud. Dist. Ct. Jan. 19, 2016). ↑
  8.  Although the court in Mansfield did not decide whether there had been a Brady violation since Mansfield’s case never reached trial, it seems uncontroversial to conclude that the prosecution here withheld material exculpatory evidence upon request. See Mansfield, 30 F.4th at 277–78; Brady v. Maryland, 373 U.S. 83, 87–88 (1963); see also Ex parte Mansfield, slip op. at 5 (holding, independently and by State concession, that the prosecution’s withholding of the victim’s interview notes violated Brady); Sela Brown, Brady in the Plea Era: How U.S. v. Ruiz Should Be Reconstrued in Light of Missouri v. Frye and Lafler v. Cooper, 27 Berkeley J. Crim. L. 1, 3 (2022) (discussing the government’s affirmative duty to share exculpatory and impeachment evidence with the defendant under Brady v. Maryland). ↑
  9.  Alvarez v. City of Brownsville, 904 F.3d 382, 392 (5th Cir. 2018) (en banc). There are federal courts of appeals that have recognized prosecutors’ constitutional obligation to reveal exculpatory evidence to defendants before a guilty plea. See Laura Falk, Note, Brady Rights in a System of Pleas: Analyzing the Ninth Circuit’s “Apparent Position,” 67 Ariz. L. Rev. 241, 246–51 (2025); Michael Nasser Petegorsky, Note, Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining, 81 Fordham L. Rev. 3599, 3625–31 (2013). ↑
  10.  Mansfield, 30 F.4th at 281; see also Matthew v. Johnson, 201 F.3d 353, 361–62 (5th Cir. 2000) (stating that a Brady violation requires a trial); United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009) (per curiam) (noting that there can be no Brady violation with a guilty plea). ↑
  11.  Petition for a Writ of Certiorari at 23–25, Mansfield v. Williamson County, 143 S. Ct. 486 (2022) (No. 22-186); Brief of Amici Curiae Law Professors in Support of Petitioner Troy Mansfield at 6–16, Mansfield, 143 S. Ct. 486 (No. 22-186); Brief of Amicus Curiae Professor Colin Miller in Support of Petitioner at 13–14, Mansfield, 143 S. Ct. 486 (No. 22-186); Brief of the Cato Institute as Amicus Curiae Supporting Petitioner at 13–14, Mansfield, 143 S. Ct. 486 (No. 22-186). ↑
  12.  See Montré D. Carodine, Keeping It Real: Reforming the “Untried Conviction” Impeachment Rule, 69 Md. L. Rev. 501, 516 (2010) (noting based on data from 2004 that ninety-seven percent of felony convictions in the seventy-five most populous counties in the United States were obtained through guilty pleas (citing Tracey Kyckelhahn & Thomas H. Cohen, Bureau of Just. Stat., U.S. Dep’t of Just., Felony Defendants in Large Urban Counties, 2004, at 1, 3 (2008), https://static.prisonpolicy.org/scans/bjs/fdluc04.pdf [https://pe‌rma.cc/P4MD-8EKP])); see also Darryl K. Brown, Response, What’s the Matter with Kansas—and Utah?: Explaining Judicial Interventions in Plea Bargaining, 95 Tex. L. Rev. See Also 47, 62 (2017) (noting that some jurisdictions resolved ninety-nine percent of criminal cases with plea agreements). ↑
  13.  Brady’s disclosure obligations are firmly established within criminal procedure, so their invocation as an example of evidence law’s trial-centricity may prompt hesitation. Yet it is precisely this distinction between a “disclosure right” and a “trial right,” as well as the location of Brady in the realm of criminal procedure—in contradistinction to evidence law—that exemplifies the rigid and deeply ingrained trial-centric architecture of evidentiary doctrine. This Article seeks to interrogate this “division of labor” between evidence law and criminal procedure, exposing it as neither natural nor inevitable, but as a historically manufactured framework that essentially confines evidence law to the stage and formalities of trial. See infra Part I. It is this foundational assumption, that evidence law properly concerns only the regulated drama of the courtroom, that this Article aims to unsettle and ultimately transcend by extending evidentiary principles to the plea stage, where the most determinative decisions concerning conviction and punishment currently occur. See supra note 12 (detailing the dominance of plea bargaining in the current criminal justice system). ↑
  14.  See Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far?, 99 Mich. L. Rev. 1168, 1168 (2001) (“Virtually all interrogations—or at least virtually all successful interrogations—involve some deception.”); Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425, 425–26 (1996) (observing that lies to induce confessions are commonly reported and discussing some situations in which police avoid getting a proper warrant). ↑
  15.  See Inga Ivsan, To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial System of Justice, 39 N.C. Cent. L. Rev. 135, 137 & n.9 (2017) (citing James F. Parker, Plea Bargaining, 1 Am. J. Crim. L. 187, 204 (1972) (observing that prosecutors may offer especially favorable plea deals to insulate constitutionally defective evidence of questionable admissibility from judicial scrutiny)). ↑
  16.  See id. at 137 (“A defendant arrested on the basis of illegally obtained evidence, and facing the threat of significant jail time, may be pressured to accept a plea agreement without having had any opportunity to review evidence meaningfully.”); id. at 145 (“The plea bargain process enables prosecutors to act on what would otherwise be inadmissible evidence at trial . . . .”). ↑
  17.  Parker, supra note 15, at 205. ↑
  18.  In the words of Michael Pardo, “The law of evidence regulates the admissibility, the permissible uses, and (to a lesser extent) the weight of evidence in civil and criminal trials.” Michael S. Pardo, Some Remarks on the Importance of Evidence Outside of Trials, 36 Rev. Litig. 443, 443 (2016) (emphasis added). ↑
  19.  See, e.g., Russell M. Gold, Power Over Procedure, 57 Wake Forest L. Rev. 51, 113 (2022) (“Defendants need not have robust opportunities to discover documentary evidence against them pretrial or depose witnesses, including their accusers, because trial provides the core protection for defendants, the story goes.” (footnote omitted)). ↑
  20.  See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 87 (rev. ed. 2011) (“Nearly all criminal cases are resolved through plea bargaining . . . .”); supra note 12. ↑
  21.  Mirjan R. Damaška, Evidence Law Adrift 4 (1997) [hereinafter Damaška, Evidence Law Adrift] (identifying the jury trial, temporal concentration of proceedings, and adversarial factfinding as the foundations sustaining common law rules of evidence). ↑
  22.  Id. at 6. ↑
  23.  Id. at 142. ↑
  24.  In Damaška’s words, evidence rules are in “danger of becoming antiquated period pieces, intellectual curiosa confined to an oubliette in the castle of justice.” Id. For a similar account of Damaška’s argument, along with a rebuttal that seeks to sever the link he draws between the decline of trials and the erosion of evidence law, see Samuel R. Gross, Law in the Backwaters: A Comment on Mirjan Damaška’s Evidence Law Adrift, 49 Hastings L.J. 369, 369–71 (1998). ↑
  25.  404 U.S. 257, 260 (1971). ↑

  26.  The idea of extending evidentiary protections beyond trial has been compellingly articulated by William Ortman in Confrontation in the Age of Plea Bargaining, 121 Colum. L. Rev. 451, 453 (2021) [hereinafter Ortman, Confrontation]. Ortman’s proposal is discussed in detail in Part IV. ↑

The Moving Property Problem in Fourth Amendment Law

Introduction

Imagine you are carrying a bag that the police want to search. The Fourth Amendment rules for searching your bag depend on where it is. If the bag is inside your home, the government needs a warrant to enter the home and search it.1 1.See Silverman v. United States, 365 U.S. 505, 512 (1961) (holding that physical entry requires a warrant). The Supreme Court first expressly so held in Agnello v. United States, 269 U.S. 20, 31–33 (1925), although the point had “always been assumed.” Id. at 32.Show More If the bag is in your car, however, probable cause is enough, and no warrant is needed.2 2.See California v. Acevedo, 500 U.S. 565, 579–80 (1991) (holding that a search of property placed in a car requires probable cause but not a warrant).Show More If the police arrest you while you’re carrying the bag, they can search the bag without any cause.3 3.See United States v. Robinson, 414 U.S. 218, 236 (1973) (allowing the search of property on a person based on lawful arrest alone without requiring additional cause).Show More If the bag is more than a few feet from you at the time of your arrest, however, the government needs a warrant again.4 4.See Chimel v. California, 395 U.S. 752, 763 (1969) (holding that a search incident to arrest only extends to the area of immediate control around the person arrested).Show More As these examples suggest, Fourth Amendment protection is fundamentally place-based. The government’s search power depends on where items to be searched are located.

The place-based nature of Fourth Amendment rules raises a question: If property is moved to a new place, does moving the property change its constitutional protection? In other words, are search and seizure protections fixed using an item’s prior location, or do those protections vary when the item is brought somewhere new? This question comes up often in Fourth Amendment cases. Consider a few examples drawn from recent decisions:

An officer orders a passenger out of a car during a traffic stop. The passenger exits, taking her purse with her. Searching a purse outside a car requires a warrant, but searching a purse inside a car does not. Is a warrant needed to search the purse after the passenger has removed it from the car?5 5.See State v. Lang, 942 N.W.2d 388, 400 (Neb. 2020), discussed in Section I.B.Show More

The federal government has broad power to search at the border. Border agents seize a suspect’s computer at the border, but they lack the expertise to search it. Agents bring the computer to a forensics expert, located hundreds of miles from the border, who searches it at his office. Does the forensic expert’s search count as a border search?6 6.See United States v. Cotterman, 709 F.3d 952, 961–62 (9th Cir. 2013) (en banc), discussed in Section I.D.Show More

Officers want to arrest a suspect at his home, but they lack the warrant needed to enter the home to arrest him inside. From their position outside, officers point their guns at the suspect inside and order him to leave his house. He complies with the order, and officers arrest him outside. Was a warrant needed?7 7.See United States v. Maez, 872 F.2d 1444, 1450–51 (10th Cir. 1989), discussed in Section I.C.Show More

Police arrest a man wearing a fanny pack. For their own safety, officers remove the fanny pack and place it twenty feet away. The Fourth Amendment permits a warrantless search of property on the person incident to his arrest, but it does not allow a search of property more than a few feet away. Can the police still search the fanny pack without a warrant?8 8.See, e.g., Jean v. State, 369 So. 3d 1235, 1237–38 (Fla. Dist. Ct. App. 2023). This scenario is discussed in Section I.B.Show More

Investigators have a warrant to search a house, but they lack the cause needed to detain and interrogate a particular suspect who lives there. They know, however, that Fourth Amendment law allows the government to detain anyone present when a warrant is executed. Hoping to interrogate the suspect, investigators contact the suspect and pretend that his house has been robbed and that he should come home to assess the damage. When the man arrives, officers detain and interrogate him. Was this lawful?9 9.See United States v. Ramirez, 976 F.3d 946, 949–50 (9th Cir. 2020), discussed in Section I.C.Show More

The driver of a car consents to its search. An officer orders everyone out of the car, and a passenger takes her purse with her. The officer orders the passenger to put her purse back in the car so it can be searched. Case law allows the government to search anything in the car with the driver’s consent but requires a warrant to search a purse outside the car. Can officers search the purse?10 10.See State v. Boyd, 64 P.3d 419, 427 (Kan. 2003), discussed in Section I.C.Show More

In each of these cases, something or someone was moved from one place governed by one rule to a new place governed by a different rule. Sometimes the government moved the relevant thing or person. Sometimes a private party did. And sometimes the government caused the private party to move it. Each case raises the same question: Does moving the item to a new place change its constitutional protection?

I call this the moving property problem.11 11.By the phrase “moving property,” I mean anything that can be moved and that can later be searched, whether or not it counts as property in a technical legal sense. In most cases, the moving property will be containers such as bags, purses, briefcases, and fanny packs. In some cases, the item moved is a person, who is moved away from their containers or who is moved to a different location and then searched. I consider all of these examples of the moving property problem.The label “moving property problem” might call to mind the automobile exception to the warrant requirement, under which searching a car does not require a warrant in part because cars are readily movable. See, e.g., California v. Carney, 471 U.S. 386, 390–91 (1985). My concern in this Article is not with whether property should receive different protection because it can move, however, but whether protections should change when items are moved from a place governed by one rule to a place governed by a different rule. Some moving property cases involve the automobile exception, as property is readily placed into or taken out of cars. But the moving property problem is about the clash of rules between two places—akin to a conflict of law problem—not the rules of any one place.Show More Despite how often it surfaces, neither courts nor scholars have recognized it.12 12.My research has uncovered no prior articles on the moving property problem. The most relevant scholarship appears to be several articles on one specific application—whether and when officers can make warrantless doorway arrests by moving arrestees out of the home. There is a narrow literature on that question. See, e.g., Jack E. Call, The Constitutionality of Warrantless Doorway Arrests, 19 Miss. Coll. L. Rev. 333, 334–36 (1999) (discussing the cases); Steven B. Dow, “Step Outside, Please”: Warrantless Doorway Arrests and the Problem of Constructive Entry, 45 New Eng. L. Rev. 7, 18–23 (2010) (same). See generally 3 Wayne R. LaFave, Search and Seizure § 6.1(e) (6th ed. 2020) (“Location of the arrestee: ‘at,’ ‘on’ and past the threshold.”). For a discussion of the relevant cases, see infra Section I.C.Show More The moving property problem is particularly rich because the ex ante incentives are obvious. Government agents want to expand their search power, just as targets of searches want that authority narrowed.13 13.The two sides are not equal in the likelihood that they intend to use the Fourth Amendment’s rules to their advantage. The police are trained in the rules, and the cases show them intentionally seeking to manipulate the rules in their favor. In contrast, few individuals will have the knowledge and foresight to know and use the rules.Show More If Fourth Amendment case law allows it, the police will move property or suspects to a place where officers have greater power to search—and then search under the relaxed rules of the new place. On the flip side, private parties who know the law may want to move their property to a place where their privacy rights are greatest—impeding investigations, if they can, by triggering the more restrictive rules of the new location. Ex post litigation incentives are clear, too. Each side has reason to argue that the other’s moving of property works in reverse. When a suspect happens to move his property to a place where rights are weaker, the government will argue that rules of the new location apply. And defendants will make the mirror-image argument when police move property to a place where rights are stronger.14 14.See infra Part I.Show More

This Article offers a comprehensive study of the moving property problem in Fourth Amendment law. It has two goals, one descriptive and one normative. The descriptive goal is to show that a large set of cases, not previously linked, all raise this common dynamic. Cataloging the many moving property cases reveals a taxonomy with variations on a theme.15 15.See infra Part I.Show More It also shows that Supreme Court decisions rarely answer how to resolve moving property questions. In the absence of high court guidance, lower courts have struggled for answers. They have treated each case in isolation, and they have often disagreed on the correct approach. The lower court disagreement results from a failure to see and appreciate the moving property problem.

The second goal of this Article is to offer a normative framework for solving the moving property problem. It has two steps. The first step is to recognize why Fourth Amendment rules are spatially based in the first place. The Fourth Amendment’s text, history, and case law seek to protect particular spaces in particular ways.16 16.See infra Section II.A.Show More The rules recognize how different interests compete differently in different areas. This understanding prompts an initial answer to moving property problems. To decide whether movement changes the level of protection, courts should answer whether the movement aligns with the justifications for the Fourth Amendment’s location-based rules. Courts must look doctrine-by-doctrine, focusing on the reasons for the space-based rules in play and the role of movement in supporting or defeating those reasons.17 17.See infra Section II.B.Show More

The second step is realizing that some moving property cases raise two questions instead of one. When the government causes movement, either directly or by creating pressures on private parties to act, a second question must also be considered: Was the government-induced movement itself illegal, apart from the subsequent search? Government agents can be endlessly creative in devising new ways to get property to places where government search powers are greatest.18 18.Cf. Johnson v. United States, 333 U.S. 10, 14 (1948) (Jackson, J.) (noting that the Fourth Amendment generally requires that “those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime”).Show More In many of these cases, the legal limits in moving property cases should come not from the legal rule for searching at the old or new place but from recognizing the illegality of steps taken to trigger the movement itself.19 19.See infra Section II.E.Show More

The Article proceeds in two parts. Part I offers a taxonomy of existing cases. It lays out the four basic kinds of moving property cases, explaining the scenarios and surveying how courts have so far resolved them. Part II proposes answers, developing a framework for solving the moving property problem and providing rules that courts can adopt to address them.

  1.  See Silverman v. United States, 365 U.S. 505, 512 (1961) (holding that physical entry requires a warrant). The Supreme Court first expressly so held in Agnello v. United States, 269 U.S. 20, 31–33 (1925), although the point had “always been assumed.” Id. at 32. ↑
  2.  See California v. Acevedo, 500 U.S. 565, 579–80 (1991) (holding that a search of property placed in a car requires probable cause but not a warrant). ↑
  3.  See United States v. Robinson, 414 U.S. 218, 236 (1973) (allowing the search of property on a person based on lawful arrest alone without requiring additional cause). ↑
  4.  See Chimel v. California, 395 U.S. 752, 763 (1969) (holding that a search incident to arrest only extends to the area of immediate control around the person arrested). ↑
  5.  See State v. Lang, 942 N.W.2d 388, 400 (Neb. 2020), discussed in Section I.B. ↑
  6.  See United States v. Cotterman, 709 F.3d 952, 961–62 (9th Cir. 2013) (en banc), discussed in Section I.D. ↑
  7.  See United States v. Maez, 872 F.2d 1444, 1450–51 (10th Cir. 1989), discussed in Section I.C. ↑
  8.  See, e.g., Jean v. State, 369 So. 3d 1235, 1237–38 (Fla. Dist. Ct. App. 2023). This scenario is discussed in Section I.B. ↑
  9.  See United States v. Ramirez, 976 F.3d 946, 949–50 (9th Cir. 2020), discussed in Section I.C. ↑
  10.  See State v. Boyd, 64 P.3d 419, 427 (Kan. 2003), discussed in Section I.C. ↑
  11.  By the phrase “moving property,” I mean anything that can be moved and that can later be searched, whether or not it counts as property in a technical legal sense. In most cases, the moving property will be containers such as bags, purses, briefcases, and fanny packs. In some cases, the item moved is a person, who is moved away from their containers or who is moved to a different location and then searched. I consider all of these examples of the moving property problem.

    The label “moving property problem” might call to mind the automobile exception to the warrant requirement, under which searching a car does not require a warrant in part because cars are readily movable. See, e.g., California v. Carney, 471 U.S. 386, 390–91 (1985). My concern in this Article is not with whether property should receive different protection because it can move, however, but whether protections should change when items are moved from a place governed by one rule to a place governed by a different rule. Some moving property cases involve the automobile exception, as property is readily placed into or taken out of cars. But the moving property problem is about the clash of rules between two places—akin to a conflict of law problem—not the rules of any one place. ↑

  12.  My research has uncovered no prior articles on the moving property problem. The most relevant scholarship appears to be several articles on one specific application—whether and when officers can make warrantless doorway arrests by moving arrestees out of the home. There is a narrow literature on that question. See, e.g., Jack E. Call, The Constitutionality of Warrantless Doorway Arrests, 19 Miss. Coll. L. Rev. 333, 334–36 (1999) (discussing the cases); Steven B. Dow, “Step Outside, Please”: Warrantless Doorway Arrests and the Problem of Constructive Entry, 45 New Eng. L. Rev. 7, 18–23 (2010) (same). See generally 3 Wayne R. LaFave, Search and Seizure § 6.1(e) (6th ed. 2020) (“Location of the arrestee: ‘at,’ ‘on’ and past the threshold.”). For a discussion of the relevant cases, see infra Section I.C. ↑
  13.  The two sides are not equal in the likelihood that they intend to use the Fourth Amendment’s rules to their advantage. The police are trained in the rules, and the cases show them intentionally seeking to manipulate the rules in their favor. In contrast, few individuals will have the knowledge and foresight to know and use the rules. ↑
  14.  See infra Part I. ↑
  15.  See infra Part I. ↑
  16.  See infra Section II.A. ↑
  17.  See infra Section II.B. ↑
  18.  Cf. Johnson v. United States, 333 U.S. 10, 14 (1948) (Jackson, J.) (noting that the Fourth Amendment generally requires that “those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime”). ↑

  19.  See infra Section II.E. ↑

Schauer’s Free Speech Comparativism

Introduction

It is a great honour to make this contribution about Frederick Schauer. I am especially pleased that I can give voice to the many Australian scholars who had the pleasure of meeting and working with him and those who were influenced by his work.

Fred was a frequent visitor to Australia, where he was well known and widely admired. I first came across him at the Australian National University in the late 1990s at the beginning of my career. It will surprise no one to know that he was memorably generous and straightforward. He had a way of being kind to junior scholars that consisted simply in taking them seriously. Years later, I invited him to co-teach a freedom of speech seminar with me at Melbourne Law School, and after to join me as an editor of Oxford Handbook of Freedom of Speech (2021) together. Both experiences were career highlights.

For the purposes of this tribute, I want to offer a reflection on two of the most important essays he wrote on freedom of speech for a comparative audience: The Exceptional First Amendment1 1.Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29(Michael Ignatieff ed., 2005).Show More and Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture.2 2.Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49(Georg Nolte ed., 2005).Show More Both were published in 2005 and offer a prediction on the development of freedom of expression in the United States and elsewhere that is worth revisiting after twenty years.

In the first piece, Schauer revisited the well-known claim that First Amendment law is exceptional for the strong protection it provides to freedom of speech. Even in this well-travelled field, Schauer offered an insightfully detailed account, swiftly moving through a range of ideas, well beyond the conventional account. But perhaps the most important idea in the essay lies in introduction of a second dimension: “methodological exceptionalism.”3 3.Schauer, supra note 1, at 53.Show More American free speech adjudication is characterised by “a formal and sharply demarcated two-step process” and other rule-like doctrines.4 4.Id.Show More By contrast, in most other constitutional democracies the inquiry is a “less formal and more open-ended question of whether a restriction is reasonable, necessary in a democratic society, or, most commonly, proportional in light of the importance of the restriction and the extent of the free expression interest that is restricted.”5 5.Id. at 53–54.Show More

The second essay developed the argument advanced in the first, but it went further to draw firm links between American substantive and methodological exceptionalism. The argument in this essay goes somewhat against the grain of the first, concluding that the “rulified” nature of First Amendment law, because of its deep roots in American constitutional culture, was unlikely to change.6 6.See Schauer, supra note 2, at 63–67.Show More

Before going on to consider their arguments in more detail, let me pause to reflect on how they illustrate some of the distinctive virtues of Fred Schauer’s scholarship. They combine an eye for doctrinal detail, powerful jurisprudential insights about the relationship between doctrinal structures and their underlying reasons, and a deep appreciation of the significance of legal and political culture.

For the remainder of this Essay, I will turn to consider how Schauer developed his claims about method and substance in free speech cases and examine his claims with a comparative analysis of two jurisdictions which allow some testing of Schauer’s claims and predictions.

  1.  Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29

    (Michael Ignatieff ed., 2005). ↑

  2.  Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49 (Georg Nolte ed., 2005). ↑
  3.  Schauer, supra note 1, at 53. ↑
  4.  Id. ↑
  5.  Id. at 53–54. ↑

  6.  See Schauer, supra note 2, at 63–67. ↑

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