Essay

Avoiding the Prisoner’s Dilemma: Refining the Bruton Rule to Resolve the Split Over Neutral Term Substitution

Essay

Imagine three men—Alex, Brian, and Chris—who rob and kill a young woman in the parking lot of a Pennsylvania shopping mall. Once a subsequent investigation begins to tighten, Alex (the lookout) turns himself in, helping police arrest Brian (the driver) and Chris (the shooter). After an interrogation mimicking the classic Prisoner’s Dilemma, Brian partially confesses, exposing himself and Chris to criminal liability. At arraignment, Alex pleads guilty; Brian and Chris proceed to a joint trial in state court, where both decline to testify.

This is standard fare for courts, prosecutors, and defense attorneys. The Supreme Court has expressed a preference for joint trials, praising the resultant benefits for judicial economy and for avoiding inconsistent verdicts. And although somewhat dated, a study from the 1990s suggests nearly half of felony defendants invoke the privilege against self‐incrimination.

Yet these dueling propensities for joint trials and for not taking the stand put Chris on the wrong side of a collision with another constitutional provision: the Sixth Amendment’s Confrontation Clause. The right to confrontation means defendants must have the opportunity to crossexamine the witnesses against them. But what should the court do in this situation? Since Brian’s confession is admissible under the hearsay exception for a statement by an opposing party, the jury will hear evidence that incidentally incriminates Chris. And with Brian not testifying, Chris is unable to challenge the incrimination.

This constitutional collision iterates daily in state and federal courts across the country. The solution—developed over three Supreme Court decisions: Bruton v. United States, Richardson v. Marsh, and Gray v. Maryland—is to redact the confession so it remains fair and useful evidence against the declarant (Brian) without unfairly prejudicing the nonconfessor (Chris). But jurisdictions vary considerably in applying this doctrine, and the fractured approach has left trial courts and prosecutors with a Gordian knot.

In particular, this doctrinal confusion has caused a circuit split over neutral term substitution—a specific type of redaction that discretely replaces references to codefendants’ names with a nonspecific term or adjective to prevent incidental incrimination. And while the federal courts disfavor circuit splits generally, this split’s particular harm amplifies when federal courts review state judgments under 28 U.S.C. Section 2254. Suppose three other men—David, Ed, and Frank—rob and kill a woman in New Jersey, independent of Alex, Brian, and Chris’s crime in Pennsylvania. Although both states of course follow Bruton, Pennsylvania courts take a slightly more flexible tack: Pennsylvania allows neutral term substitution in all cases; New Jersey only allows it if there are many criminal actors, requiring more thorough redaction in other cases. After the respective prosecutors redact each confession according to their state’s standard, both sets of codefendants are convicted; the state intermediate appellate courts affirm; the state supreme courts deny review; and the U.S. Supreme Court denies certiorari. So far, so good—similar defendants similarly committed similar crimes, so they deserve similar results. But if the defendants file habeas petitions in the Third Circuit, the similarity turns on its head: the New Jersey petitioners are denied collateral relief, yet their Pennsylvania doppelgangers prevail (unless the state can show harmless error or a procedural bar), solely because the Third Circuit disfavors Pennsylvania’s approach to neutral term substitution. To be sure, this outcome raises deference questions under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), but it also reveals a thorny upshot to the debate over Bruton: intracircuit splits.

This Comment seeks to resolve these jurisprudential conflicts. Part I retraces the rule’s evolution to reveal the foundation laid by the Supreme Court and its relationship to the current divide over neutral term substitution. Part II examines ways to resolve this disagreement by comparing Bruton’s functionalist approach to confrontation to the more recent formalist understanding exemplified by Crawford v. Washington. In the end, this Comment calls for the Supreme Court to adopt a rebuttable presumption allowing neutral term substitution.

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The Unicorn Governance Trap

Essay

This Essay highlights emerging governance problems presented by persistent Unicorns. It argues that recent market trends and...

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Fit to Play in the NBA? Reconciling the Collective Bargaining Agreement with the Americans with Disabilities Act

Essay

In this Essay, we assert that, despite what is written in the collective bargaining agreement (CBA), NBA players should—and in...

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Star Athletica’s Fissure in the Intellectual Property Functionality Landscape

Essay

In a perverse twist, the Supreme Court’s 2017 Star Athletica copyright decision might have more significant effects on design patent protection and the larger intellectual property landscape than it will on copyright law’s useful article doctrine. As Professor Jane Ginsburg foretold, the works at issue in Star Athletica provided a poor vehicle for addressing the thorny problems bedeviling the useful article separability doctrine. Unfortunately, in their zeal to nudge the Court toward tighter limits on copyright eligibility for useful articles, several intellectual property scholars and advocates mistakenly argued that design patent protection extended to functional features of articles of manufacture as a means to persuade the Court that it should tighten copyright law’s useful article separability doctrine. The gambit backfired.

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Clarifying the “Clear Meaning” of Separability

Essay

Speaking of the Copyright Act of 1909, noted copyright scholar Benjamin Kaplan had this to say about the role of judges...

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The Sum is More Public Domain than its Parts?: US Copyright Protection for Works of Applied Art Under Star Athletica’s Imagination Test

Essay

In Star Athletica v. Varsity Brands, the Supreme Court granted certiorari to resolve confusion in the lower courts regarding the...

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What is a “Useful Article” in Copyright Law After Star Athletica?

Essay

The U.S. Supreme Court granted certiorari in Star Athletica, LLC v. Varsity Brands, Inc. to decide “what is the appropriate test to determine when a feature of a useful article is protectable under Section 101 of the Copyright Act?” The Supreme Court likely granted certiorari because the Sixth Circuit identified no fewer than nine different tests that courts and commentators had proposed for resolving the issue, and the Sixth Circuit adopted a tenth. The Supreme Court then issued its own opinion on March 22, 2017, setting forth a two‐part test grounded in the text of the statute while rejecting several proposed alternatives.

But there is an antecedent question that must be answered before the Supreme Court’s two‐part test in Star Athletica may be invoked; namely, whether the pictorial, graphic, or sculptural work at issue is the design of a “useful article” in the first place. On this question, the Supreme Court’s opinion is disappointingly silent.

The parties in Star Athletica and the Court both implicitly assumed, without analysis, that the cheerleading uniforms at issue were “useful articles.” That is likely the correct conclusion; however, the “useful articles” doctrine has always been an uncomfortable “fit” for clothing, costumes, and other garments, and there will undoubtedly be future cases involving other types of allegedly useful articles in which the antecedent question is even less certain. This essay aims to patch that gap, by providing guidance on the antecedent question of “what is a useful article?”

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Forgetting Functionality

Essay

In Star Athletica, LLC v. Varsity Brands, Inc., the U.S. Supreme Court had an opportunity to clarify copyright law’s...

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Knowing Separability When We See It

Essay

According to the majority in Star Athletica v. Varsity Brands, features that are incorporated into a useful article are...

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Discovering Third-Party Funding in Class Actions: A Proposal for In Camera Review

Essay

Third‐party funding increasingly is a feature of litigation in the United States. One of the issues raised by third‐party litigation funding is whether outside funders will positively or negatively impact the American judicial system. In particular, some commentators have observed that third‐party funding arrangements have the potential to create conflicts of interest between attorneys and their clients due to the control that outside funders may attempt to exert over litigation. This Comment addresses how those conflict‐of‐interest concerns impact discovery rules in the class action context. It ultimately concludes that because there is a potential for third‐party funders to impair class counsel’s adequate representation of absent class members, a class relying on third‐party funding should be required to disclose the arrangement to the court for in camera review.

This Comment begins with an overview of third‐party litigation funding in the United States and the rules of discovery regarding a class’s financial resources during the class certification phase of litigation. Next, it describes the debate over whether third‐party funding will positively or negatively affect class counsel’s ability to adequately represent the interests of absent class members. It also explains that because the empirical data on the issue is scarce, courts should develop discovery rules to help ensure that they will learn when and how third‐party funders are supporting the litigants before them. Finally, after considering alternative potential discovery rules, this Comment concludes that requiring disclosure of third‐party funding arrangements to the court for in camera review is the means most likely to balance the interests of class action plaintiffs and defendants, while simultaneously assisting the court in assessing the adequacy of representation under Rule 23.

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