David S. Schwartz and Chelsey B. Metcalf (University of Wisconsin Law School and Foley & Lardner) have posted Disfavored Treatment of Third-Party Guilt Evidence (Wisconsin Law Review, 2016, Forthcoming) on SSRN.
Here is the abstract:
Forty-five states and ten federal circuits impose some type of disfavored treatment on a criminal defendant’s evidence that a person other than himself committed the crime. When the defendant disputes that he is the perpetrator of the crime charged, such third-party guilt evidence is always relevant. But the so called “direct connection doctrine” and its variants impose additional burdens that a defendant must meet before this relevant evidence will be admitted. This disfavored treatment “the ‘direct connection doctrines'” stems from discredited and abandoned concepts of evidence law, and is out of step with the Federal Rules of Evidence and modern evidence codes. They wrongly transfer credibility questions from the jury to the judge and raise minimal FRE 403-type dangers to justify their systematic exclusion. Moreover, the direct connection doctrines unconstitutionally interfere with the defendant’s right to present a complete defense. They lack any non-arbitrary justification and cannot be logically reconciled with the fundamental principles that the prosecutor bears the entire burden of proof, and that a jury may acquit based on only a reasonable doubt.