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Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Washington and Lee Law Review

Issues of racial inequality and violence are front and center today, as are issues surrounding artificial intelligence (“AI”). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about …

Changing The Culture Of Disclosure And Forensics, Valena Beety

Washington and Lee Law Review Online

This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence, and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is—similarly to Garrett’s—rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings and whether defense attorneys understand these findings and their impact on a client’s case. To clarify forensic findings for the entire courtroom, this Essay suggests increased pre-trial discovery and disclosure of forensic evidence and forensic experts. Forensic analysts largely work in police-governed labs; therefore, …

Reply To Miriam Baer And Michael Doucette’S Reviews Of Two Models Of Pre-Plea Discovery In Criminal Cases, Jenia I. Turner, Allison D. Redlich

Washington and Lee Law Review Online

No abstract provided.

Virginia Prosecutors’ Response To Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Michael R. Doucette

Washington and Lee Law Review Online

No abstract provided.

Constitutional Regulation Of Forensic Evidence, Brandon L. Garrett

Washington and Lee Law Review

No abstract provided.

“Merchants And Thieves, Hungry For Power”: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

Washington and Lee Law Review

No abstract provided.

Epigenetics And Toxic Torts: How Epidemiological Evidence Informs Causation, Kerriann Laubach

Washington and Lee Law Review

No abstract provided.

How Sound Is The Science? Applying Daubert To Biomechanical Experts’ Injury Causation Opinions, Loren Peck

Washington and Lee Law Review

No abstract provided.

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Washington and Lee Law Review

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Jenia I. Turner, Allison D. Redlich George Mason University

Washington and Lee Law Review

Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing relatively broad discovery obligations on prosecutors early in the criminal process, others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical evidence either entirely or until very near the time of trial. Though the advantages and disadvantages of both …

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

Washington and Lee Law Review Online

For over 130 years, scientific sleuths have inspected hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners exceeded the limits of science in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI faked an entire field of forensic science, …

Contents May Have Shifted: Disentangling The Best Evidence Rule From The Rule Against Hearsay, Colin Miller

Washington and Lee Law Review Online

The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.

The Use And Misuse Of Econometric Evidence In Employment Discrimination Cases, Joni Hersch, Blair Druhan Bullock

Washington and Lee Law Review

Statistical analyses play an important role in employment discrimination cases, as the Supreme Court has long recognized. Regression analysis can help a plaintiff establish a claim of discrimination under Title VII of the Civil Rights Act of 1964 by showing that, even when controlling for relevant characteristics, individuals of a certain class were treated differently than other employees or applicants. It can also help a defendant rebut such a claim by showing that differential treatment was due to characteristics other than being a member of a protected class. Yet, too often, opposing experts present invalid rebuttal evidence that the jury …

"You Crossed The Fog Line!"—Kansas, Pretext, And The Fourth Amendment, Melanie D. Wilson

Scholarly Articles

In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In practice the holding of Whren condones police investigations that target certain suspect classes of people, like Hispanics, for increased police scrutiny. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth, overlooked the cost of under-enforcement of the laws, and ignored the consequences to the criminal justice system of race and ethnicity based discrimination.

Kansas law exacerbates these risks by making fog-line stops a model for protecting ulterior motives from a sifting judicial inquiry. In Kansas, it makes …

An Exclusionary Rule For Police Lies, Melanie D. Wilson

Scholarly Articles

Our legal system treats the police as if they are impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality. Because of its partiality in favor of officers, the criminal justice system lacks the appropriate structure to expose and effectively deter police lies, which distort the truth about criminal or unconstitutional conduct.

This Article, presented in three parts, argues that the current system should be changed to provide the structure necessary to promote honest police work. Specifically, it urges a modification to the exclusionary …

A Return To The Grand Jury To Promote A Zen Zeal In Prosecutors, Melanie D. Wilson

Scholarly Articles

DNA evidence has freed at least 209 convicted people. Sometimes DNA evidence exonerates a person. Other times, it does not. When it does not exonerate, a prosecutor must decide whether to persist in further prosecution of the defendant. I propose a fresh, but simple, solution for prosecutors who face such choices. To protect the interests of defendants and victims, and to assuage society’s need for fair and accurate outcomes, prosecutors should represent these cases to a grand jury. The grand jury is an easily convened neutral party that can dispassionately evaluate the evidence, old and new, and determine whether a …

Finding A Happy And Ethical Medium Between A Prosecutor Who Believes The Defendant Didn't Do It And The Boss Who Says That He Did, Melanie D. Wilson

Scholarly Articles

The increasing prevalence of DNA testing has proven that, at times, our criminal justice system renders wrongful convictions. Extrapolating from such significant errors, we can infer that smaller mistakes also occur. Because criminal prosecution is not an exact science, like DNA evidence, prosecutors can disagree about aspects of a case-whether to reward a cooperating defendant with a sentence reduction, whether to indict a defendant under a mandatory minimum statute, and even whether a defendant is guilty of a crime. This Essay examines the tension that arises when the prosecutor handling a case disagrees with her boss about one or more …

A Non-Romantic View Of Expert Testimony, Lewis H. Larue, David S. Caudill

Scholarly Articles

The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. …

Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical -- And Not Just The Methodological Aspects Of Science, Lewis H. Larue, David S. Caudill

Scholarly Articles

In response to the claim that many judges are deficient in their understanding of scientific methodology, this Article identifies in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, this Article observes that courts (in the cases it analyzes) are not interested …

Probability And Proof In State V. Skipper: An Internet Exchange, Lewis H. Larue

Scholarly Articles

Not available.

United States V. Leon, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Bose Corp. V. Consumers Union Of United States, Inc., Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Berkemer V. Mccarty, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Statistics In The Potential Problems In The Presentation Of Statistical Evidence

Washington and Lee Law Review

No abstract provided.

A Judicial Perspective On Opinion Evidence Under The Federal Rules, George C. Pratt

Washington and Lee Law Review

No abstract provided.

Forensic Hair Analysis: The Case Against The Underemployment Of Scientific Evidence, Edward J. Imwinkelried

Washington and Lee Law Review

No abstract provided.

Grand Jury: A Prosecutor Need Not Present Exculpatory Evidence

Washington and Lee Law Review

No abstract provided.

United States V. Payner, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

North Carolina V. Butler, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Parker V. Randolph, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.