Law Commons^™

Forensic Microbiome Evidence: Fourth Amendment Applications And Court Acceptance, Trason Lasley

Catholic University Journal of Law and Technology

No abstract provided.

The Death Of The Legal Subject, Katrina Geddes

Vanderbilt Law School Faculty Publications

The law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.

Relative to other areas of law, criminal law is oversaturated with prediction. Almost …

Ethical Ai In American Policing, Elizabeth E. Joh

Notre Dame Journal on Emerging Technologies

We know there are problems in the use of artificial intelligence in policing, but we don’t quite know what to do about them. One can also find many reports and white papers today offering principles for the responsible use of AI systems by the government, civil society organizations, and the private sector. Yet, largely missing from the current debate in the United States is a shared framework for thinking about the ethical and responsible use of AI that is specific to policing. There are many AI policy guidance documents now, but their value to the police is limited. Simply repeating …

Brain-Computer-Interfacing & Respondeat Superior: Algorithmic Decisions, Manipulation, And Accountability In Armed Conflict, Salahudin Ali

Catholic University Journal of Law and Technology

This article examines the impact that brain-computer-interfacing platforms will have on the international law of armed conflict’s respondeat superior legal regime. Major Ali argues that the connection between the human brain and this nascent technology’s underlying technology of artificial intelligence and machine learning will serve as a disruptor to the traditional mental prerequisites required to impart culpability and liability on commanders for actions of their troops. Anticipating that BCI will become increasingly ubiquitous, Major Ali’s article offers frameworks for solution to BCI’s disruptive potential to the internal law of armed conflict.

Innovative Approaches To Diversion Data, Sean Flynn, Robin Olsen, Maggie Wolk

Articles in Law Reviews & Other Academic Journals

Prosecutors across the country are collecting and using data to make decisions in their offices. At the same time, prosecutors are interested in developing and sustaining prosecutorial diversion approaches. Prosecutors can use data to assist in decision-making regarding diversion case processing choices as well as to make office policy and resource allocation decisions that, in turn, support expanded diversion programs. Data collection can help prosecutors decide if a prosecutorial diversion program will work for them, and if so, what characteristics it should have. Finally, data can help prosecutors see whether they are obtaining their intended outcomes. Prosecutors possess varying levels …

Cell Phones Are Orwell's Telescreen: The Need For Fourth Amendment Protection In Real-Time Cell Phone Location Information, Matthew Devoy Jones

Cleveland State Law Review

Courts are divided as to whether law enforcement can collect cell phone location information in real-time without a warrant under the Fourth Amendment. This Article argues that Carpenter v. United States requires a warrant under the Fourth Amendment prior to law enforcement’s collection of real-time cell phone location information. Courts that have required a warrant prior to the government’s collection of real-time cell phone location information have considered the length of surveillance. This should not be a factor. The growing prevalence and usage of cell phones and cell phone technology, the original intent of the Fourth Amendment, and United States …

Neurohype And The Law: A Cautionary Tale, Stephen J. Morse

All Faculty Scholarship

This chapter suggests that for conceptual, empirical, and practical reasons, neuroscience in general and non-invasive brain imaging in particular are not likely to revolutionize the law and our conception of ourselves, but may make modest contributions to legal policy and case adjudication if the legal relevance of the science is properly understood.

Smart Devices In Criminal Investigations: How Section 8 Of The Canadian Charter Of Rights And Freedoms Can Better Protect Privacy In The Search Of Technology And Seizure Of Information, Lee-Ann Conrod

LLM Theses

This thesis examines the jurisprudence from the Supreme Court of Canada (SCC) on informational privacy under section 8 of the Canadian Charter of Rights and Freedoms as it relates to searches of technology in the context of criminal investigations. The development and use of technology in criminal investigations will be detailed along with an overview of the current state of the law in this area. Challenges with the interpretation of section 8 demonstrate a prevalent uncertainty. This thesis proposes a new approach for the SCC to apply to cases where technology intersects with section 8 of the Charter. The proposal …

User-Generated Evidence, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Bias In, Bias Out, Sandra G. Mayson

All Faculty Scholarship

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impacts. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race; (2) adjustments to algorithmic design to equalize predictions across racial lines; and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive because the source of racial inequality in risk assessment lies …

Brief Of Amici Curiae Of 11 Addiction Experts In Support Of Appellee, Gene M. Heyman, Scott O. Lilienfeld, Stephen J. Morse, Sally L. Satel

All Faculty Scholarship

This brief is a critique of the brain disease model and many supposed implications of that model. It begins with a brief history of the model and moves to a discussion of the motivations behind the characterization of addiction as a “chronic and relapsing brain disease.” We follow with an enumeration of fallacious inferences based upon the brain disease model, including the very notion that addiction becomes a “brain disease” simply because it has neurobiological correlates. Regardless of whether addiction is labeled a brain disease, the real question, we contend, is whether the behavioral manifestations of addiction are unresponsive to …

The Unintended Consequences Of California Proposition 47: Reducing Law Enforcement’S Ability To Solve Serious, Violent Crimes, Shelby Kail

Pepperdine Law Review

For many years, DNA databases have helped solve countless serious, violent crimes by connecting low-level offenders to unsolved crimes. Because the passage of Proposition 47 reduced several low-level crimes to misdemeanors, which do not qualify for DNA sample collection, Proposition 47 has severely limited law enforcement’s ability to solve serious, violent crimes through California’s DNA database and reliable DNA evidence. This powerful law enforcement tool must be preserved to prevent additional crimes from being committed, to exonerate the innocent, and to provide victims with closure through conviction of their assailants or offenders. Proposition 47’s unintended consequences have led to devastating …

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

David Kaye

For over 130 years, scientific sleuths have been inspecting 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 …

Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg

Faculty Scholarship

In the past decade, much attention has focused on developmental brain research and its implications for the regulation of crime. Public and policy interest has been directed primarily toward juveniles. In light of recent research, courts and legislatures increasingly have rejected the punitive response of the 1990s and embraced a developmental approach to young offenders. Of particular importance in propelling this trend has been the framework offered by the U.S. Supreme Court in a series of Eighth Amendment opinions that have rejected harsh adult sentences for juveniles. These decisions, supported by adolescent brain research, rested on two empirically based principles: …

Predicting The Knowledge–Recklessness Distinction In The Human Brain, Iris Vilares, Michael J. Wesley, Woo-Young Woo-Young Ahn, Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen J. Morse, Gideon Yaffe, Terry Lohrenz, Read Montague

All Faculty Scholarship

Criminal convictions require proof that a prohibited act was performed in a statutorily specified mental state. Different legal consequences, including greater punishments, are mandated for those who act in a state of knowledge, compared with a state of recklessness. Existing research, however, suggests people have trouble classifying defendants as knowing, rather than reckless, even when instructed on the relevant legal criteria.

We used a machine-learning technique on brain imaging data to predict, with high accuracy, which mental state our participants were in. This predictive ability depended on both the magnitude of the risks and the amount of information about those …

Big Data And Predictive Reasonable Suspicion, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …

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

Journal Articles

For over 130 years, scientific sleuths have been inspecting 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 …

The Expanding Use Of Genetic And Psychological Evidence: Finding Coherence In The Criminal Law? , Michael Vitiello

Nevada Law Journal

No abstract provided.

Neuroscience And The Future Of Personhood And Responsibility, Stephen J. Morse

All Faculty Scholarship

This is a chapter in a book, Constitution 3.0: Freedom and Technological Change, edited by Jeffrey Rosen and Benjamin Wittes and published by Brookings. It considers whether likely advances in neuroscience will fundamentally alter our conceptions of human agency, of what it means to be a person, and of responsibility for action. I argue that neuroscience poses no such radical threat now and in the immediate future and it is unlikely ever to pose such a threat unless it or other sciences decisively resolve the mind-body problem. I suggest that until that happens, neuroscience might contribute to the reform of …

Patent Infringement As Criminal Conduct, Jacob S. Sherkow

Articles & Chapters

Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent — willful blindness — into the statute for patent infringement, a civil offense, despite these differences. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the …

Reading The Judicial Mind: Predicting The Courts' Reaction To The Use Of Neuroscientific Evidence For Lie Detection, Jennifer Chandler

Dalhousie Law Journal

How will the courts react to the emerging technology ofdetecting deception using neuroscientific methods such as neuro-imaging? The sociological theory of the autonomy of technology suggests that if neuroscientific techniques come to be seen as reliable for this purpose, other objections will soon be abandoned. The history of the judicial reaction to DNA evidence illustrates this pattern. As DNA evidence came to be seen as highlyreliable, the courts rapidly abandoned their concerns that juries would be overwhelmed by the "mystique of science" and that the justice system would be "dehumanized." The legaljustifications for rejecting polygraph evidence are explored in order …

On Race Theory And Norms, Christian Sundquist

Articles

This article has been adapted from an address given at the Albany Law Review Symposium in Spring 2009. This article discusses the judicial acceptance of DNA random match estimates, which uses DNA analysis to estimate the likelihood that a criminal defendant is the source of genetic material that is found at a crime scene. Relying on race, these tests demonstrate how such a re-inscription of race as a biological entity threatens the modern conception of race as a social construction, and how those estimates should be rejected as inadmissible on a doctrinal level under the Federal Rules of Evidence.

A Right To Bear Firearms But Not To Use Them? Defensive Force Rules And The Increasing Effectiveness Of Non-Lethal Weapons, Paul H. Robinson

All Faculty Scholarship

Under existing American law, advances in non-lethal weapons increasingly make the use of firearms for defense unlawful and the Second Amendment of little practical significance. As the effectiveness and availability of less lethal weapons increase, the choice of a lethal firearm for protection is a choice to use more force than is necessary, in violation of existing self-defense law. At the same time, a shift to non-lethal weapons increases the frequency of situations in which a person’s use of force is authorized because defenders with non-lethal weapons are freed from the special proportionality requirements that limit the use of deadly …

On The Potential Of Neuroscience: A Comment On Greene And Cohen’S "For The Law, Neuroscience Changes Nothing And Everything", Theodore Y. Blumoff

ExpressO

In a recent article, Joshua Greene and Jonathan Cohen add their voices to an emerging discussion about the place of neuroscience in law and social policy. They argue convincingly that new data from the developing field of neuroscience will dramatically and positively change our legal system. I agree with their conclusions, but I believe that their commitment to a kind of neuroscientific determinism or essentialism is wrong, unnecessary, and even dangerous; it would move law in a direction that eliminates ongoing, normative decision-making. In the essay I have attached, I first set the stage by discussing the commitment of our …