Study

This course is intended as an introduction to experimental research, legal theory, and caselaw on jury decision making.  Although the topic overlaps considerably with areas of basic decision making--e.g., the heuristics and biases literature--the focus will be mostly on applied research looking at the decisions of real (or simulated) jurors.

Artificial intelligence (AI) increasingly is used to make important decisions that affect individuals and society. A particularly pressing area of concern has been in criminal cases, in which a person’s life, liberty, and public safety can be at stake. In the United States and globally, despite concerns that technology may deepen pre-existing racial disparities and overreliance on incarceration, black box AI has proliferated in areas such as: DNA mixture interpretation; facial recognition; recidivism risk assessments; and predictive policing.

This two-credit seminar will include academic work regarding several of those types of uses of AI in criminal justice, as well as some of the early judicial opinions ruling on such evidence. We will read leading work on the rules of evidence implicated by AI, what constitutional criminal procedure rules are at stake, and we will engage with how these technologies work and are evolving. We will also attend, and comment on, a portion of a timely judicial conference on expert evidence on Friday, Jan. 26, and a longer set of discussions with EU experts on AI on Saturday, January 27.

There are no prerequisites, but a course in evidence or in criminal procedure would be helpful. Students will write a 3-5 page response paper to the portion of the conference that they attend and a 20- page research and policy paper, with presentations in class on each student’s work at the end of the semester.

In this seminar, we will read social science research to examine the empirical assumptions of rules, systems, and practices of criminal law and procedure. We will cover a series of empirical questions, which may include: (1) Does stop and frisk policing reduce crime? (2) Can body cameras change police behavior? (3) Does the death penalty deter? (4) Are there alternatives to incarceration that can keep us safe? (5) Is there racial disparity in sentencing, and if there is, what can we do about it? (6) What is the right age of majority to separate the juvenile and adult justice systems?

While some background in social science and statistics may be helpful, it is not a requirement for the course. Students will be evaluated based on class participation and a series of reaction papers. Students will also be asked to lead discussion of some of the readings.

National security cases present unique challenges to prosecutors and defense attorneys. From the outset of an investigation, and before charges are brought, prosecutors and investigators must take into account a number of considerations, including coordination with the intelligence community and potential conflicts that may arise between law enforcement and intelligence gathering. After a case is charged, such cases frequently present other challenges, such as complying with discovery obligations while protecting classified information and obtaining testimony from foreign witnesses who may be beyond the reach of the U.S. government. This course will provide an in-depth examination of the unique issues that lawyers face in national security prosecutions and the substantive and procedural tools used to navigate those issues.  We will also examine the advantages and limitations of civilian prosecutions and consider the effectiveness of current procedures and criminal statutes in addressing modern national security threats.  An emphasis will be placed on case-specific examples and hypotheticals, drawing in part on the instructor’s experience and pending public cases.  The course will culminate in a simulation in which students are presented with a rapidly unfolding national security incident in which they are asked to address various hypotheticals at different stages of the case.

Students will be expected to complete a final paper of 10-15 pages in length on a topic approved by the instructor. JD or LLM students who wish to use the paper to satisfy the substantial writing requirement of their degree should enroll in a 1 credit independent study with Professor Stansbury and will be expected to write a final paper of 25-30 pages in length. The Independent Study will be graded on a credit/no-credit basis.

This seminar will focus on the most important and most controversial aspects of evidence law, including new technologies like AI, and electronic/digital evidence. The seminar also explores controversial areas of the evidence rules where change has been called for (sometimes for decades) but has not yet occurred.