What is Probable Cause, and Why Should We Care?: The Costs, Benefits, and Meaning of Individualized Suspicion

Taslitz defines probable cause as having four components: one quantitative, one qualitative, one temporal, and one moral. He focuses on the last of these components. Individualized suspicion, the US Supreme Court has suggested, is perhaps the most important of the four components of probable cause. That is a position with which he heartily agree. The other three components each play only a supporting role. But individualized suspicion is the beating heart that gives probable cause its vitality

Foreword: The Political Geography of Race Data in the Criminal Justice System

Several months ago, there was a heated discussion on CrimProf, the listserv for criminal law professors, about the disproportionate representation of minorities in the criminal justice system. Few participants in this online discussion contested the reality that racial and ethnic minorities, especially African Americans, make up a far larger percentage of those arrested and incarcerated than should be expected from their percentage of the country\u27s total population

The Fourth Amendment in the Twenty-First Century: Technology, Privacy, and Human Emotions

Police and local political officials in Tampa FL argued that the FaceIt system promotes safety, but privacy advocates objected to the city\u27s recording or utilizing facial images without the victims\u27 consent, some staging protests against the FaceIt system. Privacy objects seem to be far more widely shared than this small protest might suggest

The Fourth Amendment in the Twenty-First Century: Technology, Privacy, and Human Emotions

Police and local political officials in Tampa FL argued that the FaceIt system promotes safety, but privacy advocates objected to the city\u27s recording or utilizing facial images without the victims\u27 consent, some staging protests against the FaceIt system. Privacy objects seem to be far more widely shared than this small protest might suggest

Search and Seizure History as Conversation: A Reply to Bruce P. Smith

Book reviews

Forgetting Freud: The Courts\u27 Fear of the Subconscious in Date Rape (and Other) Criminal Cases

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts\u27 misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the folk subconscious vision embraced by the courts -- one in which the conscious is our true self -- with the scientific subconscious -- one in which the conscious and subconscious minds reciprocally interact in a single person. The piece further examines the implications of each view for the substantive criminal law and the law of evidence. The article also explores the consequences of the theory of memes -- ideas as viruses -- for free will and criminal culpability. The article finally examines the political implications of each view concerning the nature of the citizen in a modern republic and concludes with suggestions for change

Daredevil and the Death Penalty

Book reviews

High Expectations and Some Wounded Hopes: The Policy and Politics of a Uniform Statute on Videotaping Custodial Interrogations

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference of Commissioners on Uniform State Laws, ratified a uniform recording statute for consideration by the states. I was the Reporter for this ULC effort. This article, after briefly summarizing the need for the uniform Act and its major provisions, focuses on its most interesting and novel provisions: those affecting remedies if police fail to record when required. The Act creates a suppression remedy if the failure to record renders the confession “unreliable,” that is, involving too great a risk of its falsity for a jury to rely upon it. Although this remedy is not unheard of, it is unusual, and this article explains and defends this remedial choice. Suppression is, however, not automatic but is subject to a balancing process. The Act also provides for a cautionary jury instruction. This article discusses the strengths and weaknesses of that model, including the unlikelihood that a jury instruction alone can adequately protect the innocent. This article argues for the importance of the availability of the suppression remedy – an option most of the small pool of state legislation has generally rejected – and for the importance of admitting expert testimony on the risks of error inherent in custodial interrogation, especially when it is not recorded. A draft of the Act included such a provision, and this article challenges the policy wisdom of the final Act’s not addressing expert testimony. The Act also mandates police preparation of regulations that must address certain specified subjects and provides mechanisms for police transparency and accountability in the recording process. The Act contains a novel provision protecting police departments from civil liability in this area if they promulgate and adequately enforce reasonable regulations designed to implement the Act but an individual officer nevertheless strays from those mandates. This article defends that choice. Ultimately, this article concludes that, though the Act is not perfect from a policy perspective, it is an excellent step forward. Moreover, it was drafted via a process involving many stakeholders, paying particular attention to the concerns of law enforcement. The focus here on remedies when police fail to comply with the Act may wrongly create the impression that the Act embodies distrust of law enforcement. To the contrary, the Act is designed to improve law enforcement’s ability to catch the guilty while acquitting the innocent, and many of its novel provisions stem from law enforcement suggestions. Though the Act may be flawed, it offers the best opportunity thus far for promoting continued and wider reform efforts in the states