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Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process—from policing to pretrial detention, sentencing, corrections, and parole. As efforts to reduce mass incarceration have led to the adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid, and whether they might reinforce rather than reduce bias in the criminal justice system. Such questions, however, have largely neglected how decision-makers use risk assessment in practice. In this Article, we explore the judging of risk assessment and why decision-makers so often fail to consistently use quantitative risk assessment tools. We present the results of a novel set of studies of both judicial decision-making and attitudes towards risk assessment. In our first study, we find that even in Virginia, whose risk assessment instrument has been hailed as a national model for the use of risk assessment, sentencing data indicates that judicial use of risk assessment is highly variable. In our second study, the first comprehensive survey of its kind, we also find quite divided judicial attitudes towards risk assessment in sentencing practice. Even if, in theory, an instrument can better sort offenders in less need of jail or prison, in practice, decision-makers may not use it as intended. Still more fundamentally, in criminal justice, unlike in other areas of the law, one does not have detailed regulations concerning the use of risk assessment that specify the content of assessment criteria, the peer review process, and standards for judicial review. We make recommendations for how to better convey risk assessment information to judges and other decision-makers, and how to structure that decision-making based on common assumptions and goals. We argue that judges and lawmakers must revisit the use of risk assessment in practice. We conclude by setting out a roadmap for the use of risk information in criminal justice. Unless judges and lawmakers regulate the judging of risk assessment, the risk-assessment revolution in criminal justice will not succeed in addressing mass incarceration.

A puzzle is raised by cases of false confessions: How could an innocent person convincingly confess to a crime? Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and postconviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except two of the exonérées studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information. We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process. However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions. This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly videotaping interrogations in their entirety, but also reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice.

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone's view, the citizen jurors tasked with making due process protections a reality do not share the law's preference for false acquittals over false convictions. Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority view false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone's view are more accepting of prosecution evidence and are more conviction-prone than the minority of potential jurors who agree with Blackstone. These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not inclined to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law's preference for false acquittals, such as more stringent pretrial screening of criminal cases and stricter limits on prosecution evidence. Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

A second wave of false confessions is cresting. In the first twenty-one years of postconviction DNA testing, 250 innocent people were exonerated, forty of whom had falsely confessed. Those false confessions have attracted sustained public attention from courts, law enforcement, policymakers, and the media; many did not previously believe that a person could confess falsely until DNA testing became available to sometimes prove confessions false quite conclusively. In just the last Why are so many of the recent exonerations cases with false confessions, often despite the availability of DNA testing at the time of trial? That is a puzzle that initially motivated this Essay.

A corporate criminal is no scapegoat, assures the Department of Justice (\"DOJ\"), because it is always a priority to target all culpable individuals at a company. DOJ policy emphasizes that \"[o]nly rarely should provable individual culpability not be pursued, particularly if it relates to high-level corporate officers,\" even if the company settles its case with prosecutors. After all, under the respondeat superior standard that applies in federal criminal cases, a corporation can be prosecuted if and only if an employee committed a crime. As the Supreme Court has put it, \"[T]he only way in which a corporation can act is through the individuals who act on its behalf.\" Yet, as is increasingly the subject of high-profile criticism, more often than not, when the largest corporations are prosecuted federally, individuals are not charged. In this Article, I develop data describing these individual prosecutions-which tend to result in light sentences when convictions are obtained. These data illustrate the special challenges of bringing corporate prosecutions, and they suggest why, in contrast to what prominent critics have argued, bringing more individual cases is no adequate substitute for prosecuting companies. I conclude by proposing how corporate prosecutions could be brought to enhance individual criminal accountability.

This book exposes the dangerously imperfect forensic evidence that we rely on for criminal convictions. \"That's not my fingerprint, your honor,\" said the defendant, after FBI experts reported a \"100-percent identification.\" They were wrong. It is shocking how often they are. Autopsy of a Crime Lab is the first book to catalog the sources of error and the faulty science behind a range of well-known forensic evidence, from fingerprints and firearms to forensic algorithms. In this devastating forensic takedown, noted legal expert Brandon L. Garrett poses the questions that should be asked in courtrooms every day: Where are the studies that validate the basic premises of widely accepted techniques such as fingerprinting? How can experts testify with 100 percent certainty about a fingerprint, when there is no such thing as a 100 percent match? Where is the quality control in the laboratories and at the crime scenes? Should we so readily adopt powerful new technologies like facial recognition software and rapid DNA machines? And why have judges been so reluctant to consider the weaknesses of so many long-accepted methods? Taking us into the lives of the wrongfully convicted or nearly convicted, into crime labs rocked by scandal, and onto the front lines of promising reform efforts driven by professionals and researchers alike, Autopsy of a Crime Lab illustrates the persistence and perniciousness of shaky science and its well-meaning practitioners.

In the past, domestic prosecutions of foreign corporations were not particularly noteworthy. Scholars had little reason to examine issues raised by prosecutions of foreign firms. Courts rarely had the occasion to analyze jurisdiction in such cases. Foreign nations did not complain that the United States inappropriately prosecuted their firms or questioned their criminal law or enforcement capabilities. All of this has changed. Federal prosecutors now advertise how they target foreign corporations. The Department of Justice (\"DOJ\") publicizes its goal to \"root out global corruption\" and touse a variety of tools to ensure \"the stability and security of domestic and global markets.\" Foreign firms, and their employees, are increasingly convicted of a range of crimes including antitrust violations, environmental crimes, Foreign Corrupt Practices Act (\"FCPA\") violations, tax fraud, wire fraud, and bank fraud.

Expert evidence plays a crucial role in civil and criminal litigation. Changes in the rules concerning expert admissibility, following the Supreme Court's Daubert ruling, strengthened judicial review of the reliability and the validity of an expert's methods. Judges and scholars, however, have neglected the threshold question for expert evidence: whether a person should be qualified as an expert in the first place. Judges traditionally focus on credentials or experience when qualifying experts without regard to whether those criteria are good proxies for true expertise. We argue that credentials and experience are often poor proxies for proficiency. Qualification of an expert presumes that the witness can perform in a particular domain with a proficiency that non-experts cannot achieve, yet many experts cannot provide empirical evidence that they do in fact perform at high levels of proficiency. To demonstrate the importance of proficiency data, we collect and analyze two decades of proficiency testing of latent fingerprint examiners. In this important domain, we found surprisingly high rates offalse positive identifications for the period 1995 to 2016. These data would qualify the claims of manyfingerprintexaminers regarding their near infallibility, but unfortunately, judges do not seek out such information. We survey the federal and state case law and show how judges typically accept expertcredentials as a proxy for proficiency in lieu of direct proof of proficiency. Indeed, judges often reject parties' attempts to obtain and introduce at trial empirical data on an expert's actual proficiency. We argue that any expert who purports to give falsifiable opinions can be subjected to proficiency testing and that proficiency testing is the only objective means of assessing the accuracy and reliability of experts who rely on subjective judgments to formulate their opinions (so-called \"black-box experts\"). Judges should use proficiency data to make expert qualification decisions when the data is available, should demand proof of proficiency before qualifying black-box experts, and should admit at trial proficiency data for any qualified expert. We seek to revitalize the standard for qualifying experts: expertise should equal proficiency.

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is, and should be, enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm it causes to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that constitutional doctrine, in its broad outlines, reflects a legitimacy-based view. In the Equal Protection context, courts have set out how discriminatory goals are not legitimate state interests. In the executive action context, courts state that absent a legitimate and bona fide justification, the Executive may not have power delegated from Congress to act. What courts have not done is specified what happens when the hammer falls: how intent disables government policymaking and for how long. The legitimacy-focused approach can neutralize government decisions, even when the government tries to re-do its policy and claim new reasons. Third, I argue that the legitimacy-focused approach toward constitutional intent doctrine that I advance in this Article is normatively preferable. The approach does incentivize insincere reasons for government actions. However, I argue that the advantages outweigh those costs. There are real benefits to even insincere expressions of non-discrimination. Conversely, when the government makes discriminatory statements, this is very strong evidence of discriminatory motive. During a time of nationwide litigation of intentional discrimination claims in areas including immigration rights, voting rights, and religious non-establishment, it has never been more important to set out the doctrine, the costs, and the consequences of unconstitutionally illegitimate intent.

In the past, wrongful convictions were seen as a local problem largely undeserving of national or international attention. Very different legal systems have shared a common approach of emphasizing the finality of criminal convictions, thereby making it very difficult to claim innocence by relying on new evidence uncovered post-trial. While international law guarantees a right to a fair trial, a presumption of innocence, and a right to appeal, no international human rights norms clearly obligate countries to allow defendants to meaningfully assert post-trial claims of innocence. Today, the procedures and attitudes toward claims of innocence that rely on newly discovered evidence are influx as more countries have adopted broader remedies for convicts to claim innocence. In this Essay, I describe the remarkable changes that have taken place in the past few decades, driven by a mounting number of exonerations, the development of DNA technology, the work of innocence projects, and a new international dialogue on research and legal methods to address wrongful convictions. Large and small countries, civil and common law countries, and countries with very different attitudes towards criminal justice have increasingly developed mechanisms to permit convicted individuals to assert factual innocence. Countries draw from each other's legal standards, strategies, and responses to wrongful convictions. Countries now permit innocence-based challenges under various procedural labels, ranging from the writ of habeas corpus, amparo de libertad, revision, or other statutory or administrative remedies. In turn, international bodies have relaxed concerns with finality and opened the door to the broader use of innocence claims, if not recognizing a freestanding right to make use of them. In a time of growing convergence and comparison of criminal procedure approaches between countries, the movement towards permitting claims of innocence may lead to recognition of an international right to claim innocence or, more plausibly, a customary international law right to claim innocence in domestic courts. This could further incentivile the international development of claims of innocence and the adoption of remedies for wrongful convictions around the world.