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Abstract:
On June 28, 2004, the Supreme Court decided Missouri v. Seibert, 124 S. Ct. 2601 (2004). At first glance, Seibert may look like a Miranda victory, but this is an illusion. Although Justice Souter's plurality decision condemns question-first police practices designed to circumvent Miranda, the case is governed by Justice Kennedy's concurrence which requires that the defendant prove that the police officer acted in bad faith.

The problem with Seibert is not that courts applying the new rule will ignore some epidemic of inadvertent Miranda violations; these are presumably rare. The real danger is that opportunistic Miranda foes can use Seibert to persuade judges to admit statements taken in violation of Miranda in future case when the defendant fails to prove that the police acted with subjective bad faith. Under this new rule, even statements taken in deliberate bad faith violation of Miranda should be admitted if the police have taken certain curative measures.

This article suggests an alternative future. Without the police bad faith test, which does not currently have the support of the majority, Seibert's ban on unwarned pre-interrogation questioning could help transform Miranda into a more effective deterrent. Seibert reflects the reality that Miranda alone does not work and could be used to support the adoption of additional enforcement mechanisms, such as rules requiring the videotaping of custodial interrogations. With more than fifteen states currently contemplating the mandatory taping of all custodial interrogations, the time is ripe for a critical analysis of Seibert and its full potential.

Abstract:
Neuroscience will certainly change law. In fact, neuroscience research has the potential to influence a vast range of legal decisions. To the extent that neuroscientists increasingly make claims that neuroimaging reveals cognition, even the most unimaginative prognosticator might predict: (1) the preliminary investigative use of neuroimages to enhance witness interviews and police interrogations (including but not limited to lie-detection), (2) jury selection based on neuroimages that appear to reveal jurors' unconscious stereotypes or biases, and (3) arguments about intent or sentencing based on neuroimage-enhanced explanations of behavior and predictions of dangerousness. In anticipation of a brave new world of neuroscience 'enhanced' law, this Article suggests that if we want to predict or control future social and legal responses to cognitive neuroscience research, we must carefully and explicitly consider two basic preexisting realities: (1) our shared assumptions about the validity of the medical field of neuroscience and the accuracy of diagnostic neuroimaging technologies; and (2) our increasingly frequent exposure (even within the mainstream media) to uncritical reports of cognitive neuroscience research that purports to correlate brain activity with cognition, deception,or social behavior. The risk, is that if we ignore these realities, judges, jurors, and the general public will likely view all or most neuroscience-based evidence as legitimate 'hard' science because researchers rely on technologically sophisticated neuroimaging tools of demonstrated accuracy. The problem is that judges and jurors will mistakenly assume that technologies that are demonstrably valid medical diagnostic tools yield equally valid conclusions when they are used to map the neural correlates of deception and other forms of cognition.

Abstract:
Although many may suspect that police experts play a crucial role in obtaining convictions, few realize that police officers and federal agents are the most common prosecution experts. Police experts play an especially significant role in narcotics prosecutions where expert interpretations of a defendant's drug behavior or drug jargon abound. This Article attempts to reconcile the post-Daubert goal that judges consistently scrutinize the validity of expert evidence with the fact that, in practice, prosecutors consistently gain an unfair advantage when judges cede control of their courtrooms to the expert who arrives with a badge and gun. The assumptions that underlie this type of police expert testimony are frequently flawed or undisclosed. Thus, the Article proposes specific inquiries that could be adopted by the judiciary and defense bar to ensure that police experts' methods are valid and their conclusions are reasonable.

Abstract:
This Article predicts the demise of the Daubertista Revolution in science and law. Using the example of the February 2009 Federal Vaccine Court decisions that thoroughly and specifically debunk the belief that childhood measles, mumps, rubella ('MMR') vaccines cause autism, the Article posits that Daubertista hegemony over the field of science and law will and should end because we consistently ignore non-evidence legal cases even when courts engage in sophisticated analyses of vital and complex scientific questions. Other glaring examples discussed in the Article include our almost complete disinterest in science and law in the context of Intelligent Design Theory cases including the ground-breaking science-sentered decision in Kitzmiller v. Dover Area School District. Many cases that do not involve the admissibility of scientific evidence provide insight into how law uses and misuses science and create new (currently neglected) opportunities explore and predict shifts in social and judicial attitudes and behavior. The Article acknowledges that many Daubertistas have made significant contributions to the field, but proposes a new, more inclusive, transdisciplinary approach to both the study and practice of science-based legal controversies. This new approach would begin outside the courthouse with more explicit recognition of shared systemic social obstacles to sound science-based legal decisions in all fields such as: (1) growing American scientific illiteracy; (2) balanced media coverage of all so-called scientific “controversies” from evolution to alien abduction; and (3) effective efforts to exaggerate scientific uncertainty or distort scientific claims to advance theistic, normative, political, or pecuniary objectives. By starting the analysis outside the courthouse, the Article more effectively links traditional Daubertista concerns of evidentiary quality control to more global questions of science, law and society.

Abstract:
Much of the post-Daubert legal literature has taken the form of a lively debate about whether courts can or should attempt to assess the validity of the methods and tenets of a proffered scientific discipline or whether they should instead confine their analyses to a more manageable assessment of its narrow application to the relevant facts. This Article rejects the debate as a distraction and offers a new and more useful framework that is 'content specific to the case.' The Article acknowledges the almost-infinite range of scientific fields and does not pretend to offer a one-size-fits-all solution. Instead, the Article uses the model of the child abuse case to explore how judges and jurors understand and use novel and complex medical evidence. Although child abuse cases are prevalent in both the family and criminal courts, this is the first Article to explore child abuse from a science and law perspective and propose specific improvements to adjudicative accuracy.

Abstract:
This Article explores how the creation of the "sexual predator" as a legal and quasi-psychological concept raises critical questions about our criminal justice and mental health systems. This involves exploration of the origin and evolution of the classification of certain criminal suspects and defendants as sexual predators and the response by legislators and the courts. The first part of the analysis examines the impetus and legislative history of Federal Rules of Evidence 413-415. The second part explores the first sexual predator case from the Supreme Court (Kansas v. Hendricks) which upheld the constitutionality of the Kansas Sexually Violent Predators Act. Finally, the Article reviews existing psychiatric and psychological studies to reveal that there is no consistent reliable empirical evidence to support the core factual, legal, and psychological assumptions that underlie the very concept of a sexual predator and concludes that these new laws and cases instead reflect a legislative and judicial reaction to the demonization of one type of violence.

Abstract:
This Article addresses the long-standing assumptions about reason and behavior that underlie the Federal Rules of Evidence. Specifically, the Article explores the potential value to courts of new empirical evidence from the fields of behavioral economics and social psychology. The Article is an attempt to synthesize and critique a range of possible answers to the question of how evidence law should respond to new data on human decision-making and behavior from other fields.

Abstract:
The first legal exploration of the the connection between child abuse and parricide in the context of developing a self-defense claim. This seminal analysis of the early cases and nascent psychological and social theories of child abuse provided a new perspective on the legal problems raised when child/teenage defendants claim self-defense and profer a history of abuse by the parricide victim.

Abstract:
This Article posits that the problem of science that is misused or misunderstood by judges, lawyers, and jurors is real; but that the "junk science" literature consistently ignores the range of scientific mistakes and misunderstandings that permeate the law. Junk science is neither the source nor the scope of the problem among scientists, legal scholars, and practitioners, but is instead the byproduct of an adversarial system that too often fails to seek practical methods to enhance communication and collaboration with disciplines outside the law. The Article offers a specific two-pronged response to Justice Breyer's charge that judges "must aim for decisions that, roughly speaking, approximately reflect the scientific state of the art." The first component is a new interpretation of the evidentiary standards that places the judicial exploration of scientific validity squarely in the context of a relevance inquiry. The second is a detailed and specific exploration of basic scientific terminology, methodology, and statistical concepts designed to facilitate the operation of this reenvisioned standard.

Abstract:
This article focuses on childhood vaccine programs, which are among the most important and successful public health projects in history and explores how parents who decline vaccinations and politicians who respond to their anti-vaccine constituents ignore the scientific evidence and the public health risks. Under these circumstances, the judges who must decide over 5,000 pending civil cases against vaccine manufacturers are the most powerful decision makers and are in the best position to shape the future. This article argues that judges must be concerned with both the quality of the scientific evidence presented in their courtrooms and the external ramifications of their decisions on society.

When the best available scientific evidence has consistently failed to establish any link between vaccines and autism, judges who allow jurors to be presented with two competing expert opinions create the misleading impression that both opinions are legitimate. In this situation, the burden of the decisions falls to the jurors, despite the fact that even the most conscientious and objective juror lacks the time, training, experience, and resources to accomplish the task. These judges have the power to perform a vital public service and, like Judge John E. Jones (who decided Kitzmiller v. Dover Area School District, last December) they can add a voice of reason that will help diminish relativism and contribute to greater public understanding of science.