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Abstract:
Lie detection plays a key role in resolving criminal cases. Courts express a strong belief that juries can detect lies by analyzing witness demeanor. In contrast, legal academics, based on several decades of social science research, generally reject this consensus and assert that lie detection accuracy is little better than a coin flip. Recent developments in the deception detection literature suggest that this view is incomplete. In fact, lie detection accuracy is likely to be heterogeneous and to vary widely based on two factors. First, when the decision-makers' biases match reality, deception detection accuracy is likely to be quite good. Second, when the decision-maker has substantial context for the statements being evaluated, accuracy is also likely to be high. I consider the implications of this research for two vital areas of criminal law: statements by defendants/suspects and statements by cooperating witnesses.

testimony, credibility, lies, juries, witnesses

Abstract:
When deciding whether baseball players are likely to get a hit, we look at their history of success at the plate. When deciding if a stock price is likely to rise or fall, we look at its past performance. But when police officers claim that they have probable cause to believe a certain location contains evidence, we do not look at whether they have been right or wrong when they have made the same claim in the past. Law enforcement search success rates vary widely, even when the same legal standard applies. Searches pursuant to warrants issued on a probable cause standard recover evidence at very high rates, usually exceeding 80%. By contrast, warrantless searches, even when officers allege they have probable cause, succeed at far lower rates, recovering evidence as infrequently as 12% of the time. Similarly, some officers are far better than others when they conduct probable cause searches. Some almost never succeed; some almost always find evidence.

What role should these differential success rates play in the probable cause analysis? The current answer is none. Judges are not presented with the success rates of the law enforcement officers who appear before them. I argue that this is a mistake. Law enforcement should be forced to present success rate data to judges when making probable cause claims and judges should be allowed to consider the data when deciding whether to issue a warrant or whether to approve a previously conducted search. These success rates capture information not currently analyzed in the search process and their addition would improve the accuracy of search decisions. Most significantly, we would learn private information in the possession of law enforcement not currently presented to judges.

probable cause, warrants, statistical evidence, checkpoints, police perjury

Abstract:
The recently-disclosed Terrorist Surveillance Program (TSP) has caused debate over whether warrants should be required for wiretaps targeting international terrorism. We examine traditional criminal wiretaps to determine whether the warrant requirement limits law enforcement. We find budget constraints cause law enforcement to pursue only taps that are particularly likely to succeed. Thus, eliminating the warrant requirement for traditional wiretaps would matter little, and the significance of a warrant requirement for the TSP depends on budget. If the program is well-funded, a warrant requirement will deter marginal taps, but if the program is lightly funded, a warrant requirement is superfluous.

warrants, wiretaps, electronic surveillance, criminal procedure, criminal law, law enforcement, budget

Abstract:
Indian tribes, and Indian tribal courts, vary substantially across the United States. Despite these differences, all tribal courts have (and lack) the same jurisdiction. The Supreme Court has treated all tribal courts as different from state courts, and at the same time, all tribal courts as identical to each other.

This Article attempts to analyze why, in the current jurisdictional framework, tribes are treated differently from states but not differently from each other. Two assumptions by the Supreme Court have led to this outcome. First, the Supreme Court has assumed tribal courts are fragile and are threatened by state court concurrent jurisdiction. The Court has suggested that, if given the choice, forum-shopping litigants (particularly non-tribal members) will turn to state courts, undermining tribal court jurisdiction. Second, the Supreme Court has assumed that the non-Indian litigants will generally be disadvantaged in tribal courts, and as such need protection from the exercise of tribal jurisdiction.

This Article these assumptions are flawed and that the actual nature and texture of the tribal court at issue should shape the scope of tribal jurisdiction. When tribes have in fact established courts that are fundamentally different from state courts, an exclusive jurisdiction model may be appropriate, but when tribes have adopted courts that mimic state courts, tribes should have the option of a concurrent jurisdiction model, with the state and the tribe sharing jurisdiction over all disputes involving tribal members and non-tribal members alike.