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Police interrogations in the United States are focused on one thing: getting a confession from the suspect. The Reid Technique, a guilt-presumptive nine-step method and the most common interrogation technique in the country, is integral to fulfilling this goal. With guidance from the Reid Technique, interrogators use coercion and deceit to extract confessions—regardless of the costs. When used with juvenile suspects, this method becomes all the more problematic. The coercion and deception inherent in the Reid Technique, coupled with the recognized vulnerabilities and susceptibilities of children as a group, has led to an unacceptably high rate of false confessions among juvenile suspects. And, when a juvenile falsely confesses as the result of coercive interrogation tactics, society ultimately suffers a net loss.

In the Eighth Amendment context, the Supreme Court has recognized that children are different from adults and must be treated differently in various areas of the criminal justice system. The Court’s recent Eighth Amendment logic must now be extended to the Fifth Amendment context to require that juveniles be treated differently in the interrogation room, as well. This Note suggests that the Reid Technique be categorically banned from juvenile interrogations through a constitutional ruling from the Court. Doing so would not foreclose juvenile interrogation; rather, a more cooperative and less coercive alternative could be utilized, such as the United Kingdom’s PEACE method. Nonetheless, only a categorical constitutional rule that prohibits the use of the Reid Technique in all juvenile interrogations will eliminate the heightened risk of juvenile false confessions and truly safeguard children’s Fifth Amendment rights.

Compliance and subversion are not mutually exclusive. Police officers can comply with Miranda requirements while subverting their purpose through creative workarounds; individuals facing deportation can comply with immigration procedures while clogging them up with frivolous claims; anti-death penalty activists can avoid violation of Eighth Amendment doctrine while undermining the executions it approves. These and other deliberate actions to obstruct judicial protections of rights and powers fall in a gray area between compliance and noncompliance. This Note articulates a transsubstantive legal theory underlying these actions, referred to as “compliant subversion”: attempts to make judicial protections of rights or powers unworkable while maintaining facial compliance with the law. After defining this concept and exploring its manifestations across different areas of law, the Note examines how courts constrain compliant subversion with reference to the subversive intent underlying it. Finally, the Note presents a normative critique of when judicial consideration of compliant subversion is inappropriate.

In the last decade, many fields within forensic science have been discredited by scientists, judges, legal commentators, and even the FBI. Many different factors have been cited as the cause of forensic science’s unreliability. Commentators have gestured toward forensic science’s unique development as an investigative tool, cited the structural incentives created when laboratories are either literally or functionally an arm of the district attorney’s office, accused prosecutors of being overzealous, and attributed the problem to criminal defense attorneys’ lack of funding, organization, or access to forensic experts.

But none of these arguments explain why trial judges, who have an independent obligation to screen expert testimony presented in their courts, would routinely admit evidence devoid of scientific integrity. The project of this Note is to understand why judges, who effectively screen evidence proffered by criminal defendants and civil parties, fail to uphold their gatekeeping obligation when it comes to prosecutors’ forensic evidence, and how judges can overcome the obstacles in the path to keeping bad forensic evidence out of court.

This Note asks whether computer source code, when developed as a means to an end—as distinct from source code intended for third-party review—is covered speech under the First Amendment. I argue it is not. My argument has two parts. First, I describe case law treating First Amendment challenges to regulations of source code to demonstrate courts’ failure to address the status of purely functional source code. Second, I describe how courts should address such a question, by referencing an array of theories used to explain the scope of the First Amendment. I conclude no theory alone or in combination with others justifies the constitutional coverage of purely functional source code. I thereby undermine a key constitutional argument by technology manufacturers contesting, in the context of criminal investigations, the government-compelled creation of software to circumvent encryption technologies.

Few decisions in the criminal justice process are as consequential as the determination of bail. Indeed, recent empirical research finds that pre-trial detention imposes substantial long-term costs on defendants and society. Defendants who are detained before trial are more likely to plead guilty, less likely to be employed, and less likely to access social safety net programs for several years after arrest. Spurred in part by these concerns, critics of the bail system have urged numerous jurisdictions to adopt bail reforms, which have led to growing momentum for a large-scale transformation of the bail system. Yet supporters of the current system counter that pre-trial detention reduces flight and pre-trial crime—recognized benefits to society—by incapacitating defendants. Despite empirical evidence in support of both positions, however, advocates and critics of the current bail system have generally ignored the real trade-offs associated with detention.

This Article provides a broad conceptual framework for how policymakers can design a better bail system by weighing both the costs and benefits of pre-trial detention—trade-offs that are historically grounded in law, but often disregarded in practice. I begin by presenting a simple taxonomy of the major categories of costs and benefits that stem from pre-trial detention. Building from this taxonomy, I conduct a partial cost-benefit analysis that incorporates the existing evidence, finding that the current state of pre-trial detention is generating large social losses. Next, I formally present a framework that accounts for heterogeneity in both costs and benefits across defendants, illustrating that detention on the basis of “risk” alone can lead to socially suboptimal outcomes.

In the next part of the Article, I present new empirical evidence showing that a cost-benefit framework has the potential to improve accuracy and equity in bail decision-making, where currently bail judges are left to their own heuristics and biases. Using data on criminal defendants and bail judges in two urban jurisdictions, and exploiting variation from the random assignment of cases to judges, I find significant judge differences in pre-trial release rates, the assignment of money bail, and racial gaps in release rates. While there are any number of reasons why judges within the same jurisdiction may vary in their bail decisions, these results indicate that judges may not be all setting bail at the socially optimal level.

The conceptual framework developed in this Article also sheds light on the ability of recent bail reforms to increase social welfare. While the empirical evidence is scant, electronic monitoring holds promise as a welfare-enhancing alternative to pre-trial detention. In contrast, application of the conceptual framework cautions against the expanding use of risk-assessment instruments. These instruments, by recommending the detention of high-risk defendants, overlook the possibility that these high-risk defendants may also be “high-harm” such that they are most adversely affected by a stay in jail. Instead, I recommend that jurisdictions develop “net benefit” assessment instruments by predicting both risk and harm for each defendant in order to move closer toward a bail system that maximizes social welfare.