Scott E. Sundby

Professor of Law & Dean's Distinguished Scholar

J.D. 1983, Cornell Law School
B.A. 1980, Vanderbilt University

Phone: 305-284-5848
Office: G279

Scott Sundby teaches a variety of courses in the criminal law and procedure area. After clerking for Judge Phyllis Kravitch of the Eleventh Circuit, he began his teaching career at Hastings College of the Law in San Francisco. He later moved to Washington & Lee Law School where he was the Sydney and Frances Lewis Professor of Law. While at W&L, at various points he served as Director of the Virginia Capital Clearinghouse, a clinic at W&L that advises lawyers appointed to represent capital defendants, and as Director of the Frances Lewis Law Center. To obtain a prosecutor's viewpoint of the criminal justice system, Professor Sundby took a leave of absence from teaching during 1994-95 and prosecuted cases as a Special Assistant United States Attorney for the Southern District of Florida. He has been a visiting fellow at Griffith University in Brisbane, Australia and at Universitat Jaume I in Castelló de la Plana, Spain.

Professor Sundby's writings focus on criminal law and constitutional law issues, including articles that have appeared in the Virginia, Columbia, Cornell, UCLA, and Texas law reviews. Much of his research has been conducted as part of the Capital Jury Project, a study funded by the National Science Foundation that is designed to understand how juries decide whether or not to impose the death penalty. As part of the Project, he oversaw the interviewing of a large number of jurors who actually served on capital juries, half of which returned death sentences and half of which opted for life sentences. His articles based on the Project have examined a variety of aspects of the death-penalty decision, including the role of the defendant's remorse in affecting the jury's decision, the impact of expert witnesses, the importance of how the jurors perceive the victim, and how different trial strategies influence the jury's choice between a life and death sentence; his findings on how trial strategy affects a juror's death-penalty decision were cited by the United States Supreme Court in its opinion in Florida v. Nixon (2004).

In interviewing jurors who have been faced with the wrenching choice between a life and death sentence, Sundby has been particularly struck by the intensely human nature of the decision as jurors grapple with moral, legal and personal issues. His book, A Life and Death Decision: A Jury Weighs the Death Penalty, focuses on the human side of the decision by listening to how different jurors from the same case describe their jury's decision to impose a death sentence. This jury's decision was an especially difficult one, because a holdout for life clung to her vote for days despite eleven other jurors wanting a death sentence. The jurors' stories in the book open a window to how real jurors make the death penalty decision, while also providing insights into broader issues concerning the death penalty, including the roles of race, gender, and personal experience in a juror's decision whether to vote for life or death. Named a 2006 Finalist for the American Bar Association's Silver Gavel Award, A Life and Death Decision was released in April of 2005 and a paperback version followed in 2007.

 Publications

The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty’s Unraveling, 23 William and Mary Bill of Rights Journal – (2014) (Invited paper for Symposium on Atkins v. Virginia)(available SSRN)

Everyman’s Exclusionary Rule: The Exclusionary Rule and the Rule of Law (or Why Conservatives Should Embrace the Exclusionary Rule), 11 Ohio St. J. Crim. Law 393 (2013) (Invited Paper for Symposium on The Future of the Exclusionary Rule)

McCleskey v. Kemp and the Loss of Constitutional Faith, 10 Ohio St. Journal of Criminal Law 5 (2012) (Invited paper for Symposium Issue on the 25th Anniversary of McCleskey v. Kemp) (Guest Editor for Issue)

Cuando lo "Viejo" se Encuentra con lo "Nuevo": La Ciberdelincuencia en Estados Unidos(chapter in Cybercrime: A Global Perspective) (forthcoming 2012) (with Professor Maria Angeles Cebadera Perez) ("When the "Old" Meets the "New": Cybercrime in the United States)

The Conundrum of Zealous Representation, 8 Ohio St. J. Crim. Law 567 (2011) (review of Sharon Davies' Rising Road: A True Tale of Love, Race and Religion in America)

War and Peace in the Jury Room: How Capital Juries Reach Unanimity, 62 Hastings Law Journal 103 (2010)

The Majestic and the Mundane: the Two Creation Stories of the Exclusionary Rule, 43 Texas Tech Law Review 391 (2010) (Invited Paper for Symposium on "Fourth Amendment Search and Seizure") (with Lucy Ricca)

Mapp v. Ohio's Unsung Hero: The Suppression Hearing as Morality Play, 85 Chicago-Kent Law Review 255 (2010) (Invited Paper for Symposium on "Criminal Procedure and the Roberts Court")

Oyendo Al Jurado A Traves de La Puerta: Una Perspectiva de La Aplicacion de la Pena de Muerte en America, 15 Revista de Derecho Procesal (2008) (with Professor Maria Angeles Cebadera Perez) ("Listening at the Jury Room Door: Understanding America and the Death Penalty")

Caminando Sobre La Cuerda Floja Constitucional: La USA PATRIOT Act y La "Guerra Contra El Terror," 15 Revista General de Derecho Procesal (2008) (with Professor Maria Angeles Cebadera Perez) ("Walking the Constitutional Tightrope: The USA PATRIOT Act and the 'War Against Terror'")

Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation, 36 Hofstra Law Review 1035 (2008) (with John Blume and Sheri Lynn Johnson) (Invited Paper for Symposium on "Guidelines for Mitigation in Death Penalty Cases")

Why the Downturn in Death Sentences? in THE FUTURE OF AMERICA'S DEATH PENALTY (Carolina Academic Press 2008) (with William Bowers)

The Death Penalty's Future: Charting the Crosscurrents of Declining Death Sentences and the McVeigh Factor, 84 Texas Law Review 1929 (2006) (Paper for Symposium on Punishment Law and Policy).

Protecting the Citizen Whilst He is Quiet: Suspicionless Searches, Special Needs and General Warrants, 74

A Life and Death Decision: A Jury Weighs the Death Penaly (Palgrave Macmillan/St. Martin's Press - April 2005; paperback October 2007); finalist for 2006 ABA Silver Gavel Award.

Mississippi Law Journal 501 (2005) (Paper for Symposium on The Tools to Interpret the Fourth Amendment, National Center for Justice and the Rule of Law, University of Mississippi).

Moral Accuracy and Wobble in Capital Sentencing, 80 Indiana Law Journal 56 (2005) (Comments/Essay for Symposium on Toward a Model Death-Penalty Code: The Massachusetts Governor's Council Report, Indiana University School of Law).

The Capital Jury and Empathy: The Problem of Worthy and Unworthy Victims, 88 Cornell Law Review 343 (2003). (Paper for Symposium on Victims and the Death Penalty.)

Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. Maryland, 33 McGeorge L.Rev.643 (2002). (Essay/Lecture for McGeorge Law School Distinguished Lecture Series).

Burden of Proof, Encyclopedia of Crime and Justice, 2001 (with Barbara Underwood).

The Limits of Privacy, 570 Annals of the American Academy of Political and Social Science 202 (2000). (Book review of Amitai Etzioni's The Limits of Privacy).

Mean Justice, 1999 Trial 95 (Sept. issue) (book review of Edward Humes' Mean Justice).

An Ode to Probable Cause, 72 St. John's Law Review 1133 (1998) (Paper for Symposium on the Thirtieth Anniversary of Terry v. Ohio).

The Jury and Absolution: The Intersection of Trial Strategy, Remorse and the Death Penalty, 83 Cornell Law Review 1557 (1998) (Paper for Symposium on How the Death Penalty Works: Empirical Studies of the Modern Capital Sentencing System).

The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert Testimony, 83 Virginia Law Review 1109 (1997).

The Education of Law Professor, 1996 Virginia Lawyer 24 (April issue)

Everyman's Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen?, 94 Columbia Law Review 1751 (1994).

The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 U.C.L.A. Law Review 1147 (1991).

Is Abandoning State Action Asking Too Much of the Constitution?, 17 Hastings Constitutional Law Quarterly 139 (1990) (Paper for Symposium on the California Constitution).

The Virtues of a Procedural View of Innocence - A Response to Professor Schwartz, 41 Hastings Law Journal 161 (1989).

The Reasonable Doubt Rule and the Meaning of Innocence, 40 Hastings L.J. 457 (1989).

A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 Minnesota Law Review 383 (1988).

The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell Law Review 446 (1985) (with Roth).

 News / Media

Professor Scott Sundby in "Sundby on the Exclusionary Rule and the Rule of Law" in CrimProf Blog.

Professor Scott Sundby in "Mental Health Advocates To U.S. Supreme Court: Stop 'Prince of God' Inmate's Execution" on WFSU.

Professor Scott Sundby in "AG calls Martin killing an 'unnecessary shooting'" in News Telegram, in "Holder: Justice Department will follow 'the facts and the law'" in The Topeka Capital Journal and in "Eric Holder: Trayvon Martin Death Was An 'Unnecessary Shooting'" in the Huffington Post, and in "Holder at Orlando NAACP convention after Trayvon comments" on Bay News 9.

Professor Scott Sundby is interviewed about jury selection and the George Zimmerman trial in the story "Reporter's Notebook: Can a potential juror caught lying face perjury?" on ABC 10 News.

Phone: 305-284-5848
Office: G279
Faculty Assistant

Sutton, Tina

Phone: (305)284-4241
Office: G287