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, Universidad de San Andres in Buenos Aires, Argentina, and was a Fulbright scholar and the Arthur Cox research fellow at Trinity College Dublin. 

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 have been cited by over sixty courts, including 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.


The Court and the Suspect: Human Frailty, the Calculating Criminal, and the Penitent in the Interrogation Room, 98 Wash. U. L. Rev. 123 (2020).

The Rugged Individual's Guide to the Fourth Amendment: How the Court's Idealized Citizen Shapes, Influences and Excludes the Exercise of Constitutional Rights, 65 UCLA L. Rev. 690 (2018).

The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty’s Unraveling, 23 Wm & Mary Bill Rts. J. 487 (2014).

Everyman's Exclusionary Rule: The Exclusionary Rule and the Rule of Law (or Why Conservatives Should Embrace the Exclusionary Rule), 10 Ohio St. J. Crim. L. 393 (2013).

The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).

Cuando lo "Viejo" se Encuentra con lo "Nuevo": La Ciberdelincuencia en Estados Unidos, Cybercrime: A Global Perspective (2012).

The Conundrum of Zealous Representation, 8 Ohio St. J. Crim. L. 567 (2011).

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

The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule, with Lucy Ricca, 43 Tex. Tech L. Rev. 391 (2010).

Mapp v. Ohio's Unsung Hero: The Suppression Hearing as Morality Play, 85 Chi.-Kent L. Rev. 255 (2010).

Mapp v. Ohio’s Unsung Hero: Suppression Hearings as Morality Play, SSRN Electronic Journal (2010).

Oyendo Al Jurado A Traves de La Puerta: Una Perspectiva de La Aplicacion de la Pena de Muerte en America, Revista de Derecho Procesal (2008).

Caminando Sobre La Cuerda Floja Constitucional: La USA PATRIOT Act y La "Guerra Contra El Terror" , with Maria Angeles Perez Cebadera, Revista General de Derecho Procesal (2008).

Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation , with J Blume, 36 Hofstra Law Review 1035 (2008).

The death penalty's future: Charting the crosscurrents of declining death sentences and the McVeigh factor, 84 TEXAS LAW REVIEW 1929-1972 (2006).

Moral Accuracy and'Wobble'in Capital Sentencing , 80 Indiana Law Journal (2005).

A Life and Death Decision: A Jury Weighs the Death Penalty (2005).

Protecting the Citizen Whilst He Is Quiet: Suspicionless Searches, Special Needs and General Warrants , 74 Mississippi Law Journal 501 (2004).

Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. Maryland, 33 McGeorge L. Rev. 643 (2002).

The Capital Jury and Empathy: The Problem of Worthy and Unworthy Victims, 88 Cornell L. Rev. 343 (2002).

Capital Jury and Absolution: The Intersection of Trial Strategy Remorse and the Death Penalty , 83 Cornell Law Review 1557 (1998).

An Ode to Probable Cause: A Brief Response to Professors Amar and Slobogin , 72 John's Law Review 1133 (1998).

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

"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 UCLA Law Review 1147 (1992).

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

Is Abandoning State Action Asking Too Much of the Constitution , 17 Hastings Const. L.Q. 139 (1989).

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

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

Felony-Murder Rule a Doctrine at Constitutional Crossroads , 70 Cornell Law Review 446 (1985).

The Libby Letters: Reflections on Sentencing and Mercy in a Post-Booker World, SSRN Electronic Journal.

 Media Appearances

"AG calls Martin killing an 'unnecessary shooting'" in News Telegram 2013

"Eric Holder: Trayvon Martin Death Was An 'Unnecessary Shooting'" in the Huffington Post 2013

"Holder at Orlando NAACP convention after Trayvon comments" on Bay News 9 2013

"Holder: Justice Department will follow 'the facts and the law'" in The Topeka Capital Journal 2013

"Mental Health Advocates To U.S. Supreme Court: Stop 'Prince of God' Inmate's Execution" on WFSU 2013

"Reporter's Notebook: Can a potential juror caught lying face perjury?" on ABC 10 News 2013

"Sundby on the Exclusionary Rule and the Rule of Law" in CrimProf Blog 2013

 Presentations & Awards

The Role of Remorse and Redemption (September , 2014)

(September , 2014)

Constitutional Limits on the Death Penalty (October , 2014)

The Messenger Matters: Witness Types in Capital Cases (November , 2014)

Understanding the Penalty Phase as Storytelling (March , 2014)

Constitutional Limits on the Death Penalty (June , 2014)

Communicating Remorse and Redemption (February , 2014)

The True Legacy of Atkins and Roper: The Unreliability Principle (March , 2013)

Lessons from the Jury Room (February , 2013)

Atkins and Roper’s True Legacy (December , 2013)

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

May, Catherine

Phone: (305) 284-3910
Office: G287

Area of Expertise

  • Corporate Governance
  • Criminal Law and Procedure
  • Innocence and Wrongful Conviction