Bennett Capers is the Stanley D. and Nikki Waxberg Professor of Law at Fordham Law School, where he teaches Evidence, Criminal Law, and Criminal Procedure. He is also the Associate Dean of Research and the Director of the Center on Race, Law, and Justice.  He is also a former federal prosecutor whose academic interests includes the relationship between race, gender, technology, and criminal justice. He spoke to SSRN about the future of surveillance, what counts as an “expert” in expert testimonies, and how his research uses big-picture goals to inform all levels of change.

Q: To get started, can you talk a little bit about the trajectory of your career so far and how you’ve come to the work that you’re doing now?

A: I was a federal prosecutor for a number of years before joining academia, which informs my scholarship. Because I was a federal prosecutor, I immediately started writing in the areas of criminal law and criminal procedure. Later on, I started incorporating evidence. I frequently tell people now that when I first started writing scholarship, I was focusing on discrete issues, making discrete interventions. And these days, because I’m a little bit older and because I’ve learned so much from my students, increasingly I’m writing about the criminal system and going more ‘big picture,’ suggesting ways of reforming the whole system, rather than discrete points.

Q: Your most popular paper on SSRN is “Afrofuturism, Critical Race Theory, and Policing in the Year 2044,” and in that, you imagine what a future might look like when people of color comprise the majority of the population. You touch on many different aspects of society, including the future of policing and technology’s part in that. Since this paper was published back in 2019, a lot has changed in the world of technology, especially in the component of artificial intelligence. How do you see AI fitting into that future you explored in your paper?

A: I’m actually still wrestling with how I can update my thinking to incorporate AI. I still am a fan of technology. I’m still a big proponent of people harnessing technology to make the world better.

The way technology tends to work in the real world of policing is, basically, corporations come up with technology and they pitch it to police departments. And police departments say, “OK, that sounds good. It’ll make our jobs easier,” and they buy it. It’s a very top-down approach, and when I speak to people, I always say “wouldn’t it be great if everyday citizens, especially communities that are highly policed, could talk about the kind of technology that would make them safer, that would help reduce crime in their neighborhood.” And so, a bottom-up approach to technology, rather than a top-down approach. How that intersects with all the developments in AI is something I’m still figuring about.

Q: You’ve talked before in other interviews about this idea of “soft surveillance,” where instead of trying to get rid of surveillance completely, everyone’s subject to an equal level of surveillance. Do you think that the concept of privacy equality is something that will gain more attention as technology becomes more ingrained in our society?

A: I hope so. I mean, it seems like we’re already in a world where soft surveillance is the norm. I think most people, if they’re paying attention, know that almost everything about them, if it’s not being tracked, it’s easy to track. When we’re surfing the web, when we’re walking down the street, the cameras [are] everywhere. When we go in and out of places, almost everything can be tracked, and it seems like we’ve become relatively comfortable with that.

In a way, I’m an outlier. There are lots of people who bemoan the death of privacy. But I think what we have to figure out is what level of technology we’re comfortable with. My guess is a lot of people, if you ask them, they’re comfortable with the idea that Netflix makes suggestions for what movies they should watch next. They’re very happy that Amazon makes suggestions. If people could think about what they want and what they’re comfortable with, then we might be in a better place, rather than just having academics bemoaning the absence of privacy. Bringing the people back into the conversation is what I’m a big advocate of.

Q: In your most recent paper on SSRN, “Race, Gatekeeping, Magical Words, and the Rules of Evidence,” you write about how expert testimony rules aren’t exactly unbiased and tend to play favorites. How would you explain some of the blind spots in these rules to someone who’s unfamiliar with evidence law and expert testimony rules?

A: I think I would explain it this way. So imagine a hypothetical trial, and the expert witness might be somebody to testify about how criminal gangs tend to be organized: the hierarchies, the chain of command, the code words they use. And that would be typically received, assuming the expert is qualified to do so. For expertise, it’s almost as if the rules themselves and judges and the rest of us are looking to find the person with the PhD to talk about these things, and ignoring maybe the former gang members as experts. Maybe all of us can be experts.

It’s almost like this: if we’re just relying on experts with PhDs, or a certain type of professional experience, experts are going to look a certain way in terms of skin color, they’re going to dominantly still be male, and we’re going to exclude all of this other information. It just seems like we permit certain experts and not others.

Q: In both papers we’ve talked about, you imagine and explore how changes in law could bring about a different kind of future. How do you use these visions of a possible future as a jumping off point for tangible goals in the present?

A: I think it’s important, and I encourage other scholars to imagine that ideal. What are we actually aiming for? What’s the goal? And for me, that’s all from when I speak to my students. What kind of world do they want to live in? If we could envision, you know, “Utopia” or even something close to utopia – it could still be imperfect – but something much better, what would it look like? Because I think once we have that idea, then we can focus on how to map our way there. If we don’t have that ideal in mind, then it seems like we’re likely to take wrong turns. Missteps. Likely not to see the big picture.

Q: It would be great to let people know a little bit about your upcoming book…

A: It’s called “The Prosecutor’s Turn,” which means a couple of things. One, in a way, it’s about me and my turn away from being very pro-prosecution. I think of myself, when I was younger, [as] sort of a soldier in the war against drugs and a soldier in the war against crime. And I think as I’ve become older, I became a little bit more cynical and questioning of the system and what I was doing.

But in another way, it’s also about having prosecutors step up, to acknowledge how prosecutors have contributed to mass incarceration and overcriminalization and then doing something about it.

Finally, [it’s] about what all of us can do. Because again, I’m bringing it back to the people. I don’t want people to, you know, sit on their sofas, reading the book, thinking, “Oh, that’s interesting. I’ve learned something about the criminal system.” I actually want people to be motivated to get out there and change things.

Q: Law is one of SSRN’s most important disciplines. How do you see SSRN in the context of legal scholarship?

A: One of the great things about SSRN is it’s so easy to click on abstracts and then read and download them. And it’s the ability to find things. I love the search function on SSRN. SSRN is one of my go-to’s if I want to find a recent article on a topic.

There are so many of my colleagues when they are working on something and when they’ve had an article accepted, they tweet on social media “I’ve just posted this on SSRN, it’s forthcoming, and this journal,” and it’s such a great way to discover pieces in real-time.

You can see more work by Bennett Capers on his SSRN Author page here.