Digital Commons Network^™

Selected Problems In The Administration Of Criminal Justice, Alvin H. Goldstein Jr.

Cal Law Trends and Developments

What follows is an effort to focus attention on certain problem areas in the day-to-day administration of justice. They are problems not so much because of their complexity, but rather because uncertainty persists despite considerable discussion of the rules governing each area. I have selected preliminary hearings, bail, appointment of counsel, sua sponte judicial dismissals, and reasonable doubt as appropriate topics for this chapter. There are, of course, numerous others entitled to treatment, but each of those selected relates to a subject over which the trial judge may exercise an extremely broad discretion. The exercise of this discretion may alter …

Judicial Dilemmas In Enforcement Of Drug Abuse Laws, Alvin H. Goldstein Jr.

Cal Law Trends and Developments

No abstract provided.

Criminal Law And Procedure, Rex A. Collings Jr.

Cal Law Trends and Developments

No abstract provided.

Criminal Law And Procedure, Rex A. Collings Jr.

Cal Law Trends and Developments

Probably the single most important development of the year came from the Joint Committee for the Revision of the Penal Code. That committee published its Tentative Draft No.1. The draft deals with general principles of liability, defenses, kidnapping and related crimes, sex crimes and arson. Other drafts are expected in the near future. It is hoped that the ultimate result will be a modernization of the Penal Code of 1872, which is badly in need of clarification and revision. Since 1872, there has never been a continuing and coordinated effort to develop a coherent and comprehensive code.

Another important development …

“When Can I Tase Him, Bro?”: Bryan V. Mcpherson And The Propriety Of Police Use Of Tasers, Sam W. Wu

Golden Gate University Law Review

This Case Summary begins by detailing the factual and procedural history of Bryan. Next, it outlines the “reasonable use of force” analysis of the Ninth Circuit as applied to Tasers. Finally, it concludes by briefly discussing the broad implications of Bryan, both for law enforcement and for every individual who may someday find himself or herself facing a police officer armed with a Taser.

Out Of Step: When The California Street Terrorism Enforcement And Prevention Act Stumbles Into Penal Code Limits, J. Franklin Sigal

Golden Gate University Law Review

This Comment focuses on how the multiple-punishment prohibition of section 654 applies to the enhancements of one particular California statute: the Street Terrorism Enforcement and Prevention ("STEP") Act, a piece of anti-gang legislation passed in 1988 in the wake of rampant gang-related violence in the Los Angeles area. Specifically, this discussion centers on the imposition of multiple gang-enhancement provisions on a single defendant who engages in a single crime spree. If section 654 does apply to gang enhancements, then the prosecutorial practice of attaching them to every criminal charge in an indictment violates the intent of this Penal Code section, …

A Crime Victim's Right To Be "Reasonably Heard": Kenna V. United States District Court, Michael P. Vidmar

Golden Gate University Law Review

In Kenna v. United States District Court, the Ninth Circuit held that under the Crime Victim's Rights Act ("CYRA"), a crime victim's right to be "reasonably heard" during sentencing was not limited to written impact statements, but included the right to allocute at any public proceeding. This was an issue of first impression in the Ninth Circuit. "No court of appeals had addressed the scope of this particular CVRA right." Two district courts had considered this issue and had reached contrary decisions. The Ninth Circuit agreed with the United States District Court for the District of Utah that a plausible …

Defining "Ordinary Prudential Doctrines" After Booker: Why The Limited Remand Is The Least Of Many Evils, Michael Guasco

Golden Gate University Law Review

This Note examines the limited-remand approach in comparison with the approaches taken by the different circuits. Part I discusses the history of the Sentencing Guidelines and the cases, up to and including Booker, that completely changed the way the Sentencing Guidelines were used. Part II sets forth the history of the traditional plain error standard of review and the contemporary "Plain Error Problem." Part III examines the limited-remand approach and compares it with the approach taken in other circuits. Part IV argues that the limited-remand approach is the best of a list of bad possible choices but that the Ninth …

Violence In The Courts: The Ninth Circuit's Attempt To Grapple With And Pin Down What Is A "Crime Of Violence" In United States V. Serna, Daniel S. Cho

Golden Gate University Law Review

This Note examines the limitations of the strict categorical approach; the method by which sentencing courts and courts of review determine whether an offense is a crime of violence for sentence enhancement purposes. Part I of this Note examines the "crime of violence" sentence enhancement under the Federal Sentencing Guidelines ("Guidelines"). Part II examines the Ninth Circuit's analysis of what constitutes a crime of violence in United States v. Serna. Part III proposes that the types of sources available to sentencing courts when analyzing whether an offense is a violent crime should be expanded based on Justice O'Connor's dissenting opinion …

United States V. Howard: Refocusing Probable Cause For Probationers And Parolees, Sean A. Kersten

Golden Gate University Law Review

This Note argues that the Ninth Circuit rigidly followed circuit precedent to create and apply an incorrect standard to determine whether probable cause existed to believe that Howard resided at an unreported address. The court should have determined the reasonableness of the search by balancing Howard's reduced expectation of privacy as a probationer with legitimate governmental interests. Furthermore, the court's analysis served to protect the property at the unreported address rather than Howard's Fourth Amendment privacy rights. This decision is contrary to the principle articulated in Katz v. United States, which states the Fourth Amendment is intended to protect people, …

Career Criminals Targeted: The Verdict Is In, California's Three Strikes Law Proves Effective, Naomi Harlin Goodno

Golden Gate University Law Review

This Article reviews the impact of the Three Strikes law over the last decade and concludes that, based on data that have been collected and the manner in which the law has been applied, it has proved effective. The first section of this Article explores the history behind the legislation and the law itself. The second part of this Article sets forth three reasons why the Three Strikes law has proved effective: (1) The Three Strikes law is carrying out its goals by incapacitating career criminals and deterring crime. Since its enactment California's crime rate has dropped, and, for the …

Taking A Closer Look At Prosecutorial Misconduct: The Ninth Circuit's Materiality Analysis In Hayes V. Brown And Its Implications For Wrongful Convictions, Lynn Damiano

Golden Gate University Law Review

This note argues that the Ninth Circuit's meaningful factual analysis in applying the materiality standard led to its reversal of Mr. Hayes's conviction. The Court's willingness to look beyond the Government's assertions and to take into account every way in which the prosecutor's duplicitous conduct might have affected the jury's verdict allowed it to reach a different decision than prior reviewing courts. Moreover, the Court did so while adhering to established Supreme Court precedent and remaining within the confines of modern federal habeas review. The Ninth Circuit's analysis under this standard can help prevent wrongful convictions by deterring prosecutorial misconduct …

The Time Has Come For Law Enforcement Recordings Of Custodial Interviews, Start To Finish, Thomas P. Sullivan

Golden Gate University Law Review

Throughout the United States, more and more law enforcement officials are coming to realize the tremendous benefits they receive when the questioning of suspects in police facilities is recorded from beginning to end, starting with the Miranda warnings and continuing until the interview is completely finished. Recordings put an end to a host of problems for detectives: having to scribble notes during interviews and later type reports; straining on the witness stand weeks and months later, trying to describe what happened behind closed doors at the station; becoming embroiled in courtroom disputes about what was said and done during custodial …

Exoneration And Wrongful Condemnations: Expanding The Zone Of Perceived Injustice In Death Penalty Cases, Craig Haney

Golden Gate University Law Review

In this article I argue that despite the very serious nature and surprisingly large number of these kinds of exonerations, revelations about factually innocent death-sentenced prisoners represent only the most dramatic, visible tip of a much larger problem that is submerged throughout our nation's system of death sentencing. That is, many of the very same flaws and factors that have given rise to these highly publicized wrongful convictions also produce a more common kind of miscarriage of justice in capital cases. I refer to death sentences that are meted out to defendants who, although they may be factually guilty of …

Beyond Unreliable: How Snitches Contribute To Wrongful Convictions, Alexandra Natapoff

Golden Gate University Law Review

This Comment briefly surveys in Part I some of the data on snitch-generated wrongful convictions. In Part II, it describes in more detail the institutional relationships among snitches, police, and prosecutors that make snitch falsehoods so pervasive and difficult to discern using the traditional tools of the adversarial process. Part III concludes with a litigation suggestion for a judicial check on the use of informant witnesses, namely, a Daubert-style pre-trial reliability hearing. The Appendix in Part IV contains a sample motion requesting and justifying such a hearing.

Anatomy Of A Miscarriage Of Justice: The Wrongful Conviction Of Peter J. Rose, Susan Rutberg

Golden Gate University Law Review

This Article examines one case in which students and lawyers from Golden Gate University's Innocence Project won the exoneration of Peter J. Rose, a man who served nearly ten years of a twenty-seven year State Prison sentence for the rape and kidnap of a child before DNA proved his innocence. The analysis of this case focuses on how the conduct of two police detectives, the prosecutor and the defense attorney contributed to this miscarriage of justice.

Innocence Lost ... And Found: An Introduction To The Faces Of Wrongful Conviction Symposium Issue, Daniel S. Medwed

Golden Gate University Law Review

No abstract provided.

A Qualified Defense: In Support Of The Doctrine Of Qualified Immunity In Excessive Force Cases, With Some Suggestions For Its Improvement, Michael M. Rosen

Golden Gate University Law Review

This article addresses several criticisms of the qualified immunity doctrine and defends the doctrine, through an examination of the key cases and commentary on them, as a reasonably coherent and effective mechanism for sorting out worthy from unworthy litigation. This article also identifies some important shortcomings in the doctrine and outlines modifications that would improve its functioning, improvements that would quiet the chorus of criticism that several commentators have directed at the doctrine.

Dangerous Balance: The Ninth Circuit's Validation Of Expansive Dna Testing Of Federal Parolees, Claire S. Hulse

Golden Gate University Law Review

Part I provides a background of federal DNA testing legislation, the Fourth Amendment implications of DNA testing and two DNA testing cases leading up to the U.S. v. Kincade decision. Part II analyzes the plurality and dissenting opinions of the U.S. v. Kincade decision. Part III argues that the plurality's balancing test has a potential for inappropriate application. Finally, Part IV concludes that the Kincade balancing test should be narrowly applied as precedent after a meaningful balancing of interests, and not as a facade for ever-expanding government interests.

Throw A Dog A Suspect: When Using Police Dogs Becomes An Unreasonable Use Of Force Under The Fourth Amendment, Lisa K. Sloman

Golden Gate University Law Review

This Note contends that a dog bite lasting up to a minute is excessive force under these circumstances and violated Miller's Fourth Amendment right against unreasonable seizures. Part I of this Note provides a general synthesis of current Fourth Amendment seizure law as it applies to using police dogs. Part II discusses the facts of Miller and the court's application of current case law to those facts. Finally, Part III argues that the court failed to properly apply existing Fourth Amendment seizure law to the facts in Miller, and therefore, the force used was unreasonable.

The California Sexually Violent Predator Act And The Failure To Mentally Evaluate Sexually Violent Child Molesters, Nicole Yell

Golden Gate University Law Review

Section I of this Comment explores both past and current methods of protecting potential victims from sexually violent predators. Section I also discusses the constitutional issues surrounding modern sexually violent predator civil commitment laws and the ongoing debate regarding the ability to predict future dangerousness. Section II analyzes the problems with the California SVPA, specifically in regards to the requirements under the Act and the implications these problems create. Finally, in Section III, solutions are proposed to the problems within the Act, as well as future directions government and society need to take to further protect children.

Housing Our Criminals: Finding Housing For The Ex-Offender In The Twenty-First Century, Heidi Lee Cain

Golden Gate University Law Review

This Comment examines the United States Supreme Court's statement in The Department of Housing and Urban Development v. Rucker that a strict liability clause would be enforceable in private leases. The Court accordingly infers that ex-offenders and suspected offenders would encounter obstacles in their attempt to receive and maintain housing leases, both public and private. Part II discusses the "One Strike and You're Out" housing act and the Court's decision in Rucker. The Court upheld the federally mandated public housing strict liability clause in part because the tenant would be treated the same in a private lease. This Comment thus …

The "Spirit" Of The Three Strikes Law: From The Romero Myth To The Hopeful Implications Of Andrade, Rebecca Gross

Golden Gate University Law Review

We watch enthralled as television news programs sensationalize some of the saddest moments of our reality. We are shocked by the violence and brutality of those who prey on the innocent and vulnerable. We become both enraged and frightened as we realize that there are people among us who have no regard for human life. In the wake of tragedy, we furiously search for answers, we seek ways to avoid suffering the same pain in the future and, often, we sacrifice the rights of many, believing that such a sacrifice is necessary and justified. A prime example of this reaction …

Unconstitutional Exploitation Of Delegated Authority: How To Deter Prosecutors From Using "Substantial Assistance" To Defeat The Intent Of Federal Sentencing Laws, Adriano Hrvatin

Golden Gate University Law Review

This Comment addresses whether the intent of the federal sentencing system is defeated when prosecutors reward high-level drug offenders with lenient sentences in exchange for testimony against less culpable co-conspirators. This Comment argues that prosecutors violate separation-of-powers principles when they move for downward departures on behalf of kingpins who provide substantial assistance in a case against less culpable co-defendants because Congress did not authorize such an exercise of prosecutorial discretion. In such instances where the intent of Congress is defeated, the prosecutor is essentially making law and thereby encroaching upon the law-making function of Congress. To cure this constitutional abuse …

United States V. Ruiz: Are Plea Agreements Conditioned On Brady Waivers Unconstitutional?, Shane Cahill

Golden Gate University Law Review

In United States u. Ruiz, the Ninth Circuit ruled that such waivers are unconstitutional, violating the principle that defendants in criminal cases must knowingly and voluntarily plead guilty for the plea to be constitutionally valid. The purpose of this article is to discuss the law leading up to the Ninth Circuit's ruling in Ruiz, to examine the court's ruling itself, and to analyze the impact this decision could have on plea bargaining, an integral part of the criminal justice system. In Part II, this Note discusses Ruiz's facts and procedural history. Part III, section A outlines the prosecution's duty to …

Criminal Procedure - United States V. Nordby, Adriano Hrvatin

Golden Gate University Law Review

The Nordby court held that a finding of drug quantity under 21 U.S.C. § 841(b) by the district court at sentencing pursuant to a preponderance of the evidence violated the Due Process Clause of the Fifth Amendment and the notice and jury-trial guarantees of the Sixth Amendment when drug quantity was used to increase the prescribed statutory maximum penalty. In requiring that drug quantity be submitted to the jury and proved beyond a reasonable doubt, the Ninth Circuit overruled nearly fifteen years of its own precedent.

Lajoie V. Thompson: Does The Ninth Circuit Grant Young Victims Less Protection Under Rape Shield Statutes?, Crystal Dykman

Golden Gate University Law Review

In LaJoie v. Thompson, the Ninth Circuit held that the trial court's preclusion of evidence regarding the victim's prior sexual abuse by others as a sanction for LaJoie's failure to comply with the 15-day notice requirement in Oregon's rape shield law violated LaJoie's Sixth Amendment rights. The Ninth Circuit further held that the preclusion of this evidence regarding the prior sexual abuse of the victim warranted habeas relief. In Part II, this Note discusses LaJoie's facts and procedural history. Part III outlines the history of the Habeas Corpus statutes and discusses the Oregon and Federal rape shield statutes, with an …

Where Are The Parents? Parental Criminal Responsibility For The Acts Of Children, Lisa Lockwood

Golden Gate University Law Review

This Comment will examine the legal possibility of imposing parental criminal liability for the crimes committed by the direct acts of their children. Part II of this article will describe the elements required to impose criminal liability, specifically for the convictions of involuntary manslaughter and murder by depraved indifference. These elements are then juxtaposed against those required in civil tort law, which are substantially similar and therefore must apply to hold parents responsible for the deaths of third parties. Next, because parental criminal liability cases have not yet occurred, Part III will investigate cases in which the elements required for …

California's Incarcerated Mothers: Legal Roadblocks To Reunification, Heidi Rosenberg

Golden Gate University Law Review

This comment will provide statistical information regarding the increase in the number of mothers incarcerated in the United States. Part II will then use California as an example, providing statistical information and a detailed account of the judicial proceedings that an incarcerated mother must adhere to in order to reunite with her children. It will then provide a case example, using In re Precious J. v. Contra Costa County Department of Social Services, which demonstrates how the proceedings actually work.18 In re Precious is a 1996 California case that chronicles the difficulties imposed on a mother and child when a …

Criminal Procedure - Powers V. Plumas Unified School District, Marnee Milner

Golden Gate University Law Review

In a matter of first impression, the Ninth Circuit in Powers v. Plumas Unified School District addresses whether a dog sniff of a person constitutes a search under the Fourth Amendment. Because the United States Supreme Court has yet to address this issue, there is a split among circuit courts. The Fifth Circuit, contrary to the Seventh Circuit, holds that a dog sniff of a person constitutes a search. The Ninth Circuit agrees with the Fifth Circuit. In Powers, the Ninth Circuit found that a dog sniff of the plaintiff deprived him of his constitutional right to be free from …