Digital Commons Network^™

Guilty By Proxy: Expanding The Boundaries Of Responsibility In The Face Of Corporate Crime, Amy J. Sepinwall

UC Law Journal

The BP oil spill and financial crisis share in common more than just profound tragedy and massive clean-up costs. In both cases, governmental commissions have revealed widespread wrongdoing by individuals and the entities for which they work. The public has demanded justice, yet the law enforcement response in both cases has been underwhelming. In particular, no criminal indictments have been sought for any of the corporations responsible for the Macondo oil-rig explosion or for the Wall Street banks involved in the financial meltdown. This governmental restraint reflects a deep-seated ambivalence about corporate criminal liability. Though scholars have been debating the …

Implicit Bias In The Courtroom, David L. Faigman, Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey, Nilanjana Dasgupta, Rachel D. Godsil, Anthony G. Greenwarld, Justin D. Levinson, Jennifer Mnookin

Faculty Scholarship

No abstract provided.

Developmental Neuroscience, Children's Relationships With Primary Caregivers, And Child Protection Policy Reform, Lois A. Weithorn

Faculty Scholarship

No abstract provided.

State Funding To Local Governments. Criminal Justice. Social Services. Initiative Constitutional Amendment.

Initiatives

Guarantees local governments their existing statutory allocations of state sales tax and vehicle license fees, to fund government services that were shifted from state to local responsibility in 2011. Continues guarantee as long as local governments have responsibility for shifted services. Prohibits legislation that increases scope of services shifted, unless state provides adequate, ongoing funds to pay for increased costs. Caps state obligation for actual costs of shifted services at amounts of guaranteed allocations. Requires four-fifths vote in Legislature to reduce local law enforcement mandates predating shift. Summary of estimate by Legislative Analyst of fiscal impact on state and local …

Crime Mapping And The Fourth Amendment: Redrawing “High-Crime Areas”, Andrew Guthrie Ferguson

UC Law Journal

Crime-mapping technology has the potential to reshape Fourth Amendment protections in designated “high-crime areas.” In Illinois v. Wardlow the Supreme Court held that presence in a high-crime area is one of only two factors necessary for creating reasonable suspicion to stop an individual. Since Wardlow, thousands of federal and state cases have used the term “high-crime area,” yet only a handful of courts have considered how to define it. New crime-mapping technologies can now address that definitional problem. Crime-mapping technologies can collect and analyze crime statistics so that police districts can produce almost perfect information about the level, rate, and …

Undocumented Immigrants. Denies Benefits For Certain Children In Calworks. Initiative Statute.

Initiatives

Requires state and local agencies to check immigration status of applicants for public benefits, including certain children. Requires agencies to report applicants whose immigration status is unverified to federal immigration authorities, including parents requesting benefits for legal resident children. Denies CalWORKS benefits for certain children with unverified immigration status. Requires state and local law enforcement to comply with direction from federal immigration authorities for holding and transferring undocumented immigrants arrested. Requires commitment for law enforcement agencies to perform federal immigration functions. Bars policies against enforcement of federal immigration laws. Summary of estimate by Legislative Analyst and Director of Finance of …

Jury 2.0, Caren Myers Morrison

UC Law Journal

When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or running the defendant’s name through Google during trial. But in the past few years, such cases have increasingly been making headlines. The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention. This Article is the first to focus …

Race Audits, R. A. Lenhardt

UC Law Journal

The persistence of the problems that attend the American color line makes clear the need for greater experimentation and innovation in the area of race. For years now, we have looked primarily to courts for solutions. But current jurisprudence offers very little that is useful in dealing with the modern realities of durable racial inequality and segregation. As cases such as Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano make clear, it limits dramatically the tools available to address racial inequality, regarding as “bad cities” localities that try affirmatively to grapple with matters …

Network Accountability For The Domestic Intelligence Apparatus, Danielle Keats Citron, Frank Pasquale

UC Law Journal

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.While many scholars have assumed that this network represents a trade-off between security and civil liberties, our study …

Note – Bridging The Gap: An Application Of Social Frameworks Evidence To Shaken Baby Syndrome, Lauren Quint

UC Law Journal

Ever since the syndrome was first recognized in the 1960s, a diagnosis of shaken baby syndrome (“SBS”) was believed to be pathognomonic of abuse. New data calls into question the accuracy of the diagnosis and its association with nonaccidental death. This data points to alternative causes of brain injuries in infants and small children and casts doubt on the validity of evidence frequently used at trial. This Note explores problems associated with expert testimony in the context of SBS. It argues that despite the ability to accurately present general causation evidence at trial, introduction of specific causation testimony is often …

Uc Hastings College Of The Law Commencement Exercises Class Of 2011, Uc Hastings College Of The Law

Commencement Exercises

No abstract provided.

The Role Of The Prosecution And Defense Function Standards: Stagnant Or Progressive?, Ellen S. Podgor

UC Law Journal

This Essay examines the role of the ABA Criminal Justice Standards: The Prosecution and Defense Function Standards, looking at language when initially drafted to language being considered in the proposed fourth edition. It focuses on the preliminary sections of the Standards that outline the intended role of the Standards and considers how courts have used these Standards in court decisions. It also notes how the Standards serve a hortatory role, providing internal guidance to prosecutors and defense counsel. An overriding question is whether these Standards serve a legitimate function in the criminal justice process? Placing the question of the role …

The Aba’S Project To Revise The Criminal Justice Standards For The Prosecution And Defense Functions, Rory K. Little

UC Law Journal

In late 2005, I was asked by the ABA Criminal Justice Standards Committee whether I would serve as ‘Reporter’ to a Task Force that was being formed to consider revisions to the Criminal Justice Standards for Prosecution and Defense Functions. The call did not come out of the blue; I had previously worked with the ABA in various capacities. In the mid-1990s, I had served as a member of the ABA’s Standing Committee on Professional Responsibility. In 1999, I published an article bemoaning the lack of specific guidance in the ABA Criminal Justice Standards for prosecutors acting in an investigative …

Quieting Cognitive Bias With Standards For Witness Communications, Melanie D. Wilson

UC Law Journal

Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated roundtable discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section’s undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored Standards may lessen the detrimental …

Developing Standards Of Conduct For Prosecutors And Criminal Defense Lawyers, Bruce A. Green

UC Law Journal

This issue and a companion issue of the Hastings Constitutional Law Quarterly together collect sixteen papers on the professional conduct of prosecutors and criminal defense lawyers. Typically, normative scholarship on lawyers’ professional conduct focuses on what the ethics rules and other laws require, or should require, of lawyers. These pieces are different, because their principal focus is not on whether lawyers’ conduct is minimally ethical or lawful, but on how lawyers should practice within the bounds of the ethics rules and other law. That is because the authors were asked to take unenforceable professional standards, the ABA Criminal Justice Standards …

The Incautious Media, Free Speech, And The Unfair Trial: Why Prosecutors Need More Realistic Guidance In Dealing With The Press, Andrew E. Taslitz

UC Law Journal

The ABA has proposed a new Standard for the Prosecution Function, Standard 3-1.7, which addresses how prosecutors should communicate with the media. The core portion of that proposal prohibits a prosecutor from making a statement raising a substantial risk of materially prejudicing a criminal proceeding or of unnecessarily heightening public condemnation of the accused. But this proposal is unrealistic. Recent findings in cognitive science suggest that media information overload and its fast pace result in media coverage of high-profile trials that heightens audience’s negative emotions while compromising their critical faculties. Audience members thus are enraged at accused offenders and ill-equipped …

Prosecutorial Decisionmaking And Discretion In The Charging Function, Bennett L. Gershman

UC Law Journal

A prosecutor’s charging decision is the heart of the prosecution function. The charging decision involves an extraordinary exercise of discretionary power that is unreviewable. As a result, the decision is difficult to guide except in the broadest terms. The proposed revisions to the ABA’s Criminal Justice Standards for the Prosecution Function attempt to address several key issues that inform the charging decision, by broadening the language of several provisions of the current Standards as well as adding several new provisions. To be sure, the proposed Standards significantly change the current Standards with respect to the proper factors and considerations affecting …

Investigative Deceit, Kevin C. Mcmunigal

UC Law Journal

Is it ever ethical for a lawyer to ask or assist another person to lie on behalf of a client? Despite ethical rules categorically banning both personal and vicarious deceit, prosecutors routinely supervise police officers and informants who use deceit in investigating drug and sex offenses, organized crime, and terrorism. May defense lawyers make use of investigative deceit in criminal investigations? In this Essay, the Author examines this issue, the ethical rules bearing on it, and the recent trend in a number of jurisdictions allowing the use of investigative deceit by the defense. Drawing on his participation in a series …

The Physical Evidence Dilemma: Does Aba Standard 4-4.6 Offer Appropriate Guidance?, Rodney J. Upholf

UC Law Journal

Since 1966, when criminal defense lawyer Richard Ryder was disciplined for retaining physical evidence that connected his client to a bank robbery, lawyers and courts have struggled with the ethical dilemma of how defense lawyers should deal with physical evidence that potentially incriminates one of their clients. When a lawyer takes possession of an evidentiary item, must she always turn it over to the authorities, as required by most courts that have addressed this dilemma? Or, can defense counsel return the evidence to the source from whom counsel received it as recommended by Standard 4-4.6 of the ABA Criminal Justice …

Problem-Solving Courts And The Defense Function: The Wisconsin Experience, Ben Kempinent

UC Law Journal

Problem-solving courts have emerged as one of the fastest growing innovations in the criminal justice system. Their growth has not been without controversy, given their dramatic departure from a traditional adversary model in favor of a collaborative approach in dealing with offenders with serious alcohol or substance abuse, or mental health issues. The most outspoken criticism of this approach has come from the defense bar. This Essay suggests much of the criticism is misplaced, and, that if care is exercised in separating the roles that defense counsel plays in communities with problem-solving courts the promise of this approach for appropriate …

Prosecutorial Disclosure Obligations, Ellen Yaroshevsky

UC Law Journal

Prosecutorial disclosure of information to the defense has long been recognized as essential to a fair criminal justice system and yet, the required disclosure is ill defined and the subject of ongoing contention. Prosecutor’s obligations are informed by various sources including state and federal constitutional provisions, statutes, court rules and state ethics rules. The ABA Criminal Justice Standards, another source defining that obligation, can and have served as guidance for judges, prosecutors and defense lawyers, notably in areas of ambiguity. Those Standards were recently revised to provide greater clarity as to the scope of what information should be provided to …

Uc Hastings (Spring 2011), Hastings College Of The Law Alumni Association

Hastings Alumni Publications

No abstract provided.

Excessive Public Defense Workloads: Are Aba Standards For Criminal Justice Adequate, Norman Lefstein

UC Law Constitutional Quarterly

Excessive caseloads among public defenders in the United States is a pervasive national problem, which not only often prevents lawyers from furnishing their clients competent and diligent representation as required by rules of professional conduct but also jeopardizes the quality of justice in criminal and juvenile courts. Although the American Bar Association has addressed the problem in various policy statements, including its Criminal Justice Standards, Professor Lefstein argues that there are still issues that are not adequately covered. Specifically, he argues that the ABA should consider the development of standards that (1) authorize defenders to refuse to provide representation when …

Conflicts Over Conflicts: Challenges In Redrafting The Aba Standards For Criminal Justice On Conflicts Of Interest, Laurie L. Levenson

UC Law Constitutional Quarterly

Currently, an ABA Task Force faces the considerable challenge of redrafting the ABA Standards for Criminal Justice. Prosecutors and defense counsel need clear guidance on how to handle conflicts of interest rules. However, the initial challenge is in identifying those questions a code of ethics should answer when it comes to conflict situations. With the help of prominent lawyers, academics and judges who participated in a series of roundtables on the new ABA standards, this article identifies forty of the key questions to ask about conflicts of interests. These questions allow real progress to be made toward creating a code …

Witness Preparation: Regulating The Profession's Dirty Little Secret, Roberta K. Flowers

UC Law Constitutional Quarterly

Although all attorneys understand that coaching a witness to testify falsely is unethical, additional ethical restraints surrounding witness preparation in criminal cases are not clearly defined by case law, rules of professional conduct or even the newly drafted Criminal Justice Standards for Prosecutors and Defense Attorneys. Many have suggested that the line between proper witness preparation and improper witness coaching is not clear. This article explores some of the gray areas of the practice of witness preparation and why criminal attorneys from both sides of the aisle need guidance on permissible and impermissible conduct in this routine practice of criminal …

Closing The Door On Misconduct: Rethinking The Ethical Standards That Govern Summations In Criminal Trials, Daniel S. Medwed

UC Law Constitutional Quarterly

Closing argument is the most pivotal moment in a criminal trial. It represents the last opportunity for prosecutors to convince jurors of the defendant's guilt and for defense lawyers to show reasonable doubt. As a result, criminal lawyers may be tempted to conclude with sweeping arguments that pull at the heartstrings of their target audience, the jury. Scholars dating back to Aristotle have warned that the most persuasive arguments often contain an appeal to emotion-and that emotionally laden rhetoric can distract people from making rational choices.

Legal ethicists have struggled with the issues surrounding closing arguments, trying to reconcile the …

Confidentiality And Disclosure: What The New Aba Criminal Justice Standards (Don't) Say About The Duties Of Defense Counsel, Cecila Klingele

UC Law Constitutional Quarterly

Although the duty to keep client confidences is one of a defense lawyer's defining characteristics, there are times when a lawyer will disclose otherwise confidential information to protect the safety of third parties, convey information to successor counsel, or defend against claims of ineffective assistance. Although disclosure in such instances is sometimes mandated by state professional ethics codes, more often the decision to disclose is left to the discretion of the individual lawyer. One of the few formal resources that offers guidance to defense counsel in making disclosure decisions is the American Bar Association's Criminal Justice Standards for the Defense …

Every Step You Take, They'll Be Watching You: The Legal And Practical Implications Of Lifetime Gps Monitoring Of Sex Offenders, Sarah Shekhter

UC Law Constitutional Quarterly

In 2006, California voters passed Proposition 63 ("Jessica's Law") which, among other provisions, required lifetime GPS monitoring of sex offenders. So far, California has only succeeded in fixing GPS devices to registered sex offenders on parole, yet this already constitutes the largest use of GPS monitoring anywhere in the world. A proper analysis of the constitutional issues surrounding electronic surveillance of parolees, probationers, and the released is warranted before further implementation.

This note explores past constitutional challenges to surveillance technology and sex offender legislation, applying their analyses to lifetime monitoring of sex offenders. It concludes that lifetime GPS monitoring threatens …

Waiving Goodbye To Rights: Plea Bargaining And The Defense Dilemma Of Competent Representation, Jane Campbell Moriarty, Marisa Main

UC Law Constitutional Quarterly

The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers ("Proposed Standards") address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called "preconditions" that prosecutors generally require before even entertaining the defendant's proffer, colloquially termed "Queen for a Day" agreements It reviews the development in the law since 1993; the changes in the practice since that time; and the proposed changes to the Standards. The article focuses on the complex …

I Can Has Lawyer? The Conflict Between The Participatory Culture Of The Internet And The Legal Profession, Lucille A. Jewel

UC Law SF Communications and Entertainment Journal

The Internet allows citizens to comment on public affairs with an amplified and unfiltered voice, creating an open, community-based "participatory culture" where robust debate flourishes. However, many of the ideals and practices of participatory culture clash with the traditional legal culture as it exists in the United States. This cultural conflict can be seen in emerging narratives, in the form of web blogs and lawyer emails that go "viral," in which lawyers comment on the lack of humanism within big law firm hiring and firing practices; expose the alienating work environments experienced by low-level contract attorneys; or criticize judges who …