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When Sex And Cell Phones Collide: Inside The Prosecution Of A Teen Sexting Case, Robert D. Richards, Clay Calvert

UC Law SF Communications and Entertainment Journal

The high-tech phenomenon of teen "sexting," which is now garnering mainstream media attention, is pushing and straining traditional legal notions of what constitutes child pornography. As teens take sexually provocative photos of themselves and send them off to other teens via cell phones, some prosecutors are charging them as child pornographers. This article pivots on an exclusive, in-person interview conducted in Florida by the authors in May 2009 with attorney Lawrence Walters and his client Phillip Alpert, who sexted a nude photo of his girlfriend when he was 18 years old. Alpert was charged under child pornography laws and, today, …

Protecting The Innocent: Post-Conviction Dna Exoneration, Sophia S. Chang

UC Law Constitutional Quarterly

Eight states in the nation do not have laws allowing post-conviction DNA exoneration: Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota, and Wyoming. Without such laws, most wrongly convicted prisoners have no chance at proving their innocence because their defense depends on the exculpatory, yet unattainable, evidence that DNA provides. Denial of access to DNA evidence, whether prior to or after conviction, is an unconstitutional violation of due process. Additionally, forcing innocent people to remain in prison denies basic rights of prisoners and constitutes cruel and unusual punishment.

This Note argues that the prohibition of post-conviction DNA exoneration defeats …

The Right To A Fair Trial And The Confrontation Clause: Overruling Crawford To Rebalance The U.S. Criminal Justice Equilibrium, Lindsay Hoopes

UC Law SF International Law Review

In the United States, the right to confrontation is the hallmark fair trial protection. Most foreign and international jurisdictions have adopted the right to confrontation as an integral component of their fair trial protections, modeling the right after the U.S. Constitution's Sixth Amendment. Just as any other right, the right to confrontation requires society to strike a balance between a defendant's right to a fair trial with other competing rights in the criminal justice system: namely, victim's and society's right to adjudication of criminal matters.

Historically, the United States allowed abrogation of the right to confrontation when evidence was sufficiently …

Eight Perspectives On Yvon Neptune V. Haiti, Jens Iverson

UC Law SF International Law Review

Yvon Neptune v. Haiti is a noteworthy decision of the Inter- American Court of Human Rights, with potentially wide-ranging impacts. The Court ordered a wholesale change in the Haitian prison system in order to prevent Haiti from violating former Haitian Prime Minister Yvon Neptune's rights again. Haiti violated Articles 1 (obligation to respect rights), 5 (humane treatment), 7 (personal liberty), 8 (fair trial) and 25 (the right to judicial protection) of the American Convention on Human Rights. Haitian and U.S. human rights groups worked together with a "virtual" human rights clinic to trigger the decision by filing a petition with …

Defining Empirical Frames Of Reference In Constitutional Cases: Unraveling The As-Applied Versus Facial Distinction In Constitutional Law, David L. Faigman

UC Law Constitutional Quarterly

As well illustrated by the litigation in Brown v. Board of Education, it is incumbent on the Supreme Court to identify the empirical frame of reference it uses to evaluate the constitutionality of some challenged action. In Brown, this required the Court to determine whether the proper frame of reference through which to measure constitutionality were the general effects of segregation, or whether constitutionality had to be assessed based on segregation's effects on the children involved in the specific cases before the Court. The Court chose the general frame, thus invalidating school segregation generally. This framing problem occurs throughout constitutional …

Male Rape And Human Rights, Lara Stemple

UC Law Journal

For the last few decades, the prevailing approach to sexual violence in international human rights instruments has focused virtually exclusively on the abuse of women and girls. In the meantime, sexual violence against males continues to flourish in prisons, men have been abused and sexually humiliated during situations of armed conflict, the sexual abuse of boys remains alarmingly common, and gay male victims of sexual assault are assumed to have "asked for it." This Article discusses the frequency of male rape and the various contexts in which in occurs. It notes, however, that numerous instruments in the human rights canon …

Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr., Dana Remus Irwin

UC Law Journal

Model Rule of Professional Conduct 4.2, in effect in substantially similar form in all U.S. jurisdictions, generally forbids a lawyer from contacting a person represented by another lawyer unless that lawyer consents or the contact is "authorized by law." Our thesis is that as conceptualized and applied, this Rule is overbroad and ambiguous in important respects. After illustrating and explaining these shortcomings, we propose reform to Rule 4.2 to better implement its intended purpose. Specifically, we propose modifications to the text of the Rule that: (i) clarify the meaning of the "authorized by law" exception, (2) articulate new exceptions to …

Inequitable Enforcement: Introducing The Concept Of Equity Into Constitutional Review Of Law Enforcement, Hadar Aviram, Daniel L. Portman

UC Law Journal

This Article addresses a series of situations in which the exercise of police discretion, while passing current constitutional thresholds, seems unfair and unforeseeable. We call this problem "inequitable enforcement." Current constitutional review of police action assesses all stops, searches, and arrests-regardless of how minor the offenseby focusing on the officer's level of suspicion and the officer's compliance with equal protection standards. In this Article, we argue that these existing constitutional mechanisms are flawed and fail to provide an appropriate remedy in cases of arbitrary and disproportionate enforcement for minor infractions. We begin by discussing the necessity of police discretion and …

A Picture Is Worth A Thousand Words: The Effect Of Spectators' Display Of Victim Photographs During A Criminal Jury Trial On A Criminal Defendant's Fair Trial Rights, Elizabeth Lyon

UC Law Constitutional Quarterly

Spectators at criminal jury trials have displayed photographs of a deceased victim inside the courtroom on items such as on buttons, T-shirts, or collages. Courts have recognized that these photographs simply function as grief occasioned by the loss of a victim. Consequently, courts have allowed photographs inside the courtroom, like many other emotional expressions of spectators that are permissible.

This Note argues that victim photographs in the courtroom go beyond an ordinary showing of emotion, serving to elicit sympathy from jurors and calling on them to vindicate the victim's loss. For these reasons, such photographs violate a criminal defendant's constitutional …

When Something Is Not Quite Right: Considerations For Advising A Client To Seek Mental Health Treatment, Carol M. Suzuki

UC Law Journal of Race and Economic Justice

This article explores the important role that lawyers are afforded in evaluating the mental health concerns of clients. The article advocates that, where a lawyer has concerns about the mental, cognitive, or emotional health of a client, the lawyer should counsel the client to consider seeking appropriate mental health treatment. While acknowledging that counseling a client to seek mental health treatment is not an intuitive aspect of providing legal services, the article argues that humanitarian concerns, as well as the Model Rules of Professional Responsibility allow, and in some situations perhaps require, a lawyer to consider providing such a referral. …

Transitions To Justice: Prisoner Reentry As An Opportunity To Confront The Counteract Racism, Adrienne Lyles-Chockley

UC Law Journal of Race and Economic Justice

This article discusses the issues facing formerly incarcerated individuals upon reentry from prison into their communities, focusing primarily on the unique challenges faced by African-American males. The article first highlights the strong correlation between incarceration and race: People of color make up a disproportionate percentage of the U.S. prison population, are more likely to receive harsh prison sentences, and are less likely to be found eligible for parole. The article focuses specifically on the challenges facing African-American males as they exit prison and attempt to reenter a society where they will face institutional racism in multiple forms and on multiple …

Mean Streets: Violence Against The Homeless And The Makings Of A Hate Crime, Raegan Joern

UC Law Journal of Race and Economic Justice

In 1999 the National Coalition for the Homeless began to document incidents of hate crime and violence against homeless people in an annual report. The statistics and stories in these reports demonstrate a disturbing rise in violent attacks and murders of homeless people across the country. This note argues that these attacks, whereby the perpetrator targets the victim because he or she is homeless, meet the legal definition for a bias motivated or hate crime. Bias motivated crimes against the homeless are bred in a social context that devalues homeless people's lives and pinpoints them as appropriate targets for violence. …

A Case For A Constitutional Right To Counsel In Habeas Corpus, Emily Garcia Uhrig

UC Law Journal

This Article argues for recognition of a constitutional right to assistance of counsel in habeas corpus proceedings that involve challenges to the legality of a criminal judgment where habeas in effect functions as the first appeal of right. It is well-established that due process and equal protection principles guarantee the indigent defendant a right to counsel on the first appeal of right. But the Supreme Court has concluded that no right to counsel attaches in further, discretionary appeals, and in state habeas proceedings where the claims at issue were previously litigated on direct appeal. In Coleman v. Thompson, decided in …

Losing Faith: The Supreme Court And The Abandonment Of The Adjudicatory Process, Erwin Chemerinsky

UC Law Journal

Increasingly the courthouse doors across the United States are being closed to litigants in both criminal and civil cases. This trend reflects an increasing loss of faith in, and abandonment of, the adjudicatory process. Painting with broad strokes, and looking at the criminal justice system, the civil justice system, and the War on Terror, it seems that we are no longer a society living up to the constitutional axioms upon which our country is based. By giving up these notions of process, we are giving up something very fundamental to our constitutional birthright. The late Justice William Douglas said we …

Originalism And The "Challenge Of Change": Abduced-Principle Originalism And Other Mechanisms By Which Originalism Sufficiently Accommodates Changed Social Conditions, Lee J. Strang

UC Law Journal

One of the most persistent criticisms of originalism-and also one of the most powerful-is that originalism is not a viable interpretative methodology because of the tremendous technological, social, cultural, religious, and moral change that has occurred since the Constitution's original meaning was created. The Constitution's original meaning arose in contexts so dramatically different from our own, the criticism goes, that a Constitution whose meaning was limited by those contexts would be unworkable in today's world.

This form of criticism of originalism - the challenge of changeis pervasive. In this Article, I argue that originalism has, within its analytical quiver, six …

Burning Shoes And The Spirit World: The Charade Of Neutrality, Frank H. Wu

Faculty Scholarship

No abstract provided.

Inequitable Enforcement: Introducing The Concept Of Equity Into Constitutional Review Of Law Enforcement, Hadar Aviram, Daniel L. Portman

Faculty Scholarship

No abstract provided.

Defining Empirical Frames Of Reference In Constitutional Cases: Unraveling The As-Applied Versus Facial Distinction In Constitutional Law, David L. Faigman

Faculty Scholarship

No abstract provided.

Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr., Dana Remus Irwin

Faculty Scholarship

No abstract provided.

Hastings (Spring 2008), Hastings College Of The Law Alumni Association

Hastings Alumni Publications

No abstract provided.

Criminal Penalties And Laws. Public Safety Funding. Statute.

Initiatives

Requires new state spending on various programs to combat crime and gangs, and to operate prison and parole systems. Increases penalties for several crimes, including violating gang injunctions, using or possessing to sell methamphetamine, or carrying loaded or concealed firearms by certain felons. Eliminates bail for illegal immigrants charged with violent or gang-related felonies, establishes crime for removing or disabling a monitoring device affixed as part of a criminal sentence, and changes evidence rules to allow use of certain hearsay statements as evidence when witnesses are unavailable. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact …

Criminal Justice System. Victims' Rights. Constitutional Amendment And Statute.

Initiatives

Requires notification to victim and opportunity for input during phases of criminal justice process, including bail, pleas, sentencing and parole. Establishes victim safety as primary consideration in determining bail. Requires victims have safe access to courthouses. Provides more assistance collecting restitution. Prohibits release of defendants on their own recognizance for specified crimes, including serious or violent felonies. Authorizes courts of appeal to adjudicate death penalty appeals. Creates Department of Parole to handle all parole hearings. Requires prosecutors receive certain benefits and be paid salaries comparable to similar public attorneys. Summary of estimate by Legislative Analyst and Director of Finance of …

Criminal Justice System. Victims' Rights. Parole. Constitutional Amendment And Statute.

Initiatives

Requires notification to victim and opportunity for input during phases of criminal justice process, including bail, pleas, sentencing and parole. Establishes victim safety as consideration in determining bail or release on parole. Increases the number of people permitted to attend and testify on behalf of victims at parole hearings. Reduces the number of parole hearings to which prisoners are entitled. Requires that victims receive written notification of their constitutional rights. Establishes timelines and procedures concerning parole revocation hearings. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Unknown potential increases in …

Criminal Justice System. Victims' Rights. Constitutional Amendment And Statute.

Initiatives

Requires notification to victims and opportunity for input during phases of criminal justice process, including bail, pleas, sentencing and parole. Establishes victim safety as primary consideration in determining bail. Requires victims have safe access to courthouses. Provides more assistance collecting restitution. Prohibits release of defendants on their own recognizance for specified crimes, including serious or violent felonies. Authorizes courts of appeal to adjudicate death penalty appeals. Creates Department of Parole to handle all parole hearings. Requires prosecutors receive certain benefits and be paid salaries comparable to similar public attorneys. Summary of estimate by Legislative Analyst and Director of Finance of …

Criminal Justice System. Victims' Rights. Constitutional Amendment And Statute.

Initiatives

Requires notification to victims and opportunity for input during phases of criminal justice process, including bail, pleas, sentencing and parole. Establishes victim safety as primary consideration in determining bail. Requires victims have safe access to courthouses. Provides more assistance collecting restitution. Prohibits release of defendants on their own recognizance for specified crimes, including serious or violent felonies. Authorizes courts of appeal to adjudicate death penalty appeals. Creates Department of Parole to handle all parole hearings. Requires prosecutors receive certain benefits and be paid salaries comparable to similar public attorneys. Summary of estimate by Legislative Analyst and Director of Finance of …

Criminal Justice System. Victims' Rights. Constitutional Amendment And Statute.

Initiatives

Requires notification to victims and opportunity for input during phases of criminal justice process, including bail, pleas, sentencing and parole. Establishes victim safety as primary consideration in determining bail. Requires victims have safe access to courthouses. Provides more assistance collecting restitution. Prohibits release of defendants on their own recognizance for specified crimes, including serious or violent felonies. Authorizes courts of appeal to adjudicate death penalty appeals. Creates Department of Parole to handle all parole hearings. Requires prosecutors receive certain benefits and be paid salaries comparable to similar public attorneys. Summary of estimate by Legislative Analyst and Director of Finance of …

Nonviolent Offenders. Sentencing, Parole And Rehabilitation.

Initiatives

Requires State to expand and increase funding and oversight for individualized treatment and rehabilitation programs for nonviolent drug offenders and parolees. Reduces criminal consequences of nonviolent drug offenses by mandating three-tiered probation with treatment and by providing for case dismissal and/or sealing of records after probation. Limits court’s authority to incarcerate offenders who violate probation or parole. Shortens parole for most drug offenses, including sales, and for nonviolent property crimes. Creates numerous divisions, boards, commissions, and reporting requirements regarding drug treatment and rehabilitation. Changes certain marijuana misdemeanors to infractions. Summary of estimate by Legislative Analyst and Director of Finance of …

Criminal Penalties And Laws. State Spending. Statute.

Initiatives

Requires significant new state spending on various programs to combat crime and gangs, and to operate prison and parole systems. Substantially increases penalties for several crimes, including violating gang injunctions, using or possessing to sell methamphetamine, or carrying loaded or concealed firearms by certain felons. Eliminates bail for illegal immigrants charged with violent or gang-related felonies, and changes evidence rules to allow use of certain hearsay statements as evidence when witnesses are unavailable. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Net state costs likely to exceed a half billion …

Fifteen Minutes Of Shame: The Growing Notoriety Of Grand Corruption, Mary Evans Webster

UC Law SF International Law Review

Today the international community is focused, like never before, on efforts to reduce corruption as an essential component of poverty eradication. Grand corruption is the payment of bribes in connection with major interactions such as large infrastructure projects or arms sales and the abuse of political power to extract and accumulate for private gain. In the last five years, the United Nations, the World Bank and the United States Agency for International Development have all launched aggressive new agendas to address the crime of grand corruption. But, these agendas are not without their shortcomings and ardent critics. This article explores …

Has Georgia Gone Too Far - Or Will Sex Offenders Have To, Jacqueline Canlas-Laflam

UC Law Constitutional Quarterly

There are few criminals in our society that receive more contempt and deserve less sympathy than sex offenders. In the last ten years, twenty-seven states have passed residency restrictions, limiting where a sex offender may live within the state. In some situations, the statutes have effectively banished sex offenders from parts of these states. The United States Supreme Court has yet to review any of these residency restriction statutes. In order to maintain the integrity of our legal system and because state legislatures may not represent the interests of sex offenders fairly, it is imperative to consider the constitutionality of …