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Just Don't Say You Heard It From Me: Bridging The Davis V. Washington Divide Of Indistinguishable Primary-Purpose Statements, Thomas M. Forsyth Iii

UC Law Constitutional Quarterly

In Davis v. Washington, the Supreme Court sought to clarify its Crawford v. Washington holding, which restored the Constitution's Confrontation Clause to its original procedural function-to test the reliability of testimonial witness statements "in the crucible of cross-examination." Under Davis, the testimonial/non-testimonial categorization of witness hearsay statements is based on the primary purpose for which those statements were made to law enforcement agents. Despite the Court's two-pronged standard, Davis left a gaping hole between the extreme ends of the testimonial/nontestimonial spectrum where witness statements have a mixed or dual purpose and the primary purpose is indiscernible.

This note proposes that …

Who Says So - Defining Cruel And Unusual Punishment By Science, Sentiment, And Consensus, Aimee Logan

UC Law Constitutional Quarterly

The 2003 United States Supreme Court decision Atkins v. Virginia provides a unique opportunity to discuss how the Court integrates science into its constitutional philosophy. In Atkins, a majority of the Court concluded that executing criminals with mental retardation violates the Eighth Amendments prohibition against cruel and unusual punishment. Psychologists, psychiatrists and others in the scientific community have studied mental retardation for some time. However, the tests they use, and the criteria they look at, do not necessarily translate to the criminal justice system. Thus, in order to give legal significance to mental retardation, the Supreme Court must operationally define …

Nonviolent Drug Offenses. Sentencing, Parole And Rehabilitation.

Propositions

NONVIOLENT DRUG OFFENSES. SENTENCING, PAROLE AND REHABILITATION. INITIATIVE STATUTE. Allocates $460,000,000 annually to improve and expand treatment programs for persons convicted of drug and other offenses. Limits court authority to incarcerate offenders who commit certain drug crimes, break drug treatment rules or violate parole. Substantially shortens parole for certain drug offenses; increases parole for serious and violent felonies. Divides Department of Corrections and Rehabilitation authority between two Secretaries, one with six year fixed term and one serving at pleasure of Governor. Provides five year fixed terms for deputy secretaries. Creates 19 member board to direct parole and rehabilitation policy. Summary …

Voter Information Guide For 2008, General Election

Propositions

No abstract provided.

Proposition 6 Police And Law Enforcement Funding. Criminal Penalties And Laws.

Propositions

POLICE AND LAW ENFORCEMENT FUNDING. CRIMINAL PENALTIES AND LAWS. INITIATIVE STATUTE. Requires minimum of $965,000,000 each year to be allocated from state General Fund for police, sheriffs, district attorneys, adult probation, jails and juvenile probation facilities. Some of this funding will increase in following years according to California Consumer Price Index. Makes approximately 30 revisions to California criminal law, many of which cover gang-related offenses. Revisions create multiple new crimes and additional penalties, some with the potential for new life sentences. Increases penalties for violating a gang-related injunction and for felons carrying guns under certain conditions. Summary of Legislative Analyst’s …

Criminal Justice System. Victims' Rights. Parole.

Propositions

CRIMINAL JUSTICE SYSTEM. VICTIMS’ RIGHTS. PAROLE. INITIATIVE CONSTITUTIONAL AMENDMENT AND STATUTE. 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 Legislative Analyst’s Estimate of Net State and Local Government …

New Trends In Procedural Law: New Technologies And The Civil Litigation Process, Janet Walker, Garry D. Watson

UC Law SF International Law Review

This report for the International Association of Procedural Law examines the impact of new technologies on the litigation process in six countries: The United States, Australia, Israel, Singapore, England and Wales, and Canada. Drawing on national reports from each of these countries, it considers: how new technologies are re-shaping the ways that we record and store information in the litigation process; the ways that the participants in the process communicate with one another; and the ways in which the case record or file is developed. It also considers whether new technologies are making the litigation process more efficient, more accessible …

Implementing The Prohibition Of Torture On Three Levels: The United Nations, The Council Of Europe, And Germany, Joachim Herrmann

UC Law SF International Law Review

In the fight against terrorism the United States government has tried to draw a line between proper and improper methods of interrogation and treatment of detainees. The question whether and to what extent torture and other kinds of ill-treatment might be justified is widely discussed in the United States today. To date, no satisfying answer has been found. There is doubt that a generally accepted answer could ever be found. In view of this dilemma it might be helpful to look beyond the borders of the United States to see what answers have been given elsewhere. This paper will explain …

Throwing Black Babies Out With The Bathwater: A Child-Centered Challenge To Same-Sex Adoption Bans, Tanya M. Washington

UC Law Journal of Race and Economic Justice

This article advances an orphan-centered constitutional challenge to placement bans that highlights the impact of these bans on Black orphans. It asserts permanency, and the stability and security that permanent placement provides, as interests embraced by the best interests of the child standard and protected against state infringement by Substantive Due Process guarantees. It also argues that orphans possess a negative liberty interest in freedom from state action that categorically forecloses adoption without conducting an individualized review of the orphan's needs or the competencies of the potential parents. This article's challenge to the constitutionality of these bans is situated within …

Wrongful Convictions As Rightful Takings: Protecting "Liberty-Property", John Martinez

UC Law Journal

This Article poses a new theory of compensation for exonerated prisoners, one based on a theory of relational property as applied to wrongful convictions. This Article proceeds as follows: First, the Author establishes a nuanced definition of "wrongful conviction," differentiating between substantive and procedural wrongfulness, defining "conviction," discussing the role of causation in the definition, and discussing the incidence of such convictions as defined. Next, the Author describes the current legal doctrine for wrongful conviction compensation through the example of two wrongfully convicted prisoners who spent thirteen years on death row in Louisiana. The Author briefly considers the normative foundations …

Social Networking And Sexual Predators: The Case For Self-Regulation, Sander J. C. Van Der Heide

UC Law SF Communications and Entertainment Journal

The proliferation of social networking as a means of communicating and organizing online social relationships has created fora for sexual predation, cyberbullying, and harassment. Increasingly, minors are joining social networks, like MySpace and Facebook, which raise several legal and moral issues regarding the obligations and duties social networking sites have to their users. This note provides a history of social networking sites and the dangers associated with their use. After examining various common law and statutory attempts to regulate social networking sites, this note concludes that because of immunity under the Communications Decency Act and the impractibility of regulating the …

Less Privacy Please, We're British: Investigating Crime With Dna In The U.K. And The U.S., Duncan Carling

UC Law SF International Law Review

The United States and Great Britain are the world leaders in the use of DNA databases for criminal investigations, but the laws governing their use are evolving differently in each country. This note compares the American and British DNA database programs, and looks at two notable differences in practice: the collection of DNA samples from people who have been arrested but not convicted, and the technique of looking for an offender's relatives in the database. The note offers an explanation as to why the legislation is evolving differently, and argues that disparate cultural views on privacy are as much part …

Some Issues In Psychiatry, Psychology, And The Law, Renee L. Binder, Dale E. Mcniel

UC Law Journal

This article reviews some issues in psychiatry, psychology, and the law with the goal of increasing understanding across disciplines. We compare how concepts such as certainty, probability, reliability, and validity are used across disciplines; e.g., psychiatrists and psychologists tend to think in terms of probabilities, whereas the legal system often prefers certainty because the resolution of disputes requires making absolute decisions such as whether a defendant is guilty or not. We describe special ethical issues that are associated with providing forensic mental health evaluations in contrast to providing treatment; e.g., compared to the treatment situation, confidentiality typically is much more …

The Unmet Promises Of Care Not Cash, Teddy Ky-Nam Miller

UC Law Journal of Race and Economic Justice

In November of 2002 San Francisco voters approved Proposition N, titled Care Not Cash, with the intent that it would reduce homelessness and improve the health and welfare of homeless persons receiving General Assistance. This note examines the effectiveness of Care Not Cash in combating homelessness and in achieving its promise of services and aid with the curtailment of General Assistance. In evaluating Care Not Cash's effectiveness, the author reviews homeless assistance programs employed by cities and municipalities throughout the United States. Additionally, the author explores alternative homeless outreach programs currently existent in San Francisco which have been effective in …

Challenges Of Tough Love: Examining San Francisco's Community Justice Center And Evaluating Its Prospects For Success, Todd W. Daloz

UC Law Journal of Race and Economic Justice

Decaying urban neighborhoods are a reality in cities across the United States. As various local governments work to improve the quality of life for the residents of such areas through increased law enforcement, many have come up against the limitations of the criminal justice system as a tool for change. This note examines the history and challenges of quality-of-life ordinances and the growth and development of community courts as a reaction to ineffective urban courts and as a structure for enabling change. The author focuses specifically on the new community justice center in San Francisco and offers an assessment of …

On Thin Ice: Cracking Down On The Racial Profiling Of Immigrants And Implementing A Compassionate Enforcement Policy, Abby Sullivan

UC Law Journal of Race and Economic Justice

This note explores racial profiling in the enforcement of federal immigration law. In consistently deferring to the judgment of immigration officers, the United States Supreme Court has vested Immigration and Customs Enforcement with broad and sweeping discretion to adopt racist law enforcement practices that would be impermissible outside of the immigration context. In doing so, the Court has taken the erroneous position that immigration proceedings are purely civil and therefore do not require the procedural protections that collectively form the pillar of the criminal justice system. A myriad of studies demonstrate that immigrants are significantly less likely than their American-born …

The Supreme Court's Indian Problem, Matthew L. M. Fletcher

UC Law Journal

This Article asserts a new theory about why and how the Supreme Court accepts and decides its Indian law docket: the Court identifies an important constitutional concern embedded in a petition for certiorari, grants certiorari, and then applies its decision- making discretion to decide the "important" constitutional concern. Once that portion of the Indian law case is decided, the Court decides any remaining federal Indian law questions in order to reach a result consistent with its decision on the important constitutional concern. Indian law disputes are often mere vessels for the Court to tackle larger questions; often these questions have …

Anecdotal Forensics, Phrenology, And Other Abject Lessons From The History Of Science, David L. Faigman

UC Law Journal

Many of the forensic identification sciences-including, among others, latent fingerprints, firearms, handwriting, and bitemarks- have little or no scientific foundation underlying them. They are largely based on anecdotal experience and supposition. In this way, "anecdotal forensics" closely resemble other historical failures of science, such as phrenology. Like phrenology, anecdotal forensics are based on inductive experience, have not been subjected to systematic tests, conform to expectations, "prove" what is already presumed to be known, and seem to have great practical utility for society. A century from now, however, the anecdotally-based beliefs of forensic experts are likely to survive much as phrenology …

Inferences, Arguments, And Second Generation Forensic Evidence, Erin Murphy

UC Law Journal

Advances in scientific and technological evidence have resulted in a new, "second generation" of forensic proof characterized by its high degree of probativeness and mechanical sophistication. Methods such as DNA typing are already in widespread use in the criminal justice system, and law enforcement may soon have available other biometric techniques, global locators, or even reliable lie detection systems.

The promise and allure of such forms of forensic evidence lie in its high degree of accuracy. But the perception that such evidence is infallible has resulted in an increasing number of instances in which the government has sought to bolster …

"Good" Science Gone Bad: How The Criminal Justice System Can Redress The Impact Of Flawed Forensics, Jessica D. Gable, Margaret D. Wilkinson

UC Law Journal

What can the criminal justice system do when "good" science goes bad? This article provides an answer to that question in three parts. First, this article looks at the inability of certain fields of forensic science to produce reliable results. Second, it discusses problems with the current methods of challenging convictions based on unreliable science. Finally, it proposes a new framework to better enable prisoners to seek review of such convictions. What this article does not do is propose ways to prevent wrongful convictions in the future. We recognize that many issues, including the standards governing the admissibility of forensic …

Fingerprint Error Rates And Proficiency Tests: What They Are And Why They Matter, Jonathan J. Koehler

UC Law Journal

The reliability and probative value of a reported fingerprint match at trial is inextricably linked to the rate at which fingerprint examiners make errors. Therefore, it is important that jurors and other legal actors have valid information about the different types of errors, error rates, and scientific tests that can assist with error rate estimates. There is much confusion surrounding these issues and this paper addresses each using a question- and-answer style. Specifically, I describe the different types of errors (e.g., false positives, false negatives, and false alarms) and error rates, explain why they matter, and discuss how we might …

Conceptual Hurdles To The Application Of Atkins V. Virgina, Lois A. Weithorn

UC Law Journal

In its 2002 decision in Atkins v. Virginia, the United States Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment precludes the execution of "mentally retarded offender[s]." Despite the apparent "brightline" clarity of an absolute ban on the execution of mentally retarded offenders, the determination of which offenders fall within the protected group is deceivingly complex. The meanings of the concepts of "mental retardation," "intelligence," and "adaptive behavior" are-like the standards of decency guiding the Court-continually evolving, and are subjects of ongoing reevaluation and debate. Given what is at stake in Atkins assessments, lawmakers, jurists, practitioners, …

Facing Up To Wrongful Convictions: Broadly Defining "New" Evidence At The Actual Innocence Gateway, Jay Nelson

UC Law Journal

The Supreme Court has held that in order to pass through the actual innocence "gateway," capital habeas petitioners must support procedurally barred claims of actual innocence with "new reliable evidence" that was not presented at trial. The Court has not, however, defined what qualifies as "new" evidence. As a result, the circuit courts of appeals are split. Some circuits adopt what this Note refers to as the "newly-presented" evidence rule. These circuits permit habeas courts to evaluate all reliable evidence that was not presented to the finder of fact at trial. Other circuits adopt what this Note calls the "newly-discovered" …

Prosecuting Elder Abuse: Setting The Gold Standard In The Golden State, Arthur Meirson

UC Law Journal

This Note proposes amending California's elder abuse law. Currently, California Penal Code sections 368(b) and (c) allow the prosecution of any person who willfully causes or permits a person they know to be an elder or dependent adult "to suffer, or inflicts thereon unjustifiable physical pain or mental suffering." The failing of this law is its focus on the subjective experience of the elder or dependent adult victim. Because the law only allows punishment where the victim suffers or experiences unjustifiable physical pain or mental suffering, there are numerous circumstances that allow a perpetrator of abuse to escape prosecution. These …

Discourse Of Disobedience: Law, Political Philosophy, And Trials Of Conscientious Objectors, Hadar Aviram

Faculty Scholarship

No abstract provided.

Addressing The Evidentiary Sources Of Wrongful Convictions: Categorical Exclusion Of Evidence In Capital Statutes, Rory K. Little

Faculty Scholarship

No abstract provided.

Brain Images As Legal Evidence, Emily R. Murphy, Teneille R. Brown, Adina Roskies, Walter Sinnott-Armstrong

Faculty Scholarship

No abstract provided.

Conceptual Hurdles To The Application Of Atkins V. Virginia, Lois A. Weithorn

Faculty Scholarship

No abstract provided.

Anecdotal Forensics, Phrenology, And Other Abject Lessons From The History Of Science, David L. Faigman

Faculty Scholarship

No abstract provided.

How Law Thinks Of Disobedience Perceiving And Addressing Desertion And Conscientious Objection In Israeli Military Courts, Hadar Aviram

Faculty Scholarship

No abstract provided.