Digital Commons Network^™

"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 …

The Hague Convention On The Civil Aspects Of International Childhood Abduction: Where Are We, And Where Do We Go From Here, Dan Beth Finkey

UC Law SF International Law Review

Each year, hundreds innocent children are abducted from their homes and taken to foreign countries - victims of international parental abduction. In 1980, the U.N. developed The Hague Convention on Civil Aspects of International Childhood Abduction in order to protect children from wrongful international abduction, and to ensure that abducted children are safely returned to their homes. Although scholars laud the Convention as being generally effective, perverse results sometimes arise in the U.S., where courts are struggling to interpret the Convention's provisions so that they do not harm victims of domestic violence. This note suggests a novel way to improve …

Crime Victims Protection Act: Stop Gang And Street Crime

Initiatives

None

Improperly Performed Abortion As Fetal Homicide: An Uneasy Coexistence Becomes More Difficult, Laura E. Back

UC Law SF Journal on Gender and Justice

Is the difference between abortion and fetal homicide the pregnant woman's choice-or the provider's medical license? Reports of a recent Texas case suggest that ever-proliferating fetal homicide laws may be applied to charge non-medical abortion providers with murder. Although the state has legitimate interests in protecting women's health through prohibition of dangerous non-medical abortions, it defies justice to enforce such prohibitions by charging violators with murder of the aborted fetus. This Note explores how constitutional limitations on permissible state interests in regulating abortion provide a basis for Eighth Amendment proportionality and due process challenges to this misuse of fetal homicide …

Marital Rape: A Unique Blend Of Domestic Violence And Non-Marital Rape Issues, Morgan Lee Woolley

UC Law SF Journal on Gender and Justice

Marital rape is frequently treated within the frameworks of domestic violence and non-marital rape. However, social attitudes and legislation regarding domestic violence are often caught in a tension between family privacy and victim/survivor protection, whereas non-marital rape is often lodged between problems of consent and evidentiary proof. Thus, subsuming marital rape under either paradigm, to assess marital rape as we would treat domestic violence or non-marital rape, fails to account for the unique circumstances and consequences of rape that is perpetrated by one's own spouse. This Note addresses those unique circumstances and takes a look at current marital rape legislation …

Battered Women, Homicide Convictions, And Sentencing: The Case For Clemency, Carol Jacobsen, Kammy Mizga, Lynn O'Orio

UC Law SF Journal on Gender and Justice

For battered women who are forced to kill their attackers, unequal treatment by the law and gendered modes of punishment often lead to unfair convictions and sentences. In a study conducted by the Michigan Battered Women's Clemency Project, startling levels of discrimination in the courts against women who were victims of domestic violence were revealed. In this study, victims of domestic violence had higher conviction rates and longer sentences than all other defendants charged with homicide. The criminal and legal systems have failed to protect battered women from being killed or being forced to kill. Clemency remains the only hope …

Public Interest Drift Revised: Tracing The Sources Of Social Change Commitment Among Black Harvard Law Students, Jenee Desmond-Harris

UC Law Journal of Race and Economic Justice

Although "public interest drift"-the phenomenon of law students' interest in public interest careers decreasing over the course of legal education-has been studied extensively, author Jene Desmond- Harris argues that rates among black law students deserve a specially tailored analysis because of the black community's longstanding faith in the law and lawyers as instruments of social change. Through a study of current black Harvard Law students, admitted students, and alumni, she investigates the interactions between the Harvard Law School experience and the development of black law students' attitudes about pursuing careers aimed at affecting social change. Incorporating her own research with …

Providing Race Discrimination In Criminal Cases Using Statistical Evidence, Marc Price Wolf

UC Law Journal of Race and Economic Justice

Proving race discrimination in a criminal case using statistical evidence has been a difficult endeavor since the Supreme Court's rulings in McCleskey and Armstrong. In those cases, the Court set a high threshold for using statistics to prove constitutional violations. This note argues that this threshold is not insurmountable. Studies can be crafted to overcome the strict guidelines set out in McCleskey and Armstrong. Additionally, lower courts have interpreted these cases too broadly, such that validly presented statistical studies have unfairly been brushed aside. This note also argues that the Court analyzes social scientific studies differently when those studies are …

"Rum, Sodomy, And The Lash" What The Military Thrives On And How It Affects Legal Recruitment And Law Schools, Elizabeth L. Hillman, Sharra E. Greer, Warrington S. Parker Iii, Diane H. Mazur

Faculty Scholarship

No abstract provided.

The Role Of Governmental Purpose In Constitutional Judicial Review, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Blakely's Silver Lining; Sentencing Guidelines, Judicial Discretion, And Crime, Joanna Shepherd

UC Law Journal

The Supreme Court's recent decisions in United States v. Booker and Blakely v. Washington, invalidating mandatory criminal sentencing guidelines, could have the unexpected benefit of reducing crime. This Article is the first to use regression analysis to explore the relationship between sentencing guidelines and crime. It shows that adoption of guidelines is associated with significant increases in crime, contrary to the expectations of many of the original supporters of sentencing guidelines.

After developing several economic theories about the relationship between guidelines and crime, the author investigates this relationship empirically using a large, state-level data set. The analysis shows that guidelines …

Initiative Funding Through Targeted Taxes: Proposition 63, Mental Health, And The Crossroads Of Direct Democracy, Andrew M. Holmes

UC Law Journal

It took over forty-one years, but on November 2, 2004, President John F. Kennedy's vision of mental health care became a reality in California when 53.8% of the voters of California ratified Proposition 63. Proposition 63 (the Proposition) was criticized, however, the proponents of sought to bring relief to California's mental health system after decades of broken promises. The controversy surrounding Proposition 63 is not whether treatment for the mentally ill is a priority of the State but whether the novel funding structure is abusive.

The Note will first trace the roots of the controversy through a historical analysis of …

Authentically Innocent: Juries And Federal Regulatory Crimes, Jeffrey A. Meyer

UC Law Journal

Few ideals reign more supreme than the jury as conscience of our community and moral arbiter of a criminal defendant's conduct. These ideals are no more than myth for most federal criminal cases today. For a wide range of the most commonly charged federal crimes, judges routinely instruct juries to convict defendants regardless of their moral culpability. This issue arises with regulatory or public order crimes, which include drug trafficking, weapons, immigration, and environmental offenses. They are usually general intent crimes, defined by Congress without identifying precisely what the prosecution must prove a defendant knew or intended. General intent crimes …

Letting Katz Out Of The Bag: Cognitive Freedom And Fourth Amendment Fidelity, Christian M. Halliburton

UC Law Journal

What would life be like if it became impossible to keep a secret? We may find out with the advent of a new technology called "Brain Fingerprinting" and other technologies that allow access to our very thoughts. This Article first discusses the advent of technology like Brain Fingerprinting and its kin, and their impact on cognitive autonomy. The Article then posits the question, what would the Constitution have to say about evidentiary inquiries into the mind through the use of such technology? The author argues that current Fourth Amendment jurisprudence, including Katz v. United States, is inadequate to address such …

Repeat Offenders. Sentencing. Initiative Statute.

Initiatives

Reclassifies “violent” felonies as “Class A,” “serious” felonies as “Class B,” and other felonies as “Class C.” Changes Three Strikes law and other sentence enhancements for repeat offenders by lengthening certain sentences and expanding list of felonies subject to the Three Strikes law. Provides courts with more sentencing options, including shorter sentences, for “third strikers” committing Class C felonies. Authorizes resentencing for certain “third strikers” serving life sentences for non-violent, non-serious felonies. Creates program to educate inmates on the consequences of committing new crimes. Increases parole periods and sentences for parole violations. Summary of estimate by Legislative Analyst and Director …

Repeat Offenders. Sentencing. Initiative Statute.

Initiatives

Reclassifies “violent” felonies as “Class A,” “serious” felonies as “Class B,” and other felonies as “Class C.” Changes Three Strikes law and other sentence enhancements for repeat offenders by lengthening certain sentences and expanding list of felonies subject to the Three Strikes law. Provides courts with more sentencing options, including shorter sentences, for “third strikers” committing specified Class C felonies. Authorizes resentencing for certain “third strikers” serving life sentences for non-violent, non-serious felonies. Creates program to educate inmates on the consequences of committing new crimes. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state …

Identity Theft And Solicitation. Criminal Gang Activity. Forensic Computer Analysis Fund. Initiative Statute.

Initiatives

Increases criminal penalties for persons convicted of specified identity theft crimes. Adds crimes involving personal identification to enumerated list of criminal gang activities. Expands definition of personal identifying information, and requires prison terms and increased fines for acquisition of such information with intent to defraud. Outlaws electronic solicitation of identifying information through misrepresentation (phishing). Expands venue in identity theft prosecutions to include county where victim resided. Creates fund to pay for analysis of electronic evidence in criminal investigations, financed through criminal fines. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: …

Sex Offenders. Sexually Violent Predators. Punishment, Residence Restrictions And Monitoring.

Propositions

SEX OFFENDERS. SEXUALLY VIOLENT PREDATORS. PUNISHMENT, RESIDENCE RESTRICTIONS AND MONITORING. INITIATIVE STATUTE. Increases penalties for violent and habitual sex offenders and child molesters. Prohibits registered sex offenders from residing within 2,000 feet of any school or park. Requires lifetime Global Positioning System monitoring of felony registered sex offenders. Expands definition of a sexually violent predator. Changes current two-year involuntary civil commitment for a sexually violent predator to an indeterminate commitment, subject to annual review by the Director of Mental Health and subsequent ability of sexually violent predator to petition court for sexually violent predator's conditional release or unconditional discharge. Summary …

Voter Information Guide For 2006, General Election

Propositions

No abstract provided.

Disaster Preparedness And Flood Prevention Bond Act Of 2006.

Propositions

DISASTER PREPAREDNESS AND FLOOD PREVENTION BOND ACT OF 2006. This act rebuilds and repairs California's most vulnerable flood control structures to protect homes and prevent loss of life from flood-related disasters, including levee failures, flash floods, and mudslides. Protects California's drinking water supply system by rebuilding delta levees that are vulnerable to earthquakes and storms. Authorizes a $4.09 billion dollar bond act. Appropriates money from the General Fund to pay off bonds. Summary of Legislative Analyst's Estimate of Net State and Local Government Fiscal Impact: State cost of about $8 billion over 30 years to pay off both the principal …

Looking Over A Crowd And Picking Your Friends: Civil Rights And The Debate Over The Influence Of Foreign And International Human Rights Law On The Interpretation Of The U.S. Constitution, Stanley A. Halpin

UC Law SF International Law Review

Since the 1940s Civil Rights advocates have attempted, with little success, to use International Human Rights law to protect the rights of African Americans in the United States. However, in recent terms, the United States Supreme Court has seemingly opened the door, at least a crack, to some limited recognition of international human rights norms as a legitimate influence upon their interpretation of the Constitution. This article examines the efforts of Civil Rights Advocates to utilize human rights law and develops from this history four models of enforcement of human rights law in the United States. It details the Court's …

The Right To Counsel In Criminal Cases, A National Crisis, Mary Sue Backus, Paul Marcus

UC Law Journal

Two years ago, on the fortieth anniversary of Gideon v. Wainwright, the Constitution Project and the National Legal Aid & Defender Association formed a partnership-funded by several organizations -to consider the way in which the Sixth Amendment right to counsel actually functions in criminal cases throughout the United States. The concept was to create a truly national committee with participants from every relevant sector of the criminal justice system, which would conduct research throughout our country, advise our fellow citizens on the matter, and construct recommendations for reform. The authors serve as Reporters to the Committee.

The national research took …

The Rebirth Of Morrissey: Towards A Coherent Theory Of Due Process For Prisoners And Parolees, Sharif A. Jacob

UC Law Journal

The Supreme Court's due process jurisprudence has variously relied on two inconsistent theories of due process. Until the 1970s, the Supreme Court located liberty interests in the power of the state. In 1972, the Supreme Court issued Morrissey v. Brewer, a landmark decision that instead located liberty interests in the natural condition of man. Morrissey expanded due process protections for prisoners and outlined a coherent standard by which due process claims could be adjudicated. However, over the next two decades, the Supreme Court retreated from this standard of due process, circumscribing the protections Morrissey afforded.

This Note demonstrates that recent …

Between A Rock And A Hard Place: The Legacy Of Castle Rock V. Gonzales, Lynn A. Combs

UC Law Journal

Despite systemic reforms during the late twentieth century, domestic violence victims still face a troubling threat from their abusers. Town of Castle Rock v. Gonzales, which holds that there is no constitutional right guaranteeing that police will enforce restraining orders, highlights a disjunction between the legal reality, which is rooted in law enforcement's discretion, and the social reality, where intimate partners are perpetrating acts of violence because restraining orders afford victims little protection. According to Castle Rock, even statutes that seemingly mandate abuser arrests may still allow police officers significant discretion to determine how, when, and if they need to …

Unchain My Heart: Slavery As A Defense To The Dismantling Of The Violence Against Women Act, Angie Perone

UC Law SF Journal on Gender and Justice

When Congress passed the Violence Against Women Act ("VAWA"), it aimed to address pervasive problems associated with gender-motivated violence. Through inclusion of a section entitled "Civil Rights for Women," Congress specifically created a federal civil rights remedy for victims of gender-motivated violence. Nevertheless, the U.S. Supreme Court invalidated the civil rights remedy provision of the VAWA, claiming that Congress lacked authority to pass this provision under the Commerce Clause and the 14th Amendment. This Note argues that Congress has authority under the 13th Amendment to reinvigorate the civil rights remedy in the VAWA. This Note compares antebellum slavery to domestic …

From Hockey Gloves To Handcuffs: The Need For Criminal Sanctions In Professional Ice Hockey, Tracey Oh

UC Law SF Communications and Entertainment Journal

Citing recent on-ice incidents, this article argues that the level of violence in the National Hockey League (NHL) has grown out of control. The NHL's sanctions have been unable to deter the steadily increasing amount of violence in the sport. The article argues that allowing courts to intervene and impose criminal sanctions against on-ice offenders would send a strong message to the players, and promote a sense of social responsibility.