The Unintended Consequences of California Proposition 47: Reducing Law Enforcement’s Ability to Solve Serious, Violent Crimes

Comment by: Shelby Kail

44 PEPP. L. REV. 1039 (2017)

For many years, DNA databases have helped solve countless serious, violent crimes by connecting low-level offenders to unsolved crimes.  Because the passage of Proposition 47 reduced several low-level crimes to misdemeanors, which do not qualify for DNA sample collection, Proposition 47 has severely limited law enforcement’s ability to solve serious, violent crimes through California’s DNA database and reliable DNA evidence.  This powerful law enforcement tool must be preserved to prevent additional crimes from being committed, to exonerate the innocent, and to provide victims with closure through conviction of their assailants or offenders.  Proposition 47’s unintended consequences have led to devastating costs in the first year alone, including a decreased deterrent effect, a rise in crime rates, and a lack of rehabilitation.  The goal of ensuring the safety and security of citizens should remain at the forefront of future actions.

This Comment analyzes the impact Proposition 47 has had and will have on the DNA database in California.  Additionally, this Comment examines the history of both state and federal DNA databases, the evolution of California’s DNA database, and case law considering the constitutionality of DNA database programs.  Specifically, this Comment assesses the consequences of Proposition 47 and considers different approaches to handling the arising issues.  This Comment concludes by summarizing the importance of restoring DNA collection for the low-level crimes Proposition 47 reduced to misdemeanors to ensure the safety and security of California citizens by keeping serious, violent criminals off the streets.

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The Outer Limits: IMSI-Catchers, Technology, and the Future of the Fourth Amendment

Comment by: Ryan C. Chapman

44 PEPP. L. REV. 841 (2017)

Recent advances in technology are posing new challenges for a legal system based on decades-old precedent.  Nowhere is this more apparent than in law enforcement’s warrantless use of IMSI Catchers.  These devices mimic a cell phone tower, and when the device is activated, cell phones will naturally connect to them.  Law enforcement officers can use those intercepted cell phone signals to track a suspect’s movements in real time with startling accuracy.  Scholarly commentary on these devices has largely concluded that their use requires a warrant.  This Comment engages in a close examination of Fourth Amendment precedent and argues that, as much as we might wish otherwise, the use of these devices is justified under existing case law.  The Fourth Amendment generally protects what a person seeks to keep private, but in a technologically connected world, the public has willingly traded privacy for convenience.  Thus, if we are to maintain our privacy in an increasingly technological world, we might require either a rethinking of the precedent underpinning the Fourth Amendment or a proactive Legislature to step in and fill the gap that exists between an eighteenth century Amendment and a twenty-first century world.

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Bias in Blue: Instructing Jurors to Consider the Testimony of Police Officer Witnesses with Caution

Article by: Vida B. Johnson

44 PEPP. L. REV. 245 (2017)

Jurors in criminal trials are instructed by the judge that they are to treat the testimony of a police officer just like the testimony of any other witness.  Fact-finders are told that they should not give police officer testimony greater or lesser weight than any other witness they will hear from at trial.  Jurors are to accept that police are no more believable or less believable than anyone else.

Jury instructions regarding police officer testimony stand in contrast to the instructions given to jurors when a witness with a legally recognized interest in the outcome of the case has testified.  In cases where witnesses have received financial assistance or plea deals for their testimony, a special instruction is given.  For example, when a witness with a cooperation agreement testifies, the trial court will tell the jury that while the witness has the same obligation to tell the truth as other witnesses, the jury can consider whether the witness has an interest different from other types of witnesses and that her testimony should be considered with caution.  In many jurisdictions, when a criminal defendant testifies, the jurors are told, despite the presumption of innocence, that he has a “vital” interest in the outcome of the case and that jurors can give his testimony less weight.  Courts have routinely and almost universally refused to allow similar instructions for police officer testimony.

Instructions highlighting that officers may be biased or have an interest in the outcome of the case are almost never given in a criminal trial.  To the contrary, jurors are effectively told they must not consider the police officer’s status as a police officer when considering her testimony.

In many cases, however, police officers are not disinterested parties.  They work hand-in-hand with prosecutors in building a case against a defendant.  In undercover buy-bust stings, search warrant cases, and assault on police officers cases, police officers are not only the sole witnesses to the alleged offense, they are also invested in the outcome of the case.  These cases would not exist without the police officer’s involvement.  These crimes—sometimes police-manufactured—are often the result of departmental interests.  For example, police go out and act in an undercover capacity and claim to buy drugs or purchase sex because of the agendas that they themselves or their offices have set.  Later, they may have to justify decisions they made about the selective use of limited departmental resources with arrests and convictions.  Law enforcement may also be motivated by the money at stake in the civil forfeiture related to a criminal case.  Recent events in Chicago, Baltimore, Cincinnati, Ferguson, Staten Island, South Carolina, and other locations have created a public dialogue on police credibility.

Despite the strong interests of law enforcement, the law has treated law enforcement as impartial when, in reality, officers are in many instances “biased advocates.”  This Article calls for jury instructions that reflect the reality of these police officer interests.