A Game of \u3cem\u3eKatso\u3c/em\u3e and Mouse: Current Theories for Getting Forensic Analysis Evidence Past the Confrontation Clause

The Sixth Amendment’s Confrontation Clause ensures that an “accused” in a “criminal prosecution[]” has the right “to be confronted with the witnesses against him [.]” Although perhaps a simple concept, defining the scope of confrontation rights has proved extremely difficult. The law has had particular difficulty scoping confrontation rights in forensic analysis cases, such as those where the prosecution seeks to utilize a laboratory report of DNA, blood alcohol content, narcotics, or other “CSI” type analysis. In this connection, Justice Gorsuch recently authored an opinion dissenting from denial of certiorari in Stuart v. Alabama, in which he recognized the “decisive role” of forensic evidence in modern criminal trials, but decried the lack of clarity in this area of law. The purpose of this Article is to analyze modern Confrontation Clause and forensic analysis jurisprudence, and to present six theories or gateways through which to argue that forensic analysis evidence is admissible consistent with the Clause. The theories presented in this Article are not intended to be employed individually, but rather combined to diminish the possibility that the Confrontation Clause will necessitate exclusion. To aid in the presentation of these theories, the Article will discuss the recent illustrative cases of U.S. v. Katso and Stuart v. Alabama, and explore how local stakeholders might utilize Katso-like reasoning to support their positions

Confronting Memory Loss

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal defendant her right to confront. Would, for instance, it be of any value to permit a defendant the opportunity to cross-examine a witness claiming no recollection of having seen the crime or identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one’s accuser in the eye at trial or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions denied certiorari by the Supreme Court in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rights in memory loss cases. The purpose of this Article is to identify and discuss eight key issues arising in connection with memory impairment in Confrontation Clause witnesses. Although the Court chose not to put these issues to bed in the context of White or Tapia, these are the issues we anticipate federal and state courts will be called upon to answer in the coming years, and we suspect the Supreme Court will eventually need to answer them

Police Body Cameras: Go Big or Go Home?

Police body-worn cameras have proliferated since the deaths of Michael Brown and Eric Garner, and the recent George Floyd-related protests seem set to continue or even accelerate that trend. Indeed, in her recent Nieves v. Bartlett dissent, Justice Sotomayor took time to note that many departments equip their police officers with body cameras. Body camera advocates have touted the cameras’ benefits, such as decreasing misconduct, reducing complaints, and improving accountability. At the same time, serious concerns have been raised regarding the impact of these cameras on privacy, public resources, and fairness. Despite the increased interest in body cameras, important empirical questions regarding resources and benefits remain insufficiently answered. This Article seeks to help fill that gap by analyzing a large, recently released dataset. The Article’s primary finding is that a more fulsome commitment to the body camera program—or what this Article refers to as “going big”—is associated with more favorable perceptions of the resources required for, and benefits of, body cameras

Measuring Police Body Camera Infrastructure

Police body cameras have been in ascendancy since at least the 2014 deaths of Eric Garner and Michael Brown, and body cameras are poised to play an increasing role in law enforcement following the more recent deaths of George Floyd, Daunte Wright, and others. Indeed, President Biden, himself, has repeatedly called for the passage of the George Floyd Justice in Policing Act of 2021, which would require federal law enforcement officers to wear a body camera. Notwithstanding their ascendancy, important empirical questions on body cameras persist. For instance, do local law enforcement agencies have adequate infrastructure to support body camera programs? If not, what areas should policy-makers target in order to increase the adequacy of local agency infrastructure? And, are certain groups of agencies doing better with body camera infrastructure than others? Answering these and related questions requires accurate measurement of phenomena that are extremely challenging to measure. This Article presents what appears to be a first-of-its-kind multidimensional measure of local U.S. law enforcement body camera infrastructure: the Police Body Camera Infrastructure Index (“BCII”). Analysis of the BCII offers three primary contributions. First, it provides a broad summary of over 1,100 local agencies’ inadequacy in body camera infrastructure based on a large-N dataset. Second, it isolates the specific factors which drive agency inadequacy. Third, since countrywide averages have the potential to mask important differences across agencies, it reveals the position of certain agency subgroups based on size and location. It is hoped that this Article will inform policy-makers and local stakeholders in improving body camera programs, highlight the value of measurement in formulating such policy decisions, and spur continued research into body camera programs

PATTERNS OF CONNECTIVITY IN CORAL REEF FISHES ACROSS THREE SPATIAL SCALES

Ph.D

An Analysis of the Impact of European Union and United States Dairy Policies on EU-U.S. Trade in Milk Protein Concentrate

During 1996-2000, U.S. imports of milk protein concentrate (MPC) increased rapidly. At the same time, Commodity Credit Corporation (CCC) stocks of non-fat dry milk (NFDM) went from nothing to more than 500 million pounds. Consequently, U.S. milk producers attributed low milk prices and dairy farmer income during this period to the increased imports of MPC. U.S. milk producers were especially concerned with MPC imports for two reasons. First, MPC between 40 and 90 percent protein had been classified in subheading 0404.90.10 of the Harmonized Tariff Schedule of the United States (HTS). Thus, MPC was not subject to the tariff-rate quotas applied to many other dairy products. Second, MPC produced in the European Union (EU) and exported to the United States was eligible for production and export subsidies. Along with the high U.S. internal milk protein prices maintained by the Dairy Price Support Program, and volatile world prices of NFDM, these policies created economic rents for trade in MPC between the European Union and the United States. To test the relationship between these policies and U.S. imports of MPC, these economic rents, which were not directly observable, were estimated by combing a set of identifiable variables: (1) the CCC purchase price, (2) the EU export refund, (3) EU casein production aid, and (4) the world price of NFDM as expressed by the Western Europe export price. A vector autoregression model was then estimated using monthly U.S. imports of MPC and the estimate of economic rents. This estimation showed that nearly 40 percent of the variability in U.S. MPC imports was attributable to the estimate of economic rents. These results demonstrate that U.S. and EU policies can not be analyzed in isolation when evaluating the impact of dairy policies on U.S. MPC imports.Agricultural and Food Policy, International Relations/Trade,

Restricting Medical Licenses Based on Illness is Wrong - Reporting Makes It Worse

Part I of this article briefly explores the licensing and disciplinary processes. Because each state board has broad discretion in reaching its decisions, an illness might be ignored in one state, trigger only periodic monitoring in another, and be grounds for sanction in a third. As the duty of every state board is the same - to protect patients from incompetent doctors - this disparate treatment is absurd. The implicit notion that the impact of a physician\u27s illness on his ability to practice changes depending on a state line is not credible. Although statutes and cases may use different language to define incompetence, there is fundamental agreement that doctors in every state should practice with skill and safety. Part II exposes fundamental defects in the current reporting to national data banks. The goal of preventing incompetent physicians from injuring a series of uninformed patients in several states is commendable. Implementation is not

Designing an Authentic Behavioral Research Experience in the Classroom Using Siamese Fighting Fish, Betta splendens

Recently there have been major shifts in biology education towards emphasizing the teaching of the scientific process to more closely reflect actual scientific practices. Authentic research experiences require the development of many higher order cognitive skills. Creating an authentic research experience that appropriately scaffolds the development of these complex skills while engaging individual student motivation remains challenging in classroom settings. Some common challenges include limited time available for working with large numbers of students, cramped working areas, and limited funding and materials resources. Using the Siamese Fighting Fish, Betta splendens, we have created an economically viable authentic animal behavioral research experience in the classroom that is emotionally and intellectually engaging while emphasizing the development of skills critical to the scientific process. Students will work collaboratively in pairs and as a class to perform novel research investigating the relationship between environmental temperature and air breathing by this fish during aggressive interactions. Studying aggression in bettas is ideal in a classroom setting because the behavior is inducible, reliable, and easily manipulated. In this experiment, 12 male bettas were housed individually in 3.8L plastic containers. They were subjected to two different temperature treatments (High 30 °C; Low 27 °C). Each male was observed in paired contests with 6 other males of comparable size, during which we quantified air breathing and observed tail beating. This research reveals that males in warmer water do more air breathing during aggressive displays than males in cooler water. Additionally, the basic experimental design can be easily modified to investigate novel student-driven questions. Limitations of this animal model can be explored and discussed as considerations that are integral to the scientific process, further instilling the authenticity of the student experience

Restricting Medical Licenses Based on Illness is Wrong - Reporting Makes It Worse

Part I of this article briefly explores the licensing and disciplinary processes. Because each state board has broad discretion in reaching its decisions, an illness might be ignored in one state, trigger only periodic monitoring in another, and be grounds for sanction in a third. As the duty of every state board is the same - to protect patients from incompetent doctors - this disparate treatment is absurd. The implicit notion that the impact of a physician\u27s illness on his ability to practice changes depending on a state line is not credible. Although statutes and cases may use different language to define incompetence, there is fundamental agreement that doctors in every state should practice with skill and safety. Part II exposes fundamental defects in the current reporting to national data banks. The goal of preventing incompetent physicians from injuring a series of uninformed patients in several states is commendable. Implementation is not