In 1991, the American Bar Association (ABA) Commission on the Mentally Disabled and Commission on Legal Problems of the Elderly conducted a national study on guardianship monitoring and recommended steps courts could take to strengthen guardian accountability (1991 ABA study). The intervening fifteen years have seen vast changes in demographics, court technology, and adult guardianship law. These developments provide a compelling need to review guardianship-monitoring practices and assess changes since the ABA study. Therefore, in 2005 the AARP Public Policy Institute, in conjunction with the ABA Commission on Law and Aging, conducted an updated survey to examine current court practices for guardian oversight (2005 AARP survey). This Article presents the 2005 survey findings.
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When Winsor C. Schmidt and colleagues conducted their landmark national study in the late 1970s, public guardianship was a fairly new phenomenon and public guardianship practices were highly irregular. No further study on a national level was conducted and published until that of Pamela B. Teaster and colleagues in 2005. In the twenty-five intervening years, the following converging trends escalated the need for guardianship: the “graying” of the population (with a sudden upward spike anticipated around 2010 when the Boomers begin to come of age); the aging of individuals with disabilities and the aging of their caregivers; the advancements in medical technologies affording new
choices for chronic conditions and end-of-life care; the rising incidence of elder abuse; and the growing mobility that has pulled families apart. In response, most states reformed their adult guardianship laws, and many enacted public guardianship programs. Private non-profit and for-profit guardianship services emerged alongside public guardianship, with little known about how they function. Against this backdrop, and because of the length of time elapsed, it was imperative to conduct a second national study of public guardianship. The purpose of the 2005 study was to make findings and recommendations to improve care for public guardianship wards⎯persons unable to care for them selves and typically poor, alone, or “different,” with no other recourse than to become wards of the state.
There are many sides of guardianship adjudications. Attorneys may find themselves on any one of those sides at any given time. This Article reviews the many sides of the guardianship adjudication process and addresses the core ethical considerations that attorneys have regardless of which side is represented. The analysis then turns to specific client-attorney situations framed in guardianship-adjudication case studies, offering ethical analysis in the context of the American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules). The Article also references the ethics analysis and commentary found in several other professional legal publications, including the newly published Aspirational Standards and Commentaries of the National Academy of Elder Law Attorneys (NAELA) and the newly published fourth edition of the Commentaries of the American College of Trust and Estates Counsel (ACTEC).
After entering the United States, two Mexicans in their early twenties met with two men at the Georgia-Florida border. The men offered them a paying job at their Chinese restaurants throughout Florida. Soon after accepting the job offers, the Mexicans learned that they would not receive payment even though they were working up to twenty hours a day, preparing food, handling hot pans of burning oil without protection for their hands, and traveling at night to other locations where the men forced them to work. The men gave the Mexicans three options: continue working without trying to escape and without reporting the abuses, be killed, or go to jail for being an illegal immigrant. After the Mexicans demanded payment, the men drove them near Plant City and abandoned them on the side of a road. Despite not speaking English and not knowing the area, the Mexicans ultimately found refuge at a Baptist church.
In the early 1930s, Alfred Sawyer was charged with using an illegal net to catch fish in Florida waters and was arrested and thrown in jail. Mr. Sawyer did not deny that he was using the net described in the charging document. However, Mr. Sawyer believed that his use of the net occurred outside of Florida waters in the Gulf Stream. If true, then he could not have been guilty of the crime charged. Mr. Sawyer sought relief by filing a petition for a writ of habeas corpus. At the hearing, Mr. Sawyer testified that he was not in Florida waters when he used the net and, in support of his contention, introduced as evidence a marine chartused by the United States Navy. The State did not introduce any
evidence to contradict Mr. Sawyer’s contention, and the trial judge granted Mr. Sawyer’s petition.
On appeal, the Florida Supreme Court reversed. The Court held that defendants may not use a petition for a writ of habeas corpus to test the sufficiency of the evidence against them. So long as the State filed a charging document that was facially valid, which it did, the sheriff was empowered to detain Mr. Sawyer until his trial. It did not matter that, based on the undisputed facts, Mr. Sawyer could not be found guilty of the crime charged. Mr. Sawyer’s only recourse was to wait until trial and then, upon the State’s failure to prove that Mr. Sawyer used the net in Florida waters, to motion for a directed verdict. Until then, Mr. Sawyer was stuck in jail.
In 1999, the National Institute of Justice (NIJ) scrutinized the status and needs of the forensic-science community, concluding that its training needs were “immense.” The development of new technology, equipment, methods, and techniques demands that forensic scientists stay up-to-date, necessitating that the forensic-science community broaden its scope of training. NIJ concluded that “[f]orensic professionals need to take advantage of the explosion in information technology and the ability to use it to exchange information and deliver training,” and provided several recommendations. Noted authority on expert testimony and scientific evidence Carol Henderson, a law professor with previous experience at the Federal Bureau of Prisons and the United States Attorney’s Office, assumed leadership in developing a program to meet some of the needs specified by NIJ. The National Clearinghouse for Science, Technology and the Law at Stetson University College of Law (NCSTL) was born. NCSTL became a nationwide organization that provides information-sharing and
professional development not only to forensic scientists, but also to lawyers, judges, law enforcement personnel, and the general public.
There have been several significant social, legal, and scientific changes in the criminal justice system and the forensic sciences since the 1970s that have dramatically altered the contours of the law-science interface. While this Article highlights several scientific and technical breakthroughs that have fundamentally enhanced the types of assistance that forensic science provides to the criminal justice system, its primary emphasis will be on the key legal, cultural, professional, and organizational changes that have shaped how science is used in today’s criminal justice system. DNA typing is, without question, the single greatest forensic scientific breakthrough in the past century, but there have been several other key changes, such as the following: landmark Supreme Court decisions have modified how our courts evaluate and admit scientific evidence; professional initiatives have addressed the credentials of forensic examiners, the quality of laboratory operations, and the accuracy of scientific evidence testing; and legal and popular culture has created an unprecedented awareness of, and appetite for, forensic science.
“[T]he machine does not isolate man from the great problems of nature but plunges him more deeply into them.” Nowhere is this more apparent than in the struggle between rules of law and scientific and technological advances. Our court system’s response to this challenge is scrutiny and adaptability, two traits evidenced by the ebb and flow of requirements for authentication of digital images.
This Article examines the evolution of authentication requirements for digital images, with particular emphasis on the impact of State v. Swinton. Part II of this Article provides an overview of digital images as well as the general rationale for their authentication. Part III reviews past statutory and common law rules for establishing the authenticity of such evidence. Part IV summarizes Swinton, a 2004 case from Connecticut which represents a major development in this area of law. Part V applies the holding from Swinton to a new type of digital evidence, virtual autopsies, in a theoretical context. The Article concludes in Part VI.
This Article posits a substantial divide between scientific findings and the courtroom practice in cases where mistaken identification is alleged. After tracing the chronicity and significance of the phenomenon of mistaken identification, this Article reviews the science of perception and memory and the mixed and decidedly inadequate response of the courts to that body of knowledge and concludes with an assessment of the limits of cross-examination and the need for sophisticated advocacy in cases where eyewitness testimony is at the core of the prosecution theory of guilt. Put most simply, the efficacy of the “great engine” is overstated, and it is less likely to achieve its stated purpose than the little engine that could.
“[A] pertinent consideration [in determining whether a theory or technique is scientific knowledge that will assist the trier of fact] is whether the theory or technique has been subjected to peer review and publication.”
—Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
The phrase “peer review” connotes the evaluation (“review”) of scientific or other scholarly work by others presumed to have expertise in the relevant field (“peers”). Specifically, and most to the present purpose, it refers to the evaluation of submitted manuscripts to determine what work is published in professional journals and what books are published by academic presses (in which context it is also called “refereeing,” “editorial peer review,” or “pre-publication peer review”). Occasionally, however, the phrase is used in a much broader sense, to cover the whole longrun history of the scrutiny of a scientist’s work within the scientific community, and of others’ efforts to build on it, a long-run process of which peer review in the narrower sense is only a small part.