MESSAGE FROM THE CHAIR

By Hon. Karlene Navarro
Chair—Criminal Law Section

This edition of the Criminal Law Section’s Journal includes three different articles that offer information applicable to your daily lives both as criminal law practitioners and community members. Many of you have probably had the experience where one minute you are talking in the privacy of your own home about a vacation you would like to take and the next thing you know, your smart phone is sending you a slew of advertisements to the places you mentioned complete with possible flights, timeshares, hotel options, and shoes that would look great walking along the boardwalk during that vacation. Who’s Listening? The Fourth Amendment in the Age of Siri, received an Honorable Mention in the 2020-2021 Marshall M. Schulman Writing Competition. The article offers an interesting perspective on the intersection of artificial intelligence and the third-party doctrine, an exception to privacy rights under the Fourth Amendment.

The other two articles examine issues related to transparency, access to justice, and equity in our criminal justice system. The Hidden Truth About Algorithms: Injustice in the Criminal Justice System discusses some of the pitfalls of using algorithms in court to help determine who qualifies for pretrial release from jail based on an algorithm’s risk assessment of a human being. Under the Watchful Eye of the Public: Will California Learn from New York’s heightened Access to Police Personnel Files also earned an Honorable Mention in the Marshall M. Schulman Writing Competition. The article compares and contrasts recent developments in the law related to accessing police officer personnel records in California and New York. Since this article was written, California has further expanded access to police officer personnel records with the passage of SB 16 which became effective on January 1, 2022. SB 16 modified Penal Code section 832.7, increasing access to police officer misconduct records pertaining to findings of unreasonable or excessive use of force, discriminatory behavior or prejudice, failure to intervene when an officer witnesses excessive use of force by a fellow officer, or participation in unlawful searches and arrests. Increased access sheds light on a process that has long been shrouded in confidentiality. This kind of transparency acts as a deterrent to bad behavior and increases opportunities for the accountability that comes from public review. A series of other related bills were signed into law, taking effect in January of 2022 including:

• SB 2 creates a system within the Commission on Peace Officer Standards and Training (POST) to investigate and revoke or suspend peace officer certification for serious misconduct, including excessive force, sexual assault, demonstration of bias and