DNA identification technology has provided many individuals a chance at freedom. Many other prisoners claiming innocence, however, do not have the benefit of DNA evidence, but they do have other compelling “newly discovered” evidence that may prove their innocence. For these prisoners, the majority of states have direct or collateral remedies to obtain new trials or habeas relief, but only Utah and Virginia have postconviction statutes that provide an avenue to prove factual innocence without the use of DNA.
This Note first gives a brief background of the innocence movement. Then it discusses Utah’s non-DNA factual innocence statute, including the legislative history, and gives examples of two cases that have been filed under the statute. Next, the Note discusses the necessity of postconviction, non-DNA innocence statutes. Finally, the Note discusses whether Utah’s statute should be the model for other states and what problems exist with Utah’s statute as written.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 258
Megan K. Baker
Gang activity poses a substantial problem in many communities. The city of Ogden, Utah, is home to many gangs, and law enforcement is constantly looking for a way to decrease gang violence. In an attempt to reduce gang violence in Ogden, Judge Ernie Jones issued the Ogden Trece gang injunction on September 27, 2010, in Weber County, Utah. The injunction, based on several similar injunctions in California, affects hundreds of alleged Ogden Trece gang members and spans an area including virtually the entire city of Ogden. The injunction prohibits those enjoined from engaging in various illegal activities as well as many otherwise legal activities.
This Note analyzes the unconstitutionality of the Ogden Trece gang injunction, specifically focusing on three main theories. First, the injunction removes the due process rights of those enjoined. Second, the injunction limits the rights to assemble and associate with family members. Finally, the injunction is overly vague and open to excessive interpretation.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 240
Daniel W. Boyer
Recently, initiative and referenda proponents in Utah have encountered resistance from the legislature in the form of Senate Bill 165, which was passed in the waning days of the 2011 legislative session. The bill came in the wake of Anderson v. Bell, where the Utah Supreme Court upheld the use of electronic signatures in petition-gathering efforts to put gubernatorial candidates who are unaffiliated with a political party on the ballot. Such signatures must now be “holographic”—that is, handwritten—to qualify candidates for the public vote.
This Note examines how S.B. 165 has violated Utah voters’ core political speech rights by creating an undue burden on both grassroots political campaigns and circulation of initiatives and referenda. Ultimately, a free-speech challenge cuts closer to the constitutional harm caused by S.B. 165 than the uniform operation of laws challenges brought by plaintiffs in earlier initiative and referenda cases, such as Gallivan v. Walker. Whereas uniform operation of laws challenges were successful in preventing rural Utah counties from exercising disproportionate voting power over multi-county petitions, they likely would not succeed against the new constitutional harm brought by S.B. 165. A free-speech challenge more accurately identifies the constitutional violation created in S.B. 165. The bill thwarts the politically expressive conduct of the voter memorialized in signature, as well as the persuasive communication preceding it.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 220
Joshua C. Snow
This Article achieves three main goals. First, it explains and explores Utah’s per se metabolite laws against the backdrop of the national landscape of metabolite laws. Second, this Article provides a concise explanation regarding the science of drug metabolites. Finally, this Article presents two constitutional challenges to Utah Code section 41-6a-517. The first challenge argues that the statute creates an impermissible status offense in violation of the Eighth Amendment to the U.S. Constitution. The second challenge argues that the statute violates Utah’s Uniform Operation of Laws Clause found in the Utah Constitution. This Article concludes by asking Utah state courts and state legislature to examine the validity of Utah Code section 41-6a-517 and ultimately to overturn the statute.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 195
This Note explores and prescribes several procedural reforms that are designed to revitalize the format of appellate oral argument and restore its purpose in the national appellate court system. The Note proposes that the Utah appellate court system implement the prescribed solutions as a preliminary test and set an example for the rest of the nation. Parts II and III of this Note address the general purpose of oral argument, then emphasize the negative impact of current appellate procedures on the judicial process along with the difficulties courts face when approaching oral argument. Part IV delineates the Utah state appellate court structure and the progression of the current procedural rules governing oral argument in Utah. The Note concludes by exploring and proposing solutions to the problems discussed throughout the Note. These solutions include a proposal to implement a tentative-opinion program, a proposal to redesign the current format of oral argument, and strategies to overcome confirmation bias among the judges.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 174
The Utah legislature recently amended the civil commitment statute to expand the definition of substantial danger to include harmful sexual conduct. The amendment allows the state to involuntarily commit sexual offenders who are incompetent to stand trial.2 The amendment, however, will not protect the residents of the state, nor will it help those committed receive the treatment they desperately need. This Note proposes that Utah adopt a more stringent statute similar to the sexually-violent-predator (“SVP”) statutes that have recently swept the nation. Currently, Utah’s statute only applies to recidivist sex offenders who are incompetent to stand trial.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 159
Barry G. Stratford
This Article uses State v. Worthen, 222 P.3d 1144 (Utah 2009), to advocate for an absolute victim-counselor confidentiality privilege for all crime victims that seek counseling, not just the traditional protections offered to victims of child abuse and sexual assault. The underlying public policy interests of privileges in general, the policy interests regarding victims of crime in particular, and crime victims’ statutory and constitutional rights, all support establishing an absolute victim counselor testimonial privilege.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 124
Samuel C. Johnston
Three Utah cases involving adoptions that were contested by out-of-state, unwed, putative fathers highlight the prejudice in Utah’s adoption law against unwed biological fathers of adoptees. This Note explores the mechanisms employed by Utah’s statute that make it difficult for unwed fathers to preserve their rights, how the statute invites fraud by adoption agencies and adoptees’ mothers seeking adoptions against fathers’ wishes, and how recent decisions by the Utah Supreme Court have strained the statute’s provisions and made preservation of rights even more difficult for putative fathers.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 104
Mark A. Glick, James R. Kearl, & Cory D. Sinclair
This Article demonstrates that Utah law on prejudgment interest is inconsistent with established principles of economic theory. In reaching this conclusion, the authors present several, simple examples that show that the underlying purpose of compensatory damages is not always achieved under Utah law because of the inconsistent application and amount of prejudgment interest sometimes awarded.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 63
Barry G. Stratford
The recognition and application of electronic signatures has increased in the past few decades through various measures, such as the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN”) and Utah’s Uniform Electronic Transactions Act (the “UETA”), which both passed in 2000. Since then, the most dramatic step forward in making electronic signatures as legally effective as hand signatures is the 2010 Utah Supreme Court decision in Anderson v. Bell. The court held that electronic signatures were a legally effective and enforceable alternative to handwritten signatures when qualifying a candidate for the ballot under Utah’s Election Code. The incorporation of electronic signatures in election law would likely have a positive impact on access and involvement in democratic participation, especially with citizen-led initiatives and referenda.
Part II of this Note examines the laws surrounding electronic signatures. Part III argues that the expansion of electronic signatures in election law is a logical extension of those laws. Specifically, this Note argues that the Utah Supreme Court’s application of electronic signatures in qualifying a candidate for the ballot was proper. Part IV further advocates that lawmakers should incorporate the use of electronic signatures into the election code wherever feasible, arguing that it will increase citizen participation and improve citizen access and usage of initiative and referendum petitions.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 46