Robert M . Sanger | Santa Barbara and Ventura Colleges of Law (original) (raw)

Papers by Robert M . Sanger

Social Science Research Network, Nov 21, 2015

tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not... more tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors. Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person's IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors-such as childhood abuse, poverty, stress, and trauma-can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disporportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court's affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment's Equal Protection Clause and would not survive strict scrutiny.

Social Science Research Network, 2016

Every trial lawyer who is handling a capital case in California or who has handled a capital case... more Every trial lawyer who is handling a capital case in California or who has handled a capital case for which the decision of the California Supreme Court is not final on a pending habeas corpus petition, needs to be aware of certain specific duties and strategies required by The Death Penalty Reform and Savings Act of 2016, 1 Proposition 66, enacted by the voters 2 on November 8, 2016. 3 The Act imposes new duties on capital trial counsel following a judgment of death, will require more prompt discharge of other duties and may even present an opportunity. While the article focuses on trial counsel, post-conviction counsel will need to be familiar with much of this same information to both effectively work with trial counsel, to seamlessly raise issues and, eventually, to evaluate trial counsel's conduct. Trial counsel's new duties include the duty to proactively assert herself as counsel of record after judgment by objecting and engaging in strategies in the trial court in response to the Act. Trial counsel will have to advise her client during a difficult period and, when habeas counsel is appointed, work closely with that counsel to investigate and file a petition for a writ of

Social Science Research Network, 2017

The “Gettier Problem” has perplexed philosophers for decades. The Gettier problem is offered as e... more The “Gettier Problem” has perplexed philosophers for decades. The Gettier problem is offered as evidence that justified true belief cannot be a sufficient definition for knowledge because one could have a belief that was justified and that was in fact true but it turns out that the justification was based on false empirical data. An incredible amount of literature had been generated by the problem. Some researchers conclude that it is an intractable problem and others that it is not. However, a simple methodology to unpack the solution to the problem has not been articulated. This article will propose to use the setting of a witness in a court of law to elucidate the logical flaws in the Gettier problem. The federal Rules of Evidence and the evidentiary basis for legal rulings on various aspects of a witness’ testimony will elucidate the problem and the solution to the problem in a simple and clear fashion. This is a bold claim but, if it is effective, it will result in the conclusion that the problem is not based on a failure in the definition of knowledge as justified true belief but that the Gettier problem itself unwittingly employs a subtle shift in the meaning of terms. In other words, by putting claims of belief in a courtroom setting, light is shed on what counts as belief and what counts as knowledge which, in turn, will illustrate the nature of the shift in meanings between the two.

Social Science Research Network, 2018

Social Science Research Network, Jun 23, 2017

Social Science Research Network, Feb 21, 2020

Murder, vehicular manslaughter, assault, and other major felony cases often involve evidence that... more Murder, vehicular manslaughter, assault, and other major felony cases often involve evidence that makes its way into the emergency department (ED) of a local hospital or a regional trauma center. This evidence may be found on the person of a patient who was a victim, a witness, or an accused, and it is often brought into the trauma room by the paramedics or others who arrive with the patient. In fact, the evidence also may be the traumatic injuries sustained by a victim. The main focus of emergency department personnel is to assess and treat their patient’s injuries, which may require the performance of lifesaving procedures in the emergency department or in the operating room. The preservation and collection of forensic evidence, as well as the documentation of the patient’s wounds, is an important but secondary concern. Furthermore, training in the preservation and documentation of forensic evidence as well as the documentation of the patient’s wounds is almost non-existent in the curriculum of nursing programs, medical schools, and residency programs. Additionally, even though the preservation and collection of forensic evidence is mandated by The Joint Commission,1 apart from protocols for the evaluation of sexual assault victims, most healthcare facilities do not have any formal protocols in place for the collection of evidence in other types of forensic cases. Nevertheless, the evidence encountered in the emergency department can be forensically significant in the legal proceedings that ensue both in civil and criminal cases. What has been correctly preserved may be critical to legal issues in a case. In addition, knowing what evidence may have been altered, destroyed, or discarded entirely at the scene or in the emergency department may also be critical to lawyers, investigators, and experts in subsequent investigations, as well as in civil and criminal litigation. There are practical and effective evidence collection protocols and techniques that can be used with regard to potential evidence in the emergency department without sacrificing the primary medical goals of providing expert care to the victim of a violent crime. Implementation of evidence collection protocols by pre-hospital providers; emergency physicians; trauma and orthopedic surgeons, as well as the nursing staff in the emergency department; operating rooms; and Surgical Trauma Intensive Care Units, can and will enhance the preservation and documentation of evidence that might otherwise be lost or contaminated. The protocols also improve the reliability of the chain of custody of items that may be of evidentiary value.

Social Science Research Network, Dec 20, 2003

Social Science Research Network, 2016

The opinions contained in the article are those of the author and do not necessarily reflect the ... more The opinions contained in the article are those of the author and do not necessarily reflect the opinions of the Colleges of Law or the Special Law Report editors. Manuscripts submitted for consideration in future issues of the Special Law Report or other publications of the Colleges of Law should be sent to the Colleges of Law at either address above.

Santa Barbara Lawyer Magazine, 2023

This Criminal Justice column will look at the recent acknowledgment of Governor Newsom’s administ... more This Criminal Justice column will look at the recent acknowledgment of Governor Newsom’s administration that the State of California must invest in mental health care at the state level. The manner in which the mental health needs of people in the State are being met (or not met) and will be met (or will not met) in the future should be of great concern to everyone. The highly publicized plight of people who are both houseless and in need of mental health services has brought this discussion to the fore. Unfortunately, the discussion has often been uninformed and sometimes lacking in human compassion. There is no solution to houselessness other than to make housing available. Even then, there will be people who will resist housing. And there is no solution to what is perceived as a mental health crisis other than to make mental health services available. That is a complex challenge and requires more than just providing counsellors or psychiatric services.
A holistic approach to providing assistance to those who need it and want it is a good start and it cannot be just based on local, community or eleemosynary efforts. The state owes it to the entire state community—all Californians—to make a renewed effort.
The reality is that the State of California backed out of its commitment to provide mental health care—psychiatric services—forty years ago and only now is the general public starting to recognize the ramifications of that. Those who are immersed in the struggle to find resources for people with mental health needs—such as public defenders, parents of adult disabled children and social services workers—have been painfully aware of the lack of adequate resources. The current news cycle and the Governor’s concern may help focus the needs if not finding easy answers.
But a little history might help.

Santa Barbara Lawyer Magazine, 2014

Law Review, including Stephanie Poucher and Shahrzad Noorbaloochi. All errors are the author's. 8... more Law Review, including Stephanie Poucher and Shahrzad Noorbaloochi. All errors are the author's. 87 AMERICAN UNIVERSITY LAW REVIEW tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors. Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person's IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors-such as childhood abuse, poverty, stress, and trauma-can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disporportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court's affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment's Equal Protection Clause and would not survive strict scrutiny.

Social Science Research Network, Dec 20, 2003

Murder, vehicular manslaughter, assault, and other major felony cases often involve evidence that... more Murder, vehicular manslaughter, assault, and other major felony cases often involve evidence that makes its way into the emergency department (ED) of a local hospital or a regional trauma center. This evidence may be found on the person of a patient who was a victim, a witness, or an accused, and it is often brought into the trauma room by the paramedics or others who arrive with the patient. In fact, the evidence also may be the traumatic injuries sustained by a victim. The main focus of emergency department personnel is to assess and treat their patient’s injuries, which may require the performance of lifesaving procedures in the emergency department or in the operating room. The preservation and collection of forensic evidence, as well as the documentation of the patient’s wounds, is an important but secondary concern. Furthermore, training in the preservation and documentation of forensic evidence as well as the documentation of the patient’s wounds is almost non-existent in the...

Forensic science has made significant strides in elevating the standards for forensic analysis, r... more Forensic science has made significant strides in elevating the standards for forensic analysis, reporting and testimony over the last few years. Yet, lawyers and judges lag far behind in understanding the significance of these strides. There is an attempt to educate law students in the law schools and to educate lawyers and judges through continuing legal and judicial education but it is slow in finding its way into the actual courtroom. Therefore, while there is progress at the highest levels of forensic science, a lot of "junk" science competes for the attention of jurors. Forensic scientists can help educate the lawyers and judges on a case by case basis. They can not only educate, as they routinely do, on the substance of their opinions, they can also educate on the scientific foundation for those opinions in accordance with Daubert, Kumho Tire and related modern rules. By doing so, they can help establish the grounds for their testimony but can also set the bar for th...

Social Science Research Network, Nov 21, 2015

tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not... more tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors. Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person's IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors-such as childhood abuse, poverty, stress, and trauma-can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disporportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court's affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment's Equal Protection Clause and would not survive strict scrutiny.

Social Science Research Network, 2016

Every trial lawyer who is handling a capital case in California or who has handled a capital case... more Every trial lawyer who is handling a capital case in California or who has handled a capital case for which the decision of the California Supreme Court is not final on a pending habeas corpus petition, needs to be aware of certain specific duties and strategies required by The Death Penalty Reform and Savings Act of 2016, 1 Proposition 66, enacted by the voters 2 on November 8, 2016. 3 The Act imposes new duties on capital trial counsel following a judgment of death, will require more prompt discharge of other duties and may even present an opportunity. While the article focuses on trial counsel, post-conviction counsel will need to be familiar with much of this same information to both effectively work with trial counsel, to seamlessly raise issues and, eventually, to evaluate trial counsel's conduct. Trial counsel's new duties include the duty to proactively assert herself as counsel of record after judgment by objecting and engaging in strategies in the trial court in response to the Act. Trial counsel will have to advise her client during a difficult period and, when habeas counsel is appointed, work closely with that counsel to investigate and file a petition for a writ of

Social Science Research Network, 2017

The “Gettier Problem” has perplexed philosophers for decades. The Gettier problem is offered as e... more The “Gettier Problem” has perplexed philosophers for decades. The Gettier problem is offered as evidence that justified true belief cannot be a sufficient definition for knowledge because one could have a belief that was justified and that was in fact true but it turns out that the justification was based on false empirical data. An incredible amount of literature had been generated by the problem. Some researchers conclude that it is an intractable problem and others that it is not. However, a simple methodology to unpack the solution to the problem has not been articulated. This article will propose to use the setting of a witness in a court of law to elucidate the logical flaws in the Gettier problem. The federal Rules of Evidence and the evidentiary basis for legal rulings on various aspects of a witness’ testimony will elucidate the problem and the solution to the problem in a simple and clear fashion. This is a bold claim but, if it is effective, it will result in the conclusion that the problem is not based on a failure in the definition of knowledge as justified true belief but that the Gettier problem itself unwittingly employs a subtle shift in the meaning of terms. In other words, by putting claims of belief in a courtroom setting, light is shed on what counts as belief and what counts as knowledge which, in turn, will illustrate the nature of the shift in meanings between the two.

Social Science Research Network, 2018

Social Science Research Network, Jun 23, 2017

Social Science Research Network, Feb 21, 2020

Murder, vehicular manslaughter, assault, and other major felony cases often involve evidence that... more Murder, vehicular manslaughter, assault, and other major felony cases often involve evidence that makes its way into the emergency department (ED) of a local hospital or a regional trauma center. This evidence may be found on the person of a patient who was a victim, a witness, or an accused, and it is often brought into the trauma room by the paramedics or others who arrive with the patient. In fact, the evidence also may be the traumatic injuries sustained by a victim. The main focus of emergency department personnel is to assess and treat their patient’s injuries, which may require the performance of lifesaving procedures in the emergency department or in the operating room. The preservation and collection of forensic evidence, as well as the documentation of the patient’s wounds, is an important but secondary concern. Furthermore, training in the preservation and documentation of forensic evidence as well as the documentation of the patient’s wounds is almost non-existent in the curriculum of nursing programs, medical schools, and residency programs. Additionally, even though the preservation and collection of forensic evidence is mandated by The Joint Commission,1 apart from protocols for the evaluation of sexual assault victims, most healthcare facilities do not have any formal protocols in place for the collection of evidence in other types of forensic cases. Nevertheless, the evidence encountered in the emergency department can be forensically significant in the legal proceedings that ensue both in civil and criminal cases. What has been correctly preserved may be critical to legal issues in a case. In addition, knowing what evidence may have been altered, destroyed, or discarded entirely at the scene or in the emergency department may also be critical to lawyers, investigators, and experts in subsequent investigations, as well as in civil and criminal litigation. There are practical and effective evidence collection protocols and techniques that can be used with regard to potential evidence in the emergency department without sacrificing the primary medical goals of providing expert care to the victim of a violent crime. Implementation of evidence collection protocols by pre-hospital providers; emergency physicians; trauma and orthopedic surgeons, as well as the nursing staff in the emergency department; operating rooms; and Surgical Trauma Intensive Care Units, can and will enhance the preservation and documentation of evidence that might otherwise be lost or contaminated. The protocols also improve the reliability of the chain of custody of items that may be of evidentiary value.

Social Science Research Network, Dec 20, 2003

Social Science Research Network, 2016

The opinions contained in the article are those of the author and do not necessarily reflect the ... more The opinions contained in the article are those of the author and do not necessarily reflect the opinions of the Colleges of Law or the Special Law Report editors. Manuscripts submitted for consideration in future issues of the Special Law Report or other publications of the Colleges of Law should be sent to the Colleges of Law at either address above.

Santa Barbara Lawyer Magazine, 2023

This Criminal Justice column will look at the recent acknowledgment of Governor Newsom’s administ... more This Criminal Justice column will look at the recent acknowledgment of Governor Newsom’s administration that the State of California must invest in mental health care at the state level. The manner in which the mental health needs of people in the State are being met (or not met) and will be met (or will not met) in the future should be of great concern to everyone. The highly publicized plight of people who are both houseless and in need of mental health services has brought this discussion to the fore. Unfortunately, the discussion has often been uninformed and sometimes lacking in human compassion. There is no solution to houselessness other than to make housing available. Even then, there will be people who will resist housing. And there is no solution to what is perceived as a mental health crisis other than to make mental health services available. That is a complex challenge and requires more than just providing counsellors or psychiatric services.
A holistic approach to providing assistance to those who need it and want it is a good start and it cannot be just based on local, community or eleemosynary efforts. The state owes it to the entire state community—all Californians—to make a renewed effort.
The reality is that the State of California backed out of its commitment to provide mental health care—psychiatric services—forty years ago and only now is the general public starting to recognize the ramifications of that. Those who are immersed in the struggle to find resources for people with mental health needs—such as public defenders, parents of adult disabled children and social services workers—have been painfully aware of the lack of adequate resources. The current news cycle and the Governor’s concern may help focus the needs if not finding easy answers.
But a little history might help.

Santa Barbara Lawyer Magazine, 2014

Law Review, including Stephanie Poucher and Shahrzad Noorbaloochi. All errors are the author's. 8... more Law Review, including Stephanie Poucher and Shahrzad Noorbaloochi. All errors are the author's. 87 AMERICAN UNIVERSITY LAW REVIEW tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors. Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person's IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors-such as childhood abuse, poverty, stress, and trauma-can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disporportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court's affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment's Equal Protection Clause and would not survive strict scrutiny.

Social Science Research Network, Dec 20, 2003

Murder, vehicular manslaughter, assault, and other major felony cases often involve evidence that... more Murder, vehicular manslaughter, assault, and other major felony cases often involve evidence that makes its way into the emergency department (ED) of a local hospital or a regional trauma center. This evidence may be found on the person of a patient who was a victim, a witness, or an accused, and it is often brought into the trauma room by the paramedics or others who arrive with the patient. In fact, the evidence also may be the traumatic injuries sustained by a victim. The main focus of emergency department personnel is to assess and treat their patient’s injuries, which may require the performance of lifesaving procedures in the emergency department or in the operating room. The preservation and collection of forensic evidence, as well as the documentation of the patient’s wounds, is an important but secondary concern. Furthermore, training in the preservation and documentation of forensic evidence as well as the documentation of the patient’s wounds is almost non-existent in the...

Forensic science has made significant strides in elevating the standards for forensic analysis, r... more Forensic science has made significant strides in elevating the standards for forensic analysis, reporting and testimony over the last few years. Yet, lawyers and judges lag far behind in understanding the significance of these strides. There is an attempt to educate law students in the law schools and to educate lawyers and judges through continuing legal and judicial education but it is slow in finding its way into the actual courtroom. Therefore, while there is progress at the highest levels of forensic science, a lot of "junk" science competes for the attention of jurors. Forensic scientists can help educate the lawyers and judges on a case by case basis. They can not only educate, as they routinely do, on the substance of their opinions, they can also educate on the scientific foundation for those opinions in accordance with Daubert, Kumho Tire and related modern rules. By doing so, they can help establish the grounds for their testimony but can also set the bar for th...