Wednesday, April 18, 2007

People v. Montoya (Cal. Ct. App. - April 18, 2007)

Maybe we need to do a little more Westlaw training (or, perhaps, careful wordsmithing).

Footnote 8 of this opinion by Justice Benke says "Appellant concedes that the term taint hearing does not occur in Westlaw's databases, current California case law, California statutes or Witkin's California Criminal Law treatise." Except that I'm pretty sure that the term "taint hearing" -- a phase that's used all the time by various practitioners (e.g., in criminal wiretap and child abuse cases) -- does indeed appear in Westlaw's databases, including over 200 times in the ALLCASES file. Plus, the Supreme Court has used the term before (in the electronic surveillance context) and the Ninth Circuit has done so repeatedly, in both the child abuse and wiretap areas, in both published and unpublished cases.

So I might delete the reference to Westlaw in the footnote. (Though the rest, as far as I can tell, is correct. We apparently don't use that term as much here in California as elsewhere, even though many many other states use it, and it also appears in CJS as well as in a wide variety of other treatises.)

Regardless, the term's now been used in a California case, right? Thanks, Justice Benke. Even though, in truth, I'm not all that fond of the term "taint".