{ Updates }

Update to Ch. 2.K. (Pro Se) and 13.W. (Involuntary Commitment):

At least one state, Tennessee, holds pro se litigants to less strict standards than litigants with legal counsel.

The text doesn't go into what's involved in waiving the right to counsel, or what warnings a judge must give a criminal defendant (or, in at least one state (Indiana), someone in danger of being involuntary committed to a psychiatric ward or institution) who wants to proceed pro se about the dangers of doing so. Generally, in order to waive the right to counsel, the defendant (or, if applicable, the person alleged to be mentally ill) must be capable of making that decision and must make that waiver "knowingly, voluntarily, and intelligently." Insufficient warnings from the judge might affect the "knowingly" and/or "intelligently" part.

Update to 9.C.2. (Mediation):

Some jurisdictions--including, as of July 2021, Indiana, Arizona, and five of the U.S. Circuit Courts of Appeal--treat material prepared for mediation or compromise negotiations, even if exchanged prior to the actual mediation or negotiations, as confidential.

Update to 10.A. (Discovery):

In some jurisdictions (including California, Florida, Michigan, Missouri, West Virginia, and some federal courts), the "apex doctrine" makes it more difficult to depose high-ranking officials than the rest of us.

Update to Ch. 10.B. (Discovery) and 13.E.3. (The Insanity):

The 1994 remake of Miracle on 34th Street treats an utterly improper ex parte communication as normal and mischaracterizes the insanity defense.

Update to Ch. 10.B. (Ex Parte Communication) and 22.I. (Privileges):

In a civil case where there's also a possibility of a criminal prosecution, can a party (I'm using that term broadly to mean "individual or entity," not only a party to the lawsuit) resist a discovery request because the material sought might tend to incriminate that party? It depends. Where the very fact that the party possesses the documents or other material might be incriminating, that party may be protected by the "act of production privilege." But if the existence and location of the material is a "foregone conclusion," no such privilege exists.

Update to Ch. 11 (Statutes of Limitations and Repose):

Many state and federal courts have adopted "the equitable tolling doctrine of adverse domination." This doctrine is a corollary to the rule that the clock on a statute of limitations doesn't start to run until the plaintiff knows, or should know in the exercise of ordinary diligence, that they've been injured by tortious conduct. Adverse dominations tolls (pauses) the statute of limitations for actions by corporations against their officers, directors, lawyers, and accountants for so long as the corporation is controlled by those acting against its interests.

In addition to statutes of limitations and statutes of repose, there are "non-claim statutes." These allow some sort of lawsuit (in at least one court opinion's words) "unknown to the common law," but explicitly limit the time period during which that lawsuit may be brought.

Update to 13.F.1. (Statutory Rape) and 14.H.11. (Emancipated Minors):

I only tangentially mentioned the possibility that minors may, in some states, get married. Requirements for such marriages vary. North Carolina recently raised its minimum age for marriage from 14 to 16 -- though in each case, such a marriage was allowed only if one of the potential spouses got pregnant and the youngster obtained parental consent. Alaska's lower age limit remains 14. Not all states specify such a limit.

Update to 14.F.3. (Defamation):

One of the qualified privileges that protect against liability for defamation is known as the "public interest" privilege. It is intended to encourage citizens to assist law enforcement with investigating and apprehending criminals, and covers, e.g., reports to law enforcement officials.

Update to 14.F.8. (Infliction of Emotional Distress):

A few states impose liability for negligent infliction of emotional distress where the plaintiff is a parent or guardian and the defendant is a caretaker who sexually abuses a child, even though the plaintiff did not witness either the act or its immediate aftermath.

Update to 20.K. (Hearsay and Its Exceptions):

There's another exception similar in some respects to the business records exception: the "market reports" exception, for (to quote an Indiana evidence rule) "market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations."

Update to 29.B. (Sentencing):

The text doesn't get into the concept of "good time credit," which allows prisoners to serve less than the full amount of their sentences if they stay out of trouble. Taking advantage of vocational training or educational opportunities may have a similar effect. A related issue, **which could provide great story material,** is what happens if a prisoner is erroneously released ahead of time. If they avoid any trouble with the law during that fortuitous period of freedom, should that period count as time served -- or even preclude their being locked up again? Federal case law, aka federal common law, has evolved in a fairer and more lenient direction on this point. Most federal courts now count these days at liberty as if the prisoner had still been incarcerated--and if the sentence comes to an end before the prisoner is hauled back into custody, they stay free.

The text also doesn't (I don't think) deal with the "right of allocution," which allows a convicted defendant to make an unsworn statement to the sentencing judge or jury before sentence is pronounced. The prosecution may not, as far as I know, cross-examine the defendant on the content of that statement.

Update to 34.A.1. (Freedom of Speech):

In 2021, the U.S. Supreme Court held that a student's expletive-laden Snapchat video denouncing the cheerleading program in her school (where she had just failed to make the varsity team) was not within the still-ill-defined category of speech outside of school which a school could nevertheless regulate as dangerous or disruptive.

Some states, including at least Indiana and Vermont, have addressed the relatively new phenomenon of "revenge porn" and have found that it isn't protected by the First Amendment.

Update to 34.A.3. (The Takings Clause):

The text doesn't directly address what's called "regulatory taking," when government regulation of private property is so onerous as to become the equvalent of directly taking property. When regulations reach that point is difficult to define.

Update to 34.D. (Right to Remain Silent):

A few states, with Oregon and Illinois currently in the lead, are beginning to limit the extent to which police can lie -- yup, you read that right, lie -- to suspects when interrogating them.

Update to 34.G.2. (Civil Forfeiture):

Maine, too, has put an end to civil forfeiture, requiring a criminal conviction for any forfeiture and even then imposing various restrictions intended to increase transparency.

I failed to update this section after the U.S. Supreme Court held in 2019 (as I did mention in 29.D.) that the Eighth Amendment's prohibition on excessive fines applied to the states via the Fourteenth Amendment. That decision didn't go into whether civil forfeiture could qualify as an excessive fine. In 2021, the Indiana Supreme Court, citing holdings in other jurisdictions that disproportionality can make a fine excessive, found the forfeiture of a Land Rover -- the defendant's only asset -- which the defendant had used for trips to buy and sell small amounts of illegal drugs to be disproportionate and excessive.

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