{ Updates }



Update to 2.K. (Pro Se Litigants):

The courts of at least some states hold pro se litigants to the same procedural standards as attorneys. The federal courts, however, cut pro se litigants some extra slack.


Update to 2.M. (Right to Counsel):

On March 30, 2016, the U.S. Supreme Court, in a four-Justice plurality opinion and a concurrence by Justice Thomas, held that the Sixth Amendment precludes the federal government from freezing a defendant's assets prior to trial on order to preserve them for later fine or forfeiture, if those assets are unrelated to the alleged crime and if the freeze prevents the defendant from hiring paid counsel. The theoretical availability of overworked public defenders with unmanageable caseloads does not sufficiently protect such defendants' Sixth Amendment rights.


Update to 4.D. (Attorney-Client Privilege) and 22.I.2. (Clerical and Therapist Privilege):

Recently, the Indiana State Bar Association Ethics Committee announced that the general duty to report suspected child abuse will sometimes conflict with an attorney-client privilege. This announcement, while unsurprising to attorneys, apparently shocked many public officials.


Update to 5.C. (Judging the Judge):

The Ninth Circuit Court of Appeals is holding seminars, led by neurological experts, to help older judges figure out whether they have become "cognitively impaired" and should resign. It has also set up a hotline that judges and court staff can call if concerned about a judge whose faculties are declining.


Update to 6.A. (Jurisdiction):

Several states have set up special courts, sometimes called "problem-solving courts," that hear only particular types of cases, such as drug cases, complex commercial cases, or veterans' cases.


Update to 6.D. (Class Actions):

The U.S. Supreme Court has ruled that a class action does not become moot because the defendant offers the named plaintiff(s) the compensation they were seeking.


Update to 7.A.1. (Complaint and Summons):

Sometimes, even when "fact pleading" isn't required, plaintiff's counsel will choose to use it as a tactical matter, a decision to start storytelling (see the conclusion to Ch. 35) from the start.


Update to 9.A. (Plea Bargains):

A judge may not accept a guilty plea without the defendant's explicit verbal consent. The judge should interrogate the defendant about whether they understand all the rights they're giving up by pleading guilty. The scene in The Untouchables where the defense lawyer suddenly switches sides and pleads guilty, with the judge ignoring Capone's vehement protests? Pure hogwash.


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

According to attorney Jeff Kichaven, California has such strict confidentiality rules for mediation that a client may be effectively prevented from suing for an attorney's or mediator's malpractice committed during mediation.


Update to 9.D. (Mistrials):

The movie Suspect demonstrates -- though it doesn't label -- multiple acts by defense counsel that would, if discovered, lead to a mistrial: investigating the case with a juror's assistance, making out with the juror, and confiding in the juror her belief that her client is probably guilt. Sheesh.

After a mistrial in a criminal case, whether the prosecution may (if it chooses) retry the defendant is at least in part a constitutional question. See the discussion of double jeopardy in 34.I.


Update to 13.E.2. (Self-Defense and Defense of Others):

A related defense: defense of property. As with self-defense, if the property in question is one's dwelling, one may have greater latitude in using force to kick someone out or stop someone attacking that property. The same may be true if one is in a motor vehicle and someone attacks it.


Update to 13.E.3. (The Insanity Defense):

Please do not use the movie Primal Fear as your model for presenting an insanity defense. Unless suffering from serious mental illness or similar reason for bizarre conduct, a trial judge will not suddenly decide, without expert testimony, to abort a jury trial and declare the defendant not guilty by reason of insanity.


Update to 13.F.1. and 13.F.2. (Statutory Rape and Child Molesting):

With enough malicious stupidity from prosecutors, one can get miscarriages of justice such as recently befell two teenage sweethearts. When both were 16 years old, they exchanged nude photos by phone (a variety of "sexting"). When the boy was 17 and the girl still 16, they were charged as adults with the felony of exchanging sexually explicit pictures of minors, even though this took place in North Carolina, where the age of consent is 16. The girl pled to a misdemeanor, while it remains unclear at this point whether the boy will be saddled with lifetime presence on a sexual offender list.


Update to 13.M. (Criminal Trespass):

Authors might want to set a story in North Carolina. In that state, if a cemetery is located on private property or accessible only via private property, and the property owner doesn't want anyone traipsing across the property to visit a grave, that's not necessarily the final word on the matter. A descendant of someone reasonably believed to be buried in that cemetery, or someone else designated by that descendant, or someone with a legitimate geneological, historical, or governmental interest in the cemetery, can get a court order allowing access without the property owner's consent. (Similar laws may exist in some other states, but I don't know that for a fact.) **Your story could feature family feuds, a misuse of access to commit vandalism or for some other nastiness, and/or revelations of (so to speak) long-buried family secrets about who's descended from whom.**


Update to 13.N. (Resisting Arrest):

In Indiana, at least, it doesn't count as "resisting arrest" to keep walking when the police tell you to stop -- unless the police have either reasonable suspicion of criminal activity or probable cause for an arrest.


Update to 13.V. (Involuntary Commitment):

The original text may be somewhat inaccurate as to whether outpatients have less protection against forced psychiatric treatment. Acceptance of treatment may be a condition for being released in the first place.


Update to 13.X. (Criminal Contempt):

At least one state (Indiana) does not require a defendant to be physically present in the courtroom before finding the defendant's conduct contumacious (a fancy word for showing contempt), if the defendant acted up during a video conference.


Update to 14.C.5. (Quantum Meruit):

Historically, courts wouldn't find an implied contract or apply unjust enrichment law if the parties were cohabiting (living together as a couple, but unmarried), at least under some circumstances. That exception is for the most part obsolete, but some states may retain it, at least in part.


Update to 14.C.8. (Limits on Enforceable Contracts):

Confidentiality agreements in employment contracts may be unenforceable when they prevent certain types of "whistleblowing," such as publicizing the existence of a danger to public health or safety. Employers may also be prohibited from requiring their employers to agree to a shortened statute of limitations (see Ch. 11) for a claim of employment discrimination (see 14.L.1.).


Update to 14.D.7. (Civil Trespass):

See the note re 13.M., Criminal Trespass.


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

Where the statement concerns the subject's profession, some jurisdictions limit defamation per se to misconduct in practicing that profession rather than unfitness or incompetence.

A related tort: slander of title, false statements, which the speaker knew or should have known were false, about the plaintiff's real property, and which could make others view the property as less valuable. To prevail, the plaintiff must prove actual damages. Jurisdictions differ as to the breadth of this tort. For example, Indiana recognizes slander of title only if the statement concerns the plaintiff's ownership of the property.


Update to 14.F.7. (Invasion of Privacy):

Some jurisdictions recognize a variant on the tort of invasion of privacy, namely "public disclosure of private facts." We're talking about actual facts, not falsehoods as in defamation. The elements: the disclosed fact is not generally known to the public, or at least is not "publicly available" (a tricky concept in these days of social media); the fact was publicly disclosed (which would include many forms of online dissemination); and disclosure of this type of public fact is "offensive to a reasonable person of ordinary sensibilities." Must this hypothetical "reasonable person" match the alleged victim in age and culture? Good question.

Some states may add other elements, such as reckless disregard for the likely offensiveness of the information. It may be a defense that the information is of "legitimate public concern," or the plaintiff may have to prove the opposite. Consent, if established, is a complete defense.


Update to 14.F.10. (Abuse of Process):

Where a particular litigant is known to abuse the judicial process, e.g. by filing repeated frivolous lawsuits, the courts are not entirely defenseless. At least in some states, a court may impose conditions on any new filing by such an "abusive litigant," such as requiring court permission for such a case to proceed.


Update to 14.H.4. (Divorce):

Leaving aside the history of legal and illegal polygamy in the U.S. (about which many books have been written), bigamy was not uncommon in 19th century America, with its many opportunities (especially, though not exclusively, for men) to move west and leave their pasts behind. Many people did not let an abandoned spouse deter them from starting a new life with a new (husband or) wife. **One could find many story possibilities in this informal variant on divorce, including the qualms (possibly belated) of either participant, the revelation to the second spouse of the first's existence, and/or the surprise appearance of the abandoned spouse on the second marital doorstep.**


Update to 14.H.5. (Child Support):

In at least some jurisdictions, if a child makes it very clear, by consistent words and behavior, that they want nothing whatever to do with the noncustodial parent, that parent can go into court claiming that the child has "repudiated" their relationship with the parent. If the court buys the argument, the parent may be relieved of a previously ordered obligation to pay child support or educational support. (Educational support would be support for the expenses of education after what would normally be the age when child support terminates.)

Many if not all states allow the court to order a divorcing or previously divorced parent to pay for educational expenses, such as college tuition. Indiana recently held that enough is enough, declining to interpret the statute authorizing orders for "postsecondary" educational expenses as extending to graduate school.


Update to 14.I. (Guardianship):

If a person has given someone a power of attorney, which makes that someone their "attorney in fact," even an appointed guardian might not be able to override the decision of the attorney in fact on various issues. This could lead to all sorts of intrafamily conflict.


Update to 14.K. (Wills and Trusts):

A state may (and Indiana does) have one or more statutes dealing with the circumstances under which human remains may be relocated, and at whose behest.

Many states, though fewer than in the past. have statutes -- typically called "Dead Man's Statutes" -- codifying the common law rule that a decedent's alleged statement, even if admissible in spite of hearsay restrictions (see 22.K.), may not be used to support a claim against an estate. (These statutes sometimes reach beyond the probate context, but that is their primary application.) Of the states that retain such statutes, some prohibit testimony concerning both communications and transactions with the decedent, while others allow the latter. Caveat: we're talking about a premortem statement. **You could explore whether these statutes would be applied to prevent a medium from offering in-court contact with the deceased.**


Update to 14.L.2.b. (Federal Regulations re Wages and Benefits):

The rule change mentioned in this section appears to be happening, although it is not yet set in stone. Where overhead pay is otherwise required, it would be required for employees earning less than $47,476 per year, up from $23,660. The rules governing which employees are "exempt" don't appear to be changing.


Update to 14.L.2.d. (Employee versus Independent Contractor):

Independent contractor status may also protect the person or company who hired that contractor from vicarious liability (see 14.Q.). However, in at least some contexts in some states, if someone employs an independent contractor to perform services, and the recipient of those services reasonably believes that an employee is performing those services, the employer may be liable for physical harm caused by the contractor's negligence, to the same extent as if the contractor were in fact an employee. This may come up when a hospital's doctors are independent contractors.


Update to 14.M.2. (Trademarks):

The issue of whether the Patent and Trademark Office or the Trademark Trial and Appeal Board can reject a trademark because either the general public or some person, entity, or group supposedly finds it offensive or insulting, the U.S. Supreme Court is currently considering whether this violates constitutional free speech guarantees. The plaintiffs: an Asian rock group calling itself The Slants.


Update to 14.O.1.a. (Income Tax Audits):

One businessman recently told me about an audit in which he was hit with unpaid "use taxes" (like sales tax, but for purchases made out of state) for the magazines he subscribed to for his office. The auditor apologized to him, confiding, "I have to find something." I have not investigated whether such instructions to auditors are rare or commonplace.


Update to 15.B. (Securities Regulation):

On the subject of whether passing a stock tip to a friend or family member, without receiving any tangible or commercial benefit in return, constitutes criminal "insider trading," the U.S. Supreme Court sided 8-0 with the Ninth Circuit (and against the Second Circuit) in answering "yes."


Update to 15.C. (RICO):

States may have their own versions of RICO, which may be even more far-reaching. Indiana's RICO statute, for example, does not require proof of a threat of continued criminal activity; and it covers not just enterprises, but an individual's acquiring control of "property" through a pattern of racketeering activity. One zealous prosecutor successfully charged a shoplifter with violating this statute after a "pattern" of two shoplifting episodes several years apart. The Indiana Court of Appeals reversed the conviction.


Update to Chapter 18 (Choice of Law):

For a fascinating science fiction series based on this legal issue, see Kristine Kathryn Rusch's Retrieval Artist novels.


Update to 19.B. (Judge or Jury?):

Occasionally, in some jurisdictions, a judge who's trying a case as a bench trial will empanel an advisory jury.


Update to 19.D.1. (Voir Dire and Challenging Jurors):

Just as social media has required the rethinking of concepts like libel and slander, it also challenges other traditional categories. When it comes to the voir dire process, an attorney or the judge will often ask whether a juror is a friend of some participant in the trial. But what is a "friend," these days? The Indiana Court of Appeals recently held that where one of a juror's Facebook friends, one among more than a thousand, was the victim's sister, failing to mention the woman as a "friend" did not constitute juror misconduct.


Update to 19.E. (Controlling the Jury):

Once the jury is empaneled (chosen), the jury itself will choose a foreman, or foreperson in more contemporary language. The foreperson is supposed to keep order during deliberations and conduct votes.

The various bizarre behaviors of the defense counsel (played by Cher) in the movie Suspect are primarily the lawyer's responsibility, but one hopes jurors will know it's not exactly kosher to conduct investigations with defense counsel, or discuss with defense counsel the defendant's probable guilt, or make out with defense counsel . . . .


Update to 19.G. (Jury Shenanigans):

In Indiana, at least, an alternate juror's improper intrusion on deliberations comes under an exception to the rule barring evidence of misconduct during jury deliberations.


Update to 20.C. (Beyond a Reasonable Doubt):

Even the apparently simple distinction between civil and criminal burdens of proof can be muddied. Indiana has a Criminal Victim Relief Act allowing the alleged victim of a crime, suing the alleged perpetrator for a pecuniary (monetary) loss, to collect treble damages (see 30.B.3.) after establishing the criminal conduct by only a preponderance of the evidence. This is somehow distinguishable from the proof requirement for punitive damages (again, see 30.B.3.), for which Indiana, like most states, requires proof by clear and convincing evidence.


Update to 22.C.1. (The Stage and the Actors):

One would never, outside the television series Daredevil, see a jury trial in which the spectators were allowed to carry signs with derogatory messages concerning the defendant. If this somehow occurred, the defendant would (IMHO) have a slam-dunk case for a mistrial (see 9.D.).


Update to 22.H.3. (Children in Chambers):

The movie Night of the Hunter includes a highly improbable courtroom scene, with the prosecutor attempting to browbeat a child witness, thundering, "Won't you look over there and say whether that's the man who murdered your mother. . . ."


Update to 22.H.6. (Hostile Witnesses):

The television series Daredevil notwithstanding, treating a witness as hostile does not entail ignoring the witness from that point forward and making a passionate argument to the jury and judge about why vigilantism is a worthwhile endeavor.


Update to 22.H.11. (Expert Witnesses):

Where a criminal defendant has confessed, defense counsel sometimes calls an expert on the dubious police tactics that may be used to induce false confessions, such as confronting a suspect with false evidence, suggesting that the suspect may have committed the crime accidentally, and/or implying that an immediate confession is the only way to obtain mercy. (See also 34.D.)


Update to 22.I. (Privilege that Can Prevent Testimony) (but which may require retitling that section):

A new privilege may be in the process of emerging: the "self-critical analysis" privilege for documents that businesses prepare during internal reviews or investigations.


Update to 22.I.3. (Spousal Privileges):

In a ruling many commentators considered questionable, a federal magistrate and later a federal judge held that Bill Cosby's wife Camille could be compelled to answer deposition questions in the case against her husband, even questions concerning marital communications. However, this ruling did not apply to any future trial proceedings.


Update to 22.L.1. (The Problem of the Curious Judge):

For what it's worth, I propose the following approach to any research judges wish to conduct on factual matters. Court rules should list, by category or description or more specifically, the sources a judge may consult. The judge must give the parties written notice of the sources consulted and the facts the judge considers that those sources have established. The parties then have the opportunity to respond.


Update to 27.B. (Jury Instructions):

One recent Indiana case held that a jury instruction, one that actually quoted a statute, was so misleading that giving the instruction constituted fundamental error (error requiring reversal even though the defendant failed to object to it -- see 32.J.3.). The statute didn't mention the prosecution's burden of proof, and the quoted language could have sounded like an exception to that burden.


Update to 27.C. (Did I Win or Lose?: Verdicts), concerning aggravating and mitigating circumstances:

When a jury weighs aggravating and mitigating circumstances, is there any accepted standard by which an appellate court should review that decision? At least in Indiana, the Court of Appeals has declared that it's not authorized to second-guess the jury's balancing act by applying, for example, an "abuse of discretion" standard. (Legalese: the claim that the jury abused its discretion in this weighing process is "nonjusticiable.")


Update to 27.C.1. (Polling the Jury):

In some jurisdictions, it's the clerk or bailiff who actually reads the verdict in open court rather than the foreperson of the jury. The foreperson may first be asked to review the verdict form(s) to ensure that they haven't been altered in any way.


Update to 29.G. (Solitary Confinement):

In late 2015, New York settled a lawsuit brought by the New York Civil Liberties Union, agreeing to a major overhaul in its solitary confinement practices. These changes include limiting the term of solitary confinement to three months in most cases and adding some privileges. The federal government has also made changes, including a ban on putting juveniles in solitary confinement in federal prisons. In addition, some prisons are experimenting with the use of nature imagery on walls and such to make solitary confinement less harmful to the prisoner.


Update to 34.A.1. (First Amendment):

The U.S. Supreme Court decision prohibiting cities from treating political yard signs differently from other similarly placed signs may be extended by some courts to restrict laws addressing panhandling. Stay tuned.


Update to 34.B. (Limits on Search and Seizure):

The Indiana Court of Appeals has held that since cell phone users do not voluntarily convey data indicating their phones' location to the cell phone service provider, and often don't know that this information is being transmitted, police searches of that data are not exempt from the warrant requirement.


Update to 34.B.1. (Exceptions to Requirements for a Search Warrant):

The U.S. Supreme Court has held that strip searches conducted upon arrest for misdemeanor charges do not violate the Fourth Amendment. However, at least one state -- Indiana -- has held that its state constitution require a reasonable suspicion that the prisoner possesses contraband.

Another situation where the police could end up in a position to notice contraband or suspicious circumstances without an initial basis to search involves the police's "community caretaker function." Police are expected to assist those in distress, abate dangerous conditions, and the like, and may come upon useful evidence in the process.

Where the police claim that they had consent to search, one issue is whether the person who gave that consent had either actual or "apparent" authority to do so. The Indiana Supreme Court recently held that a house guest had no apparent authority to consent to a search of the residence, making the search illegal.

Where it is necessary for the police to impound (take possession of) a motor vehicle, the police do not need a search warrant in order to do an "inventory search." The rationale is that the police should be routinely allowed to record what property the vehicle contained, so that they are not later accused of having stolen or lost or destroyed something the owner claims was in the vehicle at the time. As for the threshold question of whether the police were justified in impounding the vehicle, adequate reasons would include the vehicle's obstructing traffic where a driver (drunk or under arrest) is in no position to move it. States may differ as to whether a police failure to actually make an inventory of the vehicle's contents renders the supposed inventory search a pretext and the search a constitutional violation.


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

Per U.S. Supreme Court precedent, if public officials, including police, are threatened with loss of their jobs unless they answer questions, their answers may not be used against them in a criminal prosecution. However, if the threat of adverse job action is less clear, with other factors likely to play a part in any decision, this rule may not apply.


Update to 34.G. (Due Process):

A December 14, 2015 article in the Huffington Post argues that contrary to the views of many current pundits, "substantive due process" is "firmly grounded in constitutional text" and "rooted in ideas about the function and limits of government that were accepted by the Founding generation."


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

More states are indeed following New Mexico's lead in restricting or abolishing civil asset forfeiture. Montana now requires a criminal conviction of an offense for which forfeiture is a listed penalty, plus clear and convincing proof linking the property to the crime. The rules are somewhat complicated about when property can be seized and held before the criminal case is resolved. If the convicted criminal is not the property owner, the owner may have to come forward with an "innocent owner" claim, but then the government must prove by clear and convincing evidence that the owner knew about the crime. Nevada passed some sort of civil asset forfeiture reforms in 2015, though the original bill was either watered down or gutted, depending what sources you consult (and I haven't dug deep enough to say which). Most recently, Florida overhauled its civil forfeiture laws in 2016, increasing reporting requirements, requiring an arrest (though not a conviction) as a prerequisite, and requiring proof beyond a reasonable doubt that the property was being used in violation of Florida's Contraband Forfeiture Act. Colorado's legislature has passed and sent to the governor a bill substantially restricting when state or local authorities may receive forfeited assets from the feds.


Update to 34.J. (Ex Post Facto Laws):

At least some states are less picky about when a statute of limitations was extended. For example, in one Indiana case, a statute of limitations allowed criminal prosecutions within some number of years of the time that DNA evidence was or could have been discovered. In affirming a conviction based on application of this statute, the Court of Appeals did not bother to mention when the statute of limitations was enacted in its current form; but the Court's citation included the year 2009, 21 years after the crime was committed. Without the DNA clause, the statute of limitations would have expired after five years.



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