{ 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. For example, the U.S. Supreme Court, in 2007, ruled that filings by pro se litigants must be liberally construed.

If a defendant's conduct during self-representation "abuse[s] the dignity of the courtroom" or interferes with the orderly continuation of the trial, a judge may terminate that self-representation.

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.B. (Competence) and 4.C. (Conflict of Interest):

A problem which could be classified as one of either competence or conflict arises when an attorney is too close to the facts of a case. One can see this where an attorney is personally involved in litigation and yet takes part in that litigation as an attorney. Not only can their emotions cloud their judgment (see 2.K.), but they can get confused as to what facts are actually in evidence. As a result, they may make concessions, or fail to raise such objections as hearsay, because certain facts are familiar to them, even though those facts aren't in evidence or are being offered in some inadmissible way.

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 5.C.1. (Judicial Prejudice):

What sort of showing is necessary to show judicial prejudice? Well, "crusty" behavior probably isn't enough. Expressions of impatience, annoyance, or anger may not do the trick either.

Update to 6.A. (Jurisdiction):

It has generally been the rule that a state court litigant could not get the case into a federal district (trial level) court or a federal circuit (primary appellate level) court. In fact, only after exhausting state channels of review could that litigant ask the U.S. Supreme Court to accept jurisdiction by granting certiorari (see 32.F.). But the Third Circuit Couret of Appeals recently held that a state court litigant could appeal an interlocutory -- non-final -- order (see 32.A.) if the appeal raises a federal question (e.g. constitutionality). This ruling was particularly surprising because it involved a family law case, and federal courts tend to avoid those whenever possible.

Update to 6.A.1. (State versus Federal 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.

Updates 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 guilty. 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 12.A. (Bail):

As jails get more and more crowded, many people in many jurisdictions are questioning the practice of routinely imposing bail, trying to come up with ways to assess how much of a flight risk a particular defendant presents.

At least some states (e.g. Indiana) have statutes that allow the court to take into account the safety of another person or the community in setting bail. I don't know whether such statutes have been challenged on constitutional grounds.

Updates to Chapter 13. (Substantive Principles, Criminal):

I mentioned criminal assault, aka (in some jurisdictions) criminal battery, here and there, but didn't give this crime its own subsection.

I noticed the omission of a subsection on criminal assault/battery while reviewing a case about a possible defense to this crime, namely a parent's right to discipline a child. Standards for what is appropriate corporal punishment have certainly changed with time, and also vary between cultures. **A parent disciplining a child the same way they, and their parents and grandparents, were disciplined could end up charged with a crime.** Summaries of this defense tend to use the word "reasonable," or forms of it, multiple times, e.g., was the force used reasonable, and did the parent reasonably believe that force to be necessary to control, train (now there's a dandy verb for child-rearing), or educate the child?

Update to 13.E.1. (Felony Murder):

In September 2017, Massachusetts' Supreme Judicial Court ruled that a first-degree murder conviction requires proof of a malicious intent to kill. This means that in Massachusetts, the felony murder doctrine is no longer a basis for a first-degree murder conviction. It may, however, still be used as an aggravating element in sentencing.

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.H. (Theft):

States differ as to whether taking lost or misplaced property -- for example, money left behind at a self-checkout machine -- constitutes theft. Indiana is one state that doesn't.

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 genealogical, 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.

Updates 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.

At least in some states (e.g. Indiana), someone can be obviously raving mad (to use some colloquial language), unwilling to acknowledge mental illness and resistant to medication, without meeting the requirements for involuntary commitment, as long as they can function independently, providing themselves with food, clothing, and shelter. **This could be a very difficult situation for loved ones to handle.**

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.6. (Modifying a Contract):

It surprised the heck out of me, but the Indiana Court of Appeals recently held that a contract specifically stating that all modifications must be in writing could be modified orally.

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.

Update to 14.F. (Torts):

I left out a tort with some good story potential: alienation of affection. Only a few states still recognize this common law tort, which let people sue anyone who, per one case's formulation, through persuasion, enticement, or inducement, cause or contributed to the abandonment of the marriage and/or the loss of affections by active interference." **It'd probably be easiest to use this tort in historical fiction, but you could always surprise an errant spouse or that spouse's lover, living in (at last report) Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, or Utah, with a lawsuit based on alienation of affection.

Update to 14.F.1. (Battery):

Teachers are often said to be "in loco parentis," meaning that they temporarily stand in for parents and may share parental duties, responsibilities -- and immunities. So if a teacher smacks a kid's butt, can they be sued for civil battery or for a federal civil rights violation, or does the "in loco parentis" doctrine protect them from such suit? Maybe the latter: it'll probably depend on the details and the jurisdiction.

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.

As a general rule, one can't defame the dead. Which, put another way, as law professor and commentator Jonathan Turley has put it, means that you can (and get away with it).

Updates 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.

Updates 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.

On a related topic, many states and the District of Columbia have statutes that allow defendants to move to dismiss a lawsuit on the ground that the lawsuit is a SLAPP suit -- a strategic lawsuit against public participation -- intended to silence some opponent or critic.

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.**

Updates 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.

Updates 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.**

An August 2017 Indiana case held that potential heirs could make a valid pre-mortem (before death) contract about how to divvy up property once the person from whom they might expect bequests actually died.

Update to 14.K.7. (Codicils and Revocations):

A related point: if the subject matter of a specific legacy ceases to be part of the estate during the testator's lifetime, that legacy can't take effect. This situation is called ademption (or, more grandly, ademption by extinction; verb, to adeem). If ademption occurs, the proceeds of the original item don't go to the legatee, but are handled under the residuary clause (the provision governing everything that wasn't specifically bequeathed to some individual or entity). The issue, in deciding whether a legacy has been adeemed, may be whether the subject matter has merely undergone a change in form.

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.

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

In 2017, the U.S. Supreme Court held that the Lanham Act's "disparagement" clause, which "prohibit[ed] the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead,” violated the Free Speech clause of the First Amendment. The case arose from the Patent and Trademark Office's rejection of a Asian rock group's requested trademark, "The Slants." In 2019, the Court similarly struck down the Act's ban on "immoral or scandalous" trademarks. The Redskins football team could presumably have benefited from these decisions, but decided to give up the name in 2020.

Recently, there have been a rash of attempts by authors to trademark words or phrases common to certain genres, as used in series titles or even more broadly. This is in many cases an abuse of the trademark process, made possible by the fact that the Patent and Trademark Office doesn't have the staff to scrutinize every trademark application. Apparently, the PTO approves marginal trademarks and lets the holder of that trademark try to enforce the trademark, with the subsequent litigation, if any, acting as the test of the trademark's validity. This became widely known when (to oversimplify a bit) a romance author obtained a trademark for the word "Cocky" in a series title and then started threatening some of the many authors who used "Cocky" in their book titles, some of whom had been using it years before the trademark was issued. She also was able to get Amazon to take down some of the books in question, and other authors went through the trouble, expense, and competitive disadvantage of changing their book titles to avoid a fight. Fortunately, the Romance Writers' Association and a retired IP attorney -- also a terrific SFF author -- named Kevin Kneupper (aka Lawyer Hero) stepped up, persuading Amazon to put the books back until the matter is settled in court. (This controversy has become known as #Cockygate.) Lawyer Hero has filed a petition to cancel the trademark and created a Twitter bot to watch for similar trademark applications. He's also posted advice about how to oppose such trademark applications at various procedural stages.

Update to 14.M.4. (Trade Secrets):

In 2016, the Defend Trade Secrets Act provided a private federal cause of action for trade secret misappropriation. It doesn't preempt state trade secrets law. The basis for the feds getting involved is similar to that for the EEA. Under "extraordinary circumstances," the plaintiff can get an order for "seizure of property necessary to prevent the propagation or dissemination" of the trade secret. There are quite a few prerequsites for such an order, over and above those necessary for any preliminary injunction.

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.

Updates 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.

We usually think of defendants asking for a jury trial -- but can the prosecution do the same? One might think not -- the Sixth Amendment to the U.S. Constitution, applicable to the states via the Fourteenth Amendment, gives "the accused" the right to a jury trial -- but this is currently allowed in many jurisdictions.

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.

Updates 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 . . . .

A recent Indiana decision held that the court may not remove a juror simply because that juror appears to be the sole obstacle to the jury reaching a verdict.

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.

By the way, there's also something called "jury vilification" -- but it's something a judge does. If the judge unjustifiably ignores a jury's verdict, e.g., by directing an acquittal after the jury has convicted even though the evidence justified conviction, that's jury vilification. See 5.C. re judicial misbehavior.

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.

Updates to 22.H.10. (The Problem with Eyewitness Testimony):

Some states' courts have held that show-ups (where a witness is shown only a single suspect) are too inherently suggestive to be admissible evidence, at least in criminal trials.

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

A number of state courts have weighed in, with varying results, on the question of whether and under what circumstances a court may admit testimony obtained via "facilitated communication," in which someone unable to communicate on their own relies on some form of physical contact with the "facilitator" to indicate, what letters the person wishes to type on a keyboard or similar device. New York courts have analyzed this question under New York's rules for determining the admissibility of purported scientific testimony. Indiana and Kentucky courts, and at least one federal court, have declined to follow this approach, instead treating the issue as a factual question of whether the particular individual, using the particular facilitator and that facilitator's techniques, is in fact communicating.

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.K. (Hearsay):

Here's one more exception to the hearsay rule: "course of investigation" evidence. This comes up when the police want to explain how an investigation proceeded -- and do it by mentioning someone's out of court statement. Courts are cautious in applying this exception, generally using it only when the statement is somehow necessary to avoid confusing or misleading the jury about what happened.

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.D. (Fines):

I got a little ahead of the U.S. Supreme Court in this section. That Court hadn't, when this book was published, held that the Excessive Fines clause of the Eighth Amendment applies to the states through the Fourteenth Amendment. But it has now! in a unanimous opinion handed down in November 2019. The case involved civil asset forfeiture (see 34.G.2.), which the Court held did count as a fine for this purpose -- but it'll also apply to, e.g., huge fines against homeowners for "excessive" holiday decorations.

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. In September 2017, Colorado set a 15-day limit on solitary confinement. 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 30.B.2. (Tort Damages):

States differ as to whether they will allow damages for the loss of a pet to include noneconomic "sentimental value" damages.

Update to 32.J.1. ("Harmless" as Opposed to Reversible Error):

Errors that can never be harmless are called "structural error." In addition to errors which always result in prejudicial harm to the defendant, structural error may occur, in the words of one U.S. Supreme Court case, when the error "threatens an interest other than protecting the defendant against wrongful conviction." For example, denial of the right to a public trial threatens the First Amendment rights of the press and the public.

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.A.2. (Second Amendment):

Since the U.S. Supreme Court decision mentioned in the text, an increasing number of states have adopted what some call "constitutional carry," eliminating any requirement that those permitted to carry a firearm obtain a state or local permit first.

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.

Updates 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.

Does it count as a search to have a police dog sniffing you or your car? Apparently not. A related question: if the police have a valid reason to stop a driver, can they make him stay put long enough for a dog to show up and do its olfactory thing? Not if they detain the driver longer than is necessary for the original reason for the stop, without reasonable suspicion of criminal activity (which doesn't mean the traffic-law issue leading to the stop).

Updates 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.

As it becomes more common for schools to have police officers on the premises, the analysis of whether an interrogation of a student at school is "custodial" may change.

Updates to 34.G. (Due Process):

A "show-up," where a victim is shown a suspect and asked whether that suspect was the perpetrator (see 22.H.10), may be so suggestive and so conducive to irreparable mistake as to violate procedural 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."

What happens when someone tries to enforce a judgment from a foreign country, and the party against whom enforcement is sought claims the judgment would violate their fundamental human rights? Well, that's one of the times it's challenging to be a judge. The judge would, at least in some jurisdictions, try to determine whether the foreign law on its face or the way the order applied that law would in fact violate fundamental rights.

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

In June 2017, the U.S. Supreme Court held that since 21 U.S.C. section 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime, that provision did not permit forfeiture with regard to Terry Honeycutt, who had no ownership interest in his brother's store and did not personally benefit from the illegal sales.

More states are indeed following New Mexico's lead in restricting or abolishing civil asset forfeiture. In July 2017, Connecticut banned asset forfeiture if not a penalty for a criminal conviction. In August 2017, a federal district court judge held that an Indiana statute allowing seizure of property without a preo-forfeiture, post-seizure hearing violated the due process guarantees of the U.S. Constitution. 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). 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. In March 2021, Utah opted out of the federal forfeiture sharing program.

One egregious example of asset forfeiture involved Gerardo Serrano, a U.S. citizen, driving to Mexico in a new and expensive truck, taking photos as he went. Customs and Border Patrol agents stopped him, asked why he was taking photos, and asked him to unlock his phone. When he refused, they searched his truck and found a magazine clip with five bullets, which Serano, who has a license to carry in his home state of Kentucky, had forgotten to remove from his truck. Declaring, "We've got you," the agents seized his truck on the grounds that it was being used to "transport munitions of war." That was four years ago at the time of this update. Serano's lawsuit has just now reached the trial stage.

Update to 34.I. (Double Jeopardy):

Per a U.S. Supreme Court decision issued in June 2018, where a defendant is charged with multiple offenses and consents to having a severance, e.g. separate trials on some of those offenses, acquittal at the first trial doesn't prevent a second trial on remaining charges.

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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