Criminal Procedure, Investigating Crime

Joshua Dressler, Ohio State University College of Law

George C. Thomas III, Rutgers Law School-Newark

Daniel S. Medwed, Northeastern University School of Law

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Table of Contents

2022 Update Memo

Teacher's Manual

Information Regarding Dressler, Thomas, and Medwed's
Criminal Procedure: Principles, Policies, and Perspectives (7th Ed)
Criminal Procedure: Investigating Crime (Softcover) (7th Ed)
Criminal Procedure: Prosecuting Crime (Softcover) (7th Ed)

• As with prior editions, we describe all of the significant changes from the previous edition in the Teacher’s Manual, at the start of each chapter in the Manual. Therefore, adopters should look at the Teacher’s Manual for all of the significant changes.
• Another significant change is the addition of a new co-author, Daniel Medwed, Northeastern University Distinguished Professor of Law and Criminal Justice. Professor Medwed brings considerable background in the field, including his scholarly and pro bono work around the topic of wrongful convictions. His style of writing is similar to those of the original casebook authors Dressler and Thomas, who try to intersperse humor where possible to the casebook.
• We have made a structural change. In the past, professors teaching the Criminal Procedure Adjudication course often felt a need to have their students purchase the annual casebook supplement in order for their students to have access to the Federal Rules of Criminal Procedure and to selected federal statutes (which were included as appendices in the Supplement), which are frequently discussed in the hardcover casebook and the Criminal Procedure: Prosecuting Crime softcover version of the casebook.
  
  In order to save students the need to purchase the Supplement if that is the only reason they were asked to do so, we have moved the Federal statutes previously in the Appendix of the Supplement, to a new Appendix in the casebook itself (and in the softcover version of the Criminal Procedure: Prosecuting Crime). And, where a specific Federal Rule of Criminal Procedure is relevant, it is now included in the casebook in the appropriate Notes and Questions section. Therefore, there will be no appendices in the yearly Supplement. The effect is that professors need only ask students to purchase the Supplement when there are relevant new cases for use in their class.
• Of course, the casebook now includes all of the important United States Supreme Court cases decided since the last edition was published, moving them from the annual Supplement to the casebook, either as principal cases or Notes. We have also added recent state and lower federal court opinions, where interesting and useful, to the Notes and Questions section, including new Problems that professors can assign to help students use the principal cases to decide how to analyze new fact-patterns.
• In order to keep the size of the casebook manageable, the authors have gone through the cases previously in the casebook and, where possible, made minor edits in them. Where such changes have been made, prior adopters are alerted to the changes in the Teacher’s Manual. The new edition of the hardcover version of the casebook actually is a few pages shorter than the last edition, despite the addition of the new cases.

Regarding the Criminal Investigation chapters of the hardcover (and Criminal Procedure: Investigating Crime softcover)

• Chapter 1 contains a new section, “America the Violent,” where we included new material about the role that violence has always played in our country. We moved the Notes about the lynchings of Ed Johnson and Leo Frank into this section.
• In Chapter 3, in the “What is a Search?” section, where we previously included almost 12 pages of excerpts from many important “reasonable expectation of privacy Katz” cases dealing with dog sniffs, open fields, searches of garbage, and aerial surveillance, we have made a structural change that we believe will improve student attention to the materials. We have worried that many students become tired reading so many pages of Notes and, consequently, do not give the cases discussed in them as much attention as they deserve. Therefore, we have set these Note cases off in the casebook under the title “Other Important Post-Katz Cases,” with subdivisions for each category of cases. We believe the way we have set them off in this edition will more productively catch the students’ attention and make it easier for them to digest the cases covered here.
• In Chapter 4, we have returned the old-faithful exigent-circumstances case, Warden v. Hayden, to the casebook and moved Commonwealth v. King, which deals with the issue of police-created exigences, to the Notes and Questions section after Hayden. Many of our adopters have expressed the view that Hayden teaches better than King, and we agree. Also, it seems more useful to use a case that states a rule rather than one that defines (but does not find) an exception to that rule.
• In Chapter 7, we have included a new section on Miranda waiver and its consequences. We remind students of the various strategies of the Reid technique often used by police, strategies that were criticized if not condemned by Miranda but are still very much around. To provide a counterpoint, we added a Note about the English method of interrogation, which appears much less confrontational.

Regarding the Criminal Adjudication Chapters (and Criminal Procedure: Prosecuting Crime softcover)

• In the Pretrial Release chapter, we have augmented the Notes to include important state-level developments in bail reform.
• In the Case Screening chapter, we added new Notes to address recent changes in charging practices. For example, a new Note grapples with the growing movement by progressive county prosecutors to decline to charge certain categories of crimes, a trend that raises a number of questions about discretion, separation of powers, and intra-state disparities. Another note covers the emerging use of data and algorithms to influence charging decisions.
• In the Plea Bargaining chapter,
  • We inserted a new Note developing the “Crash-the-System” argument—made by Professor Michelle Alexander, among others—urging criminal defendants to work as a group to turn down pleas and go to trial.
  • We have revised large portions of the Notes after Santobello to home in more closely on issues regarding the appropriate remedy when prosecutors violate their plea bargaining deal, in light of recent Supreme Court cases.
  • We also changed United States v. Brechner from a principal case to one discussed in a Note.
• In the Trial Process chapter,
  • We added a Note about how the increasing access to “big data” may affect jury selection in ways both good and bad.
  • Given developments in the research surrounding implicit biases, we felt that a new Note was warranted to discuss creative ways to ferret out prejudice among prospective jurors.
  • We made additions to the Notes following Batson, most notably, a discussion of Flowers v. Mississippi (2019), and an amplified discussion whether the benefits of peremptory challenges are worth their costs.
  • A new Note explores the question of whether jurors are “aware” of the nullification power and, if not, what the consequences might be if courts or defense lawyers were to formally notify them about it.
  • We made some changes in the Notes following Crawford, including a fuller description of the confusion inflicted by Crawford on domestic violence cases, and a look at the future of confrontation clause jurisprudence.
  • We inserted a new Note discussing racial bias during deliberations in light of Peña-Rodriguez v. Colorado (2017).

Learn more about this series.