Kamisar, LaFave, and Israel's Modern Criminal Procedure

Nancy J. King, Vanderbilt University Law School

Orin S. Kerr, University of CA-Berkeley School of Law

Eve Brensike Primus, University of Michigan Law School

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Table of Contents

Kamisar, LaFave, and Israel's Modern Criminal Procedure, Criminal Procedure: Investigation, and Criminal Procedure: Adjudication, 16th, 2024 Supplement

Teacher's Manual

Chapter 2

• Updated materials on incorporation doctrine to include recent Supreme Court case law
• Updated materials on federal supervisory power to incorporate discussion of United States v. Tsarnaev
• Updated materials and scholarly commentary on new federalism

Chapter 3

• Updated materials and scholarly commentary on institutional competence to include discussions of the power of social movements, the role of agencies, and progressive prosecution
• Updated materials and scholarly commentary on racial profiling and innocence
• Updated materials on police department hiring and training trends
• New section discussing the movement to defund the police

Chapter 4

• Updated materials and scholarly commentary about the structure of indigent defense delivery nationwide
• New note on the role of defense counsel
• New section on the right to assistance of experts (moved from Chapter 5 in the prior edition) incorporating more up-to-date case law and commentary

Chapter 5

• This chapter is completely revamped and updated with lower court case law and recent commentary including discussions of the four different forms of ineffective assistance of counsel doctrine and the racial construction of Strickland as well as) new sections on deficient performance and prejudice with updated materials and expanded and updated discussions of the conflict-of-interest cases and the client autonomy cases.

Chapter 6

• This chapter has been rewritten from scratch. It now covers what is a “search” and “seizure” under the Fourth Amendment. It begins with a discussion of the enactment and history of the Fourth Amendment. It then covers what is a “search,” starting with applications of the expectation-of-privacy test and then covering the trespass/intrusion test. It then addresses what is a Fourth Amendment seizure.

Chapter 7

• This chapter has been rewritten from scratch. It now covers Fourth Amendment reasonableness, starting with the law of warrants and then covering warrantless searches and seizures. It includes new topic coverage such as the law of excessive force and qualified immunity.

Chapter 8

• This chapter covers the scope of the Fourth Amendment exclusionary rule and incorporates and updates all of the Fourth Amendment materials that used to be in Chapter 12 in the prior edition with substantial revisions to the section on the good faith exception to the exclusionary rule.

Chapter 9

• This chapter has been shortened slightly to make it easier to assign.

Chapter 10 (formerly Chapter 9)

• This chapter includes updates to the case law and statutory commentary throughout including updated discussions of stationhouse lawyering; incorporating race into the Miranda custody and voluntariness analysis; treatment of juvenile suspects and intellectually-disabled suspects; and updates to state and federal law on police deception, discriminatory interrogation tactics, false confessions, and interrogation recording requirements.
• New discussions of emerging police training models as well as inclusion of Vega v. Tekoh to discuss remedies for Miranda violations and a new discussion of topic-specific invocations
• Incorporation of standing and impeachment-related materials formerly in Chapter 12 into an enlarged section focused on the application of the exclusionary rule to unconstitutionally obtained confessions

Chapter 11 (formerly Chapter 10)

• Updated information about cutting edge social science research, commentary, and state and federal law/policy regarding eyewitness identification procedures

Chapter 12 (formerly chapter 11)

• Revised and shortened the chapter to make it more user friendly.
• Added new material about the use of grand juries in investigations of police for excessive use of force.
• Updated Notes with the Second Circuit’s decision in Trump v. Vance, new authority on the application of Fed. R. Cr. P. 17(c)(2) on quashing a subpoena when compliance would be unreasonable or oppressive, cases addressing Fourth Amendment challenges to subpoenas for blood samples, the application of the foregone conclusion standard to “decryption orders,” the application of Carpenter to subpoenas for other information, the nature of “incriminating” testimony, and the required records exception

Chapter 13

• Updated material describing and critiquing state pretrial detention and cash bail practices with new studies, cases, statistics, and legislative resources
• Updated discussion of risk assessment and added new Notes on commercial surety bonds, “bail credit,” and sources of bail funds
• Revised the chapter’s treatment of constitutional challenges to pretrial detention practices and policies so that each different type of constitutional challenge—Eighth Amendment, substantive due process, procedural due process, and equal protection—is clearly explained with up to date authority, including the most recent attacks on cash bail practices in the states

Chapter 14

• New note material includes updated information on diversion from the new MPC Sentencing, the decision enforcing Bill Cosby’s non-prosecution agreement, more on progressive prosecution, problems with charge screening in misdemeanor cases, commentary highlighting gaps in the information prosecutors need to charge, an example recent state decision limiting the choice between two charges punishing the same conduct, new research on prosecutor elections, and commentary on the doctrine of desuetude.
• Revised and reduced the material in the chapter to make it more user friendly

Chapter 15

• This chapter has been revised and shortened to make it easier and more effective to teach the most important and interesting aspects of preliminary hearings and charge screening.
• New lower court authority appears in the Notes on perpetuation of testimony regarding on the adequacy of cross examination, and limitations on cross-examination.

Chapter 16

• This second chapter on charge screening, Grand Jury Review, also has been streamlined. Many of the Notes detailing variations in the states have been trimmed, while keeping summary information about variation. Other note material has been reorganized.
• Updates include new reference to grand jury questioning moved from Chapter 12, a sentence on “blue ribbon” grand juries, a summary of post-Campbell decisions addressing discrimination in the selection of the foreperson, a 2022 decision from 3d circuit on grand jury bias, summary of lower court recognition and rejection of actions that severely compromise grand jury independence as a constitutional violation.

Chapter 17

• The chapter on the Charging Instrument was revised and shortened.
• New material includes recent cases granting relief for omission of essential element and the addition of recent post-Cotton authority.

Chapter 18

• Notes have been revised for clarity
• New cases added on offenses involving use of the mails
• Added a problem for students to apply the material in the chapter near the end

Chapter 19

• New Notes addressing holding in Dixon, research about prejudice after Schaffer
• Updated Notes on states rejecting Blockburger with updated authority, on Missouri v. Hunter, on lesser included offenses in the states, and Crawford’s import for Gray

Chapter 21

• This chapter on discovery and disclosure has been revised substantially to reflect the most recent discovery reform, and recent commentary
• Additions include a new description of defending a client in a restrictive discovery regime, by Professor Jenny Roberts, commentary from Professor Darryl Brown, updated references to ABA standards and DOJ policy, recent amendments to Federal Rule 16, New York’s recent discovery reform, and new resources on e-discovery, including excerpts from a recent article by Professor Jenia Turner on managing discovery of ESI
• New Notes added on subpoenas to third parties for information not in possession of the government, on provisions that require discovery before a plea agreement, and on requiring certificates of compliance from the government
• Added new authority on the split concerning whether Brady requires “due diligence” from the defense, and on the scope of Ritchie

Chapter 22

• This chapter on pleas and plea bargaining is substantially reorganized and updated.
• Section one is a new introduction.
• The second section focuses on the requirement that a plea is voluntary, incentives to plead guilty controlled by the prosecution, and by judges, including a section on judicial participation in plea bargaining, and research about false pleas. New material includes recent cases involving package deals and wired pleas, commentary by Professor Andrew Crespo on charge bargaining and by Judge Stephanos Bibas on plea bargaining and wrongful convictions, new research on the relationship between pretrial detention and increased convictions, on plea bargaining in misdemeanor cases, and on the prevalence of guilty pleas by innocent defendants, as well as new cases addressing when a stiff sentence might be considered punishment for failing to accept a negotiated plea.
• The third section addresses authority defining the scope what a defendant must understand about the charge, rights waived, and the consequences of pleading guilty before a plea is considered valid. New material includes recent cases and ethics authority on disclosure of exculpatory and impeachment material before plea, and new authority addressing what “collateral consequences” and constitutional rights must be understood before plea.
• Section four addresses the factual basis for a guilty plea, Section five examines judicial regulation of prosecutorial charging and sentencing choices, while section six examines judicial regulation of other terms. New material includes commentary about Alford pleas and lying at plea proceedings, new cases on pleas to fictitious crimes, judicial efforts to bar appeal waivers, and Judge Sullivan’s discussion of judicial authority under Rule 48 to reject the government’s motion to dismiss the charge against Michael Flynn.
• After Section seven on the role of defense counsel, including the Court’s 2019 decision in Garza, and Section eight material on breach and withdrawal, Section nine concludes the chapter with Class v. United States and forfeiture of claims by plea.

Chapter 23

• The Court’s decisions in Ramos v. Lousiana and Flowers v. Mississippi are added
• Added new state law developments replacing the Batson test with a more protective objective standard and rejecting peremptory challenges entirely.

Chapter 24

• Added the Court’s decision in United States v. Tsarnaev.
• Added new note on closure of proceedings during the COVID-19 pandemic

Chapter 25

New first section on the right to a public trial, with Presley v. Georgia, Waller v. Georgia, and Weaver v. Massachusetts, as well as notes on “trivial closures” and the substitution of virtual access for in-person access by the public
• New notes on Rushen v. Spain, and on substitutes for physical presence of the defendant, including case law addressing videoconferencing during the pandemic
• New cases involving use of stun belt, and on the scope of the right to confrontation in pretrial proceedings
• New research on impeachment with prior convictions

Chapter 26

• Updated authority in Notes after Renico v. Lett and Oregon v. Kennedy
• Added Court’s decisions in Gamble and Denezpi.

Chapter 27

• A new Note on mass incarceration and mass supervision with updated statistics including race
• New research from Professor Reitz and Rhine about release from prison in the states
• Quote from the Court’s decision in Timbs on fines, and new research on fees and fines
• New research on sentencing appeals
• Excerpt from article by Professor Sinha relating the back story of Williams v. New York
• New research on prior record sentence enhancements, and on aggravating sentence factors in binding guidelines states
• Updated statistics on federal sentencing
• Discussion of the Court’s new decision in United States v. Haymond.

Chapter 28

• New research on sentencing appeals in the states, including misdemeanor appeals and prosecutor appeals
• New explanation of the Court’s decision in Hollywood Motor Car declining to allow interlocutory appeal of an order denying a motion to dismiss for vindictive prosecution
• Added In re Wild, the 2021 decision rejecting claim by survivors of Jeffery Epstein’s sexual abuse to challenge the non prosecution agreement with Epstein as a violation of their rights under the CVRA
• Added the Court’s decision regarding plain error in Greer v. United States

Chapter 29

• Added the Court’s new decisions in Edwards v. Vannoy, Brown v. Davenport, and Shinn v. Ramirez.

Learn more about this series.