Little Help?
posted by Sam Kamin
As has been noticed, there are a lot of us criminal law types here this month. There also seems to be, with the exception of the fascinating case that Daniel Solove noted the other day, a relative dearth of criminal law and procedure questions percolating through the courts at the moment. So I thought I would take advantage of this moment for purely selfish purposes.
I am at the earliest stages of putting together a Criminal Procedure casebook. This task has required me to reflect on my own teaching of the course and to question a lot of what I do and say in the course. I have never been terribly happy teaching Criminal Procedure; I find that the class lacks any organizing principles and that the doctrines come across as very results-driven and fact-specific. Unlike Criminal Law which I truly enjoy teaching, Criminal Procedure has often felt like a chore. I’m hoping that this project helps change that.
So I’m not going to ask you to organize Criminal Procedure for me or to outline my book. But I am curious what those of you out there who teach Criminal Procedure like or loathe about doing so. Is there a particular case or doctrine that gets you energized? Is there some part of the class that you feel compelled to teach even though you detest either the leading case, the result, or the reasoning? After the jump, my thoughts.
My favorite case in Criminal Procedure is Colorado v. Connelly. I think the facts make the students confront the central question in the Court’s Fifth Amendment jurisprudence: Is the appropriate inquiry into government coercion or the voluntariness of confessions. The police work in the case seems exemplary; at least as described in the reported case, the officer tries to keep Connelly from confessing to homicide but cannot. So if the focus is on coercion, there is exactly none. By contrast, there are lots of reasons to be concerned about the voluntariness of the confession; Connelly was hearing the voice of God commanding him to confess. The case also lets me make my favorite point of the semester: God is not a state actor.
By contrast, the automobile cases are the nadir for me. It’s hard to get excited about distinguishing the 13 ways that police can search a car: “Ok, this case is decided on the basis of the automobile exception. But notice that it could also have been decided as a search incident to arrest, or as an inventory search, or as a plain view search, or as….” I know I will have to cover these cases in the new book, and I can’t for the life of me come up with a way to make them fresh. Any thoughts?
April 7, 2008 at 10:51 pm
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Responses (3)
Orin Kerr - April 8, 2008 at 1:57 am
I love teaching crim pro from the 1st day to the last. It’s an incredible story of judges giving themselves the critical job of police regulation and then having to try to figure out how to do it — with the mix of history, changing judicial personalities, and lots of random chance thrown in for good measure to keep it endlessly interesting.
Norm Pattis - April 8, 2008 at 9:27 am
I have never taught law and doubt I ever will, but if I were given the chance, I would want to teach criminal procedure. Most of my practice is devoted to criminal law; the conflict between state and individual always energizes me. I orient myself to the criminal law by relying on Max Weber, of all folks. The state has a monopoly on the legitimate use of force (or did until Blackwater, et al.). Criminal procedure limits the application of that force against individuals I represent. Crazy as it may sound, all these doctrines seem anchored in the life and death struggle between the state, a legal fiction with seemingly endless power, and an often impotent defendant.
Norm Pattis - April 8, 2008 at 9:27 am
I have never taught law and doubt I ever will, but if I were given the chance, I would want to teach criminal procedure. Most of my practice is devoted to criminal law; the conflict between state and individual always energizes me. I orient myself to the criminal law by relying on Max Weber, of all folks. The state has a monopoly on the legitimate use of force (or did until Blackwater, et al.). Criminal procedure limits the application of that force against individuals I represent. Crazy as it may sound, all these doctrines seem anchored in the life and death struggle between the state, a legal fiction with seemingly endless power, and an often impotent defendant.
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