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Criminal Procedure Law and Practice 10th Edition Ebook PDF
Criminal Procedure Law and Practice 10th Edition Ebook PDF
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This book is dedicated to the many graduate and undergraduate
students and law enforcement personnel I have had over the
years from whom I have learned so much.
—Rolando V. del Carmen
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About
Aboutthe
theAuthor
Author
vi
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Brief Contents
Chapter 9 Plain View, Open Fields, Abandonment, and Border Searches 262
Chapter 13 Sentencing, the Death Penalty, and Other Forms of Punishment 403
vii
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Contents
Preface xvii Chapter 2
Overview of the Criminal Justice Process 32
Chapter 1 The Procedure before Trial 34
The Court System, Sources of Rights, and Filing of Complaint 34
Fundamental Principles 1 The Arrest 35
Booking at the Police Station 38
The U.S. Court System 2 Initial Appearance before a Magistrate 38
The Federal Court System 3 Setting Bail 40
The State Court System 8 The Preliminary Hearing 41
Where Judicial Decisions Apply 10 The Decision to Charge 43
Stare Decisis and Judicial Precedent 11 Indictment versus an Information 44
The Arraignment 46
Federal versus State Criminal Trials 12 The Plea by the Defendant 46
Jurisdiction versus Venue 13 Plea Bargains 48
Sources of Rights 14 The Procedure during Trial 51
Constitutions 14 The Selection of Jurors 51
Statutory Law 17 Opening Statement by the Prosecution 53
Case Law versus Common Law 18 Opening Statement by the Defense 53
Court Rules 18 Presentation for the Prosecution 54
The Judicial Review Doctrine 19 Presentation for the Defense 55
Rebuttal Evidence 55
The Rule of Law 19 Closing Arguments 55
The Incorporation Controversy 21 Defense Motions before the Verdict 56
Background 21 Instructions to the Jury 57
Approaches to Incorporation 21 Jury Deliberation 57
A Summary of the Four Approaches to The Verdict 57
Incorporation 23 The Procedure after Trial 60
Fundamental Right as the Test for Selective Imposition of Sentence 60
Incorporation 24 Appeal 61
Rights Not Incorporated 24 Habeas Corpus 61
The Result of the Incorporation Controversy:
“Nationalization” of the Bill of Rights 25 Procedural Differences in Jurisdictions 62
Application to Felony Cases 62
Court Cases 25 Variation among States 62
Case Citation 25 Variation within a State 63
How to Brief a Case 27 Ideal versus Reality 63
In Action Jurisdiction and Venue 11 Case Brief Santobello v. New York,
404 U.S. 257 (1971) 50
Case Brief Duncan v. Louisiana, 391
U.S. 145 (1968) 22 In Action Juror Selection 53
ix
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In Pretrial Motions 95
Chapter 3 On Appeal 96
Probable Cause and Reasonable Suspicion 66 In Habeas Corpus Proceedings 96
Standing and Illegally Seized Evidence 97
Probable Cause 68
Probable Cause Defined (The Legal Determining What Is Not Admissible 97
Definition) 68 Illegally Seized Evidence (The Primary
A “Man of Reasonable Caution” 68 Evidence) 97
The Practical Definition of Probable Cause 69 Fruit of the Poisonous Tree (The Secondary
Same Definition of Probable Cause in the Evidence) 98
Many Areas of Police Work 70 Exceptions to the Rule 99
Arrest of Persons versus Search and Seizure Category 1: The Good Faith Exception and
of Property 70 Its Many Variations 99
With a Warrant versus without a Warrant 71 Category 2: The Inevitable Discovery
Why Obtain a Warrant? 71 Exception 105
Who Determines Probable Cause? 72 Category 3: The Purged Taint Exception 105
Establishing Probable Cause after an Category 4: The Independent Source
Officer’s Illegal Act 72 Exception 107
Any Trustworthy Information Can Establish
When the Rule Does Not Apply 107
Probable Cause 74
In Violations of the Knock-and-Announce
The Three Ways Whereby Probable Cause Is
Rule 107
Established 74
In Searches by Private Persons 108
Probable Cause and Motor Vehicle Passengers 79
In Grand Jury Investigations 108
Is an Arrest Based on Probable Cause for a
In Sentencing 108
Different Offense Valid? 80
When an Arrest Based on Probable Cause
Reasonable Suspicion 81 Violates State Law 108
Reasonable Suspicion Defined 81 When Only Agency Rules Are Violated 109
The Totality of Circumstances 81 In Noncriminal Proceedings 109
Probable Cause Compared with Reasonable In Parole Revocation Hearings 110
Suspicion 84 Arguments for the Exclusionary Rule 111
Determining Probable Cause or Reasonable Suspicion Arguments against the Exclusionary Rule 111
on Appeal 84 Alternatives to the Exclusionary Rule 112
In Action Search Warrant Affidavit 73 The Future of the Exclusionary Rule 113
Case Brief Spinelli v. United States, 393
Case Brief Mapp v. Ohio, 367 U.S. 643 (1961) 94
U.S. 410 (1969) 77
Case Brief Arizona v. Evans, 514 U.S. 1 (1995) 103
Case Brief Alabama v. White, 496 U.S. 325 (1990) 82
In Action The Exclusionary Rule 110
Chapter 4
Chapter 5
The Exclusionary Rule 88
Stop and Frisk and
The Exclusionary Rule Defined 90 Stationhouse Detention 117
The Purpose of the Rule Is to Deter Police Stop and Frisk 118
Misconduct 90 Issue and Origin 119
A Judge-Made Rule 91 The Leading Case 120
The Guidelines 121
Historical Development 91
Reasonable Suspicion Is Required, not Probable
The Rule Now Applies to State Criminal Cause 122
Prosecutions 93
Two Separate Acts 123
Invoking the Rule 95 The Stop 124
x Contents
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A Case Study: Stops and Race in the New York When Exigent (Emergency) Circumstances
City Police Department 134 Are Present 167
The Frisk 135 When There Is Danger to the Officer 167
Stop and Frisk and Arrest Compared 140 Entering a Home without a Warrant 167
Other Stop and Frisk Applications 141 What the Police Can Do after an Arrest 168
Application to Motor Vehicles 141 Police Can Search the Arrestee, Including
Application to Weapons in a Car 143 a Strip Search 168
Application to Residences 143 Police Can Search the Area of Immediate
Control 169
Stationhouse Detention 144 Police Can Search the Passenger Compartment
For Fingerprinting 144 of a Motor Vehicle 170
For Interrogation 145 Police Can Use Handcuffs 170
Case Brief Terry v. Ohio, 392 U.S. 1 (1968) 122 Police Can Monitor the Arrestee’s Movement 170
Case Brief Hiibel v. Sixth Judicial District Court of Police Can Search the Arrestee at the Place of
Nevada, et al., 542 U.S. 177 (2004) 132 Detention 170
Police Can Collect a DNA Sample 171
In Action Stop and Frisk 138
What the Police Cannot Do during an Arrest 171
Police Cannot Enter Third-Party Residences 171
Chapter 6 Police Cannot Conduct a Warrantless Protective
Arrests and Use of Force 148 Sweep Unless Justified 172
Police Cannot Invite the Media to “Ride Along” 172
The Broad Picture: Arrests Are Seizures of Persons 150
Knock-and-Announce Is Required by the Constitution, but
Arrests and the Fourth Amendment 150
with Exceptions 173
Arrest Is Just One Form of Seizure 151
The General Rule 173
The Top Ten Intrusive Searches and
The Exceptions 173
Seizures of Persons 151
How Long Must the Police Wait before
What Is the Legal Test to Determine
Entering? 174
Whether a Seizure Has Occurred? 152
Other Arrest Issues 175
Arrest Defined 153
Can the Police Detain a Suspect while Obtaining a
Forced Detention and Arrest 154
Warrant? 176
The Length of Detention and Arrest 155
Can the Police Arrest for Traffic Violations or Petty
The Four Elements of an Arrest 155 Offenses? 176
Seizure and Detention 155 Are Arrests for Offenses Not Punishable by Prison or
The Intention to Arrest 156 Jail Time Valid? 176
Arrest Authority 158 Are Citizen’s Arrests Valid? 178
Understanding by the Arrestee 158
Use of Force during an Arrest 179
Arrests with a Warrant 158
What Governs Police Use of Force? 179
When Is a Warrant Needed? 161
What the Court Has Ruled in General
The Issuance of a Warrant 162
about Police Use of Force 179
The Contents of a Warrant 163
Nondeadly versus Deadly Force 180
The Service of a Warrant 164
The Use of Nondeadly Force 180
The Time of the Arrest 164
The Use of Deadly Force 181
The Possession and Expiration of a Warrant 165
The Use-of-Force Continuum 183
Other Legal Authorizations 165
In Action What the Police May Do after an
Arrests without a Warrant 166
Arrest 154
Felonies Committed in the Presence of
Officers 166 Case Brief Payton v. New York, 445 U.S. 573
Misdemeanors Committed in the Presence of (1980) 162
Officers 166 Case Brief Atwater v. City of Lago Vista, 532
Crimes Committed in Public Places 166 U.S. 318 (2001) 177
Contents xi
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Searches and Seizures of Public Employees Other
Chapter 7
Than Drug Testing 220
Searches and Seizures of Things 186 Squeezing Luggage in a Bus 221
Searches and Seizures by Private Persons 222
The Fourth Amendment as Applied to Things 187
Searches by Off-Duty Officers 222
The Right to Privacy Is a Constitutional Right 188 Surgery to Remove a Bullet from a Suspect 222
“Reasonable Expectation of Privacy” Defined 189 In Action Extending the Scope of a Search 191
Search Defined 190 Case Brief Georgia v. Randolph, 547 U.S. 103 (2006) 204
Seizure Defined 190 Case Brief Chimel v. California, 395 U.S. 752
Searches and Seizures: The General Rule 190 (1969) 206
xii Contents
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Other Valid Car Searches 255 Detention of Persons for Questioning in
Vehicle Inventory Searches 256 a Border Area 283
Immediately after an Arrest 256 Strip, Body Cavity, and X-ray Searches 283
Vehicles Impounded by Police 257 Detention of Alimentary Canal Smugglers 284
Disassembling the Gas Tank 284
The Importance of State Laws and Department Policies Searching Vehicles away from the Border 284
in Vehicle Stops, Searches, and Inventories 258 Stopping Vehicles at Fixed Checkpoints 285
In Action The License and Registration Factory Survey of Aliens 285
Checkpoint 243 Summary of Case Law on Border Stops and
Case Brief Carroll v. United States, 267 U.S. 132 Searches 285
(1925) 244 Case Brief Horton v. California, 496 U.S.
Case Brief United States v. Ross, 456 U.S. 798 128 (1990) 268
(1982) 250 In Action A Private Poker Game Overheard 271
Case Brief Oliver v. United States, 466 U.S.
170 (1984) 277
Chapter 9
Plain View, Open Fields, Abandonment,
and Border Searches 262 Chapter 10
The Plain View Doctrine 264
Lineups and Other Means of Pretrial
Plain View Defined 264 Identification 289
Requirements of the Doctrine 265 Lineups 291
Situations in Which the Doctrine Applies 266 Right to Counsel during Lineups—It
One of Many Justifications for Admission of Depends 291
Evidence 266 Right to Due Process Applies in Lineups 298
Inadvertence Is No Longer Required 267 No Unreasonable Search and Seizure Is
Plain View and Open Spaces 269 Involved in Lineups 298
Plain View and Motor Vehicles 270 No Right against Self-Incrimination Is
Plain View and Mechanical Devices 270 Involved in Lineups 299
Plain View and Open View Compared 270
Showups 300
Plain View and Plain Touch Compared 270
Right to Counsel during Showups—It
Plain View and Plain Odor Compared 272
Depends 300
The Open Fields Doctrine 272 Right to Due Process Applies in Showups 301
The Open Fields Doctrine Defined 272 No Unreasonable Search and Seizure
Areas Not Included in Open Fields 272 Is Involved in Showups 302
Curtilage 273 No Right against Self-Incrimination Is
A Broader Meaning of Open Fields 276 Involved in Showups 302
Open Fields and Sense-Enhancement
Photographic Identifications 303
Technology 278
No Right to Counsel in Photographic
Open Fields and Plain View Compared 279
Identification 303
Abandonment 279 Right to Due Process Applies in Photographic
Abandonment Defined 279 Identification 303
Guidelines for When Items Are Considered No Unreasonable Search and Seizure Is
Abandoned 279 Involved in Photographic Identification 304
Abandonment of Motor Vehicles 281 No Right against Self-Incrimination Is
Police Actions and Abandonment 281 Involved in Photographic Identification 304
Abandonment and Plain View Compared 282
Problems with Eyewitness Identification 305
Border Searches 282 “Hopelessly Unreliable” 305
Temporary Detention of Aliens Believed to Be No Prescribed Guidelines 306
Illegal 283 Legislative and Judicial Responses 306
Contents xiii
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Eyewitness Identification Guidelines 308 Miranda Cases on Appeal: The Harmless Error Rule 363
For Lineups 309 Case Brief Berkemer v. McCarty, 468 U.S. 420
For Showups 311 (1984) 336
For Photographic Identifications 311
In Action A Confession after a Request for a
Other Means of Identifying Suspects 312 Lawyer 351
DNA Testing 312
Case Brief Missouri v. Seibert, 542 U.S. 600
Polygraph Examinations 317
(2004) 354
Breathalyzer Tests 319
Handwriting Samples 320
Hair Samples 321 Chapter 12
Brain Fingerprinting 321 Basic Constitutional Rights of the Accused
Facial Recognition Technology 322 during Trial 368
Case Brief Kirby v. Illinois, 406 U.S. 682 (1972) 294
The Right to Trial by Jury 370
Case Brief United States v. Wade, 388 U.S. Voir Dire 371
218 (1967) 296 Jury Size 371
In ActionPhotographic Identification of a Purse Unanimous versus Nonunanimous Verdicts 371
Snatcher 305 Serious versus Petty Offenses 372
Selecting a Jury of Peers 373
Disqualification of Jurors Based on Race 373
Chapter 11 Disqualification of Jurors Based on Gender 376
Confessions and Admissions: The Right to Counsel 377
Miranda v. Arizona 326 Why Counsel Is Needed 378
How Counsel Is Obtained 379
Before Miranda 328
Automatic Reversal of a Conviction for
Voluntary Confessions 328
Denying Defendant a Paid Lawyer 380
Four Cases Illustrating the Pre-Miranda
The Responsibility of the Defense Lawyer
Voluntariness Test 328
Is to the Client 382
Miranda Rejects Voluntariness as the Sole Test 330 The Right to Court-Appointed Counsel
The Basics of Miranda v. Arizona 331 during the Trial Has Exceptions 382
The Case 332 Proving Ineffective Assistance of Counsel
The Miranda Warnings 333 is Difficult 384
Miranda Required by the Constitution, Not Just by Claims of Ineffective Counsel in Death
Judges 334 Penalty Cases 385
Miranda Must Be Given for All Offenses Except Claim of Ineffective Counsel during Plea
Routine Traffic Stops 335 Bargaining 387
Distinguishing Miranda from the Right to The Right to Act as One’s Own Counsel 387
Counsel 337 The Right to Due Process 388
Miranda May Be Waived Knowingly and The Many Meanings of Due Process 388
Intelligently 338 The Brady Rule on Disclosure of Evidence to the
When Must the Miranda Warnings Be Given? 342 Accused 389
When Is the Suspect in Custody? 343 Cases after Brady 389
When Is the Suspect under Interrogation? 347 The Right against Self-Incrimination 391
Leading Decisions on the Miranda Warnings 349 The Prohibition Applies Only to Testimonial
Situations That Require the Miranda Self-Incrimination, Not to Physical
Warnings 350 Self-Incrimination 391
Situations Not Requiring or Not Fully Applying Testimonial and Nontestimonial Self-Incrimination
the Miranda Warnings 355 Compared 392
Situations in Which the Miranda Warnings Two Separate Privileges during Trial 393
Are Not Needed 359 The Grant of Immunity 395
xiv Contents
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Transactional and Use and Derivative Use Civil Liability under State Tort Law 446
Immunity Compared 396 Types of State Tort Cases 446
How the Right Is Waived 396 Other Sources of Police Civil Liability under State
The Right to a Fair and Impartial Trial 397 Tort Law 451
The Prohibition against Prejudicial Publicity 397 Official Immunity Is a Defense in State Tort
Controlling Prejudicial Publicity 398 Cases 452
Federal (Section 1983) and State Tort Cases
Case Brief J. E. B. v. Alabama, 511 U.S. 127 (1994) 376 Compared 453
Case Brief Gideon v. Wainwright, 372 U.S. 335 Differences between Federal Section 1983 and State
(1963) 383 Tort Cases 453
In Action Self-Incriminating Writing If the Police Are Sued 454
on the Wall 393 The Police Officer as Defendant 454
The Police Supervisor as Defendant 455
The City or County as Defendant 456
Chapter 13
Other Consequences of Police Misconduct 457
Sentencing, the Death Penalty, and Other
Prosecution under Federal and State Laws 458
Forms of Punishment 403
Administrative Liability: Agency Investigation
Sentencing 404 and Punishment 458
The Goals and Objectives of Sentencing 405 Exclusion of Illegally Obtained Evidence
Sentencing Disparity 406 (The Exclusionary Rule) 459
When Is a Sentence Considered Cruel and Loss of Law Enforcement License 459
Unusual Punishment? 406 In Action Ignoring the Medical Complaints of
Sentencing Guidelines 407 a Suspect in Custody 436
Sentencing Juvenile Offenders 408
Case Brief Scott v. Harris, 550 U.S. 372 (2007) 440
Types of Sentences 412
Case Brief Groh v. Ramirez, 540 U.S. 551 (2004) 442
The Death Penalty 412
Imprisonment 416
Probation 421 Chapter 15
Intermediate Sanctions 425
Fines, Forfeiture, and Restitution 426 Electronic Surveillance and
the War on Terror 463
Crime Victims’ Rights 427
Victims’ Rights in State Courts 428 Electronic Surveillance 465
Case Brief Weems v. United States, 217 U.S. 349 The Old Concept 465
(1910) 410 The New Concept 466
Case Brief Baze v. Rees, 553 U.S. 35 (2008) 417 Four Federal Laws That Govern Electronic
Surveillance 468
In Action Probation Revocation Proceedings 426
Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 468
Chapter 14 The Electronic Communications and Privacy Act
Legal Liabilities of Law (ECPA) of l986 469
Enforcement Officers 432 The Communications Assistance for Law
Enforcement Act (CALEA) of 1994 470
Lawsuits against Police: An Occupational Hazard 434 The Foreign Intelligence Surveillance Act (FISA)
An Overview of Police Legal Liabilities 435 of 1978 471
Civil Liability under Federal Law 436 Using Electronic Devices from a Public Place 473
What Section 1983 Provides 437 Electronic Tracking Devices That Do Not
Two Requirements for a Section 1983 Lawsuit to Intercept Communication 474
Succeed 437 Pen Registers 474
Defenses in Section 1983 Cases 439 Tracking Devices 474
Contents xv
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Cameras to Monitor Tracking and Other Appendix B
Offenders 479
The Constitution of the United States 494
The War on Terror 480
The USA Patriot Act 481
The Department of Homeland Security 482
Terrorism and the Police 484 Appendix C
Legal Issues in the War on Terror 486
Prospects 488
The Top Twenty Cases in Criminal
Procedure 510
Case Brief Katz v. United States, 389
U.S. 347 (1967) 467
In Action A Warrant for a Wiretap Based on an
Glossary 511
Overheard Cell Phone Conversation 472
Case Brief United States v. Jones (2012) 477 Case Index 519
Subject Index 524
Appendix A
Thirty Suggestions on How to Be an Effective
Witness 491
xvi Contents
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Preface to the Tenth Edition
T his book was written in an effort to demystify the law and court decisions so
they can more effectively guide the conduct of law enforcement officials and in the
process properly protect the rights of their constituency. Policing a free society is dif-
ficult because it sometimes involves a highly charged situation between the police and
a member of the public. That encounter can be nasty and, sometimes, deadly. In a few
seconds, the officer may be faced with a life-or-death situation for her or him and the
person being confronted. A decision, wrong in hindsight but blurred at that moment,
can lead to serious consequences for both parties. In a few instances, there is no mar-
gin for error. Police officers must know and understand the law so they become more
fully aware of what they can do legally in the course of their high-risk and sometimes
dangerous work. Mistakes cannot be eliminated, but are easier for the public to accept
when made by the officer in good faith. Students of criminal justice, and all citizens,
must understand how the law governs police-citizen encounters.
xvii
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chapter; and the In Action and Highlight boxes, as well as the margin notes and term
definitions. We have also updated Figures and Tables throughout as needed.
Below we note the content changes/updates in each chapter:
Chapter l discusses the court system, court cases, and sources of rights.
Knowledge of criminal procedure starts with understanding how state and federal
courts are structured and work. The student at this early stage must be familiar with
the U.S. Constitution and other sources of rights that set boundaries in policing. We
have clarified the discussion of incorporation and jurisdiction.
Chapter 2 presents an overview of the criminal justice process, which familiarizes
the reader with the entire criminal justice process, from initial contact with the police
to the imposition of sanctions after conviction. It is the foundation of understanding
subsequent chapters that deal with the specifics of how criminal procedure works. We
have added a discussion of recent cases dealing with jury selection and appeals.
Chapters 3 and 4 discuss probable cause, reasonable suspicion, and the exclusion-
ary rule, important terms/concepts in criminal procedure which reoccur throughout
the subsequent chapters. We have added a discussion of recent Supreme Court cases
dealing with probable cause and reasonable suspicion, and clarified some of the dis-
cussion of probable cause.
Chapter 5 discusses stop and frisk and stationhouse detention. Chapter 6 deals with
arrests and the use of force during an arrest. These two chapters probe the extent and
boundaries of the power of the police when dealing with people, as opposed to things.
We have added recent Supreme Court cases on stop and frisk and reasonable suspicion.
Chapters 7, 8, and 9 address searches and seizures of things. This is an important
part of policing, but not as crucial as the previous two chapters on searches and sei-
zures of persons. Unless properly organized and separately discussed, this aspect of
the Fourth Amendment can be confusing. Some textbooks discuss arrests of persons
and searches and seizures of things together—we think this is a major mistake, and
something that sets our textbook apart from the competition. Confusion also results if
searches and seizures of things, covered in Chapter 7, are discussed together with sei-
zures of motor vehicles, discussed in Chapter 8. These two types of searches (of things
and of motor vehicles) are both covered by the Fourth Amendment, but have different
rules and are best addressed separately. A discussion of searches and seizures that are
not fully protected by the Fourth Amendment, covered in Chapter 9, closes this topic
area. These types of searches are best discussed in this section, but deserve a separate
chapter because they do not come under the full umbrella of Fourth Amendment pro-
tection and are governed by different rules. This chapter includes a discussion of related
topics, such as eyewitness testimony and DNA identification that recently have been
the subjects of increased discussion and debate. We have added recent Supreme Court
cases in these areas, and updated some of the material on arrest, use of force, and third-
party searches.
Chapter 10 covers lineups and other means of pretrial identification, and
Chapter 11 covers confessions and admissions and Miranda v. Arizona. These go
together because they are closely related (although their sequence can be interchanged;
confessions and admissions can precede pretrial identifications). Miranda v. Arizona
is arguably the most recognizable case ever decided by the U.S. Supreme Court in
any field of law, not just in criminal procedure. It forms the core of any discussion
on the admissibility of confessions and admissions and virtually defines day-to-day
Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s).
Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
police work, particularly out in the field. Chapter 11 analyzes that case and cases sub-
sequently decided that refine the various aspects of admissions and confessions. We
have added a discussion of recent Supreme Court cases dealing with interrogations
and confessions, and clarified some of the discussion of the post-Miranda decisions.
Chapter 12 covers five major constitutional rights of the defendant at trial. We
have added material on voir dire and jury selection.
Chapter 13 covers sentencing, the death penalty, and other forms of punishment.
Although clearly not a part of day-to-day police work, sentencing and punishment
give the reader a complete picture of the criminal justice process and represent the ulti-
mate formal result of police work. We have updated the chapter with recent Supreme
Court cases dealing with the death penalty, in particular the restrictions on to whom
it can be applied.
Chapter 14 covers legal liabilities of public officers and merits a separate chapter
because it affects the totality of the police experience and presents a downside in policing.
Lawsuits filed against law enforcement agents and agencies have influenced modern-day
policing and have led to changes in law enforcement policies and practices. We have added
a discussion of recent Supreme Court cases dealing with law enforcement officer liability.
Chapter 15 covers electronic surveillance and the war on terror. Electronic surveil-
lance has been a part of policing for a long time, but what can be done or cannot be done
has undergone changes in recent due to legislation and Court refinement of constitu-
tional rules. We have updated this chapter with a discussion of the recent Supreme Court
cases dealing with electronic surveillance, as well as current issues in the area. Electronic
surveillance and the war on terror are discussed in the last chapter because some courses
in criminal procedure include them, whereas others do not.
Ancillaries
For the Instructor
MindTap for Criminal Justice from Cengage Learning represents a new approach to a
highly personalized, online learning platform. A fully online learning solution, Mind-
Tap combines all of a student’s learning tools—readings, multimedia, activities, and
assessments into a singular Learning Path that guides the student through the cur-
riculum. Instructors personalize the experience by customizing the presentation of
these learning tools for their students, allowing instructors to seamlessly introduce
their own content into the Learning path via “apps” that integrated into the MindTap
platform. Additionally MindTap provides interoperability with major Learning Man-
agement Systems (LMS) via support for industry standards and fosters partnerships
with third-party educational application providers to provide a highly collaborative,
engaging, and personalized learning experience.
Online Instructor’s Resource Manual includes learning objectives, key terms, a detailed
chapter outline, a chapter summary, lesson plans, discussion topics, student activities,
“What If” scenarios, media tools, a sample syllabus, and an expanded test bank with
30 percent more questions than the prior edition. The learning objectives are correlated
with the discussion topics, student activities, and media tools.
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Online Test Bank Each chapter of the test bank contains questions in multiple-
choice, true/false, completion, essay, and new critical thinking formats, with a
full answer key. The test bank is coded to the learning objectives that appear in
the main text, and includes the section in the main text where the answers can be
found. Finally, each question in the test bank has been carefully reviewed by expe-
rienced criminal justice instructors for quality, accuracy, and content coverage so
instructors can be sure they are working with an assessment and grading resource
of the highest caliber.
Online PowerPoint® Lectures Helping you make your lectures more engaging while
effectively reaching your visually oriented students, these handy M icrosoft Power-
Point slides outline the chapters of the main text in a classroom-ready p resentation.
The PowerPoint slides are updated to reflect the content and organization of the new
edition of the text, are tagged by chapter learning objective, and feature some addi-
tional examples and real-world cases for application and discussion.
Acknowledgments
Changes in the tenth edition reflect written comments and suggestions by the reviewers
and editors of the ninth edition. These reviewers are:
To these colleagues we express thanks for all they have done for this book. They have
improved this book in ways too many to list.
All of the reviewers of the tenth and previous editions are highly respected col-
leagues who teach or have taught courses in criminal procedure. The reviewers of the
eighth and other previous editions include Kelly D. Ambrose, Marshall University;
Kevin Behr, Coastal Bend College; Beth Bjerregaard, University of North Carolina
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at Charlotte; Don Bradel, Bemidji State University; Jerry Burnette, New River
Community College; William Castleberry, University of Tennessee at Martin; Susan
Coleman, West Texas A&M University; Edward Donovan, Metropolitan State College
of Denver; Robert Drowns, Metropolitan State University; Catherine Eloranto, Clinton
Community College; Jack Enter, Georgia State University, Atlanta; Lorie Fridell,
Florida State University; James Hague, Virginia Commonwealth University; Robert
Hardgrave, Jr., University of Texas at Austin; William Head, Texas Christian University;
Thomas Hickey, Castleton State College; Louis Holscher, San Jose State University; Tom
Hughes, University of Louisville; Martrice Hurrah, Shelby State Community College;
William D. Hyatt, Western Carolina University; W. Richard Janikowski, University of
Memphis; Judith Kaci, California State University at Long Beach; Raymond Kessler,
Sul Ross State University; Dave Kramer, Bergen Community College; James Miller,
Columbia College; Pamela Moore, University of Texas at Arlington; Patrick Mueller,
Stephen F. Austin State University; Gary Neumeyer, Arizona Western College; Robert
Pagnani, Columbia-Greene Community College; Robert Peetz, Midland College;
Robert Reinertsen, Western Illinois University; Ray Richards, San Jacinto College; Steve
Rittenmeyer, Western Illinois University at Macomb; Clifford Roberson, California
State University at Fresno; Leo Rowe, Troy University; Lore Rutz-Burri, Southern
Oregon University; Joseph Schuster, Eastern Washington State College at Cheney;
Pamella Seay, Edison Community College; Caryl Lynn Segal, University of Texas at
Arlington; Mark Stevens, North Carolina Wesleyan College; Eric Stewart, Community
College of Aurora; Greg Talley, Broome Community College; Roger Turner, Shelby
State Community College; Segrest N. Wailes, Jackson State University; Frank Ziegler,
Northeastern State University; and Alvin Zumbrun, Catonsville Community College.
Their suggestions have guided the revision of this book and have doubtless shaped
this book’s format and content. We want these esteemed colleagues to know we are
deeply and truly grateful.
This tenth and the previous editions would not have been possible without the
help of friends and colleagues. Thanks are due to the following for their contributions:
Mary K. Stohr of Washington State University, Michael S. Vaughn, Jerry Dowling, and
Phillip Lyons of Sam Houston State University; John Scott Bonien, senior assistant attor-
ney general of the state of Washington; Jeffery Walker of the University of Alabama-
Birmingham; David Carter of Michigan State University; Tom Hickey of Castleton
State University; and Judge James W. Bachman of Bowling Green State University.
The hundreds of undergraduate and graduate students we have had the pleasure
of teaching over the years inspired the writing of this book. From them we learned so
much about how legal material can best be learned by students and colleagues in the
criminal justice field. There are too many to list, but we want them to know how much
I value their contributions.
Some of the case briefs in this book are taken, with modification, from the book
Briefs of Leading Cases in Law Enforcement, by Rolando V. del Carmen and Jeffery
T. Walker, which is now in its seventh edition. I thank the publishers of that book for
allowing the use of those briefed cases.
Special and sincere thanks to the personnel at Cengage Publishing Company, all
tested and highly experienced professionals. They improved this book beyond mea-
sure, in both content and format. They are: Carolyn Henderson Meier, Christy Frame,
Valerie Kraus, Kara Kindstrom, Andrei Pasternak, Judy Inouye, and Brittani Morgan.
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Some features are taken from various sources, mostly from government pub-
lications. The authors deeply appreciate the permission given for their inclusion in
this text.
This book derives its strength from the efforts of many people, but the authors
stand alone in accepting blame for its shortcomings. Continuous and critical feedback
from readers is always welcome and deeply appreciated. As previous editions have
shown (and as is true of all written work), feedback from readers ensures better future
editions. To all who have provided solicited or unsolicited feedback for the ninth and
past editions, thank you for your help.
Craig Hemmens
Department of Criminal Justice and Criminology
Washington State University
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Chapter 1
©James Steidl/Shutterstock.com
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C ha pt er O u tlin e
I
The U.S. Court System N THIS CHAPTER, we first focus on the structure of federal and state
The Federal Court System
court systems in the United States.
The State Court System
Criminal cases in the United States may be tried in federal and state
Where Judicial Decisions Apply
courts if the act constitutes violation of the laws of both jurisdictions.
State Decisis and Judicial However, most criminal cases are tried in state courts, because main-
Precedent
taining peace and order is primarily the responsibility of state and local
Federal versus State Criminal
governments. Important topics covered in this chapter include the terri-
Trials
torial effect of judicial decisions, the principle of judicial precedent based
Jurisdiction versus Venue
on stare decisis, the extent of federal and state jurisdiction, the principle
Sources of Rights
of dual sovereignty, the legal concepts of jurisdiction and venue, and the
Constitutions
Statutory Law various sources of individual rights. The chapter discusses the incorpo-
Case Law versus Common Law ration controversy—how it developed and what role it plays in deter-
Court Rules mining which constitutional rights now also extend to an accused in state
The Judicial Review Doctrine prosecutions. It ends with a discussion of the rule of law.
The Rule of Law
The Incorporation Controversy
Background The U.S. Court System
Approaches to Incorporation
A Summary of the Four Approaches to The United States has a dual court system, meaning that there is one sys-
Incorporation
tem for federal cases and another for state cases (see Figure 1.1). The term
Fundamental Right as the Test for Selective
Incorporation dual court system is, however, misleading. In reality, the United States has
Rights Not Incorporated fifty-two separate judicial systems, representing the court systems in
The Result of the Incorporation Controversy: the fifty states, the federal system, and the courts of Washington, D.C.
“Nationalization” of the Bill of Rights But because these systems have much in common, they justify a general
Court Cases grouping into two: federal and state.
Case Citation
How to Brief a Case
Figure 1.1 The Dual Court System
Federal Courts State Courts
Lower courts
2 Chapter 1
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The Federal Court System
Article III, Section 1 of the U.S. Constitution provides that
The judicial Power of the United States shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish. The Judges,
both of the supreme and inferior Courts, shall hold their Offices during good Behavior,
and shall, at stated Times, receive for their Services a Compensation, which shall not be
diminished during their continuance in office.
The highest court in the federal court system is the U.S. Supreme Court (see
Figure 1.1). (Note: Whenever the word Court is used with a capital C in this text, the
reference is to the U.S. Supreme Court. The word court with a lowercase c refers to all
other courts on the federal or state level.) It is composed of a chief justice and eight
associate justices, all of whom are nominated and appointed by the president of the
United States with the advice and consent of the Senate (see Figure 1.2).
A federal law passed in 1869 fixed the number of U.S. Supreme Court justices
at nine, but this number can be changed by law. Supreme Court justices enjoy life
tenure and may be removed only by impeachment, which very rarely occurs. The
Supreme Court
of the United States
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Court is located in Washington, D.C., and always decides cases en banc (as one body),
en banc
never in division (small groups or panels). The votes of five justices are needed to win
as one body.
a case. The Court meets to hear arguments and decide cases beginning on the first
Monday in October and continues sessions usually through the end of June of the
following year. Court cases are argued and decisions are announced during this time,
although the Court holds office throughout the year. Members of the U.S. Supreme
Court are called justices. All others, from the U.S. Court of Appeals down to the lower
courts, are called judges.
The Supreme Court of the United States of September 24, 1789 (1 Stat. 73). It was organized on
February 2, 1790.
The Supreme Court consists of the chief justice of Jurisdiction. According to the Constitution
the United States and such number of associate (Art. III, §2):
justices as may be fixed by Congress. The number of “The judicial Power shall extend to all Cases,
associate justices is currently fixed at eight (28 U.S.C. in Law and Equity, arising under this Constitution,
§1). Power to nominate the justices is vested in the the Laws of the United States, and Treaties made, or
president of the United States, and appointments which shall be made, under their Authority;—to all
are made with the advice and consent of the Senate. Cases affecting Ambassadors, other public Ministers
Article III, §1, of the Constitution further provides and Consuls;—to all Cases of admiralty and maritime
that “[t]he Judges, both of the supreme and inferior Jurisdiction;—to Controversies to which the United
Courts, shall hold their Offices during good States shall be a Party;—to Controversies between
behaviour, and shall, at stated Times, receive for two or more States;—between a State and Citizens of
their Services, a Compensation, which shall not be another State;—between Citizens of different States;—
diminished during their Continuance in Office.” between Citizens of the same State claiming Lands
Court officers assist the Court in the performance under Grants of different States, and between a State,
of its functions. They include the administrative or the Citizens thereof, and foreign States, Citizens or
assistant to the chief justice, the clerk, the reporter of Subjects.
decisions, the librarian, the marshal, the court coun- “In all Cases affecting Ambassadors, other public
sel, the curator, the director of data systems, and the ministers and Consuls, and those in which a State
public information officer. The administrative assistant shall be Party, the supreme Court shall have original
is appointed by the chief justice. The clerk, reporter of Jurisdiction. In all the other Cases before mentioned,
decisions, librarian, and marshal are appointed by the the supreme Court shall have appellate jurisdiction,
Court. All other Court officers are appointed by the both as to Law and Fact, with such Exceptions, and
chief justice in consultation with the Court. under such Regulations as the Congress shall make.”
Constitutional Origin. Article III, §1, of the Appellate jurisdiction has been conferred upon
Constitution provides that “[t]he judicial Power of the the Supreme Court by various statutes, under the
United States, shall be vested in one supreme Court, authority given Congress by the Constitution. The
and in such inferior Courts as the Congress may from basic statute effective at this time in conferring and
time to time ordain and establish.” The Supreme Court controlling jurisdiction of the Supreme Court may be
of the United States was created in accordance with found in 28 U.S.C. §1251 et seq., and various special
this provision and by authority of the Judiciary Act statutes.
4 Chapter 1
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Rule-Making Power. Congress has from time to federal departments and agencies, and members of
time conferred upon the Supreme Court power to pre- Congress.
scribe rules of procedure to be followed by the lower The Term. The term of the Court begins, by law,
courts of the United States. See 28 U.S.C. §2071 et seq. on the first Monday in October and lasts until the first
The Building. The Supreme Court is open to the Monday in October of the next year. Approximately
public from 9 a.m. to 4:30 p.m., Monday through Friday. 8,000 petitions are filed with the Court in the course of
It is closed Saturdays, Sundays, and the federal legal a term. In addition, some 1,200 applications of various
holidays listed in 5 U.S.C. §6103. Unless the Court or kinds are filed each year that can be acted upon by a
the chief justice orders otherwise, the clerk’s office is single justice.
open from 9 a.m. to 5 p.m., Monday through Friday, Source: The Supreme Court of the United States, “About the
except on those holidays. The library is open to mem- Supreme Court,” http://www.supremecourtus.gov/about
bers of the bar of the Court, attorneys for the various /briefoverview.pdf. Modified by the author.
The Court has original jurisdiction, meaning the case is brought to the Court original jurisdiction
directly instead of on appeal, over certain cases as specified in the Constitution. The the case is brought to the
vast majority of cases, however, reach the Court either on appeal or on a writ of certiorari. court directly instead of on
appeal.
A third way—by certification—is rarely used; and a fourth method—through a writ of
error—was discontinued in 1928.1 The Court reviews cases on appeal because it must.
In reality, however, the Court does not have to consider a case on appeal on its merits,
because it can avoid full consideration by saying that the case “lacks substantial federal
question” to deserve full consideration by the Court.
The Court generally has discretion to decide what cases it wants to hear. Most
cases (about 85 percent) get to the Supreme Court from the lower courts on a writ of
certiorari, which is defined as “an order by the appellate court which is used when the
court has discretion on whether or not to hear an appeal.”2 In writ of certiorari cases,
the rule of four applies, meaning that at least four justices must agree for the Court to rule of four
consider a case on its merits. If the case fails to obtain four votes for inclusion in the at least four justices must
Court docket, the decision of the court where the case originated (usually a federal agree for the court to
consider the case on its
court of appeals or a state supreme court) prevails.
merits.
About 10,000 cases reach the Supreme Court each year from various federal and
state courts, but the Court renders written decisions on only a limited number (75
cases during the 2011 term, 78 cases during the 2012 term, and 72 cases during the 2013
term). The rest are dismissed per curiam, meaning that the decision of the immediate
lower court in which the case originated (whether it was a state supreme court, a fed- Myth vs. Reality
eral court of appeals, or any other court) is left undisturbed.
Myth Anyone can appeal
Not accepting a case does not mean that the Supreme Court agrees with the decision of
their case to the Supreme
the lower court. It simply means that the case could not get the votes of at least four justices Court.
to give it further attention and consider it on its merits. The public perception that only the Fact The Supreme Court
most important cases are accepted and decided by the Supreme Court is not necessarily only accepts cases that
true. Cases generally get on the Supreme Court docket because at least four justices voted involve a federal statute or a
“significant federal question.”
to include the case. The standard used for inclusion is left to individual justices to decide. Many lawsuits do not involve
these subjects and so are
The Federal Courts of Appeals Next to the Supreme Court in the federal judicial hier- not eligible for review by the
Supreme Court.
archy are the U.S. courts of appeals, officially referred to as the U.S. Court of Appeals
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Table 1.1 The Justices of the U.S. Supreme Court
for a particular circuit (see Figure 1.3). These courts have 179 judgeships located in
thirteen judicial “circuits.” Of these thirteen circuits, twelve are identified by region,
including one solely for the District of Columbia. The Thirteenth Circuit is the Court
of Appeals for the Federal Circuit, which has jurisdiction throughout the country on
certain types of cases based on subject matter. Each circuit (other than that for the
District of Columbia and the Federal Circuit) covers three or more states and hears
cases from these states. For example, the Fifth Circuit covers the states of Texas,
6 Chapter 1
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Mississippi, and Louisiana, whereas the Tenth Circuit includes the states of Utah,
Wyoming, Colorado, Kansas, New Mexico, and Oklahoma.
Each court has six or more judges, depending on the circuit’s caseload. The First
Circuit has six judges, whereas the Ninth Circuit has twenty-nine. Judges of the courts
of appeals are nominated and appointed by the president of the United States for life,
with the advice and consent of the Senate, by a majority vote, and can be removed only
by impeachment. Unlike the Supreme Court, courts of appeals may hear cases as one
body (en banc) or in groups (in divisions) of three or five judges.
The Federal District Courts Occupying the lowest level in the hierarchy of federal
courts are the district courts, the trial courts for federal cases. The federal government
has 677 federal judgeships located in ninety-four judicial districts in the United States,
Guam, Puerto Rico, and the Virgin Islands. Each state has at least one judicial district,
but some states have as many as four. Judges are nominated and appointed by the
president of the United States for life, with the advice and consent of the Senate, and
can be removed only by impeachment. In practice, the senior U.S. senator from the
state makes the recommendation for the appointment if he or she belongs to the presi-
dent’s political party.
Figure 1.3 Geographical Boundaries of the U.S. Courts of Appeal and District Courts
W E
1
2
7 W
W N
8 E
E W S
N N W M
E
N N W 3 E
9 S N
E S
C N
10 W S 6 S E D.C. Circuit
S W Federal Circuit
E
E W
W M E
N E
C
W W M 4
E E N
S W N N
11
N
M M S
S
5 W S
E
W M N
9 E C
9 Population 245 Million
S States 50 S
Districts 94
District judgeships 575
9 Guam 1 Puerto Rico Circuits 13
Circuit judges 168
9 N. Mariana 3 Virgin Islands Supreme Court justices 9
Islands
Source: Russell Wheeler and Cynthia Harrison, Creating the Federal Judicial System, 2nd ed. (Washington, D.C.: Federal Judicial Center, 1996), p. 26.
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The Federal Magistrate Courts Also under the federal system are the U.S. magistrate
courts, established primarily to relieve district court judges of heavy caseloads. They
are presided over by U.S. magistrates and have limited authority, such as trying minor
offenses and misdemeanor cases in which the possible penalty is incarceration for one
year or less. They are also empowered to hold bail hearings, issue warrants, review
habeas corpus petitions, and hold pretrial conferences in civil and criminal cases.
Unlike other federal court judges, whose offices are created by Article III (the judi-
ciary article) of the Constitution, the offices of federal magistrates were created by the
Congress of the United States. Magistrates are appointed by federal court judges in
that district and are not guaranteed life tenure. As of 2014, there were 551 magistrate
judge positions. U.S. magistrate courts do not constitute a separate court in the federal
courts system. Instead, they are part of the federal district court system.
With certain very limited exceptions, each step of the federal judicial process is open
to the public. Federal courthouses are designed to inspire in the public a respect for
the tradition and purpose of the American judicial process, and many courthouses are
historic buildings.
A citizen who wishes to observe a court in session may go to a federal courthouse,
check the court calendar, which is posted on a bulletin board or television monitor, and
watch any proceeding. Anyone may review the file and papers in a case by going to the
clerk of court’s office and asking to review or copy the appropriate case file. Increasingly,
court schedules, dockets, judgments, opinions, and pleadings are being made available
to the public in electronic format through the Internet. Unlike most of the state courts,
however, the federal courts do not permit television or radio coverage of trial court
proceedings.
The right of public access to court proceedings is partly derived from the
Constitution and partly from court and common law tradition. By conducting their
judicial work in public view, judges enhance public confidence in the courts, and they
allow citizens to learn firsthand how our judicial system works.
In a few, limited situations the public may not have full access to court records and
court proceedings. In a high-profile trial, for example, there may not be enough space
in the courtroom to accommodate everyone who would like to observe. Access to the
courtroom also may be restricted for security or privacy reasons, such as the protection
of a juvenile or a confidential informant. Finally, certain documents may be placed
under seal by the judge, meaning that they are not available to the public. Examples
of sealed information include certain types of confidential business records, certain law
enforcement reports, juvenile records, and cases involving national security issues.
Source: The Federal Court System in the United States: An Introduction for Judges and Judicial Administrators in Other
Countries, 3rd ed, p. 11.
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Figure 1.4a Texas Court Structure Figure 1.4b Oklahoma Court Structure
ALABAMA COURT STRUCTURE, 2002 CALIFORNIA COURT STRUCTURE, 2002
SUPREME COURT
9 justices sit in panels of 5 or en banc SUPREME COURT A
Supreme Court case types:
Court of
• Mandatory jurisdiction in civil (over $50,000), administrative agency, 7 justices sit en banc
last resort
disciplinary, original proceeding cases.
• Discretionary jurisdiction in civil, noncapital criminal, administrative Supreme Court case types:
agency, juvenile, advisory opinion, original proceeding, interlocutory
Court of
decision cases. • Mandatory jurisdiction in capital criminal, disciplinary cases. last resort
• Discretionary jurisdiction in civil, noncapital criminal, administrative agency,
juvenile, original proceeding, interlocutory decision cases.
COURT OF CIVIL APPEALS COURT OF CRIMINAL APPEALS
5 judges sit in panels 5 judges sit en banc
Intermediate
Supreme Court case types: Supreme Court case types:
appellate
• Mandatory jurisdiction in civil (less than $50,000), • Mandatory jurisdiction in capital criminal, criminal, courts
domestic relations, administrative agency, juvenile, juvenile, original proceeding, interlocutory decision
original proceeding cases. cases.
• No discretionary jurisdiction. • No discretionary jurisdiction.
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Another random document with
no related content on Scribd:
DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI
I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.