Courts and Criminal Justice in America

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Recent Developments 99
Budget Cuts 100
Time Constraints 100
Public Support and Political Problems 100
Summary 102
What Will You Do? 104
CHAPTER 5 Juvenile Courts 107
Introduction 108
History of Juvenile Justice 109
Poor Laws 109
Chancery Courts 110
Creation of American Juvenile Justice 110
LASTING IMPACT: IN RE GAULT 116
Juvenile Courts Today: Priorities,
Organization, and Process 118
Priorities 118
LASTING IMPACT: ROPER V. SIMMONS
Organization 120
Process 122
COURTS IN THE NEWS: CYBERBULLYING
COURTS IN THE NEWS: THE STEUBENVILLE RAPE
CASE 127
Treatment of Juveniles as Adults 128
Legislative Exclusion 128
Waivers 128
Concurrent Jurisdiction 130
Changing Landscape of Juvenile Justice 130
Increased Sanctions 130
More Accountability 130
Less Privacy 131
Summary 132
What Will You Do? 135
CHAPTER 6 Specialized Courts 139
Introduction 140
Origins and Distinguishing Features
of Specialized Courts 140
Origins and Historical Milestones 141
Distinguishing Features 142
COURTS IN THE NEWS: NEWARK YOUTH
COURT 144
Varieties of Specialized Courts 147
Drug Courts 147
Domestic-Violence Courts 149
Community Courts 151
Gun Courts 152
Sex Offense Courts 153
Homeless Courts 154
Mental Health Courts 155
Reentry Courts 156
Threats to and Keys to Success
for Specialized Courts 157
Possible Threats 157
Contents  vii
COURTS IN THE NEWS: SPECIAL VETERANS’ COURTS:
BROOKLYN’S TREATMENT PROGRAM 158
Keys to Success 160
Summary 161
What Will You Do? 163
PART III THE PEOPLE INVOLVED
CHAPTER 7 Judges 167
Introduction 168
The Judicial Role and Functions 168
Federal Judges 169
Backgrounds 169
COURTS IN THE NEWS: JUDICIAL IMPARTIALITY 170
Qualifications 172
Appointment Process 173
Compensation 174
119 Judicial Career Stages 175
State Judges 178
Types and Qualifications 178
123 Selection Process 179
Merit Selection 180
Appointment Methods and Diversity on the Bench 181
Compensation 181
Retention 183
Retirement and Removal 183
Judicial Ethics 184
Professional Associations 184
State Commissions 184
Complaints about Judicial Conduct 185
Judicial Ethical Dilemmas 186
What Makes a Good Judge? 186
Judicial Decision Making 187
Personal Ideology and Attitudes 187
Election Considerations 187
COURTS IN THE NEWS: JUDICIAL MISCONDUCT 188
Public Opinion 188
Strategic Considerations 189
Consensus Seeking 190
Laws 190
Limits on Judicial Decisions 190
Importance of Impartiality 190
Decisions Limited to Actual Controversies 191
No Involvement with Political Questions 192
Laws Overturned on Narrow Grounds 192
No Rulings on the Wisdom of Legislation 192
Summary 193
What Will You Do? 196
CHAPTER 8 Prosecutors 200
Introduction 201
Types of Prosecutors 201
Federal Level 202
State Level 204
viii  Contents

County Level 205 Codes of Ethics and Conduct 249

City Level 205 Death-Row Volunteering 250
Prosecution Throughout History 206 Summary 251
Choices Shaping American Prosecution 206 What Will You Do? 254
Increased Prominence 207
Progressive Era 208 CHAPTER 10 Defendants and Victims: Their Roles
Discovery of Discretion 209 and Rights 258
New Prosecution Paradigm 209
Introduction 259
LASTING IMPACT: THE DUKE RAPE CASE: NORTH
CAROLINA STATE BAR V. MICHAEL B. NIFONG (2007) 210 Defendant Characteristics 259
Charging Decisions 212 Criminal Defendants’ Rights 261
Prosecutorial Discretion 212 Right to Counsel 261
Alternatives to Traditional Prosecution 214 LASTING IMPACT: GIDEON V. WAINWRIGHT (1963) 264
Protections for Prosecutors 216 Right to Confrontation 267
Absolute Immunity 216 COURTS IN THE NEWS: MENTAL INCOMPETENCY
RULINGS: A GROWING PROBLEM FOR U.S.
Qualified Immunity 217
COURTS 271
Ethics 217 Right to Compulsory Process 272
Rules of Professional Conduct 217
The Defendant’s Marginal Role 274
COURTS IN THE NEWS: PROSECUTORIAL
Victim Characteristics 274
MISCONDUCT 218
Victim–Offender Relationships 275
Key Ethical Dilemmas for Prosecutors 219
Victim Attitudes and Images 275
Prosecutors on The Job 220
Victim Involvement in the Court Process 277
Office Structure and Organization 220
The Movement to Get Victims Involved 277
Contrasting Goals and Styles 220
LASTING IMPACT: PAYNE V. TENNESSEE (1991) 278
Retention and Pay 223
Threats and Violence against Prosecutors 224 Victims’ Assistance 279
COURTS IN THE NEWS: HELPING VICTIMS WHO CANNOT
Summary 224
HELP THEMSELVES 280
What Will You Do? 227
Victims’ Rights 281
CHAPTER 9 Defense Attorneys 232 Summary 285
What Will You Do? 287
Introduction 233
The Function of Defense Attorneys 233 PART IV THE COURT PROCESS
LASTING IMPACT: MCDONALD V. CHICAGO: THE RIGHT TO
BEAR ARMS 234 CHAPTER 11 Pretrial Procedures 290
History of Criminal Defense 235
Growth of the Criminal Defense Bar 235 Introduction 291
Criminal Defense Bar Today 236 Arrest and Probable Cause 291
Types of Defense Attorneys 236 Warrantless Arrests 292
Privately Retained Counsel 236 COURTS IN THE NEWS: ARRESTING A RAPIST 293
Indigent Defense Systems 238 Exclusionary Rule 295
Defense Attorneys on the Job 241 Fruit of the Poisonous Tree 296
Craft of Defense Attorneys 241 COURTS IN THE NEWS: INTERROGATING THE BOSTON
MARATHON BOMBER 297
COURTS IN THE NEWS: DOES YOUR LAWYER MAKE
A DIFFERENCE? 242 Arguments for and against the Exclusionary Rule 298
Insider Justice 243 LASTING IMPACT: MAPP V. OHIO (1961) 298
Myth of the Zealous Advocate 243 Exceptions to the Exclusionary Rule 301
Defense Attorneys, Their Clients, and Initial Appearance 303
the Public 244 Pretrial Release 303
Defense Attorneys’ Perceptions of Their Clients 245 Pretrial Release Hearing 303
Defendants’ Perceptions of Their Attorneys 245 Mechanisms for Release (or Continued
Public Perceptions of Defense Attorneys 246 Detention) 304
Defense Attorneys’ Satisfaction with Their Work 247 Bail Decision Making 306
Defense Ethics 248 Charging the Offender 308
Ethical Dilemmas for the Defense 248 Charging in Grand Jury Jurisdictions 308
Professional Organizations 248 Preliminary Hearing 310
 Contents  ix

Double Jeopardy 311 COURTS IN THE NEWS: FOR SOME, SERVING ON A JURY
Arraignment 312 CAN BE TRAUMATIC 368
Problem of Delays 369
Discovery 312
Forms of Discovery 313 Public Trial 370
Closing Trials 371
Summary 315
Alternatives to Trial Closure 372
What Will You Do? 319
The Trial Process 373
Opening Statements 374
CHAPTER 12 Plea Bargaining and Guilty Prosecutor’s Evidence 374
Pleas 323 Cross-Examination 375
Defense Response 376
Introduction 324
Final Motions and Closing
Plea Bargaining 325 Arguments 376
Definition of Plea Bargaining 325 Juror Deliberations 377
COURTS IN THE NEWS: STEPHEN PARKS AND HIS COAL Verdict 377
TAX SCHEME 326
Postverdict Motions 377
History and Rise of Plea Bargaining 327
Summary 379
Arguments for and against Plea Bargaining 328
What will you Do? 381
COURTS IN THE NEWS: LINDA WESTON AND THE
BASEMENT OF HORRORS CASE 329
Attempts to Restrict Plea Bargaining 331 CHAPTER 14 Sentencing, Appeals, and
Supreme Court’s View on Plea Bargaining 332 Habeas Corpus 386
The Plea Bargaining Process 333
Constitutional Rights during Plea Bargaining 333
Introduction 387
LASTING IMPACT: SANTOBELLO V. NEW YORK After Trial 388
(1971) 335 Goals of Sentencing 389
Acceptable Inducements 335 Rehabilitation 390
Questionable Inducements 337 Retribution 390
Judicial and Statutory Inducements 337 Incapacitation 390
Steps Following a Plea Agreement 338 Deterrence 390
Factors Affecting Plea Agreements 341 Types of Sentences 390
Guilty Pleas 341 Monetary Penalties 391
Elements of a Valid Guilty Plea 341 Probation 391
Contesting a Guilty Plea 345 Intermediate Sanctions 393
Summary 347 Shaming 393
What will you Do? 349 Forfeiture 394
Prison Sentences 395
CHAPTER 13 The Jury and the Trial 352 COURTS IN THE NEWS: LIFE SENTENCES FOR
JUVENILES 396
Introduction 353 LASTING IMPACT: FURMAN V. GEORGIA 398
The Jury 353 LASTING IMPACT: GREGG V. GEORGIA 399
History of the Jury Trial 354 Death Penalty 399
Jury Process 355 Determination of the Appropriate
Situations When the Right to a Jury Trial Applies 355 Sentence 401
Waiving of the Right to a Jury Trial 356 Constitutional Rights during Sentencing 401
Selection of Impartial Jurors 356 Appeals 402
Jury Consultants: Useful? 362 Types of Appeals 402
Jury Decision Making 362 Consequences of Appeals 402
Jury Size and Voting Requirements 362 Appellate Process 403
COURTS IN THE NEWS: JURY CONVICTS CEO 363 Habeas Corpus 409
Factors Affecting Jurors’ Decisions 364 Is Habeas Corpus Important? 409
Jury Nullification and Vilification 365 Limitations on Habeas Corpus 410
Do Jurors Tell the Truth? 366 Antiterrorism and Effective Death Penalty
Time for Professional Jurors? 366 Act of 1996 411
The Trial 367 Summary 412
Speedy Trial 367 What Will You Do? 415
x  Contents
PART V CURRENT ISSUES
AND THE FUTURE OF COURTS
CHAPTER 15 Differential Treatment and Wrongful
Convictions 418
Introduction 419
Differential Treatment 420
Offense Seriousness 420
Notoriety 420
Attorney Competence 421
Gender Differences 421
Race/Ethnicity 421
Research on Race, Ethnicity, and Case
Processing 422
Police–Citizen Encounters 423
Pretrial Period 423
LASTING IMPACT: TERRY V. OHIO (1968)
Trial 426
LASTING IMPACT: CHICAGO V. MORALES (1999) 427
Sentencing 428
Imprisonment and Corrections 430
Capital Punishment 432
Gender Discrimination 434
Is Gender Discrimination a Problem? 434
The Rush to Judgment: Wrongful Convictions 435
Innocence Movement 436
Exonerations 438
COURTS IN THE NEWS: WRONGFUL CONVICTIONS
COURTS IN THE NEWS: REDUCE WRONGFUL
CONVICTIONS? MODERNIZE THE TRIAL 441
Summary 442
What Will You Do? 444
CHAPTER 16 Technology, Alternatives,
and the Future 450
Introduction 451
Technology in the Courts 451
Wired Courts 452
Uses for Technology 454
Demonstration Projects 455
Alternatives to Traditional Adjudication 455
COURTS IN THE NEWS: IMPROVING COURTROOM
SECURITY WITH TECHNOLOGY 456
Alternative Dispute Resolution 457
Restorative Justice 458
Courtrooms of the Future 462
Redefinition of Courts and Roles 463
Withering of the Juvenile Justice System? 464
Customer Service 464
425 LASTING IMPACT: DAUBERT ET AL. V. MERRELL DOW
PHARMACEUTICALS, INC. (1993) 465
Emerging Problems and Pressing
Issues 465
Human Trafficking 466
Elder Abuse and Neglect 467
Identity Theft 469
Immigration 469
Summary 471
What Will You Do? 473
Glossary 479
439
Table of Cases 496
Name Index 500
Subject Index 505
 Preface
New to the Third Edition
The third edition has been extensively revised. We have
made a number of changes throughout the text:
Chapter 1. A new chapter opening story features the
surge in court cases involving police shootings and
excessive force, particularly in the wake of the 2014
Michael Brown incident in Ferguson, Missouri. A new
Courts in the News box features the Texas lawsuit
against the federal government that attempted to block
the resettlement in the Lone Star State of 6 Syrian refu-
gees following the Paris terror attacks. The Jodi Arias
Courts in the News box was updated with the latest sen-
tencing developments. Two new “What Will You Do?”
exercises appear at the end of the chapter.
Chapter 2. A new chapter opening story features the
New York case of the so-called “cannibal cop.” The case
highlights the role of appellate review in the criminal pro-
cess. A new “What Will You Do?” case at the end of the
chapter features the lawsuit Oklahoma and Nebraska filed
against Colorado, claiming that Colorado’s marijuana legal-
ization scheme is unconstitutional (i.e., is preempted by fed-
eral law) and causes undue harm on its neighboring states.
Chapter 3. Learning objectives were revised and the
chapter was reformatted. The latest federal court casel-
oad data are included. A “courts in the news” box fea-
tures the latest developments in federal drug sentencing,
including the release of some 6,000 inmates in late 2015.
A new “What Will You Do?” feature examines the
Supreme Court’s choice not to decide on the constitu-
tionality of a Chicago suburb’s assault weapons ban.
Chapter 4. The chapter has been updated with the latest
data on state court workloads. The trends section near the
end of the chapter was updated with the latest developments
in state courts. A new “What Will You Do?” scenario at the
end of the chapter explores use of the National Center for
State Courts’ “CourTools” performance measures.
Chapter 5. A new chapter opening story discusses the
role of implicit bias in juvenile justice decision-making.
The latest juvenile court statistics (caseloads, case charac-
teristics) are included, as are recent developments in juve-
nile justice. “Courts in the News” boxes from the previous
edition were kept and updated. Learning objectives were
revised and realigned with new chapter headings. A new
“What Will You Do?” exercise features the cases of eight
of the youngest murderers in history. Questions revolve
around whether waiver was or should have been used.
Chapter 6. Learning objectives were revised. A new
Courts in the News box features the Newark (New Jersey)
Youth Court. An updated exhibit features the King
County (Washington) Regional Mental Health Court. A
new “What Will You Do?” exercise at the end of the chap-
ter discusses constitutional issues relating to forced Alco-
holics Anonymous participation in a drug court context.
Chapter 7. New Chapter opening photo and chapter
opening story are included. The table showing judicial
salaries has been updated. Data and statistics have been
updated throughout.
Chapter 8. A new photo opens the chapter. Data and
statistics have been updated throughout. A new “What
Will You Do” scenario rounds out the chapter.
Chapter 9. Felony offense statistics have been
updated.
Chapter 10. A new chapter opening story and associ-
ated photograph open the chapter. Statistics and data
have been updated throughout the chapter. An added
“What Will You Do” scenario rounds out the chapter.
Chapter 11. A new chapter opening story on a Bit-
coin exchange scam. A Courts in the News tracks the
arrest of a rapist. Postarrest detention is covered in
depth. A Courts in the News feature covers the interro-
gation of the Boston Marathon Bomber.
Chapter 12 begins with the case of Alexander Fish-
enko, who pled guilty to acting as an agent of the Russian
government within the United States. A new Courts in
the News covers Stephen Parks and his Coal Tax Scheme
to sell nonexistent refined coal tax credits through a bro-
ker to investors. Another new Courts in the News cov-
ers Linda Weston and the Basement of Horrors Case.
Chapter 13. A new Courts in the News covers the trial
of Don Blankenship, former Chief Executive Officer of
Massey Energy who guilty on a federal charge of conspir-
acy to willfully violate mine health and safety standards.
There is a new section on Jury Nullification Today.
Chapter 14 begins with an opening vignette on
Thomas Sanders, 57, who was sentenced to death for
the murder of Lexis Roberts. A new Courts in the
News reviews Life Sentences for Juveniles. A new sec-
tion on Race and Sentencing looks at this controversial
issue. More than 60% of the people in prison are now
racial and ethnic minorities. Does this mean that sen-
tencing is biased?
Chapter 15 begins with the story of East Haven, Ct.,
Police Officer Dennis Spaulding, who was sentenced to
5 years of imprisonment for violating the civil rights of
members of the East Haven community. The case of Hill
v. US and Dorsey v. US is now included. A Courts in the
News looks at the controversial topic of wrongful
xi
xii  Preface
convictions while another Courts in the News entitled
reduce wrongful convictions? Modernize the Trial
reviews an interesting solution to this pressing problem.
Chapter 16. A new chapter opening story begins the
chapter. New information on human trafficking has
been added. An added “What Will You Do” scenario
rounds out the chapter.
The Genesis of This Book
In 2003, a woman was raped by an armed assailant who
broke into her Salisbury, Maryland, home. Though she
was not able to describe her attacker, the police did obtain
a sample of the perpetrator’s DNA. Six years later, in
2009, Alonzo King was arrested in Wicomico County,
Maryland, and charged with first- and second-degree
assault for menacing a group of people with a shotgun. As
part of a routine booking procedure for this serious
offense, a DNA sample was taken by applying a cotton
swab or filter paper—known as a buccal swab—to the
inside of King’s mouth. The DNA was found to match
the DNA taken six years earlier from the Salisbury rape
victim. King was then tried and convicted for the rape.
The key evidence used in gaining the rape conviction was
the DNA taken at the time he was booked in 2009; this
evidence is what linked him to the earlier rape. When the
DNA sample was taken, the procedure conformed to the
Maryland DNA Collection Act (1994). The act originally
required all convicted sex offenders to submit DNA sam-
ples but has since undergone major expansion: In 1999, it
was amended to include convicted offenders of violent
crimes; in 2002, it began to include all felony convictions
and some misdemeanor crimes; and as of January 1, 2009,
the DNA law was expanded to include individuals
arrested of crimes of violence and burglaries so that DNA
samples could be matched with prior crimes, increasing
the likelihood of offender identification.
After his conviction, King appealed, arguing that
being required to give a DNA sample without a warrant
being issued violated his Fourth Amendment right to be
free from illegal searches and seizures. The Maryland
Court of Appeals agreed, setting aside his conviction
and finding unconstitutional the portions of the act
authorizing DNA collection from felony arrestees.
On appeal, the U.S. Supreme Court reversed the Mary-
land court. It ruled in the case of Maryland v. King that
when police officers make an arrest supported by proba-
ble cause and bring the suspect to the station to be detained
in custody, taking and analyzing a cheek swab of the
arrestee’s DNA is like fingerprinting and photographing, a
legitimate police booking procedure that is reasonable
under the Fourth Amendment. They reasoned that DNA
testing may significantly improve both the criminal justice
system and police investigative practices by making it pos-
sible to determine whether a biological tissue matches a
suspect with near certainty. They found it reasonable that
Maryland’s act authorizes law enforcement authorities to
collect DNA samples from persons charged with violent
crimes, including first-degree assault. They also noted that
a sample may not be added to a database before an indi-
vidual is arraigned, and it must be destroyed if he or she is
not convicted. Nor did the Court find that collecting a
DNA overly intrusive: Taking a swab is quick and pain-
less, requires no surgical intrusion beneath the skin, and
poses no threat to the arrestee’s health or safety.
To some, the King case represents a breakthrough that
will allow law enforcement agencies to use a relatively new
technology to solve crimes and put dangerous criminals
behind bars. To others, it creates a slippery slope with
both legal and moral ramifications: It paves the way for the
construction of a national database containing personal
information on every citizen. Cases such as King, they
warn, give the federal government unlimited power to
monitor private citizens and keep track of their activities.
Regardless of which position you take, the King case
illustrates the power of the courts to define the bound-
aries between legitimate and illegal behavior. If the
Supreme Court had ruled for King, the prosecution
would have been forbidden to use his DNA at trial, and
he would never have been convicted; in essence, a rapist
would have been set free. But because the Court ruled
that taking King’s DNA was a legitimate exercise of gov-
ernment power, not only does his conviction stand but
the ruling also gives a green light to police officers to
take DNA swabs of arrestees in all subsequent cases.
King creates a precedent that will shape law enforce-
ment activities and trial outcomes for years to come.
We have written Courts and Criminal Justice in Amer-
ica because of cases such as King that illustrate the tre-
mendous power the court system has to regulate citizens’
lives, to shape what is acceptable and what is forbidden,
and to ensure that criminal justice policy balances both
rights and liberties. It is therefore important for all stu-
dents to understand the structure of the courts, how
they operate, and how they use their power to control
behavior ranging from rape to religious freedom and
from the taking of a life to the celebration of Christmas.
Approach
We take a balanced, modern, and comprehensive approach
in this book. It is balanced in the sense that we present all

sides of the most controversial issues facing courts today.
We firmly believe that there are two sides to every story
and that while there may be a convincing argument against
a particular set of practices, it is also important to consider
the opposing view. For example, the case of racial dispari-
ties is taken up in Chapter 15. Many researchers have
found evidence of racial discrimination in criminal justice,
but to accept such claims on their face leaves much unsaid.
What is meant by discrimination? Depending on how it is
defined, different conclusions can be reached. We do not
take sides in this book; we simply present what is known
about various issues confronting the courts and let the
readers draw their own conclusions.
Our approach is modern in the sense that we cover a
wide range of cutting-edge topics and novel practices.
For example, we dedicate an entire chapter to so-called
specialized courts, such as homeless courts. We situate
them within the historical development of the court
system and discuss strategies to solidify their place in
the American judicial landscape well into the future. As
another example, we also look at the problem of wrong-
ful convictions and DNA-based exonerations, both of
which have captured plenty of headlines in recent years.
From the beginning of the book to the end, you will
find a wide range of topics that stir controversy and
enliven discussion as they relate to the courts.
Finally, ours is arguably the most comprehensive
introduction to America’s courts you will find. Courts
and Criminal Justice in America covers not only the basics
about courts and the personnel who bring them to life
but also the context in which they operate and the com-
plexities of human interaction found at every level. This
book is also comprehensive in that it does not presup-
pose any knowledge about the courts or how they oper-
ate. We begin with a basic definition of courts and
discuss why it is important to have government courts.
Then we delve more deeply into the constant struggle
for control over the courts that takes place, the many
types of courts and the cases that they adjudicate, and
the myriad persons and interests that compete for the
courts’ attention on a daily basis. Rest assured that no
stone has been left unturned.
Goals
Our goal is for each reader of Courts and Criminal Justice
in America to understand the following:
▪ The importance that courts have in modern
society
▪ Pressures that courts face and the context in
which they operate
Preface  xiii
▪ Various types of courts that range from the all-
powerful U.S. Supreme Court to limited juris-
diction courts
▪ Professionals who are involved at all stages of
the court process (including judges, prosecu-
tors, and defense attorneys)
▪ The role of victims who participate in the court
process
▪ The role of criminal defendants who are tried in
the courts
▪ Rights that are enjoyed by accused persons
(such as the rights to counsel and a jury trial)
▪ The court process that goes from arrest all the
way through to conviction (whether by trial or
plea bargaining), sentencing, and appeal
▪ Reasons that not every case or person is treated
the same
▪ The role of technology that is used in the courts
today
▪ Alternatives to trials that are available
▪ Difficult issues that courts are likely to face as
time goes by
Topical Coverage
Courts and Criminal Justice in America is divided into five
parts. Part 1 (Chapters 1 and 2) discusses the legal founda-
tions of America’s court system and the many different
efforts to control the courts from the outside. Part 2
(Chapters 3–6) presents the main types of courts, begin-
ning with federal and state courts and then moving to juve-
nile and specialized courts. Part 3 (Chapters 7–10)
introduces the people involved in the court process. We
begin with the members of the courtroom work group:
judges, prosecutors, and defense attorneys. Then we dis-
cuss the roles and rights of defendants and victims. Part 4
(Chapters 11–14) takes a close look at the court process,
starting with the arrest, the initial appearance, the bail deci-
sion, the charges, and the process of discovery; we also
look at plea bargaining, guilty pleas, the jury, the trial, the
sentencing process, the types of appeals, and even habeas
corpus. Finally, Part 5 (Chapters 15 and 16) examines cur-
rent issues and the future of U.S. courts. Topics covered
include differential treatment, wrongful convictions, tech-
nology, alternatives to courts, and both emerging prob-
lems and pressing issues that courts will continue to face.
Pedagogical Features
Courts and Criminal Justice in America includes a num-
ber of special learning features that are designed to
xiv  Preface
enhance student comprehension of key concepts and
issues in the study of American courts. “Courts in the
News” features contain contemporary feature stories of
interest to anyone studying the courts, along with
thought-provoking questions that build on each story.
One box, for example, discusses federal courts that
offer digital audio recordings of their proceedings
online; another reviews the 2008 U.S. Supreme Court
case of District of Columbia v. Heller [WJ2], in which the
right to individual gun ownership was upheld; a third
covers the issues involved in paying for America’s
courts; and another examines alternative courts and
their possible future.
A second important learning feature is the “Lasting
Impact” features found throughout the text that high-
light the continued significance of important court cases
such as Mapp v. Ohio, Gideon v. Wainright, Terry v.
Ohio, Gregg v. Georgia, In re Gault, Payne v. Tennessee,
and Daubert v. Merrell Dow Pharmaceuticals.
The “What Will You Do?” features provide scenario-
based activities that bring focus to issues such as Web-
based conferencing in virtual courtrooms, the notion of
precedent as it applies to police decision making, and
the issue of victim advocacy.
A fourth feature, “Learning Objectives,” is located
at the beginning of each chapter. These questions are
linked to bulleted summary items that refresh stu-
dents’ memory about the chapter’s key points.
“Review Questions” at the end of each chapter relate
back to the “Learning Objectives” posed at the chap-
ter’s start.
Instructor Supplements
Instructor’s Manual with Test Bank. Includes con-
tent outlines for classroom discussion, teaching sug-
gestions, and answers to selected end-of-chapter
questions from the text. This also contains a Word
document version of the test bank.
TestGen. This computerized test generation system
gives you maximum flexibility in creating and adminis-
tering tests on paper, electronically, or online. It pro-
vides state-of-the-art features for viewing and editing
test bank questions, dragging a selected question into a
test you are creating, and printing sleek, formatted
tests in a variety of layouts. Select test items from test
banks included with TestGen for quick test creation,
or write your own questions from scratch. TestGen’s
random generator provides the option to display dif-
ferent text or calculated number values each time ques-
tions are used.
PowerPoint Presentations. Our presentations offer
clear, straightforward. Photos, illustrations, charts, and
tables from the book are included in the presentations
when applicable.
To access supplementary materials online, instructors
need to request an instructor access code. Go to www.
pearsonhighered.com/irc, where you can register for an
instructor access code. Within 48 hours after registering,
you will receive a confirming email, including an instruc-
tor access code. Once you have received your code, go to
the site and log on for full instructions on downloading
the materials you wish to use.
Alternate Versions
eBooks This text is also available in multiple eBook
formats. These are an exciting new choice for stu-
dents looking to save money. As an alternative to
purchasing the printed textbook, students can pur-
chase an electronic version of the same content. With
an eTextbook, students can search the text, make
notes online, print out reading assignments that
incorporate lecture notes, and bookmark important
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your favorite online eBook reseller or visit www.
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Instead of simply read-
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Track time-on-task throughout the
course
The Performance Dashboard allows you to see how much
time the class or individual students have spent reading a
section or doing an assignment, as well as points earned
per assignment. This data helps correlate study time with
performance and provides a window into where students
may be having difficulty with the material.
NEW! Ever-growing Accessibility
Learning Management System Integration
REVEL offers a full integration to the Blackboard
Learning Management System (LMS). Access assign-
ments, rosters and resources, and synchronize REVEL
grades with the LMS gradebook.
New direct, single sign-on provides access to all the
immersive REVEL content that fosters student
engagement.
The REVEL App
The REVEL App further empowers students to access
their course materials wherever and whenever they
want. With the REVEL App, students can access
REVEL directly from their iPhone or Android device
and receive push notifications on assignments all while
Preface  xv
not being tethered to an Internet connection. Work
done on the REVEL app syncs up to the browser ver-
sion, ensuring that no one misses a beat.
Visit www.pearsonhighered.com/revel/
Acknowledgments
The authors sincerely thank the following reviewers of
this edition: Mary Boland, Roosevelt University; Chris
Carmean, Houston Community College; Tyler Gayan,
Georgia Northwestern Technical College; David Jones,
University of Wisconsin—Oshkosh; and Jacqueline
Mullany, Triton College.
We would also like to thank the following reviewers
of the previous editions: Larry D. Creason, Campbells-
ville University; Thomas A. Dreffein, Triton College;
Wendy P. Guastaferro, Georgia State University;
Jacqueline M. Mullany, Triton College; Emmanuel
Onyeozili, University of Maryland Eastern Shore;
­Steven Philbrick, N
­ orthwest Vista College; Julie Raines,
Marist College; Lisa Ratliff-Villarreal, San Antonio Col-
lege; Douglas D. Shuler, Paris Junior College; and Jason
B. Waller, Tyler Junior College; Beth Bjerregaard, Uni-
versity of North Carolina at Charlotte; Alton Braddock,
University of Louisiana, Monroe; Don Bradel, Bemidji
State University; Paul H. Clarke Jr., Northcentral Tech-
nical College; Amy Craddock, Fayetteville State Univer-
sity; Chris De Lay, University of Louisiana, L ­ afayette;
Joe D. Dillsaver, Northeastern State University; Robert
D. Hanser, University of Louisiana, Monroe; David
M. Jones, University of Wisconsin, Oshkosh; Sharon
Jumper, Northwestern State University; Michael
J. McCrystle, California State University, Sacramento;
Elvage G. Murphy, Edinboro University of Pennsylva-
nia; Karen Nielson, Ivy Tech Community College; James
J. Ross, The College at Brockport, State University of
New York; John Tahiliani, Worcester State College;
Cort Tanner, Western Texas College; David Tate, Pur-
due University; Sarah E. Uselding, Amarillo College;
and Elvira M. White, Fayetteville State University.
Thank you Gary Bauer and Lynda Cramer at Pearson;
Robyn Alvarez and Manas Roy at iEnergizer Aptara; and
Susan Hannahs at SPi Global for you support during the
revision of this edition.
 About the Authors
Larry J. Siegel was born in
the Bronx and graduated
from Christopher Colum-
bus High School in 1964.
After attending City College
of New York in the 1960s,
he pursued his interest in
social forces and human
behavior when, in 1968, he
became a member of the
first class of the newly cre-
ated graduate program in criminal justice at the State
University of New York at Albany. After earning his
M.A. and Ph.D., Dr. Siegel began his teaching career at
Northeastern University; he also has held teaching posi-
tions at the University of Nebraska, Omaha, and Saint
Anselm College in New Hampshire. In 1988 he joined the
faculty at the School of Criminology and Justice Studies
at the University of Massachusetts, Lowell, where he
now serves as a professor emeritus. Professor Siegel has
published books on juvenile law, delinquency, criminol-
ogy, and criminal procedure. The father of four, grandfa-
ther of three, Larry and his wife, Terry, reside in Naples,
Florida, with their two cockapoos, Watson and Cody.
University in St. Louis, Missouri, he helped develop the
university’s graduate program in security administra-
tion and loss prevention and taught courses in that cur-
riculum for more than a decade. An avid Web user and
website builder, Professor Schmalleger is also the cre-
ator of a number of award-winning websites
Dr. Schmalleger is the author of numerous articles and
more than 30 books, including the widely used Criminal
Justice Today (Pearson, 2017), Criminal Justice: A Brief
Introduction (Pearson, 2016), Criminology Today (Pearson,
2017), and Criminal Law Today (Prentice Hall, 2017).
Professor Schmalleger is the founding editor of the
journal Criminal Justice Studies. He has also served as edi-
tor for the Prentice Hall series Criminal Justice in the
Twenty-First Century and as imprint adviser for Green-
wood Publishing Group’s criminal justice reference series.
Dr. Schmalleger’s philosophy of both teaching and
writing can be summed up in these words: “In order to
communicate knowledge, we must first catch, then
hold, a person’s interest—be it student, colleague, or
policy maker. Our writing, our speaking, and our teach-
ing must be relevant to the problems facing people
today, and they must in some way help solve those
problems.” Follow the author’s tweets @schmalleger.

Frank Schmalleger is Dis- John L. Worrall is a pro-

tinguished Professor Emeri-
tus at the University of
North Carolina at Pem-
broke. He holds degrees
from the University of Notre
Dame and The Ohio State
University, having earned
both a master’s (1970) and a
doctorate (1974) in sociology
(with a special emphasis in
criminology) from The Ohio State University. From 1976
to 1994, Dr. Schmalleger taught criminology and criminal
justice courses at the University of North Carolina at
Pembroke; for the last 16 of those years, he chaired the
university’s Department of Sociology, Social Work, and
Criminal Justice. The university named him Distinguished
Professor in 1991.
Dr. Schmalleger has taught in the online graduate
program of the New School for Social Research, helping
to build the world’s first electronic classrooms in sup-
port of distance learning through computer telecommu-
nications. As an adjunct professor with Webster
fessor of criminology at the
University of Texas at Dal-
las. A Seattle native, he
received a B.A. (with a dou-
ble major in psychology as
well as law and justice)
from Central Washington
University in 1994. Both
his M.A. (criminal justice)
and Ph.D. (political sci-
ence) were received from Washington State University,
where he graduated in 1999. From 1999 to 2006, Profes-
sor Worrall was a member of the criminal justice faculty
at California State University, San Bernardino. He
moved to Texas in the fall of 2006.
Dr. Worrall has published articles and book chapters
on a wide variety of topics ranging from legal issues in
policing to community prosecution. He is also the author
of several textbooks, including Crime Control in America:
What Works? (3rd ed., Pearson, 2015) and Criminal Proce-
dure: From First Contact to Appeal (5th ed., Pearson, 2015).
He is also editor of the journal Police Quarterly.

xvi
Mdgn/Shutterstock

Legal Foundations
LEARNING OBJECTIVES 3. Summarize the guiding legal principles underlying
the U.S. court system.
1. Explain the purpose and functions of courts and
the dual court system. 4. Explain the nature of disputes.
2. Outline the history and development of law and
the courts.

1
 2  PART I:  Foundations
Tribune Content Agency LLC/Alamy Stock Photo
Questions surrounding the legality of police shootings must
sometimes be answered in court.
Learning Objective 1
Explain the purpose and
functions of courts and the
dual court system.
court
“[A]n agency or unit of the
judicial branch of government,
authorized or established by
statute or constitution, and
consisting of one or more
judicial officers, which has the
authority to decide upon cases,
controversies in law, and
disputed matters of fact brought
before it.”i
Introduction
Since the 2014 police shooting of an unarmed black teenager,
Michael Brown, in Ferguson, Missouri, claims of police vio-
lence and excessive force are piling up in courts across the
nation.1 In White Bessemer, Alabama, police were sued for
shooting a black man five times after responding to a noise
complaint. In Sacramento, California, officers allegedly
dragged a triplegic black man from his car to a police car,
breaking his wrist. In Honolulu, police used Tasers in their
efforts to apprehend a schizophrenic man and then shot him
nine times, killing him. In Colorado, a man who tried to scare
officers away with a child-size baseball bat was allegedly shot
in the back. Then there was the infamous shooting of Laquan McDonald in Chicago,
a video of which was released in 2015 and led to the resignation of the city’s police
superintendent (https://www.youtube.com/watch?v=Ow27I3yTFKc). The officer
involved in that case was charged with first-degree murder. In yet another case, Philando
Castile was shot in 2016 after reaching for his driver’s license. He had informed a
Minnesota police officer that he was licensed to carry a concealed weapon and was
doing so. As of this writing, the officer had not been charged with an offense.
While these incidents may be construed as “police problems,” they are also the
courts’ problems. Courts must decide whether lawsuits against police move forward
and, if so, who prevails. Likewise, officers charged with criminal offenses face their
days in court just like ordinary citizens. And because of the sensitive and high-profile
nature of these cases, court proceedings take considerable time and can become a drain
on courts’ already limited resources. It is not uncommon for jury trials in these cases
to drag out for weeks, if not months. Appeals and other legal challenges can delay clo-
sure for years, costing millions of dollars in the process.
Courts and Their Importance
The court represents the collective conscience of society, serving as an instrument for
expressing the revulsion people feel for those who commit particularly heinous crimes.
Because they are given the task of punishing wrongdoers, courts serve as an agency of
social control, determining which behaviors may be acceptable and which deserve
severe sanction. This role is not without ambiguity: What is fair? What is just? How
can we determine who should be punished, for how long, and for what?
The courts are a critical component of American criminal justice because they deter-
mine what happens to people charged with violating the law. Courts are important
beyond criminal justice, too. Disputes that arise between private parties, businesses,
government officials, and the like are brought to court in order to ensure that they are
heard in a neutral forum.
What Is a Court?
Despite the fact that courts predate other components of the justice system by thou-
sands of years (police are a nineteenth-century creation, and corrections began in the
eighteenth), coming up with a concise yet all-encompassing description of their struc-
ture and function is difficult. Even so, the U.S. Justice Department has defined a court
as “an agency or unit of the judicial branch of government, authorized or established
by statute or constitution, and consisting of one or more judicial officers, which has
 CHAPTER 1:  Legal Foundations  3

the authority to decide upon cases, controversies in law, and disputed matters of fact
brought before it.”2
This definition emphasizes three distinct elements:
1. To be considered a court, it must have proper legal authority, as spelled out
in constitutions or statutes.
2. Courts are generally found in the judicial as opposed to legislative and execu-
tive branches of government (there are some exceptions, as we will see in
Chapter 3).
3. Courts are empowered to make decisions that are binding. The notion of
“[deciding] upon cases, controversies in law, and disputed matters of fact” is
known as adjudication, or “the process by which a court arrives at a deci- adjudication
sion regarding a case.”3 “[T]he process by which a court
arrives at a decision regarding a
It is important to distinguish between civil and criminal courts, the latter being the case.”ii
primary focus of this book. Civil courts generally resolve disputes between private
parties. Criminal courts deal with suspected law violators and thus serve as a mecha-
nism by which society establishes and maintains social norms.

Courts in American Government

It makes sense to have courts be both authorized and limited by the statute. To do
otherwise would put control over the courts in the hands of nongovernmental authori-
ties. But why do we have government courts as opposed to private courts? This ques-
tion is rarely asked, but its answer is important.
In prehistory, prior to the emergence of formal governments and during the time of
tribal civilizations such as those of the Goths, Celts, and Franks, disputes were often
resolved informally and privately. A person who felt that his or her privacy interests
were compromised may have taken steps to confront the alleged violator and resolve
the dispute with violence. Similarly, to the extent there was any need to preserve order,
this was often accomplished informally.
This all changed during the rise of the Greek city-states and the Roman Empire. The
shift moved law enforcement from what was essentially a private affair to a public one.
As law enforcement and criminal justice moved in the public direction, formalized
courts and other criminal justice institutions came into being.
We have now moved to a point in history where serious conflict is resolved
with formal processes, whether that be court proceedings or a suitable alternative.
Not everyone buys into the idea completely, but one of the hallmarks of modern
society is a more civilized set of procedures for resolving matters of human con-
flict. The reason we have government courts, therefore, is to deal with conflict in
a civilized manner.
Also, there have been changing conceptions throughout history about whom dis-
putes and conflict ultimately affect. Thinking about crime specifically, there is a gen-
eral consensus today that victims are not just individuals but the state as well. More
than 80 years ago, in the case of Mallery v. Lane,4 the presiding judge stated,
The offenses are against the state. The victim of the offense is not a party to the
prosecution, nor does he occupy any relation to it other than that of a witness, an
interested witness [perhaps, but nonetheless,] only a witness. . . . It is not neces-
sary for the injured party to make complaint nor is he required to give bond to
prosecute. He is in no sense a relator. He cannot in any way control the prosecu-
tion and whether reluctant or not, he can be compelled like any other witness to
appear and testify.5
4  PART I:  Foundations
dual court system
A judicial system comprising
federal- and state-level judicial
systems.
dual federalism
A system of government
wherein the only powers of the
federal government are those
explicitly listed, with the rest
being left to the states.
cooperative federalism
A system of government
wherein some of the lines
between federal and state
power are blurred.
Dual Court System Ours is a dual court system that separates federal and state
courts. The dual court system is advantageous and desirable because it parallels feder-
alism, a system of government where power is constitutionally divided between a cen-
tral governing body (i.e., the federal government) and various constituent units (i.e.,
the states). Federalism requires that laws are made by the central governing authority
and by the constituent units. In the United States, the federal government makes law,
but federalism also gives the states power to make their own laws.
A quick glance at the U.S. Constitution reveals a system of dual federalism, where
the only powers of the federal government are those explicitly listed, with the rest
being left to the states. In reality, though, ours is more of a system of cooperative
federalism, meaning that some of the lines between federal and state power are blurred.
Article I, Section 8, of the U.S. Constitution gives the federal government the power
to regulate interstate commerce, but this authority has been interpreted broadly such
that the federal government can control much of what happens at the state level.
While a dual court system is desirable from a federalism standpoint, it also pro-
motes complication and confusion. It would be neat and tidy if the federal criminal law
were separate and distinct from state criminal law, but in reality both overlap. For
example, certain criminal acts, such as those involving firearms, are violations of both
federal and state criminal law. This leads to confusion over where it would be best to
try offenders or whether they should be tried twice in the two different systems.
The dual court system is only part of the story. At each level, there is a distinct court
hierarchy. States often have limited jurisdiction courts (such as traffic courts), trial
courts, appellate courts, and supreme courts. At the federal level, there are trial courts,
appellate courts, and the U.S. Supreme Court. Each trial court adjudicates different
offenses. Appellate courts consider different matters depending on where they lie in
the court hierarchy. Appeals from state courts can sometimes be heard in the federal
courts. Higher-level courts can control the actions and decisions of lower courts but
not the other way around. Despite the apparent complexity, each court has its place.
Functions of the Court System With a definition of the courts in place and an
understanding of the need for government courts, we can now think in more detail
about the main functions of the courts. Four stand out: upholding the law, protecting
individuals, resolving disputes, and reinforcing social norms.
1. Upholding the law. Not only are courts authorized by law, but they are called
on to uphold the law. What is the law, and what is the legal basis for the
courts? Throughout history, the concept of “law” has been fluid and chang-
ing. Early legal codes, the common law, modern statutes, constitutions, and
the like have all built a legal foundation for the justice system (we will look
at these in more detail shortly).
Today, the criminal courts are tasked primarily with upholding criminal codes.
Found at the federal and state levels, these codes identify actions that are not accept-
able in contemporary society because they cause social harm. The police arrest peo-
ple for violating them, prosecutors then decide which arrestees should be charged,
but courts ultimately decide whether those charged with violations of the criminal
law should be held to answer for their actions.
2. Protecting individuals. One of the hallmarks of our system of government is
a concern with people’s freedom and liberties. No less than the preamble to
the U.S. Constitution makes this clear:
We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defence, promote the
 CHAPTER 1:  Legal Foundations  5

general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this Constitution for the United States of America.
If individual liberties are to be preserved, then the government has to be kept in
check. This is accomplished through constitutions, which spell out the rights that
people enjoy and set limits on government authority. When it comes to the courts,
people are also protected via other means. In the criminal justice context, the ad-
versarial system ensures that both sides to a criminal case can tell their story. Also,
important presumptions exist in our system of justice that ensure protection for
everyone who comes before the courts.
3. Resolving disputes. Courts are agencies of dispute resolution. Disputes come
in all varieties, but most fall into either civil or criminal categories. By way of
preview, criminal disputes are those between the government and an indi-
vidual accused of violating the law. The actions in question are usually those
legislatures have declared harmful to society on the whole. Civil disputes, in
contrast, tend to involve private interests, such as duties owed to one another.
4. Reinforcing social norms. Courts help reinforce social norms. Social norms
consist of informal and often unspoken rules concerning standards of
behavior. They are often tacit and unnoticed:
[They are] norms that most of us are barely conscious of taking our guidance from,
since they are not often supported in a surrounding discourse of general commen-
dation and critique and are not reflected in levels of common or mutual awareness.
They may include the norms that govern turn taking in conversation, the use of eyes
in relation to others, the distance at which one stands in speaking to another, and a
host of such unnoticed but not merely mechanical regularities.6
Other “unnoticed” regularities include beliefs about what is and is not acceptable.
Legislatures may define criminal acts in statutes, and prosecutors may charge criminal
suspects, but the court’s role in deciding whether someone is punished highlights its
role in reinforcing social norms. The court mentioned at the beginning of this chapter
could have treated Michael Vick’s actions with a measure of leniency, but it did not,
which sent a clear message about what types of behavior society is willing to tolerate.

Legal Basis for the Courts Learning Objective 2

Outline the history and
Formalized government and criminal justice roughly paralleled societal growth. But before development of law and
we can more fully appreciate these developments and their effects on American criminal the courts.
justice, it is important to move backward in time to some of the other nations we just men-
tioned, for many of their approaches to dispute resolution were adopted in America.
The foundations for modern American criminal justice are several. One is religious.
Judeo-Christian values had a key role in the evolution of American government and,
of course, criminal justice, beginning with the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they
are endowed by their Creator with certain unalienable rights, that among these are
life, liberty and the pursuit of happiness.
There is often talk of church and state separation, but this does not mean that God
was separated from government. The Declaration of Independence recognizes the “Cre-
ator” as a source of rights. Biblical morality made an indelible imprint on this nation’s
founding rules and laws, particularly its Constitution. John Adams once stated this:
We have no government armed with power capable of contending with human
passions unbridled by morality and religion. Avarice, ambition, revenge, or
6  PART I:  Foundations
Code of Hammurabi
The earliest-known example of a
formal written legal code.
Twelve Tables
The first secular (i.e., not
regarded as religious) written
legal code, dating from 450 b.c.iii
common law
The law originating from usage
and custom rather than from
written statutes; also, a term
that referred to the law “in
common” throughout England
following the Norman Conquest
in medieval times.
special law
Any law of specific villages and
localities that was in effect in
medieval England and that was
often enforced by canonical
(i.e., religious) courts.
gallantry would break the strongest cords of our Constitution as a whale goes
through a net. Our Constitution was made for a moral and religious people. It is
wholly inadequate to the government of any other.7
Our system of justice was also shaped by ancient legal codes, going back as far as
1760 b.c. There is also a strong common law tradition in this country that owes much
to our British heritage. The common law emphasizes the importance of judicial deci-
sions, not the codified criminal law like that found in state penal codes. Still other legal
bases for modern criminal justice include modern criminal codes, administrative regu-
lations, and even constitutions.
Early Legal Codes
Perhaps the earliest known example of a formal written legal code was the Code of
Hammurabi. Also known as Hammurabi’s Code and assembled by the sixth Babylo-
nian king, Hammurabi, in 1760 b.c., the code expressed a strong “eye for an eye” phi-
losophy. To illustrate, here is the seventh of the code’s “code of laws”:
If any one buy from the son or the slave of another man, without witnesses or a
contract, silver or gold, a male or female slave, an ox or a sheep, an ass or any-
thing, or if he take it in charge, he is considered a thief and shall be put to death.8
Roman law provides another example of formally codified legal principles. The so-
called Twelve Tables (450 b.c.) were the first secular (i.e., not regarded as religious)
written legal code.9 The code was named as such because the laws were literally written
onto 12 ivory tablets. The tablets were then posted so that all Romans could read
them. The Twelve Tables, like Hammurabi’s Code, contained a strong element of
retributive justice. One of the laws, “Si membrum rupsit, ni cum eo pacit, talio esto,”
translates as follows: “If one has maimed another and does not buy his peace, let there
be retaliation in kind.”10
Despite their shortcomings and harsh character, these early legal codes are important
because they signaled the emergence of formalized “law.” And while it is difficult to
define the term with precision, law generally refers to formal rules, principles, and
guidelines enforced by political authority. This political authority is what began to take
dispute resolution out of the hands of citizens and put it under control of governments.
Legal codes have changed and evolved considerably over the years, but the use of politi-
cal or governmental authority to enforce such codes has remained pretty constant.
Common Law and Precedent
After the Norman conquest (a.d. 1066), King William and his Norman dukes and bar-
ons moved quickly to consolidate their hold over newly won territories. One method
was to take control of the preexisting legal/court system. Once they did this, the judges
in their courts not only issued decisions but also wrote them down. These decisions
were subsequently circulated to other judges. The result was a measure of uniformity
from one court to the next. This was literally the law “in common” throughout Eng-
land, and it came to be known as the common law.
The common law can be better understood when it is contrasted with special
law, which refers to the laws of specific villages and localities that were in effect in
medieval England and that were often enforced by canonical (i.e., religious) courts.
Under the reign of Henry II (1154–1189), national law was introduced but not
through legislative authority as is customary today. Rather, Henry II implemented
a system whereby judges from his own central court went out into the countryside
 CHAPTER 1:  Legal Foundations  7

to preside over disputes. They resolved these disputes based on what they perceived
as custom. The judges effectively created law, as there was no democratic law-form-
ing process in place at the time.
As more and more judges began to record their decisions, the principles of stare
decisis and precedent were developed. Precedent refers, generally, to some prior action precedent
that guides current action. In the common law context, this meant that judges’ deci- A legal principle that ensures
that previous judicial decisions
sions were guided by earlier decisions. Precedent thus ensured continuity and predict- are authoritatively considered
ability. If decisions changed radically from one judge to the next, from place to place, and incorporated into future
or both, the “common” law would be anything but common. It was also easier for cases.
judges to fall back on earlier decisions; otherwise, they would have to continually rein-
vent the wheel. Stare decisis, which is Latin for “to stand by things decided,” is thus the stare decisis
formal practice of adhering to precedent. A term that literally means “to
stand by things decided.” In the
While the common law is usually viewed as a legal concept, it also had social impli-
law, it is the formal practice of
cations: The medieval judge was entrusted with the collective wisdom, values, and adhering to precedent.
morals established by the community and was trusted to apply them to solve disputes
between citizens. Even when appointed by the king, the medieval judge represented the
community and applied the community’s (not the king’s) law, thereby maintaining its
age-old customs and values.
Early colonists brought this English common law tradition to America. Today, all
courts are essentially bound to follow earlier courts’ decisions as well as decisions
issued by higher courts. If a state supreme court issues a decision, all lower courts in
that state will be bound to follow it; likewise, if the U.S. Supreme Court issues a deci-
sion, all courts must adhere to it. Technically, precedent is binding only on those
courts within the jurisdiction (a concept we will discuss later) of the court issuing the
decision, but as a courtesy some courts adhere to other courts’ decisions across juris-
dictional boundaries. Again, the practice promotes consistency.
There is nothing etched in stone about precedent. Times change. Often, early deci-
sions become outdated as technologies change. It used to be, for example, that the U.S.
Supreme Court defined the word search as basically consisting of physical trespass.
These days, there is much the government can do to infringe on people’s privacy with-
out actual physical trespass; for example, wiretaps can be used at a distance, without
any measure of physical trespass. The Supreme Court recognized this and effectively
redefined a search, requiring a departure from earlier decisions.11
At the other extreme, there is no need to be concerned with courts issuing new deci-
sions that depart from prior ones on an ad hoc, willy-nilly basis. Take the issue of abor-
tion. When there is an open seat on the Supreme Court, questions of a nominee’s stance
on abortion routinely come up, as if the Court would promptly overturn Roe v. Wade (the
Supreme Court case that legalized abortion) if the nominee were confirmed. But the
Supreme Court is not going to suddenly overturn that landmark decision without a very
good reason. Even if the Court were composed of a solid conservative majority, there is
no reason to expect a dramatic departure from precedent. In fact, prior decisions are rarely
overruled. The Supreme Court has recently chipped away at the legality of abortion by
upholding a law banning partial birth abortions, but it has not overruled Roe v. Wade.12

Why Common Law? Common law emerged at a time when legal codes were in
their infancy. Judges issued decisions when there were not necessarily formal statutes
to criminalize certain forms of conduct. Laws need explanations, clarifications, and
modifications from time to time, and were it not for common law, this would not be
possible. Oliver Wendell Holmes raised a similar point in this eloquent observation:
The life of the law has not been logic; it has been experience. The felt necessities
of the time, the prevalent moral and political theories, intuitions of public policy,
8  PART I:  Foundations
administrative regulations
Rules promulgated by
government agencies that have
been given their authority by the
executive branch or legislative
branch.
Code of Federal
Regulations
The group of rules and
regulations adopted by U.S.
federal agencies and
departments.
avowed or unconscious, even the prejudices which judges share with their fellow
men, have had a good deal more to do than the syllogism in determining the rules
by which men should be governed. The law embodies the story of a nation’s
development through many centuries, and it cannot be dealt with as if it contained
only the axioms and corollaries of a book of mathematics.13
Other Sources of Law
Besides early legal codes and the common law, other important sources of law include
modern legal codes, administrative regulations, and constitutions. These have helped
shape America’s courts (not to mention the criminal justice system in general) in many
ways as well.
Modern Legal Codes Modern legal codes differ from early legal codes because
they exist at different levels of government and come in several different forms. The
United States Code contains federal laws, and violations of its provisions can lead to
federal prosecution. States have their respective codes. Other units of government,
such as counties and cities, often have their own ordinances. These legal codes exist in
several varieties. States such as California list criminal offenses in more than one code.
There, most crimes are spelled out in the Penal Code, but the Health and Safety Code
criminalizes drug-law violations. The state has 29 separate legal codes!14
Legal codes do not just prohibit conduct considered criminal. They also provide
important rights. For example, both the states and the federal government have mini-
mum-wage laws that provide the minimum hourly wage an employee can earn. With-
out such laws, there would be no right to a specific wage.15
Administrative Regulations Administrative regulations are rules promulgated by
government agencies that have been given their authority by the executive branch or
legislative branch. Several federal cabinet-level agencies (e.g., Department of Education,
Department of Labor) serve as visible examples. There are also independent agencies,
such as the Environmental Protection Agency, the Internal Revenue Service (IRS), and
the Securities and Exchange Commission, that have been created by Congress and that
have adopted rules and regulations to fulfill their mandates. Similar entities can be found
at the state and local levels. Together, the rules these agencies adopt and enforce are con-
sidered administrative regulations. They carry equal weight and importance relative to
legal codes, but violations tend to be regarded as civil rather than criminal matters.
Why do we have administrative regulations and not just laws? When government
agencies are created, often they are given a fairly broad mandate. To expect the execu-
tive or Congress to completely map out—in advance—these agencies’ duties and their
limits would be unrealistic. By giving administrative agencies the authority to set their
own regulations, this eases the burden on the executive or legislative branch. It also
permits the agencies to adapt and change as new laws are passed and new problems
present themselves. Consider the IRS. It defines what constitutes a legitimate tax
deduction because it would be impractical and overly time-consuming to have outsid-
ers setting such rules.
Administrative regulations can be found in specific statutes, not unlike the legal
codes we have already discussed. At the federal level, the Code of Federal Regulations
spells out the rules and regulations adopted by federal agencies and departments. The
regulations are organized into some 50 different titles, covering everything from aliens
and nationality to conservation of power and water resources. While violations of
administrative regulations may not be considered criminal in the traditional sense, it is
 CHAPTER 1:  Legal Foundations  9

important to appreciate that this body of rules closely parallels that of federal and state
criminal codes, making it clear that ours is a system of laws.

Constitutions Constitutions are perhaps the most significant source of law. Unlike
penal codes, constitutions generally do not prohibit actions on the part of private citi-
zens, and unlike administrative regulations, they tend to steer clear of specifics when
it comes to the creation of specialized government agencies. Rather, constitutions
generally place limits on government authority. They define, in broad terms, govern-
ment structure and organization; they also spell out various rights that people enjoy,
how government officials will be selected, and what roles various government
branches will take on.
The Bill of Rights, consisting of the first ten amendments, also announces impor- Bill of Rights
tant limitations on government authority with respect to the investigation of crime. The first ten amendments to the
U.S. Constitution, which place
The Fourth Amendment, for example, spells out warrant requirements, and the Fifth
important limitations on
Amendment protects people, in part, from being forced to incriminate themselves. government authority with
The Eighth Amendment prohibits cruel and unusual punishment and so on. Entire respect to the investigation of
books and college courses are devoted to the study of constitutional law for criminal crime.
justice (i.e., criminal procedure).
While the federal Constitution receives the most attention due to its status as the
supreme law of the United States, it is important to note that each state has its own con-
stitution. These often mirror the federal Constitution, but they often go into much more
detail. Some states use an initiative process, where every November voters can decide the
fate of proposed constitutional amendments. Other states have used their constitutions
to more clearly spell out what they consider prohibited actions, whereas a close read of
the federal Constitution suggests that the founding fathers intended something different.
In any case, constitutions work together with legal codes, administrative regulations, and
the common law to provide an interesting basis for criminal justice as we know it.
State constitutions can be more restrictive than the U.S. Constitution, but no state
can relax protections spelled out in the U.S. Constitution. For example, the U.S.
Constitution’s Fourth Amendment spells out search warrant requirements, but the
Fourth Amendment is vague in terms of whether a warrant is required in all circum-
stances. In theory, a state could require warrants for all searches, but as a practical
matter, most states have followed the U.S. Constitution’s lead (and the Supreme
Court’s interpretation of it).

Role of the Courts

Courts are important to the study of criminal justice for two key reasons: adjudication
and oversight. Both of these functions are critically important for the protection of
public safety and the smooth operation of the system itself.

Adjudication One of the primary focuses of the courts is dispute resolution and the
adjudication of complaints. In the context of criminal justice, this means most often
that courts decide who is going to answer for an alleged criminal act. Without this
adjudication role, police would be making arrests and prosecutors filing charges in
vain. Courts perform the vital function of determining who is and is not guilty.
More than deciding matters of guilt, certain courts (namely, the appellate courts)
ensure that lower courts applied the law correctly. This important set of checks ensures
that judges who make mistakes and apply the law incorrectly are held accountable for
their mistakes. In the extreme, a trial court judge who makes a serious legal error could
see the individual charged with the crime walk free due to an appellate court decision.
10  PART I:  Foundations
Learning Objective 3
Summarize the guiding
legal principles underlying
the U.S. court system.
presumption
A fact assumed to be true under
the law.
presumption of innocence
The bedrock U.S. legal principle
that assumes that every person
charged with a crime is innocent
until proven otherwise.
Oversight Courts also provide an important oversight function in American criminal
justice. Our nation’s appellate courts decide matters of law (such as by interpreting ambig-
uous constitutional provisions) that affect how police officers do their jobs on the street.
The Supreme Court’s famous decision in Tennessee v. Garner16 placed limits on the use of
deadly force, something of great import to all police officers patrolling America’s streets.
While courts oversee the operations of criminal justice officials, this oversight is
not direct like it is in a supervisor–subordinate relationship. Rather, the courts get
involved only once a particular matter comes to the attention of an appellate court and
only then if the decision is publicized and made available for practitioners and other
interested authorities to read and implement.
Not all decisions are published, particularly in the lower courts, so this limits the
oversight function. It is generally the most serious instances of police misconduct that
come to the courts’ attention, but even so, thousands of decisions have been issued—
and published—over the years that have altered the way criminal justice officials do
their work. Police academy training now contains fairly extensive legal education,
again highlighting the importance of courts in criminal justice.
Guiding Legal Principles
Ensuring that everyone can come before a court, regardless of which side of a dispute they
represent, is one of the hallmarks of the American justice system. A number of key guiding
legal principles exist to make sure that people are adequately protected as they participate
in the court process. Presumptions, like the presumption of innocence, and safeguards,
like those spelled out in the U.S. Constitution, are of critical importance in a system of
criminal justice. Presumptions and safeguards protect the accused, as does our adversarial
system. Contrasting our adversarial system with its opposite, an inquisitorial system, makes
it clear that protection for the accused is paramount in our system of criminal justice.
Presumptions
A presumption is a fact assumed to be true under the law. In the world of criminal
evidence, there are many types of presumptions. Conclusive presumptions require
that all parties agree with something assumed to be true. An example of this would be
that a child born to a married couple who live together is the couple’s child. It is likely
that both parties to a case would agree to this presumption. In contrast to this kind of
a conclusive presumption, a rebuttable presumption is one that could reasonably be
disagreed with. Here is an example of a rebuttable presumption: “Because a letter was
mailed, it was received by its intended recipient.” This is rebuttable because the letter
could actually be lost due to a mistake made by the post office.
Every person charged with a crime is assumed, in advance, to be innocent, which is
known as the presumption of innocence. The presumption of innocence is both a
presumption of law (because it is required from the outset) and a rebuttable presump-
tion (because the prosecutor will present evidence to show that the defendant, the
person being charged with the crime, is guilty). The presumption of innocence is a
bedrock legal principle. One classic court decision put it this way:
[The presumption of innocence] is not a mere belief at the beginning of the trial
that the accused is probably innocent. It is not a will-o’-the-wisp, which appears
and disappears as the trial progresses. It is a legal presumption which the jurors
must consider along with the evidence and the inferences arising from the evi-
dence, when they come finally to pass upon the case. In this sense, the presump-
tion of innocence does accompany the accused through every stage of the trial.17
 CHAPTER 1:  Legal Foundations  11

EXHIBIT 1–1    Common Presumptions

 Presumption of sanity. All defendants are presumed sane; the burden falls on the defense
to prove otherwise.
 Presumption of death. It is presumed that a person who has disappeared and is continu-
ally absent from his or her customary location (usually after seven years) is dead.
 Presumption against suicide. It is assumed that when a person dies, the cause is not suicide.
 Presumption of a guilty mind following possession of the fruits of crime. The jury can
usually infer guilt if a person is caught “red-handed” with the fruits of crime.
 Presumption of knowledge of the law. Ignorance is not a defense to criminal liability.
 Presumption of the regularity of official acts. It is assumed, for example, that a proper
chain of custody exists, unless the defense can show otherwise.
 Presumption that young children cannot commit crimes. Some states presume that children
under a certain threshold age (e.g., age seven) cannot form criminal intent and thus
cannot commit crime.
 Presumption that people intend the results of their voluntary actions. If a person voluntarily
shoots another, the jury can presume the shooter intended to do so. ◾

Presumptions are essential to the smooth operation of criminal justice. They serve,
basically, as substitutes for evidence. Without them, every minute issue that could
possibly be disputed would come up during trials. For example, it is presumed that a
child born to a married couple who live together is the couple’s child. Without pre-
sumptions such as these, the process would be slowed down considerably because
every minor event, no matter how likely, would have to be proven in court. (Exhibit 1–1
shows popular presumptions that arise in criminal justice.)

Constitutional Rights
The presumption of innocence acts as something of a safeguard to protect the accused
from instant incrimination. Constitutional rights are safeguards in the same way: They
help ensure that people accused of criminal activity are not rushed to judgment and
treated unfairly. Indeed, constitutional rights protect everyone in this country, not just
suspected and accused criminals. Even noncitizens (except, perhaps, terror suspects,
which is an area of ongoing dispute) enjoy the same protections as U.S. citizens. A
close examination of the Constitution confirms this point; there is no mention of crim-
inals versus law-abiding persons or citizens versus noncitizens.
As we pointed out earlier, constitutional rights can be found at both the federal and
state levels. The U.S. Constitution spells out the rights we all enjoy, and these rights due process clause
are not boundary-specific; they apply throughout the United States. States also have The portion of the Fourteenth
their own constitutions. The rights spelled out in a state constitution apply only to Amendment that has been used
by the U.S. Supreme Court to
people within that state. Importantly, states can adopt more restrictive protections make certain protections
than spelled out in the U.S. Constitution, but they cannot adopt looser standards. specified in the Bill of Rights
For criminal justice purposes and particularly for a study of courts, the constitutional applicable to the states.
rights of interest to us are those that can be found in the U.S. Constitution’s Bill of
Rights and in the Fourteenth Amendment (for two others not found in these places, see incorporation
The legal doctrine based on the
Exhibit 1–2). The Bill of Rights (as we pointed out earlier) consists of the first ten amend- due process clause of the
ments to the U.S. Constitution (see Exhibit 1–3), and we will begin by discussing it. Then Fourteenth Amendment that
we will turn our attention to the Fourteenth Amendment’s due process clause. The makes various protections listed
in the Bill of Rights, which is
Fourteenth Amendment is important because the U.S. Supreme Court has used its due
binding only on the federal
process clause to make various protections listed in the Bill of Rights (which is binding government, binding on the
only on the federal government) binding on the states. This is known as incorporation. states, as well.
12  PART I:  Foundations

EXHIBIT 1–2    Other Constitutional Rights of Relevance

in Criminal Procedure

ARTICLE III, SECTION 2

. . . The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall
be held in the state where the said crimes shall have been committed; but when not committed
within any state, the trial shall be at such place or places as the Congress may by law have
directed.
Note: The right to jury trial has been significantly restricted by the Supreme Court. We look at this
more closely in Chapter 13.

ARTICLE I, SECTION 9
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion or invasion the public safety may require it. ◾
Note: Habeas corpus provides a means for prisoners to challenge the constitutionality of their
confinement.We look at it more closely in Chapter 14.

EXHIBIT 1–3    Bill of Rights

AMENDMENT I
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.
AMENDMENT II
A well regulated Militia, being necessary to the security of a free state, the right of the people
to keep and bear Arms, shall not be infringed.
AMENDMENT III
No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.
AMENDMENT IV
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
AMENDMENT V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a pre-
sentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or
in the Militia, when in actual service in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be deprived of life, liberty, or prop-
erty, without due process of law; nor shall private property be taken for public use, without
just compensation.
AMENDMENT VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defence (sic).

(continued)
 CHAPTER 1:  Legal Foundations  13

AMENDMENT VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined
in any Court of the United States, than according to the rules of the common law.
AMENDMENT VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.
AMENDMENT X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the states respectively, or to the people. ◾

Bill of Rights The Bill of Rights contains a total of ten constitutional amendments,
four of which are most relevant in the criminal justice context. They are the Fourth,
Fifth, Sixth, and Eighth Amendments. An exception is the Second Amendment, which
deals with the right to keep and bear arms, but it has little in the way of implications
for court and criminal justice procedures.
1. The Fourth Amendment. The Fourth Amendment is perhaps the most well
known of all the amendments. It states,
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation and par-
ticularly describing the place to be searched, and the persons or things to be seized.
Several rights can be distinguished by reading the text of the Fourth Amendment. It
refers to the rights of people to be free from unreasonable searches and seizures, and it
provides that there are specific requirements guiding the warrant process. Warrants
must be issued by a magistrate or judge, supported by probable cause, and sufficiently
specific as to what is to be searched and/or seized. The courts have grappled with this
amendment’s seemingly innocuous language for generations. What is a person? What
is a search? What is probable cause? What are the warrant requirements? We will
answer some of these questions later on in the book, particularly in the section on
court process.
2. The Fifth Amendment. The second constitutional amendment of interest to
us is the Fifth Amendment. It states,
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offense to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal case to be a wit-
ness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation.
This amendment is quite clear, on its face, about which rights people enjoy:
Grand juries appear necessary, no one can be forced to incriminate him- or herself,
people cannot be put in “double jeopardy,” and people cannot be deprived of cer-
tain rights without due process. But like the Fourth Amendment, the terms in this
14  PART I:  Foundations

amendment are not abundantly clear. What does it mean to be a “witness against
himself”? What exactly is “double jeopardy”? Are grand juries really required in all
capital and infamous crimes? Despite these ambiguities (which, again, we will seek
to clarify later in the book), it is clear that the Fifth Amendment also provides an
important safeguarding function.
3. The Sixth Amendment. The Sixth Amendment is also of great importance. It
specifies the following:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and pub-
lic trial, by an impartial jury of the State and district wherein the crime shall have
been committed, which district shall have been previously ascertained by law, and
to be informed of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for his defence.
Of relevance to the study of courts is the Sixth Amendment’s language concerning
speedy and public trials, impartial juries, confrontation, compulsory process, and
especially the right to counsel. Reading between the lines, the Sixth Amendment also
suggests that in addition to being public, trials should be open (not closed) proceed-
ings. This ensures openness, which is consistent with democratic governance.
4. The Eighth Amendment. The Eighth Amendment is relevant to a fairly lim-
ited extent. It is limited in the sense that the other amendments we just
introduced have received much more attention by the courts. In any case,
the Eighth Amendment states,
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.
Keeping bail to a reasonable level ensures that nondangerous individuals charged
with criminal activity do not languish in jail cells needlessly until their trial dates. Like-
wise, the protection against cruel and unusual punishment ensures that torture, beat-
ings, horrific forms of execution, and the like are not used.

Due Process The Fourteenth Amendment, particularly its language concerning

“due process,” has profound importance in criminal justice. It is a fairly long amend-
ment, with only a small portion relevant to the handling and treatment of criminal
suspects. It states, in relevant part,
All persons born or naturalized in the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States, nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws. [italics added]
First, note that the due process clause (the italicized part) of the Fourteenth
Amendment mirrors the Fifth Amendment’s due process clause. Remember,
though, that the Fifth Amendment, because it is part of the Bill of Rights, is bind-
ing only on the federal government. The Fourteenth Amendment’s due process
clause has been used by the Supreme Court to make certain protections specified
in the Bill of Rights applicable to the states. But note that not all rights spelled out
in the first ten amendments have been incorporated. The Fifth Amendment’s
grand jury provision has not been incorporated, which is why some states rely on
grand jury indictments and others do not (see Exhibit 1–4 for a full listing of unin-
corporated rights).
 CHAPTER 1:  Legal Foundations  15

EXHIBIT 1–4    Unincorporated Rights

 The whole of the Second Amendment
 The whole of the Third Amendment
 The whole of the Seventh Amendment
 The Fifth Amendment’s right to grand jury indictment
 The Eighth Amendment’s prohibition against excessive bail ◾

There are two types of due process the courts recognize: (1) substantive due process
and (2) procedural due process. Substantive due process is concerned with protecting substantive due process
people’s life, liberty, and property interests; that is, it protects “substantive rights,” The constitutional provision that
is concerned with protecting
like the rights to possess and do certain things. Procedural due process, in contrast, is
people’s life, liberty, and
concerned with ensuring fairness.18 One court distinguished between both types of due property interests.
process in this way:
procedural due process
[S]ubstantive due process prohibits the government’s abuse of power or its use for
The constitutional provision that
the purpose of oppression, and procedural due process prohibits arbitrary and is concerned with ensuring
unfair deprivations of protected life, liberty, or property interests without proce- fairness.iv
dural safeguards.19
adversarial justice system
There is no constitutional right to privacy, but substantive due process (in conjunc-
The functional construct of the
tion with other constitutional amendments, such as the Fourth) has been used to effec- American court system that
tively “create” a constitutional right to privacy. features two competing sets of
interests (the defendant’s and
the government’s) working
Adversarial System against each other in pursuit of
the truth, from which stems the
Ours is an adversarial justice system, particularly when describing the courts. It is many protections our
adversarial because it pits two parties against each other in pursuit of the truth. Our Constitution and laws afford
people.
adversarial system is not what it is, though, because attorneys love to hate each other.
Rather, adversarialism owes to the many protections our Constitution and laws adversarialism
afford people. The element incorporated into
the American judicial system by
When criminal defendants assert their rights, this sometimes amounts to one side
the founding fathers to promote
saying that the other is wrong, which ultimately leads to an impasse that must be argument, debate, and openness
resolved by a judge. If the defendant’s attorney seeks suppression of key evidence that as a defense against oppressive
may have been obtained improperly, the prosecutor will probably disagree; after all, government.
such evidence could form the basis of his or her case. The judge must rule to settle the
matter. This is the essence of adversarialism—two competing sets of interests (the
defendant’s and the government’s) working against each other.
Why else is ours an adversarial system? Another, more fundamental explanation
lies in the founding fathers’ concerns with oppressive governments. Adversarialism
promotes argument, debate, and openness. With no defense attorneys and only pros-
ecutors having any say in a defendant’s case, there would be untold numbers of rights
violations, rushes to judgment, and so on.

Prosecutors and Defense Attorneys: Mortal Enemies? The answer to the

question this heading poses is a resounding “No.” Yet by watching courtroom dramas
and movies, it would be easy to think otherwise. Hollywood loves to make it look like
prosecutors and defense attorneys cannot stand each other, and they are constantly
springing surprise witnesses on one another, arguing with each other to the point of
fighting, and so on.
While it is true that some prosecutors and defense attorneys are not the best of
friends, most know each other and work together on a routine basis. Some prosecutors
16  PART I:  Foundations
inquisitorial system
A judicial system that is the
philosophical opposite of the
adversarial system.
Learning Objective 4
Explain the nature of
disputes.
were once defense attorneys and vice versa. These days, collaboration is popular, too,
as prosecutors and defense attorneys are coming to realize that the traditional hard-line
adversarial approach to meting out justice is not always helpful for the accused. We will
come back to this notion of the opposing parties working together when we look at the
courtroom work group in Chapter 2.
Opposite of Adversarialism: Inquisitorial Justice Adversarial justice can be
better understood when compared to its opposite, namely, inquisitorial justice, which
is characteristic of an inquisitorial system. There are several features of inquisitorial
systems that differ from adversarial systems. First, inquisitorial systems do not pro-
vide the same protections to the accused (e.g., right to counsel). Second, inquisitorial
systems place decision making in the hands of one or a very few individuals. Third,
juries are often the exception in inquisitorial systems. Finally, the attorneys in inquisi-
torial systems are much more passive than in adversarial systems, and judges take on a
more prominent role in the pursuit of truth.
Inquisitorial justice is often likened to justice from the past, such as in medieval
England, and particularly at the hands of the early Christian church. For the most part,
this perception is accurate, but some borderline inquisitorial systems are very much
alive and well in this day and age, even in modern industrialized nations. For example,
in France, the “juge d’instruction” (i.e., investigating magistrate) engages in fact-finding
and performs investigations in cases of serious and complex crimes. American judges,
in contrast, focus on legal matters, and in trials by jury, they never engage in
fact-finding.
Until as recently as 1996, China had a full-blown inquisitorial system. Since the
Chinese adopted significant reforms to their legal system, that has changed. As one
researcher observed,
[U]nder China’s inquisitorial system, judges were required to engage in evidence-
gathering and criminal investigations. Judges in the post-reform period, however,
should be more likely to serve as impartial adjudicators who hear evidence and
arguments from both sides and render a decision based solely on this
information.20
Types of Disputes
Another court function we identified earlier is resolving disputes. We rely on courts,
not ourselves, to resolve many varieties of disputes. There are exceptions to this rule
with recent advents in the area of alternative dispute resolution (see Chapter 16), but
when disputes escalate to a certain level or when a true impasse is reached, the courts
will more often than not get involved.
Chances are this book has been assigned for a courts class as part of a criminal jus-
tice or criminology program. In that spirit, most of our energies will be channeled
toward courts of the criminal variety, but we would be remiss not to discuss civil pro-
cedures. Here is one reason why: We already mentioned the Supreme Court’s land-
mark decision in Tennessee v. Garner,21 where standards governing deadly force as they
pertain to fleeing felons were adopted. In that case, Garner, age 15, was shot in the back
by an officer who was chasing him from the scene of a residential burglary. He was
killed, but his surviving family members sued, arguing that the boy’s constitutional
rights were violated. Specifically, they argued that the boy was seized in violation of the
Fourth Amendment (i.e., the seizure was unreasonable). The case arrived at the
Supreme Court via civil process; it was not a criminal case. Garner, along with many
 CHAPTER 1:  Legal Foundations  17

other important cases, has affected law enforcement, which is why it is important to
give some attention to civil procedure.

Civil Law and Procedure

The world of civil law and procedure is distinct from criminal law and procedure (see
Figure 1–1 for an overview of the civil process). This was made apparent in the famous
1995 O.J. Simpson murder case. Simpson was acquitted in criminal court, but he was
found liable in a subsequent wrongful death lawsuit. The first proceeding was criminal;
the second was civil. Both actions were separate and independent from one another.
Simpson could have been sued and never charged criminally. This could have hap-
pened if the prosecution felt, in advance, that it did not have enough evidence to con-
vict (the standard of proof in civil proceedings is generally lower). Alternatively, he
could have been charged criminally and never sued. The point is that each action, civil
and criminal, had no bearing on the other.

Nature and Substance of Civil Law Contemporary criminal law is concerned

with actions that are regarded as harmful to society on the whole. That is why criminal
cases are often initiated by the government, such as in State v. Jones, Commonwealth v.
Jones, or People v. Jones. In contrast, civil law is concerned mainly with disputes
between private parties and with the duties private parties owe one another. Private
parties can include individual people as well as organizations. The government occa-
sionally gets involved as a party to a civil case as well, often in actions related to admin-
istrative law (see earlier discussion).
When an individual is held criminally liable, he or she is often punished. Appro-
priate sanctions range from fines to death, depending on the seriousness of the
crime. In the civil context, courts seek to determine the parties’ legal rights and then
settle on appropriate remedies. Generally, there are two main types of remedies. monetary damages
One is monetary damages; that is, the party considered in the wrong can be ordered A court-ordered payment of
to pay money to the other party. In the other type of remedy, the court may order money by one party in a civil
suit to the other party.
one party to perform certain acts or refrain from certain actions (the latter is known
as injunctive relief). injunctive relief
It is tempting to view criminal cases as occurring more frequently than civil cases, A court order directing one
party in a civil suit to perform
particularly in light of the press coverage that crimes tend to receive. In reality, though,
or refrain from performing
the opposite is true: Civil cases far outnumber those of the criminal variety. This is not certain acts.
too surprising because, as one famous legal scholar put it, “Every broken agreement,
every sale that leaves a dissatisfied customer, every uncollected debt, every dispute
with a government agency, every libel and slander, every accidental injury, every mari-
tal breakup, and every death may give rise to a civil proceeding.”22

Categories of Civil Law There are five important categories of civil law that are
frequently resolved via civil litigation:
1. Tort law. Torts are civil wrongs recognized by law to be grounds for a law- tort
suit. Understood differently, tort law deals with conduct that leads to inju- A civil wrong recognized by law
to be grounds for a lawsuit; also,
ries not considered acceptable by societal standards. Nearly all personal
conduct that leads to injuries
injury claims stem from civil law. Medical malpractice lawsuits also fall in not considered acceptable by
the tort category, as do many lawsuits against criminal justice officials. societal standards.
Using tort law to resolve disputes is increasingly popular due to large jury awards tort law
and shifting standards of proof. On the subject of shifting standards of proof, much The category of civil law that
has changed in the world of product liability. It used to be that for a manufacturer of a involves lawsuits to resolve civil
wrongs.
product to be successfully sued, it was necessary to show that the manufacturer acted

Citizen Complaint
The first step in filing a lawsuit normally involves a
citizen complaint. In a citizen complaint, the aggrieved
party can do one of two things. The complaint can be
lodged for the sake of calling attention to
inappropriate police conduct or the complaint can
demand some form of remedial action (e.g., injunctive
relief or monetary damages). This latter form of a
citizen complaint is considered a demand.
Claim with City/County Clerk
Before they can proceed with a lawsuit, citizens in
some states and counties are first required to file a
claim with the city, or county, or give the police
agency a chance to respond to a formal complaint or a
request for damages. This claim should be
distinguished from a citizen complaint discussed
above. Claims of this nature differ because they are
explicit prerequisites that must be filed before a
lawsuit can move forward; they are mandated by law.
Their purpose is primarily to inform officials of what is
about to transpire. Often a lawsuit cannot be filed until
the parties in question are given the opportunity to
respond to a claim.
Full Blown Lawsuit
A citizen complaint/demand evolves into a full blown
lawsuit when all of the foregoing informal proceedings
do not meet with the complainants’ satisfaction. In
order for a citizen complaint/demand to move to the
stage of a lawsuit, two actions must occur. First, a
“complaint” must be filed with the Clerk of the Court
where the lawsuit will be heard. This complaint differs
from a citizen complaint; it is a legal requirement.
Second, the court or an attorney then issues a
“summons” that is “served” on the defendant(s).
Sometimes the summons is personally delivered, other
times it is sent by registered or certified mail. The
parties involved are now known as defendants (the
police, their agencies, municipalities, or whoever is
named in the lawsuit) and the plaintiffs (the aggrieved
party or parties filing the lawsuit). Answer: Once the
defendant police officer(s), agency, and/or
municipality is “served” with legal process, they must
provide their formal “answer” within a prescribed time
frame. For obvious reasons defendants in police civil
liability cases rarely fail to acknowledge the
summons.
Collecting the Judgment
The victorious party may have received a judgment
stating what he or she is entitled to recover. It is then
his or her job to collect the “judgment.” Collecting
judgments can be a difficult and time consuming
process, and is typically put on hold until all relevant
appeals are exhausted.
FIGURE 1–1
Stages of a Civil Lawsuit
Source: Larry J. Siegel, Frank Schmalleger and John Worrall, Courts and Criminal Justice in America, 9780134526690, 3e, © 2018.
18
Demand
If whoever files a citizen complaint (the
complainant) with the police requests some action
on the part of the police or less informal “demand”
of the police, who will then send a “response.” This
may lead to informal discussions. The complainant
could retain the services of an attorney, but the
procedures remain largely informal at this early
juncture.
Pre-Litigation
Settlement Discussions
There often is an informal “pre-litigation settlement
discussion” where both the police and /or their
representatives and the complainant and /or their
representative work together to achieve a
settlement. If no agreement is reached, chances are
the complaint/demand will evolve into a full blown
lawsuit.
Discovery
A lawsuit may involve “pre-trial discovery” in which
one or both parties attempt to get evidence as to what
happened, perhaps by taking the testimony of
witnesses, or examining documents or physical
evidence.
Trial, Judgment,
Post-Trial Motions and Appeals
If a lawsuit progresses all the way to trial, it will
either be decided by a judge alone, or with a jury to
decide the facts and the judge to decide the law.
After the trial the court will “enter judgment” in
which the plaintiff, for example, might be entitled to
a fixed amount of money. Post-trial motions might be
raised in which the losing party tries to convince the
original judge that something else is appropriate,
perhaps more money, or added relief, or none at all.
After that, there may be an appeal by the losing party
to a higher court.
Citizen Complaint
Board
In some jurisdictions (e.g., Spokane, WA)
complainants can further file a complaint with the
local citizen complaint board if the police agency in
question fails to take satisfactory action. Citizen
complaint boards vary considerably in their usage,
authority, and terminology, so they are only mentioned
here in passing as one alternative dispute resolution
mechanism. Other avenues of dispute resolution
besides complaint boards may well be in place.
Lawyer's Letter
If the complainant and the police can’t work things
out among themselves informally, the complainant
usually has an attorney send a “lawyer’s letter” to
the police agency, officer(s) in question, and/or the
municipality or county. While there may not be any
legal significance to a lawyer’s letter, it usually gets
a serious response.
Motions
In a lawsuit either side may make “motions” to try to
narrow the issues, or compel the other side to do
something, or even to have the court decide the matter
without the need for a trial. Two common motions in
police civil liability cases are raised by the defendants.
The first most common motion is the motion to dismiss.
Here, defendants attempt to have the case thrown out
on the grounds that no question of law or legitimate
legal issue is raised. These are rarely granted. A
second common motion is a motion for summary
judgment. Here, defendants ask the court to find in
favor of the police without the need for trial. The
majority of these motions succeed, leaving only a few
lawsuits which progress to the trial stage.
Judge’s Pre-Trial Conference
Before a trial the court will typically order a
“pre-trial conference” to narrow issues down still
further, and perhaps to get the parties to agree to a
settlement, again attempting to avoid a lengthy trial
proceeding.
Another random document with
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 DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI

Newala, too, suffers from the distance of its water-supply—at least

the Newala of to-day does; there was once another Newala in a lovely
valley at the foot of the plateau. I visited it and found scarcely a trace
of houses, only a Christian cemetery, with the graves of several
missionaries and their converts, remaining as a monument of its
former glories. But the surroundings are wonderfully beautiful. A
thick grove of splendid mango-trees closes in the weather-worn
crosses and headstones; behind them, combining the useful and the
agreeable, is a whole plantation of lemon-trees covered with ripe
fruit; not the small African kind, but a much larger and also juicier
imported variety, which drops into the hands of the passing traveller,
without calling for any exertion on his part. Old Newala is now under
the jurisdiction of the native pastor, Daudi, at Chingulungulu, who,
as I am on very friendly terms with him, allows me, as a matter of
course, the use of this lemon-grove during my stay at Newala.
 FEET MUTILATED BY THE RAVAGES OF THE “JIGGER”
(Sarcopsylla penetrans)

The water-supply of New Newala is in the bottom of the valley,

some 1,600 feet lower down. The way is not only long and fatiguing,
but the water, when we get it, is thoroughly bad. We are suffering not
only from this, but from the fact that the arrangements at Newala are
nothing short of luxurious. We have a separate kitchen—a hut built
against the boma palisade on the right of the baraza, the interior of
which is not visible from our usual position. Our two cooks were not
long in finding this out, and they consequently do—or rather neglect
to do—what they please. In any case they do not seem to be very
particular about the boiling of our drinking-water—at least I can
attribute to no other cause certain attacks of a dysenteric nature,
from which both Knudsen and I have suffered for some time. If a
man like Omari has to be left unwatched for a moment, he is capable
of anything. Besides this complaint, we are inconvenienced by the
state of our nails, which have become as hard as glass, and crack on
the slightest provocation, and I have the additional infliction of
pimples all over me. As if all this were not enough, we have also, for
the last week been waging war against the jigger, who has found his
Eldorado in the hot sand of the Makonde plateau. Our men are seen
all day long—whenever their chronic colds and the dysentery likewise
raging among them permit—occupied in removing this scourge of
Africa from their feet and trying to prevent the disastrous
consequences of its presence. It is quite common to see natives of
this place with one or two toes missing; many have lost all their toes,
or even the whole front part of the foot, so that a well-formed leg
ends in a shapeless stump. These ravages are caused by the female of
Sarcopsylla penetrans, which bores its way under the skin and there
develops an egg-sac the size of a pea. In all books on the subject, it is
stated that one’s attention is called to the presence of this parasite by
an intolerable itching. This agrees very well with my experience, so
far as the softer parts of the sole, the spaces between and under the
toes, and the side of the foot are concerned, but if the creature
penetrates through the harder parts of the heel or ball of the foot, it
may escape even the most careful search till it has reached maturity.
Then there is no time to be lost, if the horrible ulceration, of which
we see cases by the dozen every day, is to be prevented. It is much
easier, by the way, to discover the insect on the white skin of a
European than on that of a native, on which the dark speck scarcely
shows. The four or five jiggers which, in spite of the fact that I
constantly wore high laced boots, chose my feet to settle in, were
taken out for me by the all-accomplished Knudsen, after which I
thought it advisable to wash out the cavities with corrosive
sublimate. The natives have a different sort of disinfectant—they fill
the hole with scraped roots. In a tiny Makua village on the slope of
the plateau south of Newala, we saw an old woman who had filled all
the spaces under her toe-nails with powdered roots by way of
prophylactic treatment. What will be the result, if any, who can say?
The rest of the many trifling ills which trouble our existence are
really more comic than serious. In the absence of anything else to
smoke, Knudsen and I at last opened a box of cigars procured from
the Indian store-keeper at Lindi, and tried them, with the most
distressing results. Whether they contain opium or some other
narcotic, neither of us can say, but after the tenth puff we were both
“off,” three-quarters stupefied and unspeakably wretched. Slowly we
recovered—and what happened next? Half-an-hour later we were
once more smoking these poisonous concoctions—so insatiable is the
craving for tobacco in the tropics.
Even my present attacks of fever scarcely deserve to be taken
seriously. I have had no less than three here at Newala, all of which
have run their course in an incredibly short time. In the early
afternoon, I am busy with my old natives, asking questions and
making notes. The strong midday coffee has stimulated my spirits to
an extraordinary degree, the brain is active and vigorous, and work
progresses rapidly, while a pleasant warmth pervades the whole
body. Suddenly this gives place to a violent chill, forcing me to put on
my overcoat, though it is only half-past three and the afternoon sun
is at its hottest. Now the brain no longer works with such acuteness
and logical precision; more especially does it fail me in trying to
establish the syntax of the difficult Makua language on which I have
ventured, as if I had not enough to do without it. Under the
circumstances it seems advisable to take my temperature, and I do
so, to save trouble, without leaving my seat, and while going on with
my work. On examination, I find it to be 101·48°. My tutors are
abruptly dismissed and my bed set up in the baraza; a few minutes
later I am in it and treating myself internally with hot water and
lemon-juice.
Three hours later, the thermometer marks nearly 104°, and I make
them carry me back into the tent, bed and all, as I am now perspiring
heavily, and exposure to the cold wind just beginning to blow might
mean a fatal chill. I lie still for a little while, and then find, to my
great relief, that the temperature is not rising, but rather falling. This
is about 7.30 p.m. At 8 p.m. I find, to my unbounded astonishment,
that it has fallen below 98·6°, and I feel perfectly well. I read for an
hour or two, and could very well enjoy a smoke, if I had the
wherewithal—Indian cigars being out of the question.
Having no medical training, I am at a loss to account for this state
of things. It is impossible that these transitory attacks of high fever
should be malarial; it seems more probable that they are due to a
kind of sunstroke. On consulting my note-book, I become more and
more inclined to think this is the case, for these attacks regularly
follow extreme fatigue and long exposure to strong sunshine. They at
least have the advantage of being only short interruptions to my
work, as on the following morning I am always quite fresh and fit.
My treasure of a cook is suffering from an enormous hydrocele which
makes it difficult for him to get up, and Moritz is obliged to keep in
the dark on account of his inflamed eyes. Knudsen’s cook, a raw boy
from somewhere in the bush, knows still less of cooking than Omari;
consequently Nils Knudsen himself has been promoted to the vacant
post. Finding that we had come to the end of our supplies, he began
by sending to Chingulungulu for the four sucking-pigs which we had
bought from Matola and temporarily left in his charge; and when
they came up, neatly packed in a large crate, he callously slaughtered
the biggest of them. The first joint we were thoughtless enough to
entrust for roasting to Knudsen’s mshenzi cook, and it was
consequently uneatable; but we made the rest of the animal into a
jelly which we ate with great relish after weeks of underfeeding,
consuming incredible helpings of it at both midday and evening
meals. The only drawback is a certain want of variety in the tinned
vegetables. Dr. Jäger, to whom the Geographical Commission
entrusted the provisioning of the expeditions—mine as well as his
own—because he had more time on his hands than the rest of us,
seems to have laid in a huge stock of Teltow turnips,[46] an article of
food which is all very well for occasional use, but which quickly palls
when set before one every day; and we seem to have no other tins
left. There is no help for it—we must put up with the turnips; but I
am certain that, once I am home again, I shall not touch them for ten
years to come.
Amid all these minor evils, which, after all, go to make up the
genuine flavour of Africa, there is at least one cheering touch:
Knudsen has, with the dexterity of a skilled mechanic, repaired my 9
× 12 cm. camera, at least so far that I can use it with a little care.
How, in the absence of finger-nails, he was able to accomplish such a
ticklish piece of work, having no tool but a clumsy screw-driver for
taking to pieces and putting together again the complicated
mechanism of the instantaneous shutter, is still a mystery to me; but
he did it successfully. The loss of his finger-nails shows him in a light
contrasting curiously enough with the intelligence evinced by the
above operation; though, after all, it is scarcely surprising after his
ten years’ residence in the bush. One day, at Lindi, he had occasion
to wash a dog, which must have been in need of very thorough
cleansing, for the bottle handed to our friend for the purpose had an
extremely strong smell. Having performed his task in the most
conscientious manner, he perceived with some surprise that the dog
did not appear much the better for it, and was further surprised by
finding his own nails ulcerating away in the course of the next few
days. “How was I to know that carbolic acid has to be diluted?” he
mutters indignantly, from time to time, with a troubled gaze at his
mutilated finger-tips.
 Since we came to Newala we have been making excursions in all
directions through the surrounding country, in accordance with old
habit, and also because the akida Sefu did not get together the tribal
elders from whom I wanted information so speedily as he had
promised. There is, however, no harm done, as, even if seen only
from the outside, the country and people are interesting enough.
The Makonde plateau is like a large rectangular table rounded off
at the corners. Measured from the Indian Ocean to Newala, it is
about seventy-five miles long, and between the Rovuma and the
Lukuledi it averages fifty miles in breadth, so that its superficial area
is about two-thirds of that of the kingdom of Saxony. The surface,
however, is not level, but uniformly inclined from its south-western
edge to the ocean. From the upper edge, on which Newala lies, the
eye ranges for many miles east and north-east, without encountering
any obstacle, over the Makonde bush. It is a green sea, from which
here and there thick clouds of smoke rise, to show that it, too, is
inhabited by men who carry on their tillage like so many other
primitive peoples, by cutting down and burning the bush, and
manuring with the ashes. Even in the radiant light of a tropical day
such a fire is a grand sight.
Much less effective is the impression produced just now by the
great western plain as seen from the edge of the plateau. As often as
time permits, I stroll along this edge, sometimes in one direction,
sometimes in another, in the hope of finding the air clear enough to
let me enjoy the view; but I have always been disappointed.
Wherever one looks, clouds of smoke rise from the burning bush,
and the air is full of smoke and vapour. It is a pity, for under more
favourable circumstances the panorama of the whole country up to
the distant Majeje hills must be truly magnificent. It is of little use
taking photographs now, and an outline sketch gives a very poor idea
of the scenery. In one of these excursions I went out of my way to
make a personal attempt on the Makonde bush. The present edge of
the plateau is the result of a far-reaching process of destruction
through erosion and denudation. The Makonde strata are
everywhere cut into by ravines, which, though short, are hundreds of
yards in depth. In consequence of the loose stratification of these
beds, not only are the walls of these ravines nearly vertical, but their
upper end is closed by an equally steep escarpment, so that the
western edge of the Makonde plateau is hemmed in by a series of
deep, basin-like valleys. In order to get from one side of such a ravine
to the other, I cut my way through the bush with a dozen of my men.
It was a very open part, with more grass than scrub, but even so the
short stretch of less than two hundred yards was very hard work; at
the end of it the men’s calicoes were in rags and they themselves
bleeding from hundreds of scratches, while even our strong khaki
suits had not escaped scatheless.

NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAHUTA

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.

MAKONDE LOCK AND KEY AT JUMBE CHAURO

 This is the general way of closing a house. The Makonde at Jumbe
Chauro, however, have a much more complicated, solid and original
one. Here, too, the door is as already described, except that there is
only one post on the inside, standing by itself about six inches from
one side of the doorway. Opposite this post is a hole in the wall just
large enough to admit a man’s arm. The door is closed inside by a
large wooden bolt passing through a hole in this post and pressing
with its free end against the door. The other end has three holes into
which fit three pegs running in vertical grooves inside the post. The
door is opened with a wooden key about a foot long, somewhat
curved and sloped off at the butt; the other end has three pegs
corresponding to the holes, in the bolt, so that, when it is thrust
through the hole in the wall and inserted into the rectangular
opening in the post, the pegs can be lifted and the bolt drawn out.[50]

MODE OF INSERTING THE KEY

With no small pride first one householder and then a second

showed me on the spot the action of this greatest invention of the
Makonde Highlands. To both with an admiring exclamation of
“Vizuri sana!” (“Very fine!”). I expressed the wish to take back these
marvels with me to Ulaya, to show the Wazungu what clever fellows
the Makonde are. Scarcely five minutes after my return to camp at
Newala, the two men came up sweating under the weight of two
heavy logs which they laid down at my feet, handing over at the same
time the keys of the fallen fortress. Arguing, logically enough, that if
the key was wanted, the lock would be wanted with it, they had taken
their axes and chopped down the posts—as it never occurred to them
to dig them out of the ground and so bring them intact. Thus I have
two badly damaged specimens, and the owners, instead of praise,
come in for a blowing-up.
The Makua huts in the environs of Newala are especially
miserable; their more than slovenly construction reminds one of the
temporary erections of the Makua at Hatia’s, though the people here
have not been concerned in a war. It must therefore be due to
congenital idleness, or else to the absence of a powerful chief. Even
the baraza at Mlipa’s, a short hour’s walk south-east of Newala,
shares in this general neglect. While public buildings in this country
are usually looked after more or less carefully, this is in evident
danger of being blown over by the first strong easterly gale. The only
attractive object in this whole district is the grave of the late chief
Mlipa. I visited it in the morning, while the sun was still trying with
partial success to break through the rolling mists, and the circular
grove of tall euphorbias, which, with a broken pot, is all that marks
the old king’s resting-place, impressed one with a touch of pathos.
Even my very materially-minded carriers seemed to feel something
of the sort, for instead of their usual ribald songs, they chanted
solemnly, as we marched on through the dense green of the Makonde
bush:—
 “We shall arrive with the great master; we stand in a row and have
no fear about getting our food and our money from the Serkali (the
Government). We are not afraid; we are going along with the great
master, the lion; we are going down to the coast and back.”
With regard to the characteristic features of the various tribes here
on the western edge of the plateau, I can arrive at no other
conclusion than the one already come to in the plain, viz., that it is
impossible for anyone but a trained anthropologist to assign any
given individual at once to his proper tribe. In fact, I think that even
an anthropological specialist, after the most careful examination,
might find it a difficult task to decide. The whole congeries of peoples
collected in the region bounded on the west by the great Central
African rift, Tanganyika and Nyasa, and on the east by the Indian
Ocean, are closely related to each other—some of their languages are
only distinguished from one another as dialects of the same speech,
and no doubt all the tribes present the same shape of skull and
structure of skeleton. Thus, surely, there can be no very striking
differences in outward appearance.
 Even did such exist, I should have no time
to concern myself with them, for day after day,
I have to see or hear, as the case may be—in
any case to grasp and record—an
extraordinary number of ethnographic
phenomena. I am almost disposed to think it
fortunate that some departments of inquiry, at
least, are barred by external circumstances.
Chief among these is the subject of iron-
working. We are apt to think of Africa as a
country where iron ore is everywhere, so to
speak, to be picked up by the roadside, and
where it would be quite surprising if the
inhabitants had not learnt to smelt the
material ready to their hand. In fact, the
knowledge of this art ranges all over the
continent, from the Kabyles in the north to the
Kafirs in the south. Here between the Rovuma
and the Lukuledi the conditions are not so
favourable. According to the statements of the
Makonde, neither ironstone nor any other
form of iron ore is known to them. They have
not therefore advanced to the art of smelting
the metal, but have hitherto bought all their
THE ANCESTRESS OF
THE MAKONDE
iron implements from neighbouring tribes.
Even in the plain the inhabitants are not much
better off. Only one man now living is said to
understand the art of smelting iron. This old fundi lives close to
Huwe, that isolated, steep-sided block of granite which rises out of
the green solitude between Masasi and Chingulungulu, and whose
jagged and splintered top meets the traveller’s eye everywhere. While
still at Masasi I wished to see this man at work, but was told that,
frightened by the rising, he had retired across the Rovuma, though
he would soon return. All subsequent inquiries as to whether the
fundi had come back met with the genuine African answer, “Bado”
(“Not yet”).
 BRAZIER

Some consolation was afforded me by a brassfounder, whom I

came across in the bush near Akundonde’s. This man is the favourite
of women, and therefore no doubt of the gods; he welds the glittering
brass rods purchased at the coast into those massive, heavy rings
which, on the wrists and ankles of the local fair ones, continually give
me fresh food for admiration. Like every decent master-craftsman he
had all his tools with him, consisting of a pair of bellows, three
crucibles and a hammer—nothing more, apparently. He was quite
willing to show his skill, and in a twinkling had fixed his bellows on
the ground. They are simply two goat-skins, taken off whole, the four
legs being closed by knots, while the upper opening, intended to
admit the air, is kept stretched by two pieces of wood. At the lower
end of the skin a smaller opening is left into which a wooden tube is
stuck. The fundi has quickly borrowed a heap of wood-embers from
the nearest hut; he then fixes the free ends of the two tubes into an
earthen pipe, and clamps them to the ground by means of a bent
piece of wood. Now he fills one of his small clay crucibles, the dross
on which shows that they have been long in use, with the yellow
material, places it in the midst of the embers, which, at present are
only faintly glimmering, and begins his work. In quick alternation
the smith’s two hands move up and down with the open ends of the
bellows; as he raises his hand he holds the slit wide open, so as to let
the air enter the skin bag unhindered. In pressing it down he closes
the bag, and the air puffs through the bamboo tube and clay pipe into
the fire, which quickly burns up. The smith, however, does not keep
on with this work, but beckons to another man, who relieves him at
the bellows, while he takes some more tools out of a large skin pouch
carried on his back. I look on in wonder as, with a smooth round
stick about the thickness of a finger, he bores a few vertical holes into
the clean sand of the soil. This should not be difficult, yet the man
seems to be taking great pains over it. Then he fastens down to the
ground, with a couple of wooden clamps, a neat little trough made by
splitting a joint of bamboo in half, so that the ends are closed by the
two knots. At last the yellow metal has attained the right consistency,
and the fundi lifts the crucible from the fire by means of two sticks
split at the end to serve as tongs. A short swift turn to the left—a
tilting of the crucible—and the molten brass, hissing and giving forth
clouds of smoke, flows first into the bamboo mould and then into the
holes in the ground.
The technique of this backwoods craftsman may not be very far
advanced, but it cannot be denied that he knows how to obtain an
adequate result by the simplest means. The ladies of highest rank in
this country—that is to say, those who can afford it, wear two kinds
of these massive brass rings, one cylindrical, the other semicircular
in section. The latter are cast in the most ingenious way in the
bamboo mould, the former in the circular hole in the sand. It is quite
a simple matter for the fundi to fit these bars to the limbs of his fair
customers; with a few light strokes of his hammer he bends the
pliable brass round arm or ankle without further inconvenience to
the wearer.
SHAPING THE POT

SMOOTHING WITH MAIZE-COB

CUTTING THE EDGE

 FINISHING THE BOTTOM

LAST SMOOTHING BEFORE

BURNING

FIRING THE BRUSH-PILE

 LIGHTING THE FARTHER SIDE OF
THE PILE

TURNING THE RED-HOT VESSEL

NYASA WOMAN MAKING POTS AT MASASI

Pottery is an art which must always and everywhere excite the
interest of the student, just because it is so intimately connected with
the development of human culture, and because its relics are one of
the principal factors in the reconstruction of our own condition in
prehistoric times. I shall always remember with pleasure the two or
three afternoons at Masasi when Salim Matola’s mother, a slightly-
built, graceful, pleasant-looking woman, explained to me with
touching patience, by means of concrete illustrations, the ceramic art
of her people. The only implements for this primitive process were a
lump of clay in her left hand, and in the right a calabash containing
the following valuables: the fragment of a maize-cob stripped of all
its grains, a smooth, oval pebble, about the size of a pigeon’s egg, a
few chips of gourd-shell, a bamboo splinter about the length of one’s
hand, a small shell, and a bunch of some herb resembling spinach.
 Nothing more. The woman scraped with the
shell a round, shallow hole in the soft, fine
sand of the soil, and, when an active young
girl had filled the calabash with water for her,
she began to knead the clay. As if by magic it
gradually assumed the shape of a rough but
already well-shaped vessel, which only wanted
a little touching up with the instruments
before mentioned. I looked out with the
MAKUA WOMAN closest attention for any indication of the use
MAKING A POT. of the potter’s wheel, in however rudimentary
SHOWS THE a form, but no—hapana (there is none). The
BEGINNINGS OF THE embryo pot stood firmly in its little
POTTER’S WHEEL
depression, and the woman walked round it in
a stooping posture, whether she was removing
small stones or similar foreign bodies with the maize-cob, smoothing
the inner or outer surface with the splinter of bamboo, or later, after
letting it dry for a day, pricking in the ornamentation with a pointed
bit of gourd-shell, or working out the bottom, or cutting the edge
with a sharp bamboo knife, or giving the last touches to the finished
vessel. This occupation of the women is infinitely toilsome, but it is
without doubt an accurate reproduction of the process in use among
our ancestors of the Neolithic and Bronze ages.
There is no doubt that the invention of pottery, an item in human
progress whose importance cannot be over-estimated, is due to
women. Rough, coarse and unfeeling, the men of the horde range
over the countryside. When the united cunning of the hunters has
succeeded in killing the game; not one of them thinks of carrying
home the spoil. A bright fire, kindled by a vigorous wielding of the
drill, is crackling beside them; the animal has been cleaned and cut
up secundum artem, and, after a slight singeing, will soon disappear
under their sharp teeth; no one all this time giving a single thought
to wife or child.
To what shifts, on the other hand, the primitive wife, and still more
the primitive mother, was put! Not even prehistoric stomachs could
endure an unvarying diet of raw food. Something or other suggested
the beneficial effect of hot water on the majority of approved but
indigestible dishes. Perhaps a neighbour had tried holding the hard
roots or tubers over the fire in a calabash filled with water—or maybe
an ostrich-egg-shell, or a hastily improvised vessel of bark. They
became much softer and more palatable than they had previously
been; but, unfortunately, the vessel could not stand the fire and got
charred on the outside. That can be remedied, thought our
ancestress, and plastered a layer of wet clay round a similar vessel.
This is an improvement; the cooking utensil remains uninjured, but
the heat of the fire has shrunk it, so that it is loose in its shell. The
next step is to detach it, so, with a firm grip and a jerk, shell and
kernel are separated, and pottery is invented. Perhaps, however, the
discovery which led to an intelligent use of the burnt-clay shell, was
made in a slightly different way. Ostrich-eggs and calabashes are not
to be found in every part of the world, but everywhere mankind has
arrived at the art of making baskets out of pliant materials, such as
bark, bast, strips of palm-leaf, supple twigs, etc. Our inventor has no
water-tight vessel provided by nature. “Never mind, let us line the
basket with clay.” This answers the purpose, but alas! the basket gets
burnt over the blazing fire, the woman watches the process of
cooking with increasing uneasiness, fearing a leak, but no leak
appears. The food, done to a turn, is eaten with peculiar relish; and
the cooking-vessel is examined, half in curiosity, half in satisfaction
at the result. The plastic clay is now hard as stone, and at the same
time looks exceedingly well, for the neat plaiting of the burnt basket
is traced all over it in a pretty pattern. Thus, simultaneously with
pottery, its ornamentation was invented.
Primitive woman has another claim to respect. It was the man,
roving abroad, who invented the art of producing fire at will, but the
woman, unable to imitate him in this, has been a Vestal from the
earliest times. Nothing gives so much trouble as the keeping alight of
the smouldering brand, and, above all, when all the men are absent
from the camp. Heavy rain-clouds gather, already the first large
drops are falling, the first gusts of the storm rage over the plain. The
little flame, a greater anxiety to the woman than her own children,
flickers unsteadily in the blast. What is to be done? A sudden thought
occurs to her, and in an instant she has constructed a primitive hut
out of strips of bark, to protect the flame against rain and wind.
This, or something very like it, was the way in which the principle
of the house was discovered; and even the most hardened misogynist
cannot fairly refuse a woman the credit of it. The protection of the
hearth-fire from the weather is the germ from which the human
dwelling was evolved. Men had little, if any share, in this forward
step, and that only at a late stage. Even at the present day, the
plastering of the housewall with clay and the manufacture of pottery
are exclusively the women’s business. These are two very significant
survivals. Our European kitchen-garden, too, is originally a woman’s
invention, and the hoe, the primitive instrument of agriculture, is,
characteristically enough, still used in this department. But the
noblest achievement which we owe to the other sex is unquestionably
the art of cookery. Roasting alone—the oldest process—is one for
which men took the hint (a very obvious one) from nature. It must
have been suggested by the scorched carcase of some animal
overtaken by the destructive forest-fires. But boiling—the process of
improving organic substances by the help of water heated to boiling-
point—is a much later discovery. It is so recent that it has not even
yet penetrated to all parts of the world. The Polynesians understand
how to steam food, that is, to cook it, neatly wrapped in leaves, in a
hole in the earth between hot stones, the air being excluded, and
(sometimes) a few drops of water sprinkled on the stones; but they
do not understand boiling.
To come back from this digression, we find that the slender Nyasa
woman has, after once more carefully examining the finished pot,
put it aside in the shade to dry. On the following day she sends me
word by her son, Salim Matola, who is always on hand, that she is
going to do the burning, and, on coming out of my house, I find her
already hard at work. She has spread on the ground a layer of very
dry sticks, about as thick as one’s thumb, has laid the pot (now of a
yellowish-grey colour) on them, and is piling brushwood round it.
My faithful Pesa mbili, the mnyampara, who has been standing by,
most obligingly, with a lighted stick, now hands it to her. Both of
them, blowing steadily, light the pile on the lee side, and, when the
flame begins to catch, on the weather side also. Soon the whole is in a
blaze, but the dry fuel is quickly consumed and the fire dies down, so
that we see the red-hot vessel rising from the ashes. The woman
turns it continually with a long stick, sometimes one way and
sometimes another, so that it may be evenly heated all over. In
twenty minutes she rolls it out of the ash-heap, takes up the bundle
of spinach, which has been lying for two days in a jar of water, and
sprinkles the red-hot clay with it. The places where the drops fall are
marked by black spots on the uniform reddish-brown surface. With a
sigh of relief, and with visible satisfaction, the woman rises to an
erect position; she is standing just in a line between me and the fire,
from which a cloud of smoke is just rising: I press the ball of my
camera, the shutter clicks—the apotheosis is achieved! Like a
priestess, representative of her inventive sex, the graceful woman
stands: at her feet the hearth-fire she has given us beside her the
invention she has devised for us, in the background the home she has
built for us.
At Newala, also, I have had the manufacture of pottery carried on
in my presence. Technically the process is better than that already
described, for here we find the beginnings of the potter’s wheel,
which does not seem to exist in the plains; at least I have seen
nothing of the sort. The artist, a frightfully stupid Makua woman, did
not make a depression in the ground to receive the pot she was about
to shape, but used instead a large potsherd. Otherwise, she went to
work in much the same way as Salim’s mother, except that she saved
herself the trouble of walking round and round her work by squatting
at her ease and letting the pot and potsherd rotate round her; this is
surely the first step towards a machine. But it does not follow that
the pot was improved by the process. It is true that it was beautifully
rounded and presented a very creditable appearance when finished,
but the numerous large and small vessels which I have seen, and, in
part, collected, in the “less advanced” districts, are no less so. We
moderns imagine that instruments of precision are necessary to
produce excellent results. Go to the prehistoric collections of our
museums and look at the pots, urns and bowls of our ancestors in the
dim ages of the past, and you will at once perceive your error.
MAKING LONGITUDINAL CUT IN
BARK

DRAWING THE BARK OFF THE LOG

REMOVING THE OUTER BARK

 BEATING THE BARK

WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

SOFT

MANUFACTURE OF BARK-CLOTH AT NEWALA

To-day, nearly the whole population of German East Africa is
clothed in imported calico. This was not always the case; even now in
some parts of the north dressed skins are still the prevailing wear,
and in the north-western districts—east and north of Lake
Tanganyika—lies a zone where bark-cloth has not yet been
superseded. Probably not many generations have passed since such
bark fabrics and kilts of skins were the only clothing even in the
south. Even to-day, large quantities of this bright-red or drab
material are still to be found; but if we wish to see it, we must look in
the granaries and on the drying stages inside the native huts, where
it serves less ambitious uses as wrappings for those seeds and fruits
which require to be packed with special care. The salt produced at
Masasi, too, is packed for transport to a distance in large sheets of
bark-cloth. Wherever I found it in any degree possible, I studied the
process of making this cloth. The native requisitioned for the
purpose arrived, carrying a log between two and three yards long and
as thick as his thigh, and nothing else except a curiously-shaped
mallet and the usual long, sharp and pointed knife which all men and
boys wear in a belt at their backs without a sheath—horribile dictu!
[51]
Silently he squats down before me, and with two rapid cuts has
drawn a couple of circles round the log some two yards apart, and
slits the bark lengthwise between them with the point of his knife.
With evident care, he then scrapes off the outer rind all round the
log, so that in a quarter of an hour the inner red layer of the bark
shows up brightly-coloured between the two untouched ends. With
some trouble and much caution, he now loosens the bark at one end,
and opens the cylinder. He then stands up, takes hold of the free
edge with both hands, and turning it inside out, slowly but steadily
pulls it off in one piece. Now comes the troublesome work of
scraping all superfluous particles of outer bark from the outside of
the long, narrow piece of material, while the inner side is carefully
scrutinised for defective spots. At last it is ready for beating. Having
signalled to a friend, who immediately places a bowl of water beside
him, the artificer damps his sheet of bark all over, seizes his mallet,
lays one end of the stuff on the smoothest spot of the log, and
hammers away slowly but continuously. “Very simple!” I think to
myself. “Why, I could do that, too!”—but I am forced to change my
opinions a little later on; for the beating is quite an art, if the fabric is
not to be beaten to pieces. To prevent the breaking of the fibres, the
stuff is several times folded across, so as to interpose several
thicknesses between the mallet and the block. At last the required
state is reached, and the fundi seizes the sheet, still folded, by both
ends, and wrings it out, or calls an assistant to take one end while he
holds the other. The cloth produced in this way is not nearly so fine
and uniform in texture as the famous Uganda bark-cloth, but it is
quite soft, and, above all, cheap.
Now, too, I examine the mallet. My craftsman has been using the
simpler but better form of this implement, a conical block of some
hard wood, its base—the striking surface—being scored across and
across with more or less deeply-cut grooves, and the handle stuck
into a hole in the middle. The other and earlier form of mallet is
shaped in the same way, but the head is fastened by an ingenious
network of bark strips into the split bamboo serving as a handle. The
observation so often made, that ancient customs persist longest in
connection with religious ceremonies and in the life of children, here
finds confirmation. As we shall soon see, bark-cloth is still worn
during the unyago,[52] having been prepared with special solemn
ceremonies; and many a mother, if she has no other garment handy,
will still put her little one into a kilt of bark-cloth, which, after all,
looks better, besides being more in keeping with its African
surroundings, than the ridiculous bit of print from Ulaya.
MAKUA WOMEN