Criminal Evidence Principles and Cases 9th Edition Ebook PDF

Criminal Evidence: Principles and
Cases 9th Edition, (Ebook PDF)

Visit to download the full and correct content document:
https://ebookmass.com/product/criminal-evidence-principles-and-cases-9th-edition-eb
ook-pdf/
vi Contents
Silence, Miranda, and Impeachment 297

The Sixth Amendment Right to Counsel and the Massiah Limitation 301
The Bruton Rule 304
Questioning People in Jail or Prison, Including Using Informants and Undercover Agents 306
Polygraph Test Results as Evidence 307
Voice Spectrography Evidence 311
SUMMARY, KEY TERMS, KEY CASES, PROBLEMS, CASE ANALYSIS, NOTES 311
Chapter 13 The Law Governing Identification Evidence 317

Evidence Needed for a Criminal Conviction 318
The Problem of Mistaken Eyewitness Identification 319
U.S. Supreme Court Cases on Showups 324
Determining the Reliability of Identification Evidence: The Neil v. Biggers Guidelines 325
The Use of Police Lineups: Changes from the 1960s to the Present 329
Using Photographs to Obtain Identification Evidence 331
Obtaining Identification Evidence by Other Means 332
Courtroom Identification of a Defendant 335
Chapter 14 Obtaining Physical and Other Evidence 343

Obtaining Physical Evidence from the Person of a Suspect 344
Searches Without Warrants: Detentions and Arrests 351
Obtaining Evidence by Police Entry into Private Premises 360
Obtaining Evidence in Traffic Stops and Vehicle Searches 366
Chapter 15 Obtaining Evidence by Use of Search Warrants, from Computers,

Wiretapping, or Dogs Trained to Indicate an Alert 383
Search Warrants 384
Obtaining Evidence from Computers 391
Wiretapping and Electronic Surveillance 396
Techniques of Lawful Electronic Surveillance 400
Obtaining Evidence by the Use of Dogs Trained to Indicate an Alert 412
PART 4 CRIME-SCENE, DOCUMENTARY, AND SCIENTIFIC EVIDENCE

Chapter 16 The Crime Scene, the Chain of Custody Requirement, and the Use of
Fingerprints and Trace Evidence 421
Obtaining Evidence from a Crime Scene 422
The Chain of Custody Requirement 431
Fingerprints as Evidence 433
Trace Evidence: The Smallest Things Can Make the Biggest Difference 437
Other Types of Evidence 438
Copyright 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s).
Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Contents vii
Chapter 17 Videotapes, Photographs, Documents, and Writings as Evidence 447

Photos and Videotapes as Evidence 448
When is a Warrant Needed to Install and Conduct Videotape Surveillance? 449
Using Photographs as Evidence 452
Using Documents and Writings as Evidence 456
SUMMARY, KEY TERMS, PROBLEMS, CASE ANALYSIS, NOTES 463
Chapter 18 Scientific Evidence 467

The Importance of Scientific Evidence 468
The Admissibility of Scientific Evidence 469
A Few of the Sciences and Scientific Techniques Used in the Criminal Justice System 475
Gunshot Residue Evidence (GSR) 488
Appendix A Sections of the U.S. Constitution 497

Appendix B Finding and Analyzing Cases 499
Appendix C Federal Rules of Evidence 501
Glossary 519
Case Index 524
Subject Index 531
PREFACE
In 1791, just four years after the writing of the U.S. Constitution, representatives
from the original thirteen states ratified the first ten amendments to the Constitution.
These amendments, collectively called the Bill of Rights, reflect concerns of the
Founding Fathers that the strong, central federal government would usurp rights
then enjoyed in the American states. Although the first American Congress consid-
ered more than 145 proposed amendments to the Constitution, the ten that were
adopted established the core of basic individual rights in the United States. Relevant
selections from the Constitution and the Bill of Rights appear in Appendix A.
The Bill of Rights, as interpreted by the U.S. Supreme Court and state courts,
has historically been the basis for the rules of evidence used in criminal trials in the
United States. The federal government has promulgated the Federal Rules of Evi-
dence, which many states have adopted outright or used as a pattern for their rules
of evidence. These rules incorporate more than 200 years of judicial and legislative
debate on the proper evidentiary rules to be used in court trials in the United States.
We have added, as Appendix C, the most recent version of the Federal Rules of Evi-
dence, which were amended effective December 1, 2011, to be more readable and
understandable. Today, as in 1791, the Bill of Rights continues to be the beginning
point for an understanding of the rules of evidence in criminal trials.
In criminal trials, rules of evidence have as a primary goal securing a defen-
dant’s constitutional right to a fair trial. What is meant by a “fair trial” has varied
over the years. What was considered a fair trial in the witchcraft trials in Salem,
Massachusetts, in 1692 would not be regarded as such in any democratic nation
in the world today. Most of the evidence introduced in those trials, as a result of
which nineteen people were executed, would not be admissible today under the
Bill of Rights and the Federal Rules of Evidence.
Rules of evidence are not only important for the protection of the fundamental
rights of persons accused of crimes, but also are necessary in seeking to secure the
interests of the American public in an efficient and effective criminal justice system.
To accomplish those goals, a necessary trade-off must be made between the protec-
tion of individual rights and judicial efficiency. Understanding this trade-off adds
greatly to the student’s appreciation of the dynamics of the criminal justice system.
As in previous editions, we continue in this edition to try to identify this trade-off
between the legitimate requirements of an efficient criminal justice system and indi-
vidual rights.
ORGANIZATION OF THE BOOK

This book is divided into eighteen chapters and organized into four parts. Part 1,
which includes Chapters 1–4, focuses on the historical basis for the American crimi-
nal justice system and evidentiary rules. Part 2 (Chapters 5–8) examines in detail
the role of witnesses in that system. In Part 3 (Chapters 9–15) we discuss some
of the many facets of the exclusionary rule and related issues, such as the use of
ix
x Preface
confessions, the legal requirements for searches and seizures, and the “special
needs” rules. In Part 4 (Chapters 16–18) we concentrate on the techniques used in
gathering evidence for use in criminal trials and the legal rules to which those techni-
ques must conform.
NEW TO THIS EDITION

In the ninth edition we strive to present the key rules of evidence, the rationale
behind these rules, and the applicability of these rules in criminal prosecutions in a
manner that is not encyclopedic or overwhelming to the student. We hope the text’s
clear explanations, accessible writing style, coverage of current issues, and numerous
pedagogical aids combine to help students understand and be engaged by complex
legal topics. Toward this same end, we use interesting, news-based examples wher-
ever possible to help students understand and retain concepts. Boxes and charts are
extensively incorporated to illustrate new and important developments in the rules
of criminal evidence. Case discussions help add detail to the judicial decision-making
process. Learning how laws evolve helps students to understand the laws themselves.
We have retained changes we made to the eighth edition of Criminal Evidence.
These include revised Learning Objectives, which will help professors and students
target specific subjects, and a “bullet” approach to chapter-ending summaries that
attempts to align the summaries with the learning objectives. We also highlight the
“Key Terms” feature by including them at the end of each chapter, together with a
related feature, “Key Cases,” which lists some of the important cases discussed in
each chapter. We have retained the chapter-ending problems in all the chapters. We
have retained the “Case Analysis” feature in this edition, and in all chapters we have
added more recent cases to the feature.
The text addresses up-to-the-minute topics such as obtaining evidence from
computers and smartphones, attaching GPS tracking devices to automobiles, and
using social media like Facebook as evidence in criminal trials. The topic of search
and seizure has been expanded, and historical coverage has been streamlined
throughout the text. Subjects that have traditionally been confusing, such as the dis-
cussion of husband-wife privilege, have been retooled to be as clear to students as
possible. We continue to try to improve the materials in certain key chapters, such
as Chapters 8–10, and 14, which have in the past proved difficult for students to
master. In this edition we discuss important recent changes to the subjects discussed
in those chapters, and we continue to try to make that material more understand-
able to our readers. Where possible, we have incorporated recent developments that
will be of interest to students who are associated with law enforcement.
We have added a new feature to many of the chapters in the ninth edition.
Titled “You Be the Judge,” this feature invites students to don the trial judge’s robe
and decide motions to admit or exclude evidence. Trial judges are routinely asked to
decide difficult questions on admissibility of evidence, and we hope students will
profit from doing the same.
In addition to the enhancements listed above, and the substantial changes to the
eighth edition retained in this edition, the ninth edition also features the following
chapter-by-chapter changes:
• In Chapter 1 we expanded the discussion of how federal courts handle habeas
petitions, based on requests from some of those who use our book. This includes
Preface xi
a 2011 Supreme Court case on the subject. We updated boxes, such as the
enemy combatant and 48-hour boxes, as well as the sections on the presumption
of innocence and speedy trial doctrine. We included a 2013 case that is very
helpful on how courts determine if the speedy trial right has been infringed. We
also included two 2012 Supreme Court cases on when and how claims of inef-
fective assistance of counsel should be considered in criminal appeals.
• In Chapter 2 we updated several cases, like the Bond case mentioned in the
box on the Tenth Amendment and Individual Rights. The Supreme Court con-
sidered the underlying criminal case in Bond in 2013. We also updated the
SORNA material with a 2013 Supreme Court case that gave a partial answer
to the power of Congress to pass legislation like SORNA. Our first “You Be
the Judge” box appears in this chapter.
• In Chapter 3 we expanded, in various parts of the chapter, our discussion of
guilty pleas. For example, we updated the fast-track plea box to reflect the Jus-
tice Department’s plan, announced in 2012, to make such pleas available in all
districts for re-entry prosecutions. We added a new box that discusses the abil-
ity of a defendant to withdraw a guilty plea. We deleted old and added new
cases on nolo contendere pleas, and added a new case on the consequences of
making an Alford plea. One of the case analysis assignments invites students
to study two recent Supreme Court cases and see how the Court is split on
some important issues.
• As the new vignette in Chapter 4 illustrates, we are using this feature as more
of a discussion tool, and less of a current example exposition. We rewrote
many sections in this chapter to improve understanding, including the “bad
acts” rules. Recent legislative acts and court decisions have made changes in
the admissibility of that type of evidence in sexual assaults. We also expanded
the section on silence/self-incrimination to include a 2013 Supreme Court case
on the subject, as well as 2013 federal cases that show how the rules about
use of a defendant’s silence have developed. We added a “You Be the Judge”
box to include “Be the Jury” in a 2012 murder case.
• In Chapter 5, in response to helpful suggestions from our readers, we
expanded the voir dire section to make it clearer. We also added a new subsec-
tion, “Vouching”, as a limit on permissible testimony of a witness. We discuss
at some length the practice of using police officers as both expert and lay wit-
nesses, and include a “You Be a Judge” box on that issue.
• In Chapter 6 we clarified the attorney-client privilege where a third party was
present during a communication. We also added a new box on the survival of
the attorney-client privilege following the death of the client. We expanded the
discussion of the crime/fraud exception to the attorney-client privilege, with a
new case showing how judges respond to claims the privilege should be lost.
We added a “You Be the Judge” box on the psychotherapist-patient privilege.
• The Confrontation Clause jurisprudence continues to evolve, as the Sup-
reme Court and lower courts provide guidance on the “testimonial” vs. “non-
testimonial” distinction. In Chapter 8 we added a new box that provides
guides to students seeking Confrontation Clause solutions. We address specific
examples of the testimonial-non-testimonial hearsay problem, including the
2012 Supreme Court decision on forensics reports as hearsay; a new box on
autopsy reports; the child-sexual abuse exception; and examples of hearsay tes-
timony that is non-testimonial, and thus not subject to the Confrontation
Clause.
xii Preface
• In Chapter 9 we rewrote the text’s historical exposition of the exclusionary

rule, in response to helpful suggestions from some of our readers. If, as many
believe, the role of the exclusionary rule is changing, it is important that stu-
dents see its origins. We have a “You Be the Judge” box in this chapter that
focuses on live witness testimony as derivative evidence for purposes of the
exclusionary rule.
• In Chapter 10 we highlight the 2014 Supreme Court case that places limits on
the ability of a co-resident, under Georgia v. Randolph, to prohibit another
co-resident to give consent to search their shared residence. We added a new
box on abandoned real estate for search purposes, and added new cases on
what constitutes a private search. We added a new section on good faith and
changes in the law. A number of courts have considered whether the good
faith exception to the exclusionary rule first identified in United States v. Leon
should apply to good faith reliance by police officers on existing practices that
subsequently are held invalid by a reviewing court. We discuss those cases.
• In Chapter 11 we updated many sections with recent cases. These include the
sections on random searches of luggage at airports, school searches of students’
backpacks and cell phones, and sham roadblocks. We also discuss the 2013 deci-
sion of the Supreme Court on collection of DNA samples in Maryland v. King.
• In response to requests from some readers, we have added materials to the cor-
pus delicti rule section in Chapter 12. Specifically, we have a new box, “Making
Sense of the Corpus Delicti Rule,” that examines problems for courts in those
states that retain the requirement of corroborating evidence in cases of confes-
sions of child sexual abuse. We focus on two recent Illinois Supreme Court
cases, and ask students to compare the results in those cases. Our “You Be the
Judge” box in this chapter invites students to make the voluntary-involuntary
decision for the admissibility of confessions in several situations taken from
recent cases. We retitled the section on invoking the Fifth Amendment right to
remain silent, and discuss several recent cases that highlight the need for those
in custody to clearly invoke the right to remain silent. We deleted older cases
and added four new cases that illustrate how the public safety exception is
applied to pre-Miranda questioning. Finally, we extensively rewrote the Silence,
Miranda, and Impeachment section, and added a chart that explains how and
when silence of a defendant may be used in a criminal trial.
• In Chapter 13 we deleted the chapter-opening photograph of a police lineup.
As one reader suggested, it created the wrong impression of how a lineup is
done. We hope the photograph in this edition is better. We added, at various
places, new cases on how courts are treating eyewitness identification evidence,
and expert testimony about the limits of such testimony.
• The vignette that opens Chapter 14 updates the status of the New York Police
Department’s controversial stop-and-frisk policy. We extensively rewrote
the section on Terry stops based on reasonable suspicion. We hope we better
show the difference between reasonable suspicion and probable cause, and to
that end include recent cases that analyze the requirement in the context of
common police operations. We also discuss the 2014 Supreme Court decision in
Navarette v. California on anonymous 911 callers and reasonable suspicion.
The “You Be the Judge” box in this chapter asks students to evaluate the
quantum of suspicion police had in several settings, and decide if evidence
discovered should be excluded. Under a new section title, “Searches without
Preface xiii
Warrants: Detentions and Arrests”, we reorganized materials that previously

appeared under several different titles. We hope the reorganization makes this
area more understandable. We added important recent Supreme Court decisions
on police actions without warrants: the 2014 decision in Riley v. California for
searches of cell phones incident to an arrest; the 2013 decision in Missouri v.
McNeeley on nonconsensual blood samples in DUI arrests; and the 2013 deci-
sion in United States v. Bailey on detentions, without probable cause or reason-
able suspicion, of persons leaving premises subject to a search warrant.
• We reorganized the material in Chapter 15 so that search warrants come
before, rather than after, computer searches. That seems more logical. We
added recent cases to the section on extended detention of articles lawfully
seized to focus on the permissible length of such detentions. The “You Be the
Judge” box for this chapter examines the technical requirements for getting a
search warrant, and asks students to respond to challenges by a defendant
that the search warrant was not properly obtained or issued. We added new
cases on computer search protocols, a subject courts continue to find vexing.
We also added cases decided after California v. Riley that distinguish between
a search of a cell phone and other ways a suspect’s cell phone may be used by
police. We greatly expanded the section on state and federal wiretapping laws,
with cases illustrating when evidence will be excluded for violation of those
laws. Finally, we continue to add cases that discuss the introduction and
authentication of evidence obtained from social media locations.
• As suggested by a reader, we added cases on “staging” crime scenes to
Chapter 16’s discussion of the crime scene and chain of custody. For similar
reasons, we included a summary of what most experts regard as the mistakes
in the crime scene and chain of custody requirements made by the prosecution
in the Casey Anthony trial.
• In Chapter 17 the new vignette looks at the ubiquitous use of cell phones as
video recorders, and how a video can be used in the prosecution of crimes cap-
tured in the video. We also added a new box on the crime of “video voyeur-
ism,” with a 2014 case showing how that crime is committed and proved.
• In Chapter 18 we updated the section on DNA testing in light of the Supreme
Court’s decision in Maryland v. King. We also added new information on famil-
ial DNA searches. We updated CODIS statistics, and highlighted some of the
recent scandals at private and state-run crime labs.
ANCILLARIES FOR THE INSTRUCTOR

Instructor’s Resource Manual With Test Bank
An improved and completely updated Instructor’s Resource Manual with Test Bank
is available. The manual includes learning objectives, detailed chapter outlines and
summaries, key terms, and Internet resources. Each chapter’s test bank contains ques-
tions in multiple-choice, true/false, fill-in-the-blank, and essay formats, with a full
answer key. The test bank is coded to the learning objectives that appear in the main
text and includes the section titles in the main text where the answers can be found.
Finally, each question in the test bank has been carefully reviewed by experienced
criminal justice instructors for quality, accuracy, and content coverage.
xiv Preface
The manual is available for download on the password-protected website and

can also be obtained by e-mailing your local Cengage Learning representative.
Cengage Learning Testing

Powered by Cognero, the accompanying assessment tool is a flexible, online system
that allows you to
• Import, edit, and manipulate test bank content from the Gardner/Anderson test
bank or elsewhere, including your own favorite test questions.
• Create ideal assessments with your choice of fifteen question types (including
true/false, multiple choice, opinion scale/likert, and essay).
• Create multiple test versions in an instant using drop-down menus and famil-
iar, intuitive tools that take you through content creation and management
with ease.
• Deliver tests from your LMS, your classroom, or wherever you want— and
import and export content into other systems as needed.
PowerPoint® Lecture Slides

These handy Microsoft® PowerPoint® slides, which outline the chapters of the
main text in a classroom-ready presentation, will help you in making your lectures
engaging and in reaching your visually oriented students. Newly revised, the presen-
tations are available for download on the password-protected website and can also
be obtained by e-mailing your local Cengage Learning representative.
ANCILLARIES FOR THE STUDENT

CourseMate
Cengage Learning’s Criminal Justice CourseMate brings course concepts to life with
interactive learning, study, and exam preparation tools that support the printed
textbook. CourseMate includes an integrated eBook, quizzes mapped to chapter
learning objectives, flashcards, videos, and more, and EngagementTracker, a first-
of-its-kind tool that monitors student engagement in the course. The accompanying
instructor website offers access to password-protected resources such as an elec-
tronic version of the instructor’s manual and PowerPoint® slides.
ACKNOWLEDGMENTS
We would like to thank the many reviewers of the eighth and previous editions for
their thoughtful suggestions and gracious comments on the organization and sub-
ject matter of our book. They are Ken Aud, Oakland Community College; Don
Bernardi, Illinois State University; Tim Bragg, Mississippi County Community
College; Mark S. Brown, University of South Carolina; Marjie Britz, The Citadel;
Valerie Brown, DeKalb Technical College; Harry Bruno, Thomas College; Tod W.
Burke, Radford University; Eric Burnham, Denmark Technical College; John Clark,
University of Texas at Tyler; Elaine F. Cohen, Broward College; Milo Colton,
St. Mary’s University; Jean Comley, Ball State University; Chris De Lay, University
Preface xv
of Louisiana at Lafayette; Jim Doyle, Chaffey College; Janine Ferraro, Nassau Com-
munity College; Michael Goodwin, Solano Community College; John Grimes, Uni-
versity of Alabama at Birmingham; Don V. Haley, Tidewater Community College;
Craig Hemmens, Boise State University; Taiping Ho, Ball State University; Maria F.
Howell, Stevenson University; Marianne Hudson, College of Western Idaho; Pearl
Jacobs, Sacred Heart University; Carolyn Johnson, Stevenson University; David
Jones, University of Wisconsin, Oshkosh; Mark A. Jones, Palm Beach State College;
Njoroge Kamau, Quinsigamond Community College; Raymond Kessler, Sul Ross
State University; David Kotajarvi, Lakeshore Technical College; Walter Lewis, St.
Louis Community College at Meramec; Jerry Maynard, Cuyahoga Community
College; Michael Meyer, University of North Dakota; Robert E. Mongue, University
of Mississippi; Tom O’Connor, North Carolina Wesleyan College; Sam Newton,
Weber State University; Karren S. Price, Stephen F. Austin State University; Jennifer
Riggs, Eastern New Mexico University-Ruidoso; David P. Schwartz, University
of Las Vegas, Nevada; Anita Sedillo, Virginia Commonwealth University; Sandy
Self, Hardin-Simmons University; Diane Sjuts, Metro Community College; Steven
Sondergaard, Defiance College; Dave Stout, Cedarville University; David Stumpf,
Minnesota School of Business; Kelli Styron, Tarleton State University; Sharon
Tracy, Georgia Southern University; Robert Vaughn, Cedarville University; Arnold
R. Waggoner, Rose State College; Carroll T. Wagner, Harrisburg Area Community
College; Ruth Walsh, Washtenaw Community College; Tamra Watts, Kean Univer-
sity; Thomas White, University of Texas-Pan American; Jack Williams, Western
New England College; and Rickey Williams, Sr., Danville Area Community College.
We also would like to thank the staff at Cengage Learning, in particular
Carolyn Henderson Meier and Christy Frame, as well as the production service edi-
tor for this edition, Lynn Lustberg of MPS Limited. As always, the publishing part
of this endeavor has played a vital role in the book’s progress.
Tom Gardner and Terry Anderson would like to thank their families for their
patience and understanding while they worked on this edition of Criminal Evidence.
Terry Anderson would also like to thank Creighton Law School for the logisti-
cal support given him while he worked on this edition.
Thomas J. Gardner
Terry M. Anderson
CHAPTER
1
History and
Developmentof theLaw
of Criminal Evidence
CHAPTER CONTENTS
History of the Rules of Evidence
Early Methods of Determining Guilt or Innocence
Magna Carta and Habeas Corpus
The American Declaration of Independence
The U.S. Constitution and the American Bill of Rights
Basic Rights Under the U.S. Constitution Today
The Presumption of Innocence Until Proven Guilty
The Right to a Speedy and Public Trial
KING JOHN SIGNS THE
The Right to an Indictment MAGNA CARTA
The Right to a Fair (Not Perfect) Trial
The Right to Assistance of Counsel duncan1890/iStockphoto.com
The Right to Be Informed of Charges
The Right of the Defendant to Compel Witnesses LEARNING OBJECTIVES
The Right of the Defendant to Testify or Not Testify In this chapter we provide a summary of the history of the
The Right of the Defendant to Confront and Cross- use of evidence in criminal trials, with a special focus on
Examine Witnesses criminal defendants’ rights contained in the U.S. Constitution.
The Right to Be Free of Unreasonable Searches and The learning objectives for this chapter are
Seizures Explain the importance of the Magna Carta.
The Right to an Impartial Jury Explain the function of the writ of habeas corpus.
The Common Law Right of a Defendant to Be Present at Identify how the U.S. Supreme Court made the Bill of
Rights applicable in state court criminal cases.
the Defendant’s Criminal Trial
List the rights identified and made available to a
criminal defendant under the U.S. Constitution.
2 Part 1 Introduction to Criminal Evidence
I
n 2012 David Rivera pled guilty in U.S. District Court At the continued hearing, where only Rivera and his
in California to the federal crime of transportation attorney were present, the Judge declined to give Rivera
of 214.4 grams of methamphetamine. Under the the “minimal role” reduction, and sentenced him to
plea agreement reached with the prosecution, the 97 months in prison. Rivera appealed to the Ninth Circuit
parties stipulated that Rivera would be sentenced Court of Appeals, contending his Sixth Amendment right to
at base level 31 under Federal Sentencing Guidelines, a “public trial” was violated when the District Judge
but that each side could argue to the District Court excluded his family members from the hearing.
judge for a reduction or increase of that base level. What do you think are the reasons for the “public trial”
The base level plays a significant role in the length requirement? Does the First Amendment play a role? Should
of the sentence imposed under Federal Sentencing “public trial” include the sentencing part of the trial? Why did
Guidelines. it matter if Rivera’s family, including his young son, were
At the first sentencing hearing Rivera brought his excluded from the sentencing hearing? Can you think of
7-year-old son with him to the hearing. There, his good reasons for a judge to order a closed hearing? Were
lawyers argued Rivera should be given a “minimal role” the judge’s reasons in Rivera’s case good enough? See United
reduction in his sentence because of his limited role in States v. Rivera, 682 F.3d 1223 (9th Cir. 2012).
the crime. The district judge expressed displeasure about In this chapter we examine the history of rules of
the presence of Rivera’s son in the courtroom, stating that evidence, and show their relationship to many of our
he (the judge) would not be manipulated by such actions. most important Constitutional guarantees and privileges.
The judge continued the sentencing hearing, and told One of those guarantees, the Sixth Amendment right to a
Rivera he could not bring family members to the “speedy and public trial,” was invoked by Rivera in the case
continued hearing. cited above.
HISTORY OF THE RULES OF EVIDENCE

One cannot understand the rules of evidence applicable in criminal trials today
without some appreciation of the historical development of those rules. Evidentiary
rules are the gates through which information flows into our judicial courtrooms;
the size and shape of the gates have varied over the life of the United States and
other English-speaking nations.
The United States and England share a common judicial heritage. Most of the
early rules of evidence were made by English courts, although some were made by
English parliaments. These early rules of evidence were brought to the American
colonies and used by the first English settlers. The same rules were used by other
English-speaking colonies, such as Canada and Australia, and were known as
common-law rules of evidence.1 Because of this common heritage, many similarities
exist even today in the laws of evidence used in English-speaking countries. The
following account of the first murder trial in the American colonies would also
describe the court proceedings used in other English colonies:
The first reported murder in the American colonies occurred in 1630. John Billington,
one of the original band of 102 Pilgrims to sail on the Mayflower, waylaid a neighbor
and killed the man by shooting him with his blunderbuss. As the colonies had no written
criminal laws, Billington was charged with the English common-law crime of murder
and tried using the English common-law rules of evidence and criminal procedure. After
a prompt trial and conviction, Billington was sentenced to death and hanged.2
Rules of evidence are an important part of all criminal justice systems, just as
rules are important in baseball, football, and basketball games. In a democracy,
Chapter 1 History and Development of the Law of Criminal Evidence 3
rules of evidence are important not only to safeguard the rights of accused persons
in a fair trial but also to ensure the interests of the public in the proper functioning
of the criminal justice system. Some rules of evidence are highly controversial and
cause arguments over what would best serve the overall needs of society.
Early Methods of Determining Guilt or Innocence

Today, persons charged with criminal offenses are presumed innocent until proven
guilty. Defendants may admit or deny a criminal charge, and if the charge is denied,
place the burden of proof on the government to come forward with sufficient, credi-
ble, and admissible evidence proving guilt beyond a reasonable doubt.
But the rights we enjoy today did not always exist. They developed slowly over
the centuries and were incorporated into the common law. Many were made part of
the U.S. Constitution by our Founding Fathers.
ordeal A medieval At the time the Normans conquered England in 1066, the use of ordeals to
method of proof that determine guilt or innocence was a common practice. A titled person or one of
was an appeal to God to
noble birth could demand trial by battle to determine his guilt or innocence. Win-
determine guilt or
innocence. ning a sword fight would prove innocence, whereas losing would show guilt.
Because the loser was often killed or seriously injured, the case would ordinarily be
disposed of by the outcome of the battle.
The guilt or innocence of a common person was determined by other types of
ordeals. The nineteenth-century English judge Sir James Stephens described these
ordeals in his treatise History of the Criminal Law of England:
It is unnecessary to give a minute account of the ceremonial of the ordeals. They were of
various kinds. The general nature of all was the same. They were appeals to God to
work a miracle in attestation of the innocence of the accused person. The handling of hot
iron, and plunging the hand or arm into boiling water unhurt, were the commonest.
The ordeal of water was a very singular institution. Sinking was the sign of innocence,
floating the sign of guilt. As any one would sink unless he understood how to float,
and intentionally did so, it is difficult to see how anyone could ever be convicted by
this means. Is it possible that this ordeal may have been an honourable form of suicide,
like the Japanese happy despatch? In nearly every case the accused would sink. This
would prove his innocence, indeed, but there would be no need to take him out. He
would thus die honourably. If by accident he floated, he would be put to death
disgracefully.3
The ordeals adjudicated guilt by appeals to God (or the supernatural). People
living in the Middle Ages believed in frequent divine intervention in human affairs
and thus were content to leave questions of guilt or innocence to such interventions.
All this changed in England, however, at the Lateran Council of 1215, when
clergy were prohibited from taking part in ordeals. Without the clergy, one could
not be sure God had ordained the result of the ordeal. Indeed, in the reign of King
John (1199–1216), the ordeal went from being the standard of proof to completely
nonexistent.
In its place came the oath and oath-helpers. Although still an appeal to divine
guidance, the oath, in which the accused swore before God his innocence, began
the journey toward trial by jury. To support his oath, the accused gathered oath-
helpers to swear to his innocence. Over time, these oath-helpers began to swear not
to the ultimate guilt or innocence of the accused but to facts relevant to his guilt or
innocence. In essence, they became witnesses.
At the same time, itinerant justices holding court around England began to
presentment juries impanel groups of local residents into presentment juries, whose purpose was to
English forerunners to inform the justices of crimes committed by other residents. The accused then put
grand juries; gave himself “on the oath” of his fellow residents (often referred to as the “petit” jury),
information that crimes
had been committed. rather than producing his own oath-helpers. Over time, it came to be realized that
those serving on the presentment jury should not serve on the smaller petit jury. By
the fourteenth century, the origins of our grand jury and trial jury system were
firmly established in English law.
As the use of presentment and petit juries became widespread in England, rules
developed to control and direct the tasks of those juries. Then, as now, the present-
ment jury had few evidentiary limitations. The petit jury, however, became charged
not only with determining the guilt or innocence of the accused but also with finding
the facts upon which its determination depended. Once the jury was established as a
fact-finding body, rules of evidence controlling how facts could be presented to the
jury began to develop.
In the long period between the fourteenth century and today, rules governing
the introduction of facts into criminal trials developed slowly and inconsistently.
For example, even though hearsay evidence was regarded as unreliable even in the
early thirteenth century,4 such evidence was still widely permitted in the American
colonies. Other nonjudicial forces helped move the nature of criminal trials and
rules of evidence forward.
WHEN EVIDENCE OF WITCHCRAFT WAS PERMITTED IN THE COURTS OF THE

AMERICAN COLONIES
Not too many years prior to the signing of the American Declaration of Independence, evidence of the crime of
witchcraft was permitted in the criminal courts of some of the American colonies. Massachusetts, Connecticut,
and Virginia permitted prosecutions for the crime of witchcraft based on superstition and ignorance.
Witchcraft was first prosecuted as a crime in the Roman Empire. Over the years, thousands of people in
Europe were tried, convicted, and put to death for being witches or practicing witchcraft. For example, in 1431
Joan of Arc was convicted in France of being a witch and burned at the stake by a tribunal under the direction
of English invaders. The English used the accusation of witchcraft as a convenient way of eliminating a very
effective French military opponent.
A crop failure, a sickness, or an epidemic within a community could lead to accusations that a local person
was a witch and the cause of the problems. The Salem, Massachusetts, witchcraft trials of 1692 resulted in the
execution of 19 people and the imprisonment of over 150 others. Arthur Miller’s famous play The Crucible is a
modern dramatization of the Salem witchcraft trials. In Miller’s play, the accusations were not of crop failure or
an epidemic but of sexual improprieties, and were made by teenage girls. The book form of Miller’s play
contains commentary by the author. Miller observes in the introduction to his play that after the accusations
by the teenage girls were made, “long-held hatreds of neighbors could now be openly expressed … one
could cry witch against one’s neighbors … old scores could be settled … and any envy of the miserable
toward the happy could and did burst out in the general revenge.”a
The crime of witchcraft no longer exists, and under the American criminal justice system could never be
resurrected.
a
Arthur Miller, The Crucible (New York: Viking Press, 1953).
MAGNA CARTA AND HABEAS CORPUS

In twelfth-century England, people could be jailed based on anonymous accusations
of wrongdoing, or they could be seized on mere suspicion or on the whim of a gov-
ernment official. English kings suppressed political opposition by jailing anyone
who dared criticize the Crown or the government. Absolute loyalty was compelled
by the arrest of those suspected of antigovernment sentiments or statements.
Because of these abuses by English kings, the great barons of England revolted
against the Crown. After many years of fighting, King John met with the barons in
1215 at a field in Runnymede, England. An agreement between the parties to stop
Magna Carta The Great the fighting resulted in the king and the barons signing a document called Magna
Charter signed by King Carta, or the Great Charter. Among other clauses, Magna Carta stated that there
John of England and his
would be no criminal “trial upon … simple accusation without producing credible
barons in 1215; created
the first standards for witnesses to the truth therein” and that “no freeman shall be taken, imprisoned …
arresting and except by lawful judgment of his peers or the law of the land.” Magna Carta was a
imprisoning those historic first step toward democracy and the establishment of minimum standards
accused of crimes. for arresting and imprisoning people accused of crimes. Under this new concept of
custody Under police
law, no one could be taken into custody on mere suspicion, on a whim, or without
control, whether or not substantial good cause. Magna Carta began the development of the concept in law
physically constrained. that there had to be probable cause, or “reasonable grounds to believe,” to justify
arresting or holding a person in custody.
probable cause The
quantum (amount) of
Magna Carta deeply affected the drafters of the American Declaration of
evidence required by the Independence:
Fourth Amendment to
make an arrest or to
The event became the rallying cry of individual liberty in England during the 17th
issue a search warrant; century, and so influenced the Founding Fathers of our country that the Seal of the
greater than reasonable Magna Carta was emblazoned on the cover of the Journal of the Proceedings of the First
suspicion but can be less Continental Congress, held in Philadelphia on September 5, 1774, where our forefathers
than proof or reasonable laid the foundation stone of individual liberty in the United States.5
doubt.
Another important milestone in the protection of personal liberties was the
development of the Writ of Habeas Corpus. This famous writ is believed to date to
the fourteenth and fifteenth centuries. The Writ of Habeas Corpus was and is a safe-
guard against the illegal or improper holding of a person against his or her will. The
habeas corpus Latin word writ means a “writing,” and habeas corpus is a Latin term meaning “have the
name of the writ used to body.” This writ, when signed by a judge, is served upon the government official
compel a government who has custody of a person and orders that official to appear before the court and
official, such as a prison
warden, to show cause
show cause for holding the person. If such cause is not shown the person may be
why the official is released.
holding a person in Magna Carta and habeas corpus not only are very important legal concepts in
custody. the English-speaking world but also have had an important impact worldwide.
Magna Carta first expressed the idea that a person should not be jailed or held with-
out just cause. The Writ of Habeas Corpus was the earliest legal procedure by which
illegal or improper jailing or detention could be challenged in a court of law. If a
person is held without just cause and legal authority, the judge presiding at the
habeas corpus hearing must order his or her release.
The American Founding Fathers guaranteed the right of habeas corpus in the
U.S. Constitution. ARTICLE I, SECTION 9 of the U.S. Constitution provides that “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.” The original
13 states, and all those that subsequently joined the union, did the same. Some states
strengthened the constitutional guarantee by statutes, such as Wisconsin statute

782.09, which provides that “any judge who refuses to grant a writ of habeas cor-
pus, when legally applied for, is liable to the prisoner in the sum of $1,000.” Other
statutes impose penalties for “refusing papers” ($200), “concealing” or “transfer-
ring” the prisoner ($1,000 or six months’ imprisonment), and “reimprisoning party
discharged” ($1,250 and misdemeanor violation).
The famous English writer Sir William Blackstone wrote that habeas corpus
is “the most celebrated writ in the English law.” Chief Justice Marshall of the
U.S. Supreme Court called the writ a “great constitutional privilege,” and the U.S.
Supreme Court has stated a number of times that “there is no higher duty than to
maintain it unimpaired.”
Habeas corpus writs provide a form of review of criminal convictions and sen-
tences in addition to the normal appeal process. Every state has some form of appel-
late review for those convicted of crimes. In addition, so-called “direct review” of a
state conviction is possible in the U.S. Supreme Court, though petitions for such
review are not commonly granted by the Supreme Court. Federal convictions may
be appealed to the appropriate U.S. Court of Appeals, and again direct review by
the U.S. Supreme Court is possible, but infrequent.
U.S. courts, mainly federal district courts in whose jurisdictions prisons are
located, are authorized under 28 U.S.C. § 2254 to hear petitions for habeas corpus
by persons convicted in state courts. 28 U.S.C. § 2255, called post-conviction relief,
provides similar procedures for federal prisoners. Generally speaking, habeas corpus
petitions and petitions under 2255 are filed after the normal appeals process
through the state (or federal for 2255) appellate system has been exhausted. Section
2254 specifically requires that the petition show that state remedies have been
exhausted. Petitions must allege that the prisoner is being held in violation of federal
law or the U.S. Constitution.
Prior to 1996 federal courts hearing habeas petitions by state prisoners reviewed
questions of law under “de novo” review, which gave little deference to the decision
of the state court. Purely fact questions, however, were reviewed with great defer-
ence to the findings of the state court. The Antiterrorism and Effective Death Penalty
Act of 1996 made important changes in how habeas corpus petitions by state pris-
oners were reviewed in federal courts, if the petitioners’ claim had been “adjudicated
on the merits” in the state courts. That Act, now codified as 28 U.S.C. § 2254(d) (1) (2),
limits application of the writ to cases where the conviction or sentence was contrary
to, or an unreasonable application of, a “clearly established Federal law, as deter-
mined by the Supreme Court of the United States,” or based on an “unreasonable
determination of the facts” in light of evidence admitted at the state court trial. If the
claim of a violation of federal law or the U.S. Constitution had not been “adjudicated
on the merits” in the state courts, the pre-1996 form of review is used.
Cullen v. Pinholster, 131 S. Ct. 1388 (2011) is an important case on how fed-
eral courts are to review the claims in the habeas petition. (Citations in criminal
cases typically include the name of a state or the federal government: e.g. State (or
People, or Commonwealth) v. Smith, or United States v. Smith. In habeas cases the
person seeking relief is incarcerated. As a result, the name of the other party in the
habeas petition is typically the warden of the penitentiary where the prisoner is
held. “Cullen” is the name of the warden of the penitentiary where Pinholster was
incarcerated.)
In Cullen, a petitioner claimed a murder conviction and resulting death sentence
were flawed because his attorney failed to adequately raise the petitioner’s mental
condition at the penalty-phase of the trial. The petitioner introduced new medical
evidence at the habeas hearing that supported his claim that he had mental problems
that should have been a factor in his sentence. The full Ninth Circuit Court of
Appeals sitting en banc agreed and granted the petition.
The U.S. Supreme Court reversed. It held that when reviewing a decision of a
state court, the “record” for review was the evidence before the state court at the
time it made its decision. Evidence introduced at the habeas hearing on an issue
already reviewed in the state court could not be considered.
Thaler v. Haynes, 130 S. Ct. 1171 (2010) illustrates how the “clearly estab-
lished Federal law, as determined by the Supreme Court” also serves as a limit on
habeas petitions. In that case a federal circuit court of appeals ordered a retrial in a
Texas murder case, based on the defendant’s claim that the trial judge should not
have accepted the state’s “race-neutral” reason for using a peremptory challenge to
exclude a Black juror. (See the discussion of peremptory challenges in Chapter 2.)
The prosecution gave its reason for excluding the juror as based on the juror’s
demeanor. The trial judge who accepted that as an adequate reason did not person-
ally conduct the voir dire (jury selection), and thus did not see the juror’s demeanor.
The circuit court held that “demeanor” cannot be an adequate “race neutral” rea-
son unless the trial court personally observed the juror in voir dire. The Supreme
Court reversed, stating that such a legal principle is not a “clearly established” rule
because no Supreme Court opinion actually reached such a result.
LEGAL CASES
Habeas Corpus and Enemy Combatants
Since 2001, the U.S. military has detained alien enemy combatants at Guantanamo Naval Base in Cuba.
Some of these detainees have sought to obtain review of their detentions by use of the habeas corpus
writ. The U.S. government initially contended that federal courts had no jurisdiction over the naval base,
but in Rasul v. Bush [542 U.S. 466 (2004)], the U.S. Supreme Court held that under existing jurisdictional sta-
tutes, federal courts did have jurisdiction over the naval base.
In response to that decision, Congress passed the Military Commissions Act of 2006 [28 U.S.C. § 2241
(e)], which contained a clause stating that federal courts had no jurisdiction to hear habeas corpus claims
made by alien enemy combatants detained at military installations. Several detainees appealed dismissal of
their habeas corpus petitions. On review the Supreme Court held that enemy combatants detained at mili-
tary installations had the constitutional right to bring habeas corpus petitions, and as a result section 2241(e)
was an unconstitutional violation of the Suspension Clause [Art. I, § 9, cl. 2], which prohibits the suspension
of the writ except in cases of “Rebellion or Invasion.” See Boumediene v. Bush [128 S. Ct. 2229 (2008)].
Suspected enemy combatants detained at Guantanamo were tried in military tribunals during the Bush
administration. President Obama initially ordered the military tribunals to cease such trials, but in 2011
revoked that order to permit the military trial of Khalid Sheik Mohammed, the suspected mastermind of the
9/11 attacks. Although the Justice Department stated it wished to try Mohammed in federal district court in
New York City, the anticipated cost for such a trial—in the hundreds of millions of dollars—led the Justice
Department to reopen the military tribunals. Mohammed remains detained at Guantanamo. Some suspected
terrorists have been tried in federal court. Abu Gaith, the son-in-law of Osama bin Laden, was tried in fed-
eral court in New York in March 2014, and was convicted on terrorism charges on March 26, 2014.
THE AMERICAN DECLARATION OF INDEPENDENCE

When students are asked where their personal freedoms come from, they will often
answer that personal freedoms come from government. This answer was correct
hundreds of years ago, when it was believed that kings received their authority to
rule from God. What few personal rights the ordinary person had in those days
came from the ruler. This was known as the divine right of kings. Generally
accepted and promoted throughout the world in the Middle Ages, this doctrine
stated that monarchs received absolute authority to govern from God and that their
subjects had only such personal freedoms as fit their status under their sovereign.
SOME ABUSES LEADING TO THE SIGNING OF THE DECLARATION

OF INDEPENDENCE
The American Declaration of Independence, celebrated each year on the Fourth of July, lists more than
25 abuses by the “King of Great Britain” against the American colonies. It was these abuses that caused the
colonies to declare their independence from Great Britain. About two-thirds of the abuses concerned the
English mercantile system, which Great Britain forced upon the American colonies. Under this system,
Americans had to buy only English products and goods at prices set by the English. The system was enforced
against the colonies by military force and heavy taxation, which led to the famous cry “No taxation without
representation” and incidents like the Boston Tea Party. The famous Scottish economist Adam Smith, who
wrote the Wealth of Nations in 1776 and opposed the English policy of mercantilism, became known as the
father of the American economic system. The following is a brief summary of the remaining one-third of the
abuses listed in the Declaration of Independence:
Abuses Concerning Liberty, Freedom, and the

Judiciary Correction of the Abuse in the U.S. Constitution
“He has made Judges dependent on his will alone …” ARTICLE III, creating an independent judiciary
“He has kept among us in times of peace Standing Armies Third Amendment to the Bill of Rights (Soldiers may not
… [and] has quartered large bodies of armed troops be quartered without consent)
among us.”
He “… protect[s] [the armed troops], by a mock trial, from The establishment of an independent judiciary, an elected
punishment for any Murders which they should commit president and Congress, and grand juries
on the Inhabitants.”
“… depriving us in many cases, of the benefits of Trial “… the accused shall enjoy the right of a … trial … by an
by Jury.” impartial jury” (Sixth Amendment)
He “… transport[s] us beyond the Seas to be tried for The right to an “indictment by a Grand Jury” and the right
pretended offenses.” to be tried in “the State and district where the crime shall
have been committed …” (Fifth and Sixth Amendments)
“He has plundered our seas, ravaged our Coasts, burnt our The establishment of an independent judiciary, an elected
towns, and destroyed the lives of our people.” Congress and president, and grand juries
“He is at this time transporting large Armies of foreign Limiting the powers of the president and the Congress to
Mercenaries to compleat the work of death, desolation those specifically set forth in ARTICLE I and II, and the
and tyranny …” protection of the Third Amendment
This theory, actively promoted by those in power, helped monarchs rule and main-
tain control over their subjects.
Early American documents show that the American colonies did not accept the
European concept of the divine right of kings. The 1641 Massachusetts Body of Lib-
erties commenced by discussing the “free fruition of such liberties, Immunities and
privileges … as due every man.”6 The 1765 Declaration of Rights spoke of “inher-
ent rights and liberties,” “freedom of a people,” and “the undoubted rights of
Englishmen.”7
The American Declaration of Independence of 1776 specifically repudiated the
doctrine of the divine right of kings, pointing out that personal freedoms do not
come from government or kings. Every Fourth of July, we celebrate the signing of
the document that established the following propositions:
● That the United States is independent from Great Britain (the document details
the “history of repeated injuries and usurpations” of the king of Great Britain,
who sought to establish “an absolute Tyranny over these States”)
● That “Governments are instituted among Men, deriving their just powers from
the consent of the governed”
● 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”
THE U.S. CONSTITUTION AND THE AMERICAN BILL OF RIGHTS

When the American Founding Fathers met in Philadelphia in 1787, many of the
wrongs of the past had been eliminated. For example, trial for witchcraft had been
abolished, and people accused of crimes no longer had to prove their innocence by
ordeal or battle. The delegates set about writing a constitution for the new American
democracy that would embody the spirit of the Declaration of Independence and
create a workable, practical government to serve the people. They stated their goals
in the preamble to the new U.S. Constitution:
We the People of the United States, in order to form a more perfect Union, establish jus-
tice, insure domestic Tranquility, provide for the common defense, promote the 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.
The U.S. Constitution sought to protect the privilege of habeas corpus and pro-
hibited such abuses as the passing of bills of attainder and ex post facto laws. The
right of trial by jury was protected, and corruption of blood (punishing a family for
the criminal acts of another family member) was forbidden. The drafters of the Con-
stitution knew that such abuses had occurred in England and were determined that
they would not occur in the new American nation.
As a further protection, the Constitution provided that all federal officials,
including the president of the United States, could be removed upon “Impeachment
for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”
(ART. II, SEC. 4).
When the Constitution was presented to the states for ratification, it was criti-
cized as not going far enough to protect the people from possible abuses by the new
federal government. The people understood their state governments and believed
The delegates to the Consti-

tutional Convention set about
writing a constitution that
would embody the spirit of
the Declaration of Indepen-
dence, create a working,
practical government to serve
the people, and protect the
people from abuses by
government.
Bettmann/Corbis
ANCIENT WRONGS THAT INFLUENCED THE AMERICAN CRIMINAL JUSTICE
SYSTEM
Led to the Following
Wrong Resulted In Development U.S. Constitution
The practice of The English civil war of Magna Carta provides that there The Fourth Amendment
English kings jailing the late 1100s and early will be no criminal “trial upon … requires probable cause to
persons for no good 1200s, which was settled simple accusation without arrest and to issue a search
reason, on mere by King John signing producing credible witnesses to warrant. Habeas corpus is
suspicion or on Magna Carta in 1215, the truth therein.” Magna Carta led guaranteed by Article I,
simple accusation abolished this practice. to the development of the great Section 9 of the
by another. English Writ of Habeas Corpus, Constitution.
which requires law officers to show
probable cause to a court in order
to hold a person in custody.
The use of torture The English Parliament The development was the privilege The Fifth Amendment
and coercion to abolished the against self-incrimination and the contains privilege against
obtain confessions. inquisitorial court, the right to remain silent while in self-incrimination, and the
Star Chamber, in 1640s. police custody. Sixth Amendment the right
[See Miranda v. Arizona, to an attorney.
384 U.S. 436 (1966).]
The use of general The practice was The continued practice of the British The Fourth Amendment
warrants, which discontinued in England to search “where they pleased” was forbids “unreasonable
gave British officials but continued to the “most prominent event” that led searches and seizures” and
power to search “bedevil” the American to the Declaration of Independence requires probable cause and
anywhere and colonies. and the American Revolutionary search warrants.
anything they War. [Stanford v. State of Texas,
wished. 85 S. Ct. 506, 510 (1965).]
Led to the Following

Wrong Resulted In Development U.S. Constitution
The practice of This practice was used The hearsay rules were developed, The Sixth Amendment
English courts of to “frame” Sir Walter along with the requirement that makes it a requirement that
convicting persons Raleigh in 1603 and send the government prove criminal “… the accused shall enjoy
on hearsay and him to prison for charges with witnesses who the right to be confronted
written statements treason. testified in court in the presence with the witnesses against
or testimony by of the accused. him…” Article II, Section 3 of
persons who did not the Constitution prohibits
appear in court and conviction for treason
who were not except on “the testimony
identified to the of two witnesses.”
accused.
Charging a person William Penn was When the jury would not give in to Persons charged with
with a trumped-up charged in this manner the pressures of the judge and the crimes have a right to “an
criminal charge and in 1670. When an English king, they were fined for their impartial jury” (Sixth
then putting jury would not convict conduct. This case was important in Amendment) and “due
pressure on the jury him, the jury was held the development of a system of process of law”
to convict the for two days without independent juries. William Penn (fundamental fairness
person. food, water, or toilet left England and founded the state requirement of the
facilities. of Pennsylvania. Fourteenth Amendment).
they could control them, but they were suspicious of the new central government. As
a result, prior to ratification of the new Constitution, it was agreed that additional
protections would immediately be added to the Constitution. The U.S. Constitution
Bill of Rights The first was ratified in 1788, and 10 amendments, now known as the Bill of Rights, were
10 amendments to the added in 1791.
U.S. Constitution. In a 1991 U.S. Supreme Court opinion, Justice Scalia pointed out that “most of
the procedural protections of the federal Bill of Rights simply codified traditional
common-law privileges (that) had been widely adopted by the states.” Justice Scalia
used the following quote from 1878: “the law is perfectly well settled that the first
ten amendments to the Constitution … were not intended to lay down any novel
principles of government, but simply to embody certain guarantees and immunities
which we had inherited from our English ancestors.”8
The Bill of Rights (see Appendix A) originally applied only to the federal gov-
ernment. Beginning in 1961, however, the U.S. Supreme Court began to make the
Bill of Rights applicable to the states through the Fourteenth Amendment. (See the
case of Mapp v. Ohio and the material in Chapter 9 on the use of the American
exclusionary rule.)
BASIC RIGHTS UNDER THE U.S. CONSTITUTION TODAY

The United States celebrated the 200th anniversary of the U.S. Constitution in 1988.
This remarkable document, which includes the Bill of Rights, has received world-
wide attention and has been a model for many countries. It sets forth the foundation
and requirements for the law of criminal evidence used throughout the United
States.
The people of the United States may change, abolish, or modify any part of the
Constitution; polls show, however, that the great majority of Americans want to
keep the Constitution and the Bill of Rights intact. Although individual rights in
criminal prosecutions are articulated in various parts of the Constitution and Bill of
Rights, the Fifth and Sixth Amendments contain an extensive list of those rights.
The Fifth Amendment 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 offence 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
PROCEDURES & PROCESSES

The 48-Hour Requirement of a Probable Cause
Hearing (The “Promptness Rule”)
When an arrest warrant is issued, there has already been a determination that probable
cause exists for the arrest. However, when an arrest occurs without a warrant, no such
determination is made before the arrest. In County of Riverside v. McLaughlin [500 U.S.
44 (1991)], the U.S. Supreme Court held that a suspect arrested without an arrest war-
rant must have a probable cause hearing before a judge or magistrate “promptly,”
within 48 hours of the arrest, including weekends and holidays. If such a hearing is
held within 48 hours, the probable cause hearing will “as a general matter, comply
with the promptness requirement.” However, even a hearing held within a 48-hour
period can be unreasonable if the delay was “for the purpose of gathering additional
evidence to justify the arrest [or] motivated by ill will against the arrested individual, or
delay for delay’s sake.”
If the probable cause hearing is delayed beyond the 48-hour period, the burden is
on the government “to demonstrate the existence of a bona fide emergency or other-
wise extraordinary circumstance.” For example, in the 2012 case of Waganfeald v.
Gusman, 674 F.3d 475 (5th Cir. 2012) the court held that Hurricane Katrina, which hit
New Orleans on the day an arrested person’s 48-hour limit was reached, was a suffi-
cient emergency justifying a longer wait before a probable cause hearing was held.
If that burden is not met, many states now provide that the arrested person must
be released on his own recognizance. Also, evidence obtained during the delay may
be excluded from any resulting trial, if the delay in some way contributed to obtain-
ing the evidence. However, most courts hold that evidence obtained during the
48-hour period is admissible, even if a subsequent delay occurred. See e.g. State
v. Lawrence, 154 S.W.3d 71 (Tenn. 2005). Courts will not normally order dismissal of
the criminal charge as the remedy for a violation of the promptness rule, although
the court in State v. Larson, 776 N.W.2d 254 (S.D. 2009) remanded to the trial court a
conviction of a defendant who was held 18 days before getting a probable cause
hearing to determine if that remedy should be invoked.
Because of the “promptness” rule, writs of habeas corpus are generally not needed
to secure the release of persons arrested without a warrant.
of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.
The Sixth Amendment states,
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 commit-
ted, 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 favour, and have Assistance of
Counsel for his defence.
The following sections summarize some of the most basic rights protected or
created by the Bill of Rights. Many of these rights will be discussed more fully in
later chapters of this book.
The Presumption of Innocence Until Proven Guilty

One of the most deeply rooted traditions of modern Anglo-Saxon law is that an
beyond a reasonable accused is innocent until proven guilty beyond a reasonable doubt.9 In Estelle v.
doubt The burden that Williams,10 the U.S. Supreme Court stated, “The presumption of innocence, though
the prosecution must
not articulated in the Constitution, is a basic component of a fair trial under our sys-
meet in proving guilt in
criminal cases; applies to tem of criminal justice.” A violation of this right can occur when the jury is not
every element of the properly instructed on the presumption of innocence and the burden of the prosecu-
crime charged. tion to overcome the presumption by competent evidence. In Taylor v. Kentucky,11
the Supreme Court held that the failure of the trial court to give a requested instruc-
presumption of
innocence The legal
tion on the presumption of innocence was, under the facts of that case, a violation
presumption required in of the right to a fair trial. The Court stated that every criminal defendant has the
all criminal courts that right to have guilt or innocence determined solely by evidence adduced during trial,
the defendant is and the presumption of innocence serves to impress upon the jury the importance of
innocent until sufficient that right.
credible evidence is
produced to carry the
A violation can also occur through statements made by the prosecution. For
burden of proving guilt example, in Pagano v. Allard,12 the court held that, after a prosecutor referred to
beyond a reasonable the presumption of innocence as a “cloak” that protected a defendant, the prosecu-
doubt. tor’s statement in the closing argument to the jury that “… now that cloak comes
off” violated the right to a fair trial.
The Right to a Speedy and Public Trial

The Sixth Amendment provides that “the accused shall enjoy the right to a speedy
and public trial.” The right to a public trial means all court sessions must be open
to the public, unless sufficient, specific reasons for closing the courtroom are given
by the trial court. In the 2010 case of Presley v. Georgia, 130 S. Ct. 721, the U.S.
Supreme Court held that the “public trial” right includes voir dire. It reversed a
defendant’s conviction for cocaine trafficking because the trial court ordered the
courtroom cleared during voir dire without giving a sufficient reason for doing so,
or considering alternatives.
In Barker v. Wingo13 the U.S. Supreme Court held that “speedy trial” right
could not be defined in any specific time period, but depended on the circumstances
of each case. Factors to be considered when the right is invoked include (1) the
length of the delay between accusation and trial, (2) reasons for the delay,
(3) whether the defendant asserted the right during the delay, and (4) whether the
defendant was prejudiced by the delay. In the 2013 case of United States v.
Ghailani14 the court held the speedy trial right was not violated by a five-year
delay. The defendant, a member of the terrorist group al Qaeda, was captured by
the CIA in 2004, and interrogated concerning the terrorist attacks on U.S. embassies
in Nairobi, Kenya, and Tanzania in 1998, in which 244 people were killed. He was
held by the CIA outside the United States for two years, where he was subjected to
“enhanced” interrogation. In 2006 Ghailani was brought to the detention facility at
Guantanamo Bay, Cuba. In October, 2012, Ghailani was tried in federal court in
New York, and convicted of terrorist acts against U.S. property that took human
lives. He was sentenced to life in prison. The appeals court rejected Ghailani’s claim
that the speedy trial clause was violated, mainly because the delays were not caused
by the bad faith of the government, and did not prejudice his ability to prepare for
his trial.
There is some question whether a delay in sentencing a convicted defendant
should be included under the “speedy trial” rule of the Sixth Amendment or under
the Due Process Clause of the Fifth and Fourteenth Amendments. At least one fed-
eral court of appeals has held the speedy trial rule inapplicable to sentencing delays.
In United States v. Ray, 578 F.3d 184 (2d Cir. 2009), cert denied 130 S. Ct. 2401
(2010) the Court held that “trial” in the Sixth Amendment does not include sentenc-
ing, but that an unreasonable delay in imposing sentence would violate the due pro-
cess clause.
A defendant may waive the right to a speedy trial with the permission of the
court. The federal government and many states have enacted statutes that state the
time within which a trial must be held. The federal government’s Speedy Trial Act
requires a trial within 70 days for a felony and within 60 days for a misdemeanor,
unless the requirement of a speedy trial is waived.15
The Right to an Indictment

About half of the states follow the system imposed upon the federal government by
the Fifth Amendment, requiring a grand jury indictment for a “capital, or otherwise
infamous crime.” In the other states, elected prosecutors (district attorneys or state
attorneys) make the decisions about whether to charge and what crimes to charge.
Defendants charged by a district or state attorney have the right to a preliminary
hearing if they are charged with a felony.
In the case of separate trials of multiple defendants, many courts have held that
the prosecution cannot charge each defendant with the same criminal act. For exam-
ple, in the trial of A, the prosecutor cannot allege that A pulled the trigger on the
murder weapon, and then in the trial of B allege that B did so. In 2004, a federal cir-
cuit court of appeals held that doing so violated the Due Process Clause.16 In 2005,
the U.S. Supreme Court reversed,17 holding that the use of inconsistent charges did
not prejudice the defendant because he could have been convicted under the state
aiding and abetting statute. (This aspect of this decision is discussed in the guilty
plea section in Chapter 3.) The Supreme Court remanded the case to determine
whether the use of inconsistent charges prejudiced the defendant in the sentencing
process, where he was given the death sentence.
The Right to a Fair (Not Perfect) Trial

In any trial, mistakes can be made. The U.S. Supreme Court and state courts have
repeatedly held that under the Due Process clauses of the Fifth and Fourteenth
Amendments “the law does not require that a defendant receive a perfect trial, only
a fair one.”18 As a result, a defendant convicted in a trial where harmless error has
occurred has received a fair trial, though not a perfect trial. However, if the error
was harmful, reversible, or plain, the defendant has not received a fair trial and is
entitled to a new trial or to have the criminal charges dropped.
A defendant is not entitled to a new trial if it is shown that the error was harm-
less beyond a reasonable doubt. An error is harmless if it did not in any meaningful
way contribute to the defendant’s conviction. Where the error is the improper
admission of evidence, the U.S. Supreme Court has held that “the test for harmful-
ness is whether there is a reasonable possibility that the improperly admitted
evidence contributed to the conviction.”19 For example, the use of a confession
obtained by force would be reversible (harmful or plain) error when the conviction
rests only on this evidence. But if the crime charged is bank robbery, and ten eyewit-
nesses testified and the bank’s video also showed the defendant robbing the bank,
an appellate court could hold that the use of the coerced confession was
harmless error.
The Right to Assistance of Counsel

Persons charged with a state or federal crime (or juveniles where a delinquency peti-
tion has been filed against them) have the Sixth Amendment right to counsel. If the
defendant (or juvenile) cannot afford an attorney, one will be provided by the state
or federal government.20
The right to assistance of counsel means the right to effective assistance. If the
attorney is ineffective, the right has been denied. A convicted defendant who claims
he was represented by an inadequate or ineffective lawyer must prove that (1) the
lawyer’s defense fell below an objective standard of reasonableness and (2) a reason-
able probability exists that, but for the lawyer’s unprofessional errors, the results
would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984).
The U.S. Supreme Court has held that the right to effective assistance of counsel
applies at all stages of a criminal prosecution,21 including during plea negotiations.22
Those Supreme Court decisions all involved claims of ineffective assistance of coun-
sel made after a plea bargain was accepted by the defendant. In two 2012 cases the
Supreme Court considered the role of the right to effective assistance of counsel
where the plea offer from the prosecution was not accepted because it was not com-
municated to the defendant by his counsel (Missouri v. Frye23) and where the defen-
dant’s attorney recommended refusal of a plea bargain (Lafler v. Cooper24). In Frye
the defendant pled guilty to the charges, and received a sentence substantially greater
than that contained in the uncommunicated plea offer. In Lafler the defendant went
to trial, was convicted, and received a prison sentence three times greater than the
sentence made part of the plea offer.
The Supreme Court held that the right to effective assistance of counsel applied
to both situations. This was true, the court said, even though the defendant received
a full and fair trial in Lafler, and that the defendant in Frye made a fully informed
decision to plead guilty. The Court noted that plea bargaining was an integral part
of the criminal process: 97 percent of federal prosecutions and 94 percent of state
prosecutions are resolved by guilty pleas.25 In both cases, the Court remanded the
cases to the state courts to determine if the second prong of Strickland was satisfied.
That would depend on whether the defendant could show the plea bargain offer
would have been accepted by the trial judge, a question of state law.
The Right to Be Informed of Charges

A defendant charged with a crime has a right to be informed of what he or she is
alleged to have done and what specific crime or crimes are being charged. The Sixth
Amendment provides that “the accused shall enjoy the right … to be informed of the
nature and cause of the accusation.” This right may become an issue when a defen-
dant has made a guilty plea that he or she later seeks to retract because it was not
“voluntary and intelligent.” In Bousley v. United States,26 the Supreme Court stated
that a guilty plea is constitutionally valid only if it is made voluntarily and intelli-
gently. That requires that the defendant be realistically informed of the charges
against him. The Court stated that while giving the defendant a copy of the indict-
ment creates a presumption that the defendant has been informed of the charges
against him, if the circumstances indicate the defendant was misinformed by the
court or the prosecutor, the plea is invalid.
The Right of the Defendant to Compel Witnesses

The Sixth Amendment provides that “the accused shall enjoy the right … to have
compulsory process for obtaining witnesses in his favor.” If there are witnesses who
can help a defendant’s case, the accused may compel their appearance by use of sub-
poenas. Such witnesses, however, can be very uncooperative. They may make efforts
to avoid service by a subpoena, fail to appear in court, or state that they do not
remember or did not see or hear the incident. They may also use the Fifth Amend-
ment privilege against self-incrimination.
The Right of the Defendant to Testify or Not Testify

In criminal cases the burden is on the government to come forward with sufficient
credible evidence to prove guilt beyond a reasonable doubt. It is the choice of the
defendant to take the witness stand and testify in his or her own defense. Most
defendants, however, do not testify for various tactical reasons. The most important
of these reasons is that a defendant who testifies is then subject to cross-
examination, which could be disastrous to the defendant’s case. Therefore, many
defense lawyers do not want their clients to take this risk.27
The Right of the Defendant to Confront and Cross-Examine Witnesses

The Sixth Amendment’s Confrontation Clause provides that “the accused shall
enjoy the right … to be confronted with the witnesses against him.” The U.S.
Supreme Court pointed out that the famous London trial of Sir Walter Raleigh in
1603 was one of the reasons the Confrontation Clause was included in the Sixth
Amendment of the Bill of Rights.28 (See the discussion in Chapter 7.)
The Right to Be Free of Unreasonable Searches and Seizures

The Fourth Amendment forbids unreasonable searches and seizures by officers of
the federal and state governments. Therefore, law officers must have a search war-
rant or must show that a search or seizure is justified by an exception to the search
warrant requirements.
The historic roots of the Fourth Amendment go back to Magna Carta and the
development over the centuries of the probable cause requirement. In 1965, the
U.S. Supreme Court traced the events that led to the American Revolution against
British rule:
Vivid in the memory of the newly formed independent Americans were those general
warrants known as writs of assistance under which officers of the Crown had so bede-
viled the Colonists. The hated writs of assistance had given customs officials blanket
authority to search where they pleased for goods imported in violation of British tax
laws. They were denounced by James Otis as “the worst instrument of arbitrary power,
the most destructive of English liberty, and the fundamental principles of law, that ever
was found in an English law book” because they placed “the liberty of every man in the
hands of every petty officer.” The historic occasion of that denunciation in 1761 at
Boston has been characterized as “perhaps the most prominent event which inaugurated
the resistance of the colonies to the oppressions of the mother country.” “Then and
there,” said John Adams, “was the first scene of the first act of opposition to the
arbitrary claims of Great Britain. Then and there the child Independence was born.”29
The Right to an Impartial Jury

The Sixth Amendment of the U.S. Constitution guarantees defendants the right to
“an impartial jury of the State and district wherein the crime shall have been
committed.” Juror challenges, either for cause or peremptory, are a procedural
device designed to help ensure that the jury is impartial. However, the challenges
themselves are not of constitutional dimension. Thus, in United States v. Martinez-
Salazar,30 the Supreme Court held that a wrongful refusal by a trial judge to excuse
a juror for cause, forcing the defendant to use a peremptory challenge, was not by
itself a constitutional violation, so long as the jury actually chosen was impartial.
Excusing jurors for cause has long been an issue in death penalty cases. A defen-
dant can argue persuasively that excusing any juror who expresses doubt about cap-
ital punishment denies him an “impartial jury” because the resulting jury will
consist only of those who favor capital punishment. The prosecution’s response is
that a jury made up of those opposed to capital punishment would be unwilling to
apply the law correctly because of the possible death sentence for a guilty verdict.
In the 2007 case of Uttecht v. Brown,31 the U.S. Supreme Court reversed the
Ninth Circuit Court of Appeals, which had overturned the conviction of a defendant
charged with murder because a prospective jury member had been excused for cause
based on his statements about the death penalty. In holding that the juror had been
properly excused by the trial court judge, the Supreme Court stated that four princi-
ples must be used to determine whether a juror has been properly excused for cause
in capital cases:
1. The defendant has a right to have a jury that is not tilted in favor of capital
punishment, which means the prosecution may not challenge for cause any
juror who expresses doubt about capital punishment.
Another random document with
no related content on Scribd:
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

Criminal Evidence Principles and Cases 9th Edition Ebook PDF

Uploaded by

Copyright:

Available Formats

You might also like

Criminal Evidence Principles and Cases 9th Edition Ebook PDF

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Criminal Evidence Principles and Cases 9th Edition Ebook PDF

Uploaded by

Copyright:

Available Formats

Criminal Evidence: Principles and

Cases 9th Edition, (Ebook PDF)

Silence, Miranda, and Impeachment 297

Chapter 13 The Law Governing Identification Evidence 317

Chapter 14 Obtaining Physical and Other Evidence 343

Chapter 15 Obtaining Evidence by Use of Search Warrants, from Computers,

PART 4 CRIME-SCENE, DOCUMENTARY, AND SCIENTIFIC EVIDENCE

Chapter 17 Videotapes, Photographs, Documents, and Writings as Evidence 447

Chapter 18 Scientific Evidence 467

Appendix A Sections of the U.S. Constitution 497

ORGANIZATION OF THE BOOK

NEW TO THIS EDITION

• In Chapter 9 we rewrote the text’s historical exposition of the exclusionary

Warrants: Detentions and Arrests”, we reorganized materials that previously

ANCILLARIES FOR THE INSTRUCTOR

The manual is available for download on the password-protected website and

Cengage Learning Testing

PowerPoint® Lecture Slides

ANCILLARIES FOR THE STUDENT

HISTORY OF THE RULES OF EVIDENCE

Early Methods of Determining Guilt or Innocence

WHEN EVIDENCE OF WITCHCRAFT WAS PERMITTED IN THE COURTS OF THE

MAGNA CARTA AND HABEAS CORPUS

strengthened the constitutional guarantee by statutes, such as Wisconsin statute

THE AMERICAN DECLARATION OF INDEPENDENCE

SOME ABUSES LEADING TO THE SIGNING OF THE DECLARATION

Abuses Concerning Liberty, Freedom, and the

THE U.S. CONSTITUTION AND THE AMERICAN BILL OF RIGHTS

The delegates to the Consti-

Led to the Following

BASIC RIGHTS UNDER THE U.S. CONSTITUTION TODAY

PROCEDURES & PROCESSES

The Presumption of Innocence Until Proven Guilty

The Right to a Speedy and Public Trial

The Right to an Indictment

The Right to a Fair (Not Perfect) Trial

The Right to Assistance of Counsel

The Right to Be Informed of Charges

The Right of the Defendant to Compel Witnesses

The Right of the Defendant to Testify or Not Testify

The Right of the Defendant to Confront and Cross-Examine Witnesses

The Right to Be Free of Unreasonable Searches and Seizures

The Right to an Impartial Jury

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

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

NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAKONDE LOCK AND KEY AT JUMBE CHAURO

MODE OF INSERTING THE KEY

With no small pride first one householder and then a second

Some consolation was afforded me by a brassfounder, whom I

SMOOTHING WITH MAIZE-COB

CUTTING THE EDGE

LAST SMOOTHING BEFORE

FIRING THE BRUSH-PILE

TURNING THE RED-HOT VESSEL

NYASA WOMAN MAKING POTS AT MASASI

DRAWING THE BARK OFF THE LOG