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Contents
Preface xx
About the Author xxvi
PART
1 Introduction
CHAPTER
1 Introduction to Criminal Procedure 1
Introduction: What Is Criminal Procedure? 2
Emphasis on Constitutional Rights 2
Sources of Rights 2
Rights of Relevance in Criminal Procedure 3
The Incorporation Controversy 5

Decision-Making Exercise 1.1 The First Amendment and Criminal
Procedure 6
The Importance of Precedent 7
Stare Decisis 7
Distinguishing Cases 7
Theory versus Reality 8
Decision-Making Exercise 1.2 Traditional Legal Doctrine Meets High-Tech

Crime 8
Decision-Making Exercise 1.3 Theory and Reality Collide 9
Competing Concerns in Criminal Procedure 10
Due Process 10
Crime Control 11
Decision-Making Exercise 1.4 Due Process or Crime Control 12
Decision-Making Exercise 1.5 Due Process or Crime Control 13
Finding Court Cases and Tracing Their Progress 13
Finding Cases 15
Tracing the Progress of a Criminal Case 16
Decision-Making Exercise 1.6 Interpreting a Supreme Court Holding 18
How Cases Arrive at the Supreme Court 18
Decision-Making Exercise 1.7 Would the Supreme Court Hear This

Case? 18
Important Issues and Trends in Criminal Procedure 19
Bright-Line Decisions versus Case-by-Case Adjudication 19
Subjectivity versus Objectivity 20
Decision-Making Exercise 1.8 A Bright-Line Decision or Case-by-Case

Adjudication 21
Increased Faith in the Police 21
Decision-Making Exercise 1.9 Subjective or Objective 22
Judicial Restraint 22
Personal Privacy 22
Decision-Making Exercise 1.10 The Issue of Personal Privacy 23
vi
viii Contents
Criminal Procedure and the War on Terror 23
Criminal Procedure and Technology 25
The Criminal Process: An Overview 25
Pretrial 25
Adjudication 28
Beyond Conviction 28
Summary 29
Introduction to Criminal Procedure 29
Key Terms 30
Key Cases 30
Further Exploration 30
Review Questions 31
Web Links and Exercises 31
CHAPTER
2 Remedies 32
Introduction: Remedies for Constitutional
Rights Violations 33
The Exclusionary Rule 33
The Rule and Its History 33
Decision-Making Exercise 2.1 When Does the Exclusionary Rule Not

Apply? 39
The Fruit of the Poisonous Tree Doctrine 40
Decision-Making Exercise 2.2 An Act of Good Faith? 40
Decision-Making Exercise 2.3 The Impeachment Exception 41
Decision-Making Exercise 2.4 The Independent Source 42
Decision-Making Exercise 2.5 The Purged Taint Exception 43

Criminal Prosecution and Civil Remedies for Constitutional
Criminal Remedies for Constitutional

Decision-Making Exercise 2.6 Use of Deadly Force 45

Civil Remedies for Constitutional Rights Violations 45
Decision-Making Exercise 2.7 Color of Law 47

Decision-Making Exercise 2.8 Municipal Liability 49
Decision-Making Exercise 2.9 Individual Liability 50
Nonjudicial Remedies 51
Decision-Making Exercise 2.10 The Fourth Amendment and Qualified

Immunity 51
Internal Review 53
Civilian Review 54
Mediation 54
Summary 55
Remedies 55
Key Terms 56
Key Cases 56
Review Questions 58

Contents i
PART
2 SearchandSeizure
CHAPTER
3 Introduction to Search and Seizure 59
The Core Purpose and Elements of the Fourth Amendment 60
Basic Terminology 61
A Framework for Analyzing the Fourth Amendment 61

When Does a Search Occur? 62
Government Action, Not Private Action 62
Decision-Making Exercise 3.1 A Moonlighting Scenario 64
Infringement on a Reasonable Expectation of Privacy 64
Decision-Making Exercise 3.2 A Private or Government Search? 64
Decision-Making Exercise 3.3 The Scope of a Private Search 65
Decision-Making Exercise 3.4 A False Friend Scenario 68
Decision-Making Exercise 3.5 Is a Public Street an Open Field? 69

Decision-Making Exercise 3.6 Drug Dogs as Sensory Enhancement
Devices 70
When Does a Seizure Occur? 70
Seizures of Property 70
Seizures of Persons 71
Justification 72
Probable Cause 72
Decision-Making Exercise 3.7 Informants and Probable Cause 76
Reasonable Suspicion 76
Decision-Making Exercise 3.8 Having Probable Cause to Arrest 76

Administrative Justification 78
Decision-Making Exercise 3.9 Is There Reasonable Suspicion? 79
Decision-Making Exercise 3.10 Adventure on the Seas 80
Summary 81
Introduction to Search and Seizure 81
Key Terms 82
Key Cases 82
Review Questions 83
CHAPTER
4 Searches and Arrests with Warrants 85
Introduction: Provisions of the Fourth Amendment 86
Components of Warrants 86
A Neutral and Detached Magistrate 88
A Showing of Probable Cause 88
Particularity 89
Decision-Making Exercise 4.1 Who Was That Bald Man? 89

Decision-Making Exercise 4.2 The Fourth Amendments Particularity
Requirement 90
Arrests with Warrants 90
The Definition of Arrest 91
Decision-Making Exercise 4.3 What Type of Seizure? 93
When Is an Arrest Warrant Required? 94

x Contents
Decision-Making Exercise 4.4 A Public or Private Arrest? 95

Executing an Arrest Warrant 96
Decision-Making Exercise 4.5 Serving a Search Warrant in a Third-Party
Residence 98
Decision-Making Exercise 4.6 A Properly Served Arrest Warrant? 99
Decision-Making Exercise 4.7 Deadly Force Beyond Present

Dangerousness 101
Searches with Warrants 101
Executing a Search Warrant 101
Decision-Making Exercise 4.8 Defining Daytime 104
Decision-Making Exercise 4.9 Where Can Police Reasonably Look? 104
Decision-Making Exercise 4.10 Detention of a Third Party during an

Arrest 105
Special Circumstances 106

Bodily Intrusions 106
Electronic Surveillance 106
Summary 110
Searches and Arrests with Warrants 110
Key Terms 110
Key Cases 111
Review Questions 112

CHAPTER
5 Searches and Arrests without
Warrants 113
Introduction: Moving Beyond the Warrant Requirement 114
Warrantless Searches 114

Searches Incident to Arrest 114
Decision-Making Exercise 5.1 Timing of a Search Incident to Arrest 116
Searches Based on Exigent Circumstances 118
Decision-Making Exercise 5.2 Proper Scope for a Search Incident to

Arrest 119
Decision-Making Exercise 5.3 Proper Scope for a Search Incident to

Arrest 121
Decision-Making Exercise 5.4 Immediacy and Evanescent Evidence 123
Decision-Making Exercise 5.5 Exigent Circumstances and the Severity of

the Offense 124
Automobile Searches 124
Decision-Making Exercise 5.6 Police-Created Exigencies 125
Decision-Making Exercise 5.7 A Twist on Carroll 129

Decision-Making Exercise 5.8 Proper Scope for an Automobile
Search 132
Plain View Searches 133
Decision-Making Exercise 5.9 Racial Profiling 134
Decision-Making Exercise 5.10 Considering the Immediately Apparent

Requirement for Plain View 136
Warrantless Arrests 137
Arrests Based on Exigent Circumstances 137
Arrests in Public Places 13

Contents x
Summary 140
Searches and Arrests without Warrants 140
Key Terms 141
Key Cases 141
CHAPTER
6 Actions Based on Reasonable
Suspicion 144
Introduction to Stop-And-Frisk 145
Loosening the Fourth Amendments Restraints 145
Terry v. Ohio: The Facts 145
Stop and Frisk: Two Separate Acts 146
The Stop 147
Definition of a Stop 147
Decision-Making Exercise 6.1 Looking for Illegal Aliens 149

Sources of Information 149
Duration of a Stop 150
Decision-Making Exercise 6.2 Creating a Constitutionally Cognizable

Policy 151
The Meaning of Free to Leave 151
Can Effects Be Seized? 151
Decision-Making Exercise 6.3 Stretching the Time Limits of a Stop 152

Stops and Seizures under Terry: A Summary 152
The Frisk 152
Decision-Making Exercise 6.4 What Constitutes a Proper Stop? 152

Permissible Grounds for a Frisk 153
Scope of a Frisk 154
Frisks under Terry: A Summary 154
Decision-Making Exercise 6.5 The Permissible Scope of a Frisk 156

The Evolution of Stop-and-Frisk Law 156
Vehicle Stops and Weapons Searches of Automobiles 156
Protective Sweeps of Residences 157
Decision-Making Exercise 6.6 A Vehicle Search 158

Plain Touch and Feel 158
Stops for Loitering 158
Decision-Making Exercise 6.7 The Bounds of a Proper Frisk 159

Checks for Identification 159
Drug Courier Profiling 160
Decision-Making Exercise 6.8 Putting It All Together 160

Landmark Cases Regarding Drug Courier Profiling 162
Decision-Making Exercise 6.9 An Application of Drug Courier

Profiling 163
Decision-Making Exercise 6.10 Terrorist Profiling 164

Investigative Detentions 165
Summary 166
Actions Based on Reasonable Suspicion 166
Key Terms 166
Key Cases 167

xii Contents
CHAPTER
7 Actions Based on Administrative
Justification and Consent 170
Introduction: Casting Off the Fourth Amendments Restraints 171
Actions Based on Administrative Justification 171
Inventories 171
Inspections 173
Decision-Making Exercise 7.1 Inventoried and Inventoried Again 174
Decision-Making Exercise 7.2 Welfare-Related Home Inspections 175
Decision-Making Exercise 7.3 Business Inspections 176

Checkpoints 177
Decision-Making Exercise 7.4 Detecting Illegal Aliens 178

School Discipline 181
Decision-Making Exercise 7.5 A Constitutionally Valid Checkpoint? 182

Searches of Government Employees Offices 183
Drug and Alcohol Testing 184
Decision-Making Exercise 7.6 Searches of Government Employees 184

Probation and Parole Supervision 185
Decision-Making Exercise 7.7 Drug Testing of Students 186

Consent Searches 187
Voluntariness 187
Scope Limitations 188
Third-Party Consent 189
Decision-Making Exercise 7.8 What Constitutes Voluntary Consent? 189
Decision-Making Exercise 7.9 Scope of Consent 190

Knock and Talk 190
Decision-Making Exercise 7.10 The Bounds of Knock and Talk 190

Summary 192
Actions Based on Administrative Justification and Consent 192
Key Terms 193
Key Cases 194
PART
3 Interrogations,Confessions,
and
IdentificationProcedures
CHAPTER
8 Interrogations and Confessions 197
Introduction: Getting Suspects to Talk 198
Interrogations and Confessions 198
The Due Process Voluntariness Approach 198
Police Conduct 199
Characteristics of the Accused 199
The Sixth Amendment Approach 20

Contents xii
Deliberate Elicitation 200
Decision-Making Exercise 8.1 Police Conduct and Voluntariness 200

Formal Criminal Proceedings 201
Decision-Making Exercise 8.2 Suspect Characteristics and

Voluntariness 201
Waiver of the Sixth Amendment Right to Counsel

(Confessions) 202
The Fifth Amendment Approach 203
The Four Components of the Self-Incrimination Clause 203
Miranda 204
Decision-Making Exercise 8.3 Formal Criminal Proceedings 205

Custody 205
Decision-Making Exercise 8.4 The Nature of Custody 207

Decision-Making Exercise 8.5 Can Reading the Miranda Rights Create a
Custodial Situation? 207
Interrogation 208
Other Miranda Issues 209
Decision-Making Exercise 8.6 Incriminating Evidence and Interrogation 209
Decision-Making Exercise 8.7 Another Interrogation? 210
Decision-Making Exercise 8.8 Werethe Miranda Rights Read

Properly? 211
Decision-Making Exercise 8.9 The Circumstances for a Voluntary

Waiver 214
Challenging Miranda 215
Miranda and Section 1983 216
The Exclusionary Rule and Confession Analysis 216
Confessions and Standing 216
Confessions and Impeachment 216
Confessions and Fruit of the Poisonous Tree 217
Decision-Making Exercise 8.10 Should the Exclusionary Rule Apply? 217

The Importance of Documenting a Confession 218
Summary 220
Interrogations and Confessions 220
Key Terms 221
Key Cases 221
CHAPTER
9 Identification Procedures and the Role
of Witnesses 224
Introduction: Dealing with Witnesses to Crimes 225
Constitutional Challenges to Identification Procedures 225
Right to Counsel 225
Decision-Making Exercise 9.1 Counsel During a Lineup 225

Due Process 226
Self-Incrimination 227
The Fourth Amendment 227
Summary: Constitutional Challenges to Witness Identification

Procedures 228
xiv Contents
Pretrial Identification Techniques 228
Lineups 228
Showups 229
Decision-Making Exercise 9.2 Altering the Suspects Appearance 230
Decision-Making Exercise 9.3 What Constitutes a Valid Showup? 231

Photographic Identifications 231
Decision-Making Exercise 9.4 Making a Valid Identification 231

Identification Procedures: Flaws and Fixes 233
Decision-Making Exercise 9.5 Creating a Valid Photographic Array 234

Double-Blind Lineups 234
Decision-Making Exercise 9.6 The Photo Array Revisited 235

Virtual Officer Lineups 235
DNA Identification 235
Decision-Making Exercise 9.7 Mistaken Identification? 235

Identification During Trial 236
Refreshing a Witnesss Memory 236
Witness Credibility 237
Decision-Making Exercise 9.8 Identify the Leading Questions 237

Rehabilitation 239
The Exclusionary Rule and Identifications 240
Tainted Identifications 240
Identifications Resulting from Illegal Searches and Seizures 241
Decision-Making Exercise 9.9 When Is an In-Court Identification

Tainted? 241
Decision-Making Exercise 9.10 When Is an In-Court Identification

Valid? 242
Summary 243
Identification Procedures and the Role of Witnesses 243
Key Terms 243
Key Cases 243
PART
4 TheBeginnings
ofFormalProceedings
CHAPTER
10 The Pretrial Process 246
Introduction: The Road to Trial 247
The Initial Appearance 247
The Probable Cause Hearing 248
Procedural Issues Surrounding the Hearing 248
Timing of the Hearing 248
Decision-Making Exercise 10.1 The Probable Cause Hearing 249

Pretrial Release 249
Decision-Making Exercise 10.2 Timing of the Probable Cause Hearing 249

The Pretrial Release Hearing 250
The Pretrial Release Decision 251
Decision-Making Exercise 10.3 Amount of Bail 253

Criteria for Release 25
Contents x
Decision-Making Exercise 10.4 Preventive Detention 254

Treatment of Pretrial Detainees 255
Decision-Making Exercise 10.5 Financial Status and Bail
Determination 255
Decision-Making Exercise 10.6 Treatment of Pretrial Detainees 256
The Preliminary Hearing 256
The Probable Cause Requirement 256
Procedural Issues at Preliminary Hearings 257
Decision-Making Exercise 10.7 Preliminary Hearings 257
The Arraignment 258
Summary of Pretrial Proceedings 258

Discovery 259
Discovery by the Prosecution 260
Decision-Making Exercise 10.8 Prosecutorial Discovery 262
Discovery by the Defense 262
Decision-Making Exercise 10.9 Defense Discovery 262
Nonreciprocal Discovery 263
Decision-Making Exercise 10.10 Disclosure of Exculpatory Evidence 268
Summary 269
Identification Procedures and the Role of Witnesses 269
Key Terms 270
Key Cases 271
CHAPTER
11 Prosecutors, Grand Juries, and Defense
Attorneys 273
Introduction: Bringing Charges and Mounting a Defense 274
The Prosecutor 274
The Charging Decision 274
Decision-Making Exercise 11.1 Reasons for Nonprosecution 275
Restrictions on Bringing Charges 278
Decision-Making Exercise 11.2 The Decision Not to Charge 278
Decision-Making Exercise 11.3 Another Decision Not to Charge 279
Decision-Making Exercise 11.4 What Is Selective Prosecution? 280

Decision-Making Exercise 11.5 What Is Pretextual Prosecution? 280
Decision-Making Exercise 11.6 What Is Vindictive Prosecution? 281
Dealing with Overzealous Prosecutors 281
Joinder 282
The Grand Jury 283
How a Grand Jury Is Constructed 285
Secrecy of Grand Jury Proceedings 287
Rights of Witnesses Testifying before Grand Juries 288

Investigative Powers of the Grand Jury 289
Challenging a Grand Jury Indictment 290
Decision-Making Exercise 11.7 Grand Jury Investigations 291
Decision-Making Exercise 11.8 Deciding on Variance 291
The Defense Attorney 292

xvi Contents
The Right to Counsel in a Criminal Prosecution 292
The Right to Counsel at Other Stages of the Criminal Process 293
Waiver of the Right to Counsel 294
Decision-Making Exercise 11.9 Right to Counsel in the Pretrial Phase 295

Indigent versus Nonindigent Defendants Right to Counsel of Their
Choice 296
Effective Assistance of Counsel 296
Decision-Making Exercise 11.10 Effective Assistance of Counsel 299

Summary 300
Prosecutors, Grand Juries, and Defense Attorneys 300
Key Terms 301
Key Cases 301
CHAPTER
12 Plea Bargaining and Guilty Pleas 304
Introduction: Methods of Avoiding Trial 305
Plea Bargaining 306
The History and Rise of Plea Bargaining 307
Arguments in Support of Plea Bargaining 308
Criticisms of Plea Bargaining 308
Attempts to Restrict Plea Bargaining 310
The Supreme Courts View on Plea Bargaining 311
The Plea-Bargaining Process 311
Constitutional Rights during Plea Bargaining 311
Acceptable Inducements by the Prosecution 312
Decision-Making Exercise 12.1 What Constitutes Coercion? 314

Questionable Inducements 314
Statutory and Judicial Inducements 314
Decision-Making Exercise 12.2 Prosecutorial Deception 314
Decision-Making Exercise 12.3 An Inducement of Banishment 315
Decision-Making Exercise 12.4 Judicial Inducements 316

Effects of Plea Bargaining 317
Effects on the Court 317
Effects on the Prosecutor 318
Decision-Making Exercise 12.5 Judicial Rejections 319

Effects on the Defendant 319
Decision-Making Exercise 12.6 The Prosecutors Duty to Fulfill the

Bargain 319
Decision-Making Exercise 12.7 Two Prosecutors, One Bargain 320
Decision-Making Exercise 12.8 Waiving Rights as a Consequence of Plea

Bargaining 320
Effects on the Victim 321
Elements of a Valid Guilty Plea 321
Intelligence 321
Decision-Making Exercise 12.9 A Valid Guilty Plea? 322

Voluntariness 323
Factual Basis 32
Contents xvi
Decision-Making Exercise 12.10 Another Valid Guilty Plea? 323

Contesting a Guilty Plea 324
Withdrawing a Guilty Plea 325
Appealing a Guilty Plea 325
Summary 326
Plea Bargaining and Guilty Pleas 326
Key Terms 327
Key Cases 327

PART
5 Trial,Conviction,
andBeyond
CHAPTER
13 Rights at Trial 329
Introduction: Ensuring an Expeditious
and Fair Trial 330
The Right to a Speedy Trial 330

When the Right to a Speedy Trial Applies 330
When the Right to a Speedy Trial Is Violated 332
Decision-Making Exercise 13.1 Putting Charges on Hold 332
Decision-Making Exercise 13.2 When the Defendant Is Responsible for the

Delay 333
Decision-Making Exercise 13.3 Court Backlog 334

Consequences of Violating the Right to
a Speedy Trial 335
The Right to an Impartial Judge 335
Decision-Making Exercise 13.4 Deceased Witnesses 335
Methods of Removing a Judge Who Is Not Impartial 336

The Right to an Impartial Jury 336
Decision-Making Exercise 13.5 An Impartial Judge? 337
When the Right to a Jury Trial Applies 337
Jury Size and Voting Requirements 338
Decision-Making Exercise 13.6 A Twist on the Six-Month Rule 338
Waiving the Right to a Jury Trial 339
Selection of Potential Jurors 341
Decision-Making Exercise 13.7 Small-Jury Voting Requirements 341

The Voir Dire Process 344
Decision-Making Exercise 13.8 What Composes a Distinctive Group? 346
Decision-Making Exercise 13.9 Strong Opinions on the Death Penalty 349
Decision-Making Exercise 13.10 Appropriate Use of the Peremptory

Challenge 349
When Impartial Jurors Cannot Be Found 350
When Judges Preempt Juries 350
Dealing with Juror Bias after Trial 351
Summary 352
Rights at Trial 352

Key Terms 353
Key Cases 353

xviii Contents
CHAPTER
14 More Rights at Trial 356
Introduction: More Protections for the Accused 357
The Right to a Public Trial 357
When the Right May Not Apply 357
The First Amendment and Public Trials 358
Decision-Making Exercise 14.1 The Right to a Public Trial 360

The Right to Confrontation 360
Decision-Making Exercise 14.2 Gag Orders on the Media 360

The Defendants Right to Be Present 361
Decision-Making Exercise 14.3 Indigence and the Right to Be Present 364

The Defendants Right to Live Testimony 364
Decision-Making Exercise 14.4 An Unavailable Witness 366

The Defendants Right to Challenge Witness Testimony 367
Decision-Making Exercise 14.5 A Hearsay Exception? 369
Decision-Making Exercise 14.6 The Defendants Right to Obtain

Evidence 371
The Right to Compulsory Process 371
The Right to Present Evidence 372
Decision-Making Exercise 14.7 Threatening a Witness 374

The Right to Double-Jeopardy Protection 374
When Double-Jeopardy Protection Applies 375
When Double-Jeopardy Protection Does Not Apply 376
Decision-Making Exercise 14.8 Case of Double Jeopardy? 377
Decision-Making Exercise 14.9 Reprosecution after a Mistrial 378

Double Jeopardy and Sentencing 378
The Entrapment Defense 379
Decision-Making Exercise 14.10 Outrageous Government Conduct 380

Summary 381
More Rights at Trial 381
Key Terms 382
Key Cases 382
CHAPTER
15 Sentencing, Appeals, and Habeas
Corpus 385
Introduction: Closing the Door on the Criminal Process 386
Sentencing 386
Types of Prison Sentences 386
Determining the Appropriate Sentence 388
Decision-Making Exercise 15.1 Death Penalty Sentencing 389

Constitutional Rights during Sentencing 39
Contents xi
Appeals 392
Types and Effects of Appeals 392
The Appellate Process 393
Decision-Making Exercise 15.2 Constitutional Rights during the Appeals

Process 394
Decision-Making Exercise 15.3 Effective Assistance of Counsel during the

Appeals Process 396
Timing of Defense Appeals 397
Decision-Making Exercise 15.4 Retaliation for a Successful Appeal 397
Appeals by Parties Other Than the Defense 398
Decision-Making Exercise 15.5 An Appeal Prior to Adjudication 399
Reasons for Denying an Appeal 399

Decision-Making Exercise 15.6 A Prosecution Appeal 400
Retroactivity of Appellate Decisions 401
Decision-Making Exercise 15.7 A Harmless Error? 401
Habeas Corpus 402
Restrictions on the Right to Habeas Corpus 405
Decision-Making Exercise 15.8 A Constitutional Question? 406
Decision-Making Exercise 15.9 Timing of a Habeas Corpus Petition 407
When a Habeas Corpus Proceeding Resembles a Trial 408
Decision-Making Exercise 15.10 Were All State Remedies Exhausted? 409

The Right to Counsel in the Habeas Corpus Context 409
Retroactivity in the Habeas Corpus Context 409

The Antiterrorism and Effective Death Penalty Act (AEDPA)
of 1996 410
Summary 413
Sentencing, Appeals, and Habeas Corpus 413
Key Terms 414
Key Cases 414
Glossary G-1
Notes N-1
Case Index I-1
Subject Index I-9

Preface
I decided to write this book, Criminal Procedure: From First Contact to Appeal, after I
had taught criminal procedure for several years. During each course, my students typi-cally
asked a litany of what if questions and became curious about the rules of criminal
procedure after the police arrest and book a suspect. Students also expressed frustration
with the fact that many of the leading books on criminal procedure presupposed a cer-tain
degree of familiarity with the criminal process, including an understanding of basic
terminology. Students came to loathe these books excessive use of legalese and obtuse
descriptions of criminal procedure topics that had no real-life applications.

In addition, students frequently pointed out, as did I, that there are often signifi-cant
differences between what the courts require and what happens in the real world of
criminal justice. For instance, consider the definition of a seizure for the purposes of the
Fourth Amendment. A seizure occurs when a reasonable person would believe he or she
is not free to leave. Yet many times, students find this definition wanting and ask, If a
person is not seized according to this definition, is he or she really free to leave? This
question highlights the differences between what this book calls theory and reality. It and
countless other similar questions prompted me to write a criminal procedure book of my
own, one that takes a comprehensive yet basic approach to criminal procedure and that
connects the material to the real world with examples and exercises.
By way of preview, then, this book presents an introduction to criminal procedure,
from the point at which an individual first comes into contact with the police all the
way through the appeals process. Approximately half of the book is devoted to tradi-tional
criminal procedure topicsnotably, search-and-seizure as well as interrogation
and identification procedures. The remainder of the book moves beyond these topics
and discusses the pretrial process; the roles of defense attorneys, prosecutors, and grand
juries; plea bargaining and guilty pleas; rights of criminal defendants at trial; and appeals
and habeas corpus.
Presentation
The material in Criminal Procedure is covered, in large part, by focusing on the constitu-tional
rights of criminal defendants, as interpreted by the U.S. Supreme Court. To this end,
many leading Supreme Court decisions are discussed; however, lengthy excerpts from the
actual decisions have been reduced to relevant remarks in order to avoid distracting from
the many important concepts introduced. In order to maintain a real-world focus, the book
also incorporates many actual legal documents and excerpts from official policy manuals
of police departments and other criminal justice agencies around the United States.
Criminal procedure should not be confused with evidence procedure or trial
procedure. Evidence procedure concerns the rules for presenting evidence to prove guilt
(or the lack thereof); thus, evidence courses cover such topics as types of evidence, rules
for presenting witness testimony, hearsay, and the like. This book touches on evidence
only tangentiallyby discussing witness questioning and the police actions used to se-cure
evidence through search and seizure. But the focus on evidence does not move
beyond these two issues. Likewise, this book is not about trial procedure. That is, it does
not address the nuances of criminal trials, including the order of events at trial, what
objections can be raised, instructions to the jury, and so on. Trial procedure is a topic
typically covered in law school.
Instead, this book presents a comprehensive introduction to criminal procedure,

thoroughly presenting basic legal concepts and issues in a conversational written style
and tone. Given this content coverage and the frequent use of examples from actual
legal documents and policy guides, readers who are pursuing careers in criminal justice
x
Preface xx
will find this book especially useful. Individuals who are already employed in criminal
justice will find the book useful as well. Moreover, because the book constitutes more
than a general overview of criminal procedure, it should prove beneficial to aspiring law
students. But, it should not be over the heads of students with little or no background in
criminal justice.
Features
Criminal Procedure has a number of pedagogical features that will benefit readers. Each
chapter begins with learning objectives and an outline of the topics covered, giving read-ers
an at-a-glance preview of the content. Lists of key terms and key cases are also
included at the end of each chapter. Each term is defined in a glossary appearing at the
end of the book, and each key case is then highlighted in the margins near where it is
discussed in the chapter text. Each chapter ends with a set of Review Questions, which
cover the basic content and also ask readers to correlate what they have learned. Sum-maries
are also provided at the end of the chapter, with each heading aligning with learn-ing
objectives. Other key features are as follows:
Decision-Making Exercises are scattered throughout each chapter. Each exercise

places the reader in the position of judge, asking him or her to decide a case based
on the facts presented. The answers to the exercises are available to instructors.
They explain what was decided in the actual case on which a given exercise was
based or what likely would be decided given precedent in the area.
The book makes extensive use of actual legal forms, calls attention to important
rules (such as those spelled out in the Federal Rules of Criminal Procedure), and
reprints police department policy manual excerpts. Presented as figures, these ma-terials
show how professionals working in the field of criminal justice deal with the
concepts and issues covered throughout the book.
Web Links and Exercises. Each chapter concludes with a few Weblinks and exercis-es
designed to elaborate on and reinforce key issues and points raised in the chapter.
Further Exploration. Each chapter also concludes with an examination of various

controversial and unsettled issues in criminal procedure, some that have barely even
been conceived of at this point. The objective is to take readers beyond the text and
have them entertain ideas that are likely to come up in the not-too-distant future.
In short, this book is intended to move beyond the basic introductory approach to
criminal procedure that many of the competing books have taken but not to a level that
presupposes any knowledge about the criminal process. Many competing texts focus
overwhelmingly on search-and-seizure and on interrogation and confession procedures.
This book covers these topics as well, and in great detail, but it also covers many more
topics. This is because criminal procedure consists of much more than interactions be-tween
the police and criminal suspects.
New
to the SixthEdition
The sixth edition has been revised in several ways:
The design has been updated and added full color to enhance the learner
experience.
Numerous recent Supreme Court decisions are included, through the 20162017 term.
Case law presentations have undergone additional revisions, with more discussion of
case facts/details throughout.
Expanded coverage of the fruit of the poisonous tree doctrine appears in

Chapter 2.
Chapter 5 includes a new section on cellular phone searches in light of the 2014
Riley v. California decision.
xxii Preface
The section on vehicle stops in Chapter 6 has been expanded to accommodate re-cent
Supreme Court decisions.
A new section dealing with DNA-based identification appears in Chapter 9.
The section on impartial judges in Chapter 13 has been revised and expanded in
light of recent cases.
Several additional sentencing cases have been added to Chapter 15.
End-of-chapter Web links have been updated and revised.
Organization
Criminal Procedure continues to be divided into five parts: (1) Introduction; (2) Search
and Seizure; (3) Interrogations, Confessions, and Identification Procedures; (4) The
Beginnings of Formal Proceedings; and (5) Trial, Conviction, and Beyond. The latter
two topics are rarely covered in conventional criminal procedure books, particularly at
the level of detail found in this text. In contrast, the traditional approach to criminal
procedure rarely moves beyond the material covered in the first three parts of this text.
Part 1 contains two chapters. Chapter 1 is introductory and provides readers with
the information necessary to begin studying criminal procedure. In particular, it defines
criminal procedure; highlights the due process/crime control dilemma, which is at the
heart of all controversies in criminal procedure; discusses the relationship among the
courts, including a brief section on how to do legal research; and introduces several is-sues
and trends in criminal procedure. Chapter 1 ends with a detailed overview of the
text. Chapter 2 begins by discussing the exclusionary rule, then it considers criminal,
civil, and nonjudicial remedies. Remedies are presented early in the text so readers will
become aware of how peoples rights can be enforced in the U.S. courts.
Part 2 covers standard search-and-seizure topics. Chapter 3 provides a framework for

studying the Fourth Amendment; specifically, it defines Fourth Amendment terminology
and specifies when searches and seizures occur. This chapter also covers the doctrine
of justification, focusing on the definitions of probable cause, reasonable suspicion, and

what this book calls administrative justification. Chapters 4 and 5 go on to cover searches
and seizures with warrants and without warrants, respectively. Chapter 6 covers actions
based on reasonable suspicion, including stops and frisks and investigative detentions,
and Chapter 7 covers actions based on administrative justification and consent, includ-ing
inventories, inspections, checkpoints, school and office searches, drug and alcohol
testing, and the like.

Part 3 covers interrogations, confessions, and identification procedures. To this end,
Chapter 8 focuses heavily on the Fifth Amendments self-incrimination clause and then
summarizes the proper procedures for conducting interrogations and obtaining valid con-fessions.
Further, it also examines how the Sixth and Fourteenth Amendments govern
interrogations and confessions. Chapter 9 discusses identification procedures, including
the guidelines for proper pretrial identifications, and also introduces identification pro-cedures
used during trial, including the proper questioning of witnesses to assist in valid
in-court identifications.
The information in Part 4is pretrial in nature. Chapter 10 begins by discussing book-ing,
the initial appearance, the probable cause hearing, pretrial release, the preliminary
hearing, and the arraignment. This chapter also introduces the rules surrounding dis-covery.
While discovery can occur well into a trial, most often discovery is pretrial in
nature; thus, it is appropriate to discuss discovery in this context. Chapter 11 covers
prosecutors, grand juries, and defense attorneys, including the constitutional guidelines
by which each must abide. Of course, the actions of prosecutors, defense attorneys, and
even grand juries matter outside the pretrial context, but readers should be familiar
with these important actors before moving into the adjudication section. Finally, Chap-ter
12 covers plea bargaining and guilty pleas. Again, both can occur well into a trial, but
most plea bargains and guilty pleas are undertaken in an effort to avoid trial.
Part 5 is titled Trial, Conviction, and Beyond. Chapter 13, the first of two chapters
about the defendants rights at trial, examines the right to a speedy trial and the right t
Preface xxii
an impartial judge and jury. Chapter 14 continues the focus on rights at trial, discussing
openness, confrontation, compulsory process, double jeopardy, and entrapment. Lastly,
Chapter 15 covers important topics in sentencing as well as appeals and habeas corpus.
As noted earlier, most texts on criminal procedure give only limited coverage to the
topics in Parts 4 and 5, so readers should benefit from the material presented. Once
again, the purpose of this book is to present a comprehensive look at criminal procedure,
demonstrating that the Constitution affects much more than the actions of law enforce-ment
personnel.
Supplements
The 6th edition of Criminal Procedure is supported by acomplete package of instruc-tor
and student resources:
? Instructors Manual with Test Bank. Includes content outlines for classroom
discussion, teaching suggestions, and answers to selected end-of-chapter questions
from the text. This also contains a Word document version of the test bank.
? TestGen. This computerized test generation system gives you maximum flexibility
in creating and administering tests on paper, electronically, or online. It provides
state-of-the-art features for viewing and editing test bank questions, dragging a se-lected
question into a test you are creating, and printing sleek, formatted tests in a
variety of layouts. Select test items from test banks included with TestGen for quick
test creation, or write your own questions from scratch. TestGens random generator
provides the option to display different text or calculated number values each time
questions are used.
? PowerPoint Presentations. Our presentations offer clear, straightforward out-lines

and notes to use for class lectures or study materials. Photos, illustrations,
charts, and tables from the book are included in the presentations when applicable.
To access supplementary materials online, instructors need to request an instructor

access code. Go to www.pearsonhighered.com/irc, where you can register for an
instructor access code. Within 48 hours after registering, you will receive a confirming
email, including an instructor access code. Once you have received your code, go to
the site and log on for full instructions on downloading the materials you wish to use.
Alternate Versions
? eBooks. This text is also available in multiple eBook formats. These are an exciting
new choice for students looking to save money. As an alternative to purchasing the
printed textbook, students can purchase an electronic version of the same content.
With an eTextbook, students can search the text, make notes online, print out read-ing
assignments that incorporate lecture notes, and bookmark important passages
for later review. For more information, visit your favorite online eBook reseller or
visit www.mypearsonstore.com.
xxiv Preface
REVELfor CriminalProcedure,
SixthEdition
byJohnL. Worrall
Designed for the waytodays Criminal Justice students
read, think and learn
REVEL offers an immersive learning experience that engages students deeply, while
giving them the flexibility to learn their way. Media interactives and assessments in-tegrated
directly within the narrative enable students to delve into key concepts and
reflect on their learning without breaking stride.
? REVEL seamlessly combines the full content of Pearsons bestselling criminal jus-tice
titles with multimedia learning tools. You assign the topics your students cover.
Author Explanatory Videos, application exercises, and short quizzes engage stu-dents
and enhance their understanding of core topics as they progress through the
content.
? Instead of simply reading about criminal justice topics, REVEL empowers students
to think critically about important concepts by completing application exercises,
watching Point/CounterPoint videos, and participating in shared writing (discussion
board) assignments.
Track time-on-task throughout the course

The Performance Dashboard allows you to see how much time the class or individual
students have spent reading a section or doing an assignment, as well as points earned
per assignment. This data helps correlate study time with performance and provides a
window into where students may be having difficulty with the material.
Learning Management System Integration

Pearson provides both Blackboard LearnTM and CanvasTM integration, giving
institutions, instructors, and students easy access to Revel. Our Revel integration
delivers streamlined access to everything your students need for the course in the
Blackboard Learn and Canvas environments.
The REVEL App

The REVEL App further empowers students to access their course materials wherever
and whenever they want. With the REVEL App, students can access REVEL directly
from their tablet or mobile device, offline and online. Reminders and notifications can be
set so you never miss a deadline. Work done on the REVEL app syncs up to the browser
version, ensuring that no one misses a beat. Visit www.pearsonhighered.com/revel

Preface xx
Acknowledgments
I would like to thank those individuals who reviewed the sixth edition: Carina Aquirre,
Everest College and Janet Foster Goodwill, Yakima Valley Community College.
I would also like to thank the reviewers of the first five editions: Scott Belshaw,
University of North Texas; Robert Boyer, Luzerne County Community College; Jack E.
Call, Radford University; Brett Curry, Georgia Southern University; Kevin Daugherty,
Albuquerque TVI Community College; Charles Dreveskracht, Northeastern State
University; Russell A. Hunt, Dodge City Community College; Mark Jones, Community
College of Philadelphia; David Kramer, Bergen Community College; Patrick Massaro,
Butler County Community College; Donna Nicholson, Manchester Community College;
Kathleen Nicolaides, University of North CarolinaCharlotte; Caryl Anne Poteete, South-ern

Illinois University at Carbondale; Larry Salinger, Arkansas State University; Philip
E. Secret, University of Nebraska at Omaha; Constance St. Germain-Driscoll, American
Public University System; Beth Bjerregaard, University of North Carolina, Charlotte;

James Blair, South Texas Community College; Amy Carrino, KCTCS Gateway Commu-nity
and Technical College, Covington; Brett Curry, Georgia Southern University; Brian
Donnelly, Raritan Valley Community College; Michelle Estis-Sumerel, Itawamba Commu-nity

College, Tupelo; Soraya Kawucha, University of North Texas; Colin Lau, Chaminade
University of Honolulu; Thomas Lawrence, TriCounty Technical College; Mike Martinez,
University of South Dakota; Greg Plumb, Park University; Leslie Ridge, Waynesburg Uni-versity;
Louis Roy, West Virginia University at Parkersburg; Kurt Siedschlaw, University
of Nebraska; Margaret Swearingen, Santa Rosa Community College and Carol Lynn Teb-ben,
University of WisconsinParkside.
Special thanks go to the following organizations (including their staff and others who
responded to my many queries): San Bernardino, California, Police Department; Portland
Police Bureau, Strategic Services Division; Abilene, Texas, Police Department; Alameda
County (California) District Attorneys Office; Claremont, California, Police Department;
Gallatin, Tennessee, Police Department; Pine Bluff, Arkansas, Police Department; Sage
Publications; and the Texas Municipal Court Education Center.

I would also like to thank Craig Hemmens, Washington State University, for field-ing
many of my questions. My students throughout the years deserve special thanks
as well. Their what if questions and frustration with the traditional, heavy-on-case-law
approach to teaching criminal procedure contributed in no small part to this, the

sixth edition. And thanks, as always, to the wonderful people at Pearson and everyone
else involved in bringing the book to press, including Gary Bauer, Tiffany Bitzel, Steve
Robb, and project manager Revathi Viswanathan at PreMediaGlobal. I am also indebted

to development editor extraordinaire, Evan Voboril. His attention to detail brought more
improvements to this text than I could imagine. Finally, special thanks go to my family,
especially my wife, Sabrina, for her unending support.

Aboutthe Author
John L. Worrall is Professor of Criminology and Director of the M.S. Program in Justice
Administration and Leadership (JAL) at the University of Texas at Dallas (UTD). Both
his M.A. (criminal justice) and Ph.D. (political science) were received from Washington
State University, where he graduated in 1999. Dr. Worrall has published articles and book
chapters on a variety of topics ranging from legal issues in policing to crime measurement,
having been ranked one of the most prolific sole and lead authors in the discipline. He has
also authored a number of popular books, including Introduction to Criminal Justice
(with Larry Siegel) and Criminal Procedure: From First Contact to Appeal. Dr. Worrall is
Executive Director of the Academy of Criminal Justice Sciences and continues to serve
as editor of the journal Police Quarterly, a position he has held since 2008.
xxv
Introductionto
CriminalProcedure
CHAPTER
1
Learning Objectives
Whenyou completethis chapter,you shouldbe ableto:

1. Summarize the constitutional basis for criminal
procedure.
2. Explain the importance of precedent.

3. Comparethe theory of criminal procedureto the
reality.
4. Describethe public order(crime control) and
individual rights (due process) perspectives of
criminal justice and how criminal procedure
balances the two.
5. Outlinethe structure ofthe court system,including
the responsibilities and jurisdictions of each level.
6. Summarizeimportant issues andtrends in criminal
procedure.
7. Providean overview of the criminal process.
Jim Lo Scalzo/EPA/Newsco
2 PARTI Introduction
Introduction:What
Is CriminalProcedure?
American criminal procedure consists of a vast set of rules and guidelines that describe
criminal procedure how suspected and accused criminals are to be handled and processed by the justice
A vast set of rules and guidelines that system. Of great significance is the relationship between the police and the people
describe how suspected and accused
suspected of criminal activity. Criminal procedure arms the police with the knowledge
criminals are to be handled and processed
bythe justice system.
necessary to preserve the rights of individuals who are seized, searched, arrested, and
otherwise inconvenienced by law enforcement officials. It also arms other justice system
professionalssuch as judges, prosecutors, and defense attorneyswith the necessary
information to preserve the rights of individuals accused of criminal activity. In short,
criminal procedure begins when the police first contact a person and ends well after his
or her conviction.
At least three important themes run throughout criminal procedure. First, there is a
concern with the constitutional rights of accused persons, as interpreted by the courts.
People enjoy a number of important rights in the United States, but the bulk of criminal
procedure consists of constitutional procedure or what the U.S. Constitution saysusually
through the interpretation of the U.S. Supreme Court (i.e., the Court)with
regard to the treatment of criminal suspects.
Second, criminal procedure contains an important historical dimension, one that
defers regularly to how sensitive legal issues have been approached in the past. The role
of precedent, or past decisions by the courts, is central. At the same time, though, the
world continues to evolve, and it is sometimes necessary to part ways with the past and
decide novel legal issues.
Third, criminal procedure creates something of a collision between two different
worlds: the world of the courts versus that of law enforcement. What the courts require
and what law enforcement actually deals with do not always harmonize. That is, in the
real world, the influence of the courts may not always be as significant or relevant as
might be expected. The following subsections will elaborate more fully on the impor-tance
of these three themes.
Emphasis
onConstitutional
Rights
The Preamble to the U.S. Constitution states,
We the People of the United States, in Order to form a more perfect Union, establish
Summarize the constitutional basis
Justice, insure domestic Tranquility, provide for the common defence, promote the
1 forcriminal
procedure.
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.
Of particular relevance to criminal procedure are the terms justice and liberty. The
Constitution helps ensure these through both setting forth the various roles of govern-ment
and protecting the rights of people within the nations borders. Throughout the
years, the courts have devoted a great amount of energy to interpreting the Constitution
and to specifying what rights are important and when they apply.
The Constitution is not the only source of rights, however; there are others worthy
of consideration. In addition, some rights are more important than others, at least as far
as criminal procedure is concerned. Finally, federalism (the idea that power is shared
between the federal government and the states) creates a unique relationship between
the federal and state levels. Criminal procedure cannot be understood without attention
to the interplay between federal and states rights.
Sources of Rights
In addition to the Constitution, important sources of rights include court decisions,
statutes, and state constitutions. Most of the court decisions discussed in this section
and throughout the text are U.S. Supreme Court decisions.
Whenever the U.S. Supreme Court (also called the Supreme Court or simply The
Court) interprets the Constitution, it effectively makes an announcement concernin
CHAPTER 1 Introduction to Criminal Procedure 3
peoples rights. For example, the Fourth Amendment states that unreasonable searches
and seizures are impermissible. The term unreasonable is not self-explanatory, however,
so the Court has taken steps to define it. For example, in Wilson v. Layne (526 U.S. 603
[1999]), the Court decided that it is unreasonable for the police to bring reporters along
when serving a warrant, unless the reporters are there to serve a legitimate law enforce-ment
objective.
The Constitution and the courts cannot be expected to protect all of the interests
that people represent. Statutes attempt to compensate for that shortcoming by establish-ing
that certain rights exist. An example is Title VII of the 1964 Civil Rights Act. Among
other things, it prohibits discrimination in employment. Another statute of relevance in
criminal procedure is 42 U.S.C. Section 1983. It allows private citizens to sue local law
enforcement officials for violations of federally protected rights.
States have their own constitutions, as well. These are another important source of
rights. The supremacy clause of Article VI to the U.S. Constitution makes it the supreme
law of the land and binds all states and the federal government to it, but nothing in the
U.S. Constitution precludes individual states from adopting stricter interpretations of
the federal provisions. In general, if a state constitution gives less protection than the
federal Constitution, such a limitation is unconstitutional. But a stricter interpretation
of the federal Constitution is perfectly reasonable. For example, the Supreme Court has
interpreted the Fifth Amendment in such a way that it requires police to advise a sus-pect
of his or her so-called Miranda rights when the suspect is subjected to custodial
interrogationan action that does not necessarily rise to the level of an arrest. A state,
however, could require that Miranda rights be read whenever a person is arrested,
regardless of whether he or she is interrogated.
Finally, although it is not a source of rights per se, the Federal Rules of Criminal Federal Rules of Criminal
Procedure deserve some consideration.1 Excerpts from the Federal Rules are reprinted Procedure
throughout this book because they sometimes clarify important rulings handed down by The rules that govern the conduct of all
criminal proceedings brought in federal
the U.S. Supreme Court. Additionally, the Federal Rules set forth the criminal proce-dure
courts
guidelines by which federal criminal justice practitioners are required to abide.
Rights of Relevance in Criminal Procedure

Ofthe many rights specified in the U.S. Constitution (which, incidentally, is reprinted in the
Appendix), the rights stemming from five amendments are of special importance in crimi-nal
procedure. Four of thesethe Fourth, Fifth, Sixth, and Eighth Amendmentscan be
found in the Bill of Rights. Beyond the Bill of Rights, the Fourteenth Amendment is of
special relevance in criminal procedure. Sometimes the First Amendment, which protects
individual rights to assembly and speech, and the Second Amendment, which protects the
right to bear arms, are relevant in criminal procedure, but only rarely.
The Fourth Amendment is perhaps the most well-known source of rights in criminal Fourth Amendment
procedure. In fact, it is viewed to be so important that several books on criminal Part of the U.S. Constitution, which states:
The right of the people to be secure

procedure devote the overwhelming majority of their chapters to it. The Fourth
in their persons, houses, papers, and
Amendment states, effects, against unreasonable searches
and seizures, shall not be violated, and no
The right of the people to be secure in their persons, houses, papers, and effects, Warrants shall issue, but upon probable
cause, supported by Oath or affirmation
against unreasonable searches and seizures, shall not be violated, and no Warrants
and particularly describing the place to
shall issue, but upon probable cause, supported by Oath or affirmation and particu-larly
be searched, and the persons or things to
describing the place to be searched, and the persons or things to be seized.
be seized.
Several rights can be discerned by reading the text of the Fourth Amendment. It
refers to the right of people to be free from unreasonable searches and seizures, and
it provides that specific requirements are to guide the warrant process. That is, a
warrant must be issued by a magistrate or judge, supported by probable cause, and
sufficiently specific as to what is to be searched and/or seized. Because of the com-plexity
of the Fourth Amendment, this book devotes an entire section to its interpre-tation
(see Part 2).
The second constitutional amendment of special relevance to criminal procedure is
Fifth Amendment the Fifth Amendment. It states,

Part of the U.S. Constitution, which states:
No person shall be held to answer for No person shall be held to answer for a capital, or otherwise infamous crime, unless
a capital, or otherwise infamous crime, on a presentment or indictment of a Grand Jury, except in cases arising in the land or
unless on a presentment orindictment of
naval forces, or in the Militia, when in actual service in time of War or public danger;
a Grand Jury, except in cases arising in
nor shall any person be subject for the same offense to be twice put in jeopardy of life
the land or naval forces, or in the Militia,
or limb; nor shall be compelled in any criminal case to be a witness against himself, nor
when in actual service in time of War or
public danger; nor shall any person be be deprived of life, liberty, or property, without due process of law; nor shall private
subject for the same offense to be twice property be taken for public use, without just compensation.
put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a This book also examines the Fifth Amendment in detail, focusing in particular on the
witness against himself, nor be deprived
role of the grand jury, the statement that no person shall be twice put in jeopardy of
of life, liberty, or property, without due
life or limb (known as the double-jeopardy clause), the statement that no one can
process oflaw; nor shall private property
be taken for public use, without just be compelled to be a witness against himself (also known as the self-incrimination
compensation. clause), and perhaps most important of all, the requirement that an individual cannot
be deprived of life, liberty, or property without due process of law.
Sixth Amendment The Sixth Amendment is also of great importance in criminal procedure. It specifies,
Part of the U.S. Constitution, which states:
In all criminal prosecutions, the accused In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
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
trial, by an impartial jury of the State and
committed, which district shall have been previously ascertained by law, and to be
district wherein the crime shall have been
informed of the nature and cause of the accusation; to be confronted with the wit-nesses
committed, which district shall have been
against him; to have compulsory process for obtaining witnesses in his favor,
previously ascertained by law, and to be
informed of the nature and cause of the and to have the Assistance of Counsel for his defence.
accusation; to be confronted with the
witnesses against him; to have compulsory Of relevance to criminal procedure is the Sixth Amendments language concerning
process for obtaining witnesses in his speedy and public trials, impartial juries, confrontation, and compulsory process. The
favor, and to have the Assistance of
Sixth Amendment also suggests that in addition to being public, trials should be open,
Counsel for his defence.
not closed, proceedings. The Supreme Court has interpreted the Sixth Amendment
as providing the right of the accused to be present at his or her trial and to be able to
put on a defense.
Eighth Amendment The Eighth Amendment is relevant in criminal procedure but to a limited extent. It
Part of the U.S. Constitution, which states: states,
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.
unusual punishments inflicted.
The Eighth Amendments language on bail and the nature of cruel and unusual pun-ishment
are addressed in Chapters 10 and 15, respectively.
Fourteenth Amendment The Fourteenth Amendment has an important home in criminal procedure. It is a
Part of the U.S. Constitution, which fairly long amendment, however, and only a small portion is relevant to the handling
states: All persons born or naturalized
and treatment of criminal suspects. That portion states,
in the United States, and subject to the
jurisdiction thereof, are citizens of the
All persons born or naturalized in the United States, and subject to the jurisdiction
United States and of the State wherein
thereof, are citizens of the United States and of the State wherein they reside. No
they reside. No State shall make or enforce
anylaw which shall abridge the privileges State shall make or enforce any law which shall abridge the privileges or immunities
or immunities of citizens of the United of citizens of the United States, nor shall any State deprive any person of life, liberty,
States, nor shall any State deprive any or property, without due process of law; nor deny to any person within its jurisdiction
person of life, liberty, or property, without
the equal protection of the laws.
due process oflaw; nor deny to any person
within its jurisdiction the equal protection
The due process language of the Fourteenth Amendment mirrors that of the Fifth.
of the laws.
Nonetheless, because the Fifth Amendment is part of the Bill of Rights, it is only binding
on the federal government. The Fourteenth Amendment, by contrast, has been used by
substantive due process
Protection from arbitrary and unreasonable the Supreme Court to incorporate, or make applicable to the states, several of the rights
action on the part of state officials. provided for in the Bill of Rights. (The following subsection introduces the so-called
incorporation controversy.)
procedural due process
The Fourteenth Amendments due process clause has been interpreted to consist of
Protection of significant life, liberty, or
two types of due process: (1) substantive due process and (2) procedural due process. The
property interests, sometimes described as
procedural fairness. essence of substantive due process is protection from arbitrary and unreasonable actio
FIGURE 1.1
? Fourth Amendment: Protects from unreasonable searches and seizures and sets out warrant requirements.
Constitutional Amendments
Important to Criminal
? Fifth Amendment: Provides protection from double jeopardy and self-incrimination; also provides for grand
Procedure and Their
jury indictment and due process protection.
Relevant Provisions
? Sixth Amendment: Provides for a speedy and public trial, impartial jury, confrontation, notification of
charges, compulsory process, and assistance of counsel.
? Eighth Amendment: Protects from cruel and unusual punishment and excessive bail.
? Fourteenth Amendment: Includes the so-called due process clause, which has been used to incorporate
various other rights described in the Bill of Rights.
on the part of state officials. By contrast, a procedural due process violation is one in
which a violation of a significant life, liberty, or property interest occurs. Procedural due
process is akin to procedural fairness.
Summary
Figure 1.1 lists the constitutional amendments that are of particular importance in crimi-nal
procedure. As the following section will describe, certain rights that are provided
for in each amendment may not be binding on the states. Also, even though a particular
amendment may provide a particular right, the Supreme Court may have interpreted
that amendment to apply only in certain circumstances. Such circumstances will be dis-cussed
throughout the text.
It also bears mentioning that the Bill of Rightsand indeed the Constitutionare
only binding on government officials. Private persons are exempt from having to comply
with constitutional restrictions. This is very important and often overlooked. We look
more carefully in Part 2 of the book at this issue as it arrives in the search and seizure
context.
The Incorporation Controversy

The Bill of Rights, consisting of the first 10 amendments to the U.S. Constitution, places
limitations on the powers of the federal government. It does not limit the power of the
states. In other words, the first 10 amendments place no limitations on state and local
governments and their agencies. Government power at the state and local levels is clearly
limited by state constitutions.
Even though the Bill of Rights does not limit state and local governments, the
Supreme Court has found a way to do so through the Fourteenth Amendment. It has
used the Fourteenth Amendments due process clause, which holds that no state shall
deprive any person of life, liberty, or property, without due process of law, to make
certain protections specified in the Bill of Rights applicable to the states. This is known
as incorporation. incorporation
The extent to which the Fourteenth Amendment should regulate state and local The Supreme Courts practice of using
gov-ernment
the Fourteenth Amendments due process
power has been the subject of some disagreementhence, the incorporation
clause, which holds that no state shall
controversy. The basic question posed over the years has been, To what degree should deprive any person of life, liberty, or
the Fourteenth Amendments due process clause incorporate the various provisions of property, without due process of law, to
the Bill of Rights so as to restrict state and local law enforcement in the same way federal make certain protections specified in the
Bill of Rights applicable to the states
law enforcement is restricted by the Bill of Rights?
Significance of the Debate

The incorporation debate is significant because of three concerns. First, since most con-tact
between citizens and the police occurs at the state and local levels, it is critical to de-termine
the role of the federal Constitution at the state level. Comparatively few people
have contact with federal law enforcement, so the Bill of Rights actually regulates a lim-ited
number of police/citizen contacts. Second, incorporation may threaten federalism.
Under the doctrine of federalism, states have the authority to develop their own rules
and laws of criminal procedure, but if the Fourteenth Amendment incorporates the Bill
of Rights, this authority can be compromised. Third, the incorporation debate raises
Decision-Making Exercise 11
The First Amendment and Criminal Procedure
The First Amendment to the U.S. Constitution provides right of the people peaceably to assemble, and to petition
that Congress shall make no law respecting an establish-ment the Government for a redress of grievances. Given what you
of religion, or prohibiting the free exercise thereof; have read so far, is the First Amendment relevant to criminal
or abridging the freedom of speech, or of the press; or the procedure?
important concerns about the separation of powers. Namely, the Supreme Court has
decided which rights should be incorporateda decision that may better be reserved
for Congress.
Views on Incorporation
There are four leading views on the incorporation debate.2 One has won out over the
others, but all of the views are important to consider, regardless.
The total incorporation perspective holds that the Fourteenth Amendments due
process clause incorporates the entire Bill of Rights. In other words, all protections
specified in the Bill of Rights should be binding on the states. The primary proponent
of this view was Supreme Court Justice Hugo Black (e.g., Adamson v. California,
332 U.S. 46 [1947]).
The second leading view on incorporation is that of selective incorporation, or the
fundamental rights perspective. It favors incorporation of certain protections enu-merated
in the Bill of Rights, not all of them. Further, this perspective deems certain
rights as being more critical, or fundamental, than others. The Supreme Courts
decision in Snyder v. Massachusetts (291 U.S. 97 [1934]) advocates this perspec-tive,
arguing that the due process clause prohibits state encroachment on those
principle[s] of justice so rooted in the traditions and consciences of our people as to
be ranked as fundamental.
The third view on incorporation can be termed total incorporation plus. This view
holds that the Fourteenth Amendments due process clause incorporates the whole
Bill of Rights as well as additional rights not specified in the Constitution, such as
the right to privacy. This view can be found in such Supreme Court cases as Poe v.
Ullman (367 U.S. 497 [1961]).
Finally, some people believe that the topic of incorporation deserves case-by-case
consideration. That is, no rights should be incorporated across the board. Rather,
the facts and circumstances of each individual case should be weighed in order to
determine if any protections listed in the Bill of Rights should apply at the state or
local level.
Outcome of the Debate

Which perspective has won out? Arguably, the selective incorporation, or the fundamen-tal
rights perspective is the winner. The Supreme Court has consistently held that some
protections listed in the Bill of Rights are more applicable to the states than others. The
Fourth Amendment, in its view, lists several fundamental rights. By contrast, the Fifth
Amendments grand jury clause has not been deemed fundamental and is not binding on
the states (Hurtado v. California, 110 U.S. 516 [1884]).
To an extent, part of the total-incorporation-plus perspective has won out, as well.
While not all of the Bill of Rights is binding on the states, the Supreme Court has repeat-edly
emphasized Americans have a fundamental right to privacy. This is despite the
fact that the Constitution makes no mention of privacy. It is commonly said (as will be
noted in the section on the Fourth Amendment) that people do not enjoy an expecta-tion
of privacy in public places. It would seem, then, that certain rights not listed in the
Constitution have been identified as well as incorporated
Right Deciding Case
First Amendment freedom of religion, speech, and assembly and the right to petition Fiske v. Kansas, 274 U.S. 380 (1927)
for redress of grievances
Fourth Amendment prohibition of unreasonable searches and seizures Wolf v. Colorado, 338 U.S. 25 (1949)
Fifth Amendment protection against compelled self-incrimination Malloy v. Hogan, 378 U.S. 1 (1964)
Fifth Amendment protection from double jeopardy Benton v. Maryland, 395 U.S. 784 (1969)
Sixth Amendment right to counsel Gideon v. Wainwright, 372 U.S. 335 (1963)
Sixth Amendment right to a speedy trial Klopfer v. North Carolina, 386 U.S. 213 (1967)
Sixth Amendment right to a public trial In re Oliver, 333 U.S. 257 (1948)
Sixth Amendment right to confrontation Pointer v. Texas, 380 U.S. 400 (1965)
Sixth Amendment right to an impartial jury Duncan v. Louisiana, 391 U.S. 145 (1968)
Sixth Amendment right to compulsory process Washington v. Texas, 388 U.S. 14 (1967)
Eighth Amendment prohibition of cruel and unusual punishment Robinson v. California, 370 U.S. 660 (1962)
FIGURE 1.2
Rights Incorporated to the States
Figure 1.2 lists the rights that have been deemed fundamental by the Supreme Court
and, as a result, incorporated to the states.3 The Supreme Court cases responsible for
these incorporation decisions are listed, as well.
TheImportance
ofPrecedent
A precedent is a rule of case law (i.e., a decision by a court) that is bind-ing
Explain the importance of
on all lower courts and the court that issued it. A past decision
2 precedent.
may not be available in each case, but when one is, the courts will
defer to it. This is the doctrine of stare decisis.
Stare Decisis precedent

A rule of case law (i.e., a decision by a
Stare decisis is a Latin term that means to abide by or to adhere to decided cases. Most
court) that is binding on all lower courts
courts adhere to the principle of stare decisis. That is, when a court has handed down a
and the court that issued it.
decision on a specific set of facts or legal questions, future court decisions that involve
similar facts or questions will defer to the previous decision. In short, stare decisis is stare decisis
A Latin term that meansto abide by or
simply the practice of adhering to a previous decision or precedent.
to adhere to decided cases. Most courts
Why does stare decisis occupy such an important position in the U.S. court system? adhere to the principle of stare decisis
The answer is that it promotes consistency. It is well known that accused criminals enjoy
the right to counsel (see Gideon v. Wainwright, 372 U.S. 335 [1963]), but what if from
one year to the next, the Supreme Court vacillated on whether this right were consti-tutionally
guaranteed? The criminal process, not to mention the rights of the accused,
would be unpredictable and vary from one point to the next.
It is important to note that the practice of deferring to precedent is not always possible
or desirable. First, stare decisis is usually only practiced by courts in a single jurisdiction.
Suppose, for example, that a federal circuit appeals court handed down a decision. All the
district courts within that circuit would then abide by the appeals court decision. Courts out-side
that circuit would not be bound to adhere to the decision, although some courts often
do as a matter of professional courtesy. Perhaps more important, if a case coming before a
court is unique and does not resemble one decided in the past, the court may distinguish it.
Distinguishing Cases distinguish

An appellate courts decision to treat a
When a previous decision does not apply to the current facts, a court will distinguish the case before it as sufficiently distinct that
it cannot be decided bylooking to past
case, saying, in effect, that this case is different and cannot be decided by looking to past
rulings. In other words, the set of facts is
rulings. Another way of understanding what it meansto distinguish a case is to think of unique and never before considered by an
the present set of facts as unique and never before considered by an appellate court. appellate court.
Since only a handful of cases make it to the appellate level, and even fewer still
arrive at the Supreme Court, there is an untold number of cases waiting to be distin-guished.
This is a critical point. The case law in place currently addresses only a min-ute
quantity of possible constitutional questions. Countless contacts occur between
the police and citizens, and several of them may give rise to important constitutional
questions, yet they may never see the inside of a courtroom. So, while this book may
appear heavy on case law, a thorough understanding of criminal procedure would
require a review of the nearly infinite possible factual circumstances that could arise
in the criminal process.
An example of a case that was distinguished is Terry v. Ohio (392 U.S. 1 [1968]). In
that case, the Supreme Court held that police officers can stop and frisk suspects with
reasonable suspicion, not probable cause (the latter standard appearing in the text of
the Fourth Amendment). The Court felt that a stop-and-frisk is different from a search
or a seizure and, as such, should be governed by a different set of standards. Had the
Supreme Court not decided Terry, or any case like it, stop-and-frisk encounters would
probably still be considered seizures and therefore subject to the Fourth Amendments
requirement for probable cause. Terry will be considered in more detail later, as will
many other distinguished cases.
In nearly every class on criminal procedure, students ask, What if ...? The what-if
question reflects a concern over possible factual circumstances not already addressed in
published court decisions. In order for a what-if question to be answered, a court deci-sion
must result. Otherwise, the best approach to answering such a question is to look
to the past and find a decision that closely resembles the hypothetical scenario. In this
vein, every case discussed throughout this text should be thought of as a distinguished
case. Every decision was based on some unique set of factual circumstances and was
deemed by the reviewing court as worthy of a stand-alone decision. Were it not for dis-tinguished
cases, criminal procedure case law could be adequately covered in a short

amount of time.
Theory
versusReality
Criminal procedure consists mostly of rules and
guidelines that have been handed down by the Compare the theory of criminal
courts so as to dictate how the criminal pro-cess 3 procedure

tothereality.
should play out. In some circumstances,
however, court decisions may not really have a
theory world great deal of influence. That is, some court decisions are made in the theory world,
(theoretical world) A term used to illustrate which is somewhat disconnected from the day-to-day operations of law enforcement.
the fact that some court decisions are
In contrast, the police occupy a position that is very definitely in the real world.
divorced from reality and/or may not
directly affect criminal justice officials. Understandably, there can be differences, even tensions, between the worlds of theory
and reality.
real world
The fact that theory and reality may differ is a subject that receives little direct atten-tion
Aterm used to describe the world in which
criminal justice officials, including the in criminal procedure textbooks. Indeed, that certain Supreme Court decisions may
police, operate on a daily basis. not really matter, or might even be flatly ignored, is a controversial notion, to say the
least. Americans are taught that the courtsand the Supreme Court, in particularare
charged with interpreting the Constitution and the laws of the United States. They are
further taught that law enforcement should accept such interpretations uncritically and
Decision-Making Exercise 12
Traditional Legal Doctrine Meets High-Tech Crime
In Katz v. United States (389 U.S. 347 [1967]), the Supreme passengers luggage on a baggage carousel in an airport. Does
Court decided that searches occur when a government this constitute a search? Is Katz equipped to deal with a situ-ation
actor infringes on a persons reasonable expectation of pri-vacy. such as this, or is the situation such that it calls for a
Assume federal agents have a trained drug dog sniff distinguished case
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DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI
Newala, too, suffers from the distance of its water-supply—at least

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

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

MAHUTA
I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.
MAKONDE LOCK AND KEY AT JUMBE CHAURO

This is the general way of closing a house. The Makonde at Jumbe
Chauro, however, have a much more complicated, solid and original
one. Here, too, the door is as already described, except that there is
only one post on the inside, standing by itself about six inches from
one side of the doorway. Opposite this post is a hole in the wall just
large enough to admit a man’s arm. The door is closed inside by a
large wooden bolt passing through a hole in this post and pressing
with its free end against the door. The other end has three holes into
which fit three pegs running in vertical grooves inside the post. The
door is opened with a wooden key about a foot long, somewhat
curved and sloped off at the butt; the other end has three pegs
corresponding to the holes, in the bolt, so that, when it is thrust
through the hole in the wall and inserted into the rectangular
opening in the post, the pegs can be lifted and the bolt drawn out.[50]
MODE OF INSERTING THE KEY
With no small pride first one householder and then a second

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

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

FINISHING THE BOTTOM
LAST SMOOTHING BEFORE

BURNING
FIRING THE BRUSH-PILE

LIGHTING THE FARTHER SIDE OF
THE PILE
TURNING THE RED-HOT VESSEL
NYASA WOMAN MAKING POTS AT MASASI

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

BEATING THE BARK
WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

SOFT
MANUFACTURE OF BARK-CLOTH AT NEWALA

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

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(Original PDF) Criminal Procedure:

From First Contact to Appeal 6th

Emphasis on Constitutional Rights 2

Rights of Relevance in Criminal Procedure 3

The Incorporation Controversy 5

Theory versus Reality 8

Decision-Making Exercise 1.2 Traditional Legal Doctrine Meets High-Tech

Decision-Making Exercise 1.3 Theory and Reality Collide 9

Competing Concerns in Criminal Procedure 10

Decision-Making Exercise 1.5 Due Process or Crime Control 13

Finding Court Cases and Tracing Their Progress 13

Tracing the Progress of a Criminal Case 16

Decision-Making Exercise 1.6 Interpreting a Supreme Court Holding 18

How Cases Arrive at the Supreme Court 18

Decision-Making Exercise 1.7 Would the Supreme Court Hear This

Subjectivity versus Objectivity 20

Decision-Making Exercise 1.8 A Bright-Line Decision or Case-by-Case

Increased Faith in the Police 21

Decision-Making Exercise 1.9 Subjective or Objective 22

Decision-Making Exercise 1.10 The Issue of Personal Privacy 23

Criminal Procedure and the War on Terror 23

Criminal Procedure and Technology 25

The Criminal Process: An Overview 25

Introduction to Criminal Procedure 29

Web Links and Exercises 31

The Exclusionary Rule 33

The Rule and Its History 33

Decision-Making Exercise 2.1 When Does the Exclusionary Rule Not

The Fruit of the Poisonous Tree Doctrine 40

Decision-Making Exercise 2.2 An Act of Good Faith? 40

Decision-Making Exercise 2.3 The Impeachment Exception 41

Decision-Making Exercise 2.4 The Independent Source 42

Decision-Making Exercise 2.5 The Purged Taint Exception 43

Criminal Remedies for Constitutional

Decision-Making Exercise 2.6 Use of Deadly Force 45

Decision-Making Exercise 2.7 Color of Law 47

Decision-Making Exercise 2.10 The Fourth Amendment and Qualified

Web Links and Exercises 5

A Framework for Analyzing the Fourth Amendment 61

Government Action, Not Private Action 62

Decision-Making Exercise 3.1 A Moonlighting Scenario 64

Infringement on a Reasonable Expectation of Privacy 64

Decision-Making Exercise 3.2 A Private or Government Search? 64

Decision-Making Exercise 3.3 The Scope of a Private Search 65

Decision-Making Exercise 3.4 A False Friend Scenario 68

Decision-Making Exercise 3.5 Is a Public Street an Open Field? 69

Decision-Making Exercise 3.7 Informants and Probable Cause 76

Decision-Making Exercise 3.8 Having Probable Cause to Arrest 76

Decision-Making Exercise 3.9 Is There Reasonable Suspicion? 79

Decision-Making Exercise 3.10 Adventure on the Seas 80

Introduction to Search and Seizure 81

A Neutral and Detached Magistrate 88

A Showing of Probable Cause 88

Decision-Making Exercise 4.1 Who Was That Bald Man? 89

The Definition of Arrest 91

Decision-Making Exercise 4.3 What Type of Seizure? 93

When Is an Arrest Warrant Required? 94

Decision-Making Exercise 4.4 A Public or Private Arrest? 95

Decision-Making Exercise 4.6 A Properly Served Arrest Warrant? 99

Decision-Making Exercise 4.7 Deadly Force Beyond Present

Searches with Warrants 101

Executing a Search Warrant 101

Decision-Making Exercise 4.8 Defining Daytime 104