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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

vii
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
Rights Violations 44
Criminal Remedies for Constitutional
Rights Violations 44
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
Further Exploration 56
Review Questions 58
Web Links and Exercises 58
 Contents ix

PART 2 Search and Seizure

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
Further Exploration 82
Review Questions 83
Web Links and Exercises 84

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 Amendment’s 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
Further Exploration 111
Review Questions 112
Web Links and Exercises 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 137
 Contents xi

Summary 140
Searches and Arrests without Warrants 140
Key Terms 141
Key Cases 141
Further Exploration 142
Review Questions 142
Web Links and Exercises 143

CHAPTER 6 Actions Based on Reasonable

Suspicion 144
Introduction to Stop-And-Frisk 145
Loosening the Fourth Amendment’s 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

Further Exploration 167

Review Questions 169
Web Links and Exercises 169

CHAPTER 7 Actions Based on Administrative

Justification and Consent 170
Introduction: Casting Off the Fourth Amendment’s 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
Further Exploration 194
Review Questions 195
Web Links and Exercises 196

PART 3 Interrogations, Confessions, and

Identification Procedures
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 200
 Contents xiii

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 Were the 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
Further Exploration 222
Review Questions 223
Web Links and Exercises 223

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 Suspect’s 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 Witness’s 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
Further Exploration 244
Review Questions 245
Web Links and Exercises 245

PART 4 The Beginnings of Formal Proceedings

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 253
 Contents xv

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
Further Exploration 271
Review Questions 272
Web Links and Exercises 272

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
Further Exploration 301
Review Questions 302
Web Links and Exercises 303

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 Court’s 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 Prosecutor’s 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 323
 Contents xvii

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
Further Exploration 327
Review Questions 328
Web Links and Exercises 328

PART 5 Trial, Conviction, and Beyond

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

Further Exploration 353

Review Questions 354
Web Links and Exercises 355

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 Defendant’s Right to Be Present 361
Decision-Making Exercise 14.3 Indigence and the Right to Be Present 364
The Defendant’s Right to Live Testimony 364
Decision-Making Exercise 14.4 An Unavailable Witness 366
The Defendant’s Right to Challenge Witness Testimony 367
Decision-Making Exercise 14.5 A Hearsay Exception? 369
Decision-Making Exercise 14.6 The Defendant’s 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
Further Exploration 383
Review Questions 384
Web Links and Exercises 384

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 391
 Contents xix

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
Further Exploration 415
Review Questions 417
Web Links and Exercises 417

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 topics—notably, 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 tangentially—by 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

xx
 Preface xxi

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 Web links 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 Sixth Edition

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 2016–2017 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 people’s 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 Amendment’s 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 4 is 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 defendant’s rights at trial, examines the right to a speedy trial and the right to
 Preface xxiii

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:
▶ Instructor’s 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. TestGen’s 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

REVEL for Criminal Procedure, Sixth Edition

by John L. Worrall
Designed for the way today’s 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 Pearson’s 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 Learn™ and Canvas™ 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/
Another random document with
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 “There, you see Fanny doesn’t believe it;” said Allie West
triumphantly.
“As if any one in her senses could!” Dora added.
After they went away Fan sat glancing out of the window
thoughtfully.
“I allowed them to think what was not quite true,” she said slowly,
“but I did not want the fact to leak out. Some very smart young
woman might write to Kate and alarm her. It had better go on
quietly.”
We missed Daisy ever so much. You would hardly think it among
so many.
Then came a letter from Mr. Duncan, stating that he intended to
follow it in time to keep the festival of baby’s christening. There were
some business matters on which he wished to consult papa, and he
was longing for a sight of the household, from least to greatest. Louis
was much better. Mrs. Whitcomb was well and had utterly refused
her first vacation. What did Fanny expect to do in such a case of
insubordination? He was sorry he had proved so attractive, but it
was more his misfortune than his fault, so she must not visit him too
heavily with her displeasure.
We all had a good laugh over it. I arranged the guest-chamber in
the morning, flowers and all, and in the afternoon went cantering
round the parish, as Fan often expressed it. She had been smitten
with such a passion for sewing, and the Churchills took up so much
of her time that I had to visit for both. I was beginning to feel quite
grave and staid with my eighteen and a half years. The fact of Fan’s
having a real lover affected me in a rather curious fashion. It seemed
as if the romance was to begin with her and go down. It shut me out
as it were; but never having counted myself in, I did not feel much
disappointed. I was to be the house-daughter. Already I could see
that papa had begun to depend more upon me. He brought his
gloves to be mended, and used to ask me now and then to find
various little matters for him. True, mamma was much occupied with
Edith. I liked the growing nearer though, the tender confidence and
trust.
I could see how it would be. One by one the birdlings would fly out
of the home nest. I was an every-day useful body and would be
needed to help the others, make some ready to go and comfort
those who staid. I didn’t suppose the sweet grace and patience that
glorified Miss Oldway’s face would ever come in mine. It was such a
round, funny little face, and would get so sun-burned in summer. No
one could ever call me fair and dainty.
I laughed over it softly to myself, I was in such a merry mood. In
ten years I should be twenty-eight, getting on the “list” a wee bit,
visiting round the same as usual, carrying broths and jellies, listening
to sorrows and complaints, and by that time, perhaps, a little better, a
little nearer the Great ensample so that I could say my say without
faltering.
My basket was emptied at length. I leaned over the fence awhile
and talked with Mrs. Day, who “could not see why,” about something.
Aunt Letty Perkins came along, puffing and wheezing. She had been
confined to the house a good deal since Christmas, with the asthma,
and if it was not irreverent I should say—“Israel had had peace.”
“All well, I suppose?”
“Yes, thank you.”
“I never see such folks. You don’t have a bit of sickness or trouble
like other people!”
“No,” said Mrs. Day, as if she felt personally aggrieved. “I never
saw the match to that baby, and my poor lamb in the church-yard!”
I wanted to reply that it was the care and watchfulness, the love
and tenderness that never tired. We did not suffer real heart-felt
trouble, but there were hard pinches and perplexities, many things
given up that we longed to have, hours of patient industry, self-denial
and all that. Do discontented people ever realize what steady
courage and grace it takes to make many lives look fair and sweet?
 “Well, it’s out of its trouble,” pursued Aunt Letty. “You never can tell
what children are coming to. Goin’ to take boarders agen this
summer?”
That last to me. I started and colored at the impertinence. I wanted
to resent it, but I knew that would not help for an example.
“Mr. Duncan is at home and can take care of his brothers;” I
replied quietly.
“Well, they want much addition to the neighborhood. That young
one was a master-hand at mischief. I should have wanted a good
deal of money to pay me.”
“Good-night;” I said rather abruptly, “I must be going.”
“Why don’t you come in? I haven’t seen your ma in an age.
Nobody drops in when I am sick, though if I do say it myself, I’ve
always been neighborly. No one can say I ever went on the other
side like the publican.”
“Indeed they could not,” I thought to myself with a smile.
All this made me later than I expected to be. As I came up the road
I saw Fanny and Mr. Duncan walking slowly to meet me.
Something dreadful flashed into my mind at that moment and
made my face scarlet. I remembered that in my talk with Louis I had
spoken of the probability of Stephen’s marrying Fanny. What if he
had repeated that bit of idle gossip? Stuart would have done so from
pure love of teasing.
“Why, Rose, how you have hurried! You are as red as your reddest
namesake. Do stop and cool off a moment, child!”
That from Fanny did not make me any paler. I felt the contrast very
keenly. She tall and elegant, with her graceful self-possession, and I
such a little budget! I don’t know why I should have cared just at that
moment, but I felt mortified enough to cry.
Mr. Duncan put out his hand. I just touched the tips of his fingers.
“I am glad to see you.” Then he looked me all over with those
strange eyes of his that could be so dark and piercing.
 “Isn’t it late?” I asked. “I am sure supper must be ready. Please
excuse me,” and I hurried on.
They turned as well. I rushed up-stairs, bathed my face and gave
my hair a brush. Then I went to the glass a moment to pull it out. No,
I was not a beauty. If Mr. Duncan had not come to-day! He could
spend Sunday without starting as early as Friday afternoon!
When I went down they were all gathered around the table. He
glanced up sharply again, and I was foolish enough to blush.
Not an unnecessary word did I utter. I had a constricted feeling
about my throat and tongue and could not tell what was the matter
with me, I believe I felt cross. I was glad to go to the study afterward
and give papa the messages that had been sent for him.
Nelly called me to see about a skirt she was letting down. Tim and
Lily put themselves to bed now, and I had only to go in and pick up
their clothes. Fanny and Mr. Duncan were singing in the parlor, but I
did not go down until I heard mamma’s voice. They were talking
about Mrs. Whitcomb.
He had found her so admirable. Lady-like and refined, yet not
weak; clear-eyed and resolute, yet without any hardness.
“She is always in bloom, I believe. The winter, and the desert, and
the bare, bristling hill-tops may be a short distance off, but just
around her it is spring.”

“There everlasting spring abides,

And never withering flowers;”—

Fan murmured softly.

“That is just it. She has had some troubles, also.”
“Indeed she has,” returned mamma, “Losses, deaths and trials.
But now she has gone out of her own life. Her perceptions are so
quick, tender and unerring. She seems to discern from afar off the
needs and wants of human souls and ministers gently to your own
thought, not hers.”
 “What is it, Mrs. Endicott?”
Mamma answered with a smile and said it all. She often talked
with the expressions of her face in that sweet instantaneous manner,
explaining a subject better than many words would have done.
“I begin to believe that religion has something in it. There is a point
beyond natural amiability.”
“Have you been doubting?”
He blushed and laughed in an embarrassed, school-boy fashion.
“I don’t know that I have exactly doubted, but I have not believed
in any vital way. Still I considered myself a Christian gentleman until
very recently.”
“And what then?”
“I found myself a proud and honorable gentleman instead, who
abhorred meanness, falsehood, dishonesty and the whole catalogue
of those sins because they were blots and stains, hideous in my
sight. I had no patience with them in that they never tempted me. I
liked my life to be pure and just, but it was for myself alone. I did not
think of what God might require; the higher aim. After all, it is His
relation with every human soul, His holding out the faith and love and
atonement to us, made for us so long ago in His great wisdom, and
which is for us whether we take it or not. But we want to try our
wisdom first.”
“That leads to the trouble and the clashing. We so often set up our
own will and when we are buffeted about take it as a sort of direct
martyrdom, when it is only a natural result of an ordinary cause. We
sometimes cry out—‘Why has God sent this upon me?’ when we
bring the trials upon ourselves.”
“Yes. Then we have to go back. We find the plans and
specifications and the materials all right, left on the highway, while
we used stones and timber of our own, changed the plan according
to our liking. We have to take out a good deal of work in this life.”
“And we learn by degrees to be careful, to come to Him, to ask
first of all—‘Lord, what wilt thou have me to do?’”
 “And learning to follow it, is the great lesson.”
He turned his head a trifle and lapsed into deep thought. Fan
glanced over at me in a peculiar manner as if she triumphed in what
he said, and it was only proving a well established point. She
puzzled me. Why, when she liked him so well herself, was there not
the deeper and farther-reaching sympathy of love? He was really
nobler than Winthrop Ogden.
We did not have any confidence until late Saturday afternoon. Fan
was writing a letter in her room and mamma had gone to visit some
sick people. I had Edith fenced off in a corner of the porch and was
amusing her while I sewed a little.
He came and studied me curiously. That was what I did not like. If
I had been as pretty as Fan, or if my hair were any other color!
“You have not asked me a word about your friend. Have you lost
interest in him now that he is delivered over to my keeping?”
I understood whom he meant.
“Why, we have all talked—I have heard—” and I paused in
surprise, for a tiny frown came in his brow.
“But the work was so much yours.”
“You exaggerate it, Mr. Duncan.”
I might have spoken coldly. Somehow I could not let myself be
praised in his words, and with his eyes upon me.
“Are you so used to good deeds that you consider this nothing?”
I flushed and felt a lump rising in my throat.
“I would have done it for any one.”
“I believe you, Miss Endicott. Louis is not so admirable that he
should be singled out.”
“He is—you don’t do him justice;” I said almost ready to cry.
“I did not I will admit, but I am trying to now. Will you not accept my
penitence and my sincere desire to be tender as well as just?”
 “I know you mean to do the very best. I think you will.”
“Thank you. I am afraid you consider us all rather heathenish. I
have only recently come to understand the full duty that I owe my
brothers. I had left them in my uncle’s hands, quite satisfied, and
believing that boys came up, somehow. I had no great trouble.”
“Because you were stronger. And Louis’ health and temperament
are so different.”
“I have learned that I could not make him come to me, so I have
gone to him.”
“He did come—”
“Yes; that was not the point I referred to, however. It is in the
matter of confidence. He is so very reserved, so sensitive, so touchy,
to use a common phrase. At a word he draws into his shell and
keeps silence.”
“I found that out last summer,” I said with a smile.
“How did you manage?”
“I don’t know,” I answered looking over at the distant hills. “It just
came, I think. When he wouldn’t talk on any subject I let it drop.”
“Ah, wise little one, there may be a secret, in that. I fancy that I
have a failing in my desire to convince people. I want them to see
the right.”
“It is easier seen than confessed, sometimes.”
“True. And Louis has a giant of pride. If he is hurt he will not stop
to explain. If you misunderstand, he will not set you right. You have
to grope your way along in perplexity. Yet I think we are coming a
little nearer to each other, through you.”
“And Mrs. Whitcomb. She has a way of uniting people, of healing
differences.”
“I am doubly fortunate in having her. Otherwise I must have
borrowed—your mother.”
 I smiled a little at this. It made me think of the Churchills borrowing
Fan. Isn’t it so the world over? The sweetness and brightness of
other lives comes into ours, sometimes the darkness and sorrow. We
rarely stand alone.
“I believe I like frank, open natures the best;” he went on. “And
cheerfulness. A great outgiving like the world and the sunshine.”
“But when one has been in a cave a long while the light dazzles.
Some people do not want to take in but a little at a time, and perhaps
we hurt them by thrusting so much into their very souls.”
“Yes,” he answered, “When a man is starving you do not feast him
at once. I must remember that.”
Edith began to worry. I took her up in my arms and hushed her
softly.
Mr. Duncan was not looking at me, but a strange, tender light
came into his face, a half smile that brought the dawn to my mind by
way of comparison. He seemed to pay no attention to me for many
minutes, but just to be occupied with his own reflections. I rose to
take Edith in, as she evinced unmistakable symptoms of hunger.
He put his arm over her and partly over my shoulder.
“I cannot let you go without an acknowledgement,” he began
hurriedly. “I should like to tell you just how Louis came back. There
was a manliness in his penitence that has given me a great deal of
hope. Yet I know that he did not come out of actual love for me. If we
ever could reach that state, but I must wait patiently. I have thought
so little of him all these years, except to look after his personal
comfort, that I must not complain if I reap weeds instead of flowers.
You were brave and strong in your advice to him, and God above
knows how deeply and sincerely I thank you. Your note to me was
wisdom itself. Only—”
There was a peculiar wistfulness in his face that somehow gave
him a little look of Louis.
“Only what?” If there was any fault to find let us have it out now.
 “If you could have trusted me unreservedly. Do you think I am so
very stern and rigid and unforgiving?”
“I was afraid you might—I did not know—” and I stopped,
distressed and blushing.
“Will you have a little more faith in me?”
He uttered the words slowly.
“I know you desire to do what is best.”
He looked a trifle disappointed, I thought, but I went in with Edith
and left him standing there.
After all I had not done anything very wonderful that there should
be such a fuss and thanks and all that bother. It annoyed me. I could
not carry triumphs gracefully as Fan did, sit in the centre and have
an admiring audience around me.
One part of the visit proved an unalloyed delight, and that was
papa’s enjoyment of it. He and Mr. Duncan fitted, if you can
understand the term. It was almost like father and son. Plans were
talked over, the boys’ future discussed, and in Stephen’s newer
experience there was a great charm. Like the young man who came
to Christ, he had kept the commandments from his youth up, he had
been truth and integrity itself, but the one greater thing had come to
him now. It crowned his manliness. He did not speak of it in a
shame-faced way, as if it was something to be kept on one side of
his life and rather in the background, but he set it in the very midst. A
rare, almost boyish humility was discernable in his conversations
with papa. I liked so much better to listen than to have him talk to
me.
“I am afraid I shall grow proud in my old days,” said papa a few
evenings afterward. “Such first fruits as Mr. Duncan and Miss
Churchill seem a whole harvest. I shall never be discouraged again.”
Indeed, Miss Churchill had become the Lady Bountiful of the
parish. I do not mean simply among the poor. The rich need the
gospel of charity and loving kindness as well. They were meeting
together, being incited to good works, losing the narrow feelings and
prejudices.
Fan and I had a lovely episode this summer. Just at the beginning
of the hot weather Miss Lucy had a spell of feeling very weak and
miserable.
“She must have a change,” declared good old Doctor Hawley.
“She has been among the mountains so long that she has worn
them out. Take her away to the sea-side.”
“I can’t go,” said Miss Lucy in faint protest. “I do not like strange
faces nor places, and the worry and bustle will consume what little
strength I have.”
“You will wear out this old strength and get some new. You are
tired to death of this, though you are so set in your way that you will
not confess it. I know what is best for you! Miss Esther, if you want to
keep Christmas with her, take her away now.”
Then he thumped his cane resolutely on the floor, a way he had
when he was very much in earnest.
When it came to that something must be done.
They talked it over—Miss Churchill and her brother, then Miss
Churchill and mamma. And this came out of it all, as if we were to be
in the midst of everything.
They would go to Martha’s Vineyard. In earlier years they had
spent whole summers there. And she and Miss Lucy wanted us. We
had seen so little outside of our own home, that the change would do
us good. There was the great sea, the islands all about, and a new
world, so to speak.
“I don’t know how to get both of them ready,” mamma exclaimed in
a hopeless puzzle.
“You are thinking of the dresses—but we are not going to be
fashionable. Some nice light worsted goods for traveling, and
beyond that there is nothing as pretty as white. We shall have a
cottage to ourselves and our meals sent in. Then I intend to take
Martha, who is an excellent laundress, so the dresses will be no
trouble. Kenton is counting on the pleasure, and you must not
refuse.”
“It is a great—favor,” said mamma timidly.
“I don’t want you to think of it in that light. Kenton and I are getting
along in years, and Lucy will not last forever. We might as well take
and give a little pleasure. It is just as if a sister asked you.”
And it actually came about. We had new gray dresses trimmed
with bands of pongee; Fan’s a shade lighter and mine two or three
shades darker than the material. When they were all finished they
had cost but twenty-three dollars. Our spring straw hats were
retrimmed, our gloves and ribbons and boots looked over.
“One trunk will hold our modest wardrobe,” declared Fan. “I often
think of the Vicar of Wakefield and the many devices the girls
resorted to. It is rather funny to be poor, after all! You are not so
much worried and fidgeted and dissatisfied. You take the best you
can get, and you know you cannot do any better. So you enjoy the
tour or the journey or whatever it is, because you are altogether
outside of your troublesome self.”
“But you will be—very well off—some day,” I said with bashful
hesitation.
“I don’t think of that, any more. Until the very day of my marriage
my life is here. What papa can give me will always be infinitely
precious to me. We will have all the happiness out of our poverty that
we can.”
“Yes,” I answered.
“And I know just how Miss Churchill is giving us this. So far as the
money goes she will never feel it. We will afford her pleasure,
satisfaction and delight in return, which will make it quite an even
thing.”
We remained three weeks and it was enchanting. The great ocean
with its ceaseless surges and swells, its floods of molten gold at
sunset, the showers and one tremendous storm, the walks and rides
on the sands, the short sails hither and thither, the quaint cottages,
the strange people from almost everywhere, some of whom we soon
became acquainted with, the newness and the variety was splendid!
We enjoyed every moment. Sometimes I felt quite wild indeed, as if I
could race along the sea sands and shout with the wildest of the
birds.
The last week was the crowning point. Winthrop came and Miss
Churchill took us to Newport for one night and two days. There was
elegance and fashion at the hotel to be sure, but Fan in her pretty
white over-dress and the bloom of her fresh, sweet youth, attracted
many a glance of admiration on the one side, and almost envy from
some of the worn and faded women. It was a bit of Arabian Nights’
Entertainment brought into our own lives.
Miss Lucy did improve ever so much. She could not bathe to be
sure, but the pungent air revived and strengthened her. We were all
so bright and happy, so full of fun and whims and oddities. There is a
fascinating queerness about almost every person when the true self
comes out and you forget that any one is watching you.
It was so delightful that we came home with almost a sigh, until we
reached the familiar places. It was the first time that we had ever
been so long away from mamma, and when we thought of that our
hearts were full to overflowing.
There was Mrs. Whitcomb in the midst helping to keep house,
filling up our vacant places.
“You need not think you are the only ones who can have a
holiday!” she exclaimed laughingly.
Oh, the blessedness of being right among the accustomed faces,
to be kissed and kissed again, to be pulled about hither and yon, to
be shown this and that, “which was not so when you went away;” the
atmosphere of home-living and thinking, which is so different from
railroad cars and hotels, or even other people’s cottages.
“But the sea still sings in my ears,” I said to Fan as I laid my head
on my pillow.
“And to-morrow morning it will be robins or swallows ‘twittering’
under the eaves. What a great, grand thing it is to live and be happy!
Rose, if people could realize the satisfying joy they put in the lives of
others when they share their pleasures I think the whole world would
go at it. It would be giving and receiving all round the wide earth.”
Are we thankful enough for happiness, I wonder? For that is
something a little apart from life, one of the things not surely
promised, like the peace of God. Should there not be a special
thanksgiving for every blessed day, for the breath of fragrance, the
pleasantness of sunshine, and the subtle essence of delight that
wafts itself across our sky—tender human love?
 CHAPTER XVI.

TEPHEN DUNCAN had taken the boys West, and

would be gone a month or more. They had grown so
much, Mrs. Whitcomb said, and were almost men.
“Which do you like best?” asked Fan.
“I think Louis will make the nobler character. Stuart would rather
take life just as it is, picking out the best for himself, to be sure, and
not minding much what scraps fall to other people. He may feed the
hungry after he is satisfied, he never will before.”
“Everybody likes him,” I replied.
“Yes. He is fascinating.”
“And you don’t need real virtues to be fascinated with,” I said
rather blunderingly, the thought being more than the sentence.
“No, only outside pleasantnesses. That is, they answer.
Sometimes when you are down deep in the heart of things, you
cannot take quite so much pains with the finishing. Not but what I
consider finishing a great deal. Clean paths beautify a garden so
much, but I have seen people just hoe off the tops and sprinkle
gravel or sand over them. The weeds spring up after a rain.”
“Has not Louis the outside and inside faults as well?” asked Fan.
“Yes. Only his weeds are seldom covered up. Some folks never
can cover up anything. He cannot be good outside until he has killed
the weeds inside. Stuart may be fair all his life without any fighting.”
“He is good-tempered;” I subjoined.
“He has a pleasant, sunny temper, perfect health, and no nerves
to speak of. It is no effort for him to be jolly. He is gentlemanly by
instinct, he likes to be in the centre, shooting rays in every direction.
Is it wonderful if somebody comes within their radius? The
somebody may think this particular brightness is meant for him, but
in an instant Stuart may wheel round and leave this very person in
the dark.”
“I am glad you have some hope of Louis;” I said.
She seemed to study Fan, the great column of wisteria and me, all
at the same moment.
“There are some special providences in this world, I do believe,”
she began. “Mr. Duncan’s coming here was one, and your taking the
boys another.”
“Which we should not have done if we had not been very poor,”
said Fan with an odd pucker in her face.
“Well, we will give poverty the credit. Mr. Duncan’s visit here taught
him some new ideas of duty. Not but what he would have been a
just, even a kind brother in any event. But relationship counts for so
little now-a-days. Very few people expect to be their brothers’
keepers. They are willing to do grand things for others, for the
heathen, for some great accident that stirs up the sympathy of the
whole world, but the common every day duties are tiresome.”
“They are,” said Fan. “It may be heterodox, but it is true all the
same.”
“That is just it,” and Mrs. Whitcomb gave her sweet, tender smile
that was worth a week of June sunshine. “God knew how tiresome
they would be, or he would not have given such continual lessons of
patience and love, of working and waiting. Think of the mustard seed
and the corn, and the candle; the piece of money and the one lost
sheep. It is nearly all little things. And when He saith—‘If a man love
not his brother whom he hath seen, how can he love God whom he
hath not seen.’ It is the home love that is going to save the world.
Stephen saw it here, and it roused his dormant affection.”
“You see it would not do for us to quarrel,” said Fan drolly. “We are
packed in like peas in a pod, or birds in a nest, or bricks in a
sidewalk. There isn’t any room.”
“I am glad you have learned that. I think too, it is the lesson you
are all to teach the world.”
 “Oh!” exclaimed Fan with a blush of real humility.
“We must be poor and barren indeed, if we do not teach
something. And the influence last summer did a great deal for Louis.
It was the beginning of his salvation. It was the beginning of
Stephen’s higher life, also. Before that he would have saved his
brothers for pride’s sake, now he will endeavor to do it for God’s
sake, because he has been redeemed in the love, as well.”
“It is sermons in everything,” said Fanny.
“Mrs. Whitcomb,” I began presently, “do you know anything about
—Louis when he came home?” Somehow I could never have asked
Stephen, much as I wanted to know.
“It was late in the afternoon, just growing dusky. I did not know him
when he asked for Mr. Duncan, but before I had crossed the hall I
guessed, so I took him to the library, and summoned Stephen from
his room up stairs. They talked for a long while and then Stephen
asked that tea might be brought to them. Louis lay on the sofa while I
spread the little table. I could hear the sound of tears in Stephen’s
voice at every word he spoke. At nine, perhaps, he took Louis up to
the chamber that had been prepared for him. When he came down I
was busy putting the library in order. I just asked—‘Is it all right?’ and
he answered—‘It is the beginning of right.’ And then he added—shall
I tell you Rose?—‘I think Louis and I will owe something of what is
best in our lives to Rose Endicott!’”
“I wish they wouldn’t;” I cried in distress. “But it is all made up
between them?”
“Yes, in a better manner than if the trouble had not happened. Out
of it all they have learned to love each other. Louis has a great, shy,
morbid, hungry heart, and a most unfortunate temper.”
“And we are as poor as church mice, and angelic;” said Fan in her
gayest mood. “After all, the gifts and graces are pretty fairly
distributed.”
We went into supper and had other topics of conversation. One of
the most important was sending papa away for a little vacation.
When Mr. Churchill heard of that he held up both hands, and they
were not empty. Papa must stay over one Sunday and he would see
about a clergyman. It was very odd to be without a head to our
household that length of time. He went to Long Island, to Cape May
and Philadelphia, bringing Daisy home with him.
In the meanwhile Fan and I were in the midst of a small
excitement. Jennie Ryder was to be married and wanted us both for
bridesmaids, “that is,” she said—“I want you, and Richard wants
Fan. And I don’t wish you to make a bit of fuss. I am going to be
married in church at eight in the morning, in white organdie, because
Richard loves white so much. Otherwise I should take my traveling
dress. We do not intend to send out any invitations, and you must be
simple, so as not to outshine me.”
“I am glad you have instructed us. We might have rushed into
some extravagance. May we have our white gowns done up fresh,
please?” asked Fan comically.
Jennie laughed. She was very happy, one could see that. A
connection had come to stay with Mrs. Ryder while Jennie was
away, for Richard had insisted upon Niagara and the Canadas.
Afterward they were to move into the great house.
Papa came home on Saturday night, looking brown and bright and
rested. On Tuesday morning Jennie was married. Winthrop came to
stand with Fan, I think he would not have trusted any one else. He
was troubled with an insane belief that every body wanted Fan,
“which is werry flattering on his part,” said Fan, “considering that the
only other lover I ever had has gone off and married some one else,
never breaking his heart a bit!”
“Would you have had him, Fanny?”
“No, little goosie! And he has the best wife that he could have
found in the wide world.”
The fact had been noised abroad, and the marriage was quite
largely attended. It provoked various comments. I think there were
some who did envy Jennie Ryder her good fortune, and many who
rejoiced in it. Still there was a feeling that Richard’s mother would not
quite approve. He had written to her and Kate, not giving them time
to answer by the marriage date.
I felt my own heart beat as I stood there so still and solemn. There
was a great awe in going out of the old life and putting on the new,
belonging to yourself one moment, and the next having the sense of
ownership irrevocably taken away. I shivered a little wondering how
any one could be glad to do it. Some day Fan would stand there, and
I would feel her gone out of my life.
Then Mrs. Whitcomb had to return to get the house in order. Louis
expected to enter Columbia College. Stephen thought it better on
account of his health, and the home influence. Stuart would be away
another year.
Enclosed in her letter was a note to mamma. Would it be
agreeable for Louis to spend a week or ten days with us? He was
very anxious so to do.
“Of course,” answered mamma.
Indeed we were pleased with the opportunity of seeing him.
Somehow he had become quite a hero in our eyes.
I really do not think I should have known him elsewhere. I was up
in my room sitting on the low window-sill in the breeze, reading a
magazine. The blinds were tied a little apart, bowed, and as I heard
the gate click I looked down. He was nearly as tall as Stephen, and
though slender had filled out to a certain manly roundness. He
nodded to some one, threw back his head and laughed, and he was
positively handsome. His complexion was dark but no longer sallow,
it had the bronze tint of exposure and a healthful red in the cheeks.
His black hair was cropped pretty close, but it showed his broad
forehead, and there was a tiny line of dark moustache that
contrasted with the fresh scarlet of his lips.
I ran down. Mamma and Edith were on the porch. I do really
believe that mamma had been kissing him, at all events his face was
flushed and his eyes had a soft, dewy look.
“You are the same, you haven’t altered a bit! It was so good of you
to let me come.”
 “Why, we wanted to see you,” replied mamma.
He was still holding my hands, and I could not help blushing under
his steady gaze.
“But you have grown and changed out of all reason.”
“Minnesota did that! For the first time in my life I am not absolutely
scrawny! We had such a splendid tour! Stephen was just royal, as
much of a boy as either of us. We have climbed mountains, camped
out, hunted and fished and everything! I did not want to come back.”
“I am glad to see you so much improved,” and mamma glanced
him over with a sort of motherly pride.
He sat down on the step at her feet, and began to play with Edith
who affected baby shyness. We did not have him long to ourselves
though, for Nelly came and in a moment or two the children. They
were all surprised.
I watched him as he talked. He was so much more fluent and self-
possessed. It was not Stuart’s brightness, but more like Stephen’s
reliance, and a peculiar command of self, an earnestness that sat
well upon him.
“You cannot think how I wanted to see this place once more. How
good you were to me when I lay sick up-stairs. Miss Rose, do you
remember getting me some honeysuckle blooms one afternoon? I
shall always associate them with you. I shall be glad to the latest day
of my life that Stephen sent me here, though I made a desperate
fight to go to Lake George with some school-fellows.”
“It was fortunate that you did not, for you would have been ill in
any event,” answered mamma quietly.
“Yes. How is—everybody? And that Mr. Fairlie is married? Does
Miss Churchill come as she used?”
She was still among our best friends, we told him. Fanny was
there spending the day.
Presently papa returned and he was full of joy at the improvement.
Why, it was almost like having a boy of one’s very own! I would not
have believed that he could be so agreeable if I had not seen it, or
else I wondered if we had not made a mistake last summer.
There was supper and music after that, and Fan’s return, and the
next day papa invited him to go over the river with him, as he had a
horse and wagon. Consequently I saw nothing of him until evening.
Mamma asked me to take some grapes to a sick parishioner.
“Allow me to accompany you;” he said, getting his hat.
It was very foolish but I could not help the color coming into my
face as we walked down the path. He had such a grown-up,
gentlemanly air; he opened the gate and closed it again, and took
the outside of the walk and glanced at me in a kind of protecting
fashion.
“Do you know that you are very little?” he began presently.
“Fully five feet.”
“But then I am getting to be such a great fellow!”
I looked at him and laughed.
“What now?” and he colored suddenly.
“I was thinking—of something so absurd! Fan used to accuse me
of preaching—”
“And very good sermons they were. I may want you to preach
again.”
“I should be afraid,” glancing up at him.
He laughed then. After a moment or two another expression
crossed his face, and it grew more and more serious.
“I believe the sermons saved me. There was a time when I should
have hated to own such a thing—and from a woman, too; so you
may know how I have conquered myself.”
“The best of all victories.”
“Looking back at myself I wonder how you tolerated me last
summer. I was ill and nervous to the last degree, but I had a frightful