• Selected
• Entire List

Abstract:
The New York legislature in the early-nineteenth century began to require interrogators to warn suspects of their right to silence and counsel. The Warren Court, in Miranda v. Arizona, did not invent the language of the warnings; rather, it resurrected the warnings that were no longer given in New York after the latter half of the nineteenth century. The confessions rule, a judicially created rule of evidence much like the modern voluntariness rule, excluded many statements if any threat or inducement was made to the suspect. Courts in the early-nineteenth century, however, were willing to accept confessions notwithstanding an improper inducement if the suspect had been given the now-famous warnings. The warnings remained in place until the newly elected New York judiciary began to retreat from the strict version of the confessions rule that prompted interrogators to give those warnings. The threat of losing statements to the confessions rule was greater than the threat that suspects would exercise the rights of which police advised them - at least until the judiciary substantially weakened the confessions rule.

Miranda, Interrogation, Nineteenth Century, History

Abstract:
At the time the Constitution was written, police officers had very little power. In most cases they were required to wait for a complaint from a victim to arrest, or a warrant from a magistrate to perform a search of any kind. Victims had extraordinary discretion in this era. Generally, only victims could seek arrest or search warrants and they were required only to allege that they had probable cause to support the arrest or search they sought. In most cases, an officer could not obtain a warrant even if he could provide the facts supporting his suspicions. Warrantless arrests exposed the officer to a very real threat of civil liability. Officers' arrest powers were substantially increased in the mid-nineteenth century as they were granted immunity from civil liability for arrests made in public, so long as the arrest was supported by probable cause. This new standard accompanied the creation of professional police forces, but in many states was immediately preceded by another legal development - prohibition. A new search standard was needed to enforce prohibition as this new crime had no victims. The new standard permitted anyone to obtain a warrant to search for alcohol, but the affiant had to provide the magistrate with the factual support for his belief. Probable cause thus went from a pleading requirement that victims alleged to a factual threshold that an affiant could satisfy. Very soon thereafter courts would accept this new probable cause standard as the basis for police arrests. Maine was source of this first prohibitory law - a law that was copied by the majority of American states in the mid-nineteenth century. This article traces how the search and seizure provisions of Maine's early liquor laws were created and how they influenced the development of modern police powers throughout the nation.

Criminal Procedure, Fourth Amendment, Prohibition, Search and Seizure, History, Nineteenth Century

Abstract:
Originalism has focused the attention of courts and academics on Framing Era history to interpret constitutional limits on police conduct. Previously unexplored sources reveal, however, that Framing Era limits on officers were expressly abandoned as professional police forces were created in the mid-nineteenth century and charged with aggressively investigating and preventing crime. The modern scheme of judicially supervised police investigations was then implemented after corruption and scandals of the 1920s. The development of modern criminal procedure has a rich historical background, but it has almost nothing to do with the events of the Framing Era.

criminal procedure, history, search and seizure, interrogations, wiretapping, Prohibition, originalism

Abstract:
With the Ninth Circuit's opinion in al-Kidd v. Ashcroft holding that material witness detentions may not be used as a pretext to hold suspects, it is worth noting that as a practical matter the power has never been used any other way. The practice dates make to the 1840s as professional police departments were being created. In the mid-nineteenth century policing was becoming a career. For the first time, there were incentives to investigate crime; law enforcement provided opportunites for long-term retention and promotion. Officers employed by newly-established police departments began to aggressively investigate crime using powers unimagineable to their constable and night-watch precedecessors. Among these new powers was the ability to detain material witnesses. Officers began to detain suspects, whom they lacked adequate suspicion to charge, as witnesses. As the public became aware of the incarceration of those identified only as "witnesses," officer found the public very unwilling to cooperate in investigations for fear of being held for the crime of possessing helpful information. In New York, the Police Department asked the legislature in the late nineteenth century to allow only the detention of witnesses suspected of being accomplices. The legislature's acquiescence to the law enforcement request demonstrates not only the rising influence of law enforcement interests in the late-nineteenth century, it also demonstrates that the public was comfortable with material witness detentions only when they were used as a pretext to hold suspects.

nineteenth century, legal history, criminal procedure, material witness detention, al-Kidd v. Ashcroft, interrogation, police