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  Police Power: Police Abuses in New York City

  Paul G. Chevigny

  This is not a book about sensational police scandals, either of corruption or of the third degree. It does not deal, and is not intended to deal, with the macabre excesses of the police as they are occasionally recorded in the newspapers, but rather with more routine denials of due process of law by false arrest, by unlawful search, and by “summary punishment”—police brutality. Most of the policemen in these cases are not detectives but patrolmen, involved in street-corner incidents. What I hope to tell is the genesis of these abuses and the reasons why so little is done to stop them. On the other hand, this study is not a general survey of police work. It does not recount the many brilliant investigations by detective, the acts of heroism of plainclothesmen in trying to decoy muggers, that were contemporary with the abuses recorded in this book. If it is not a “balanced” account, it was never intended to be one. This book is directed to finding out what is wrong, and the reasons for what is wrong, with law enforcement, chiefly in the streets. It concentrates upon police abuses in New York City during the two-year period of 1966 and 1967. The restriction to New York immediately raises a question about the general applicability in other communities of the patterns and conclusions described here. On the one hand, New York is the largest urban complex in the country, and it presents the most severe problems; on the other, the New York City Police Department has long had a reputation as one of the best departments in the country. I think it is clear from other, more general studies than this, which will be cited in succeeding chapters, that the problems explored here are more pronounced in other cities. New York may not be typical, but its police problems are typical of the police problems of the nation. I first became concerned with police abuses in 1965 while I was working in a neighborhood law office in Harlem. Although I had listened to a number of gruesome stories about the police, I could not really begin to grasp what the problem was until I had tried some criminal cases from the ghetto. The saddest of these cases concerned a Harlem window washer and his wife, a barmaid. On the wife’s night off, they were having drinks in a bar where she worked, and at the end of the evening, she went out into the street to hail a cab. A policeman, mistaking her flashy clothes for those of a prostitute, ordered her to move on. A vituperative argument ensued, and the wife was knocked down with a punch in the eye. When the husband ran out of the bar with a friend to protest, he was also knocked down. The wife was charged with assault and the husband with disorderly conduct (breach of the peace). A law student working in my office sat in that bar one night for six hours, hoping to find witnesses, and finally succeeded in giving subpoenas to three. But on the day of the barmaid’s trial, not one of them came to court—not on that day nor on any of the three days to which the trial was subsequently adjourned. At her husband’s trial, the friend who had run out into the street with him testified in his defense that there had been no breach of the peace. The friend’s credibility was poor, not only because he was a friend but because he had a criminal record; the magistrate found the husband guilty and gave him a suspended sentence. After his trial, the husband said, “You know, I’m pretty good with my hands. I bet I could have taken that cop. But when he punched me, I just lay there and thought, “Hell, I’ll go downtown and tell it to the judge.’ Well, I did tell it, but that cop lied, and the judge didn’t believe me. Next time anyone punches my wife, and, I’m going to take him.” The window washer probably would not have done what he threatened; he was too respectable and civilized a man. But the important thing was that he had learned to believe there was no way to get justice except with his hands. Similar criminal cases which I handled in 1965—of disorderly conduct, of assault, and often of resisting arrest—were just as discouraging; I lost four within the space of a few weeks. The result was that when I first heard about a plan for the New York Civil Liberties Union to study police abuses, I wanted nothing to do with it. I could imagine nothing more depressing than more of the same, over a period of two years. I had to see other lawyers win a few of these cases, and win a few myself, before I became convinced that such a project was useful; that it was sometimes possible to get witnesses to come to court to persuade judges to acquit.

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  Wright and Miller's Federal Practice and Procedure

  Charles A. Wright and Arthur R. Miller

  Comprehensive and authoritative coverage of all aspects of federal civil, criminal and appellate procedure, including rules of civil, criminal, and appellate procedure, rules of evidence, the federal judicial system, jurisdiction of all federal courts, venue, removal of cases, res judicata, relation of state and federal courts, multidistrict litigation, and more. Provides extensive analysis of each rule as interpreted and applied by the federal courts and affected by related statutes and rules. Includes official forms adopted with the rules. Contains numerous tables and couples key words, ideas, and legal concepts to index and cited decisions, statutes, and other relevant materials.

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  The Criminal Process in the People's Republic of China, 1949-1963: An Introduction

  Jerome A. Cohen

  The revolutionary triumph of communism in China in 1949 made the world's most populous country the subject of a gigantic political, social, and economic experiment. China also has been the subject of a significant legal experiment. Is the People's Republic of China an example of “’lawless unlimited power’ expressing itself solely in unpredictable and patternless interventions” in the lives of its people? Has the People’s Republic sought to attain Marx's vision of the ultimate withering away of the state and of the law? Has Mao Tse-tung preferred Soviet practice to Marxist preaching? If so, which Soviet model has he chosen to follow - that of Stalin or that of Stalin's heirs? To what extent has it been possible to transplant a foreign legal system into the world's oldest surviving legal tradition? Should today's Chinese legal system 'be viewed as a unique amalgam of Communist politics and Chinese culture? To what extent has the system demonstrated a capacity for change since 1949? What has been the direction of that change, and what are the prospects for the future? Western legal scholars are merely beginning to wrestle with such large questions, and at this stage one can only suggest hypotheses and raise problems for future research. This volume represents the fruits of a preliminary inquiry into one aspect of contemporary Chinese law—the criminal process. The emphasis is on the process itself, but a good deal of attention is necessarily devoted to substantive criminal law as well as to the modes of its application. The volume consists of three parts. The first is an introductory essay that provides an overview of the evolution and operation of the criminal process from 1949 through 1963. The second part, which constitutes the bulk of the book, systematically presents primary source materials that permit more detailed consideration of problems raised in the introduction. These materials include relevant excerpts from legal documents such as the Constitution, statutes, and other rules and regulations of the People's Republic; from official policy statements; from a treatise on criminal law that has been prepared to assist Chinese judicial officials; and from articles in Chinese law reviews, academic and popular journals, and national and local newspapers. In order to shed light on the law in action as well as the law on the books, I have also included many selections from the written and oral accounts of persons who have lived in or visited the People's Republic. Finally, to suggest the historical and comparative perspective essential for further understanding, I have reprinted at the beginning of Part II a brilliant but little-known essay by Professor Benjamin I. Schwartz, and in various places have reprinted other historical and comparative materials. It is my hope that Part II, from which I have taught my classes at Harvard Law School for the past three years, may be useful for purposes of instruction at the many other law schools and universities that have become interested in Communist law in general and Chinese law in particular. It may also constitute a helpful sourcebook for scholars of Chinese affairs and for comparatists in several academic disciplines. Because existing English translations of Chinese legal materials have been not only limited in quantity but also inadequate in quality, considerable effort has been made in this volume to provide translations that are accurate and yet not unduly clumsy. This has not been a simple job. Franz Schurmann has pointed out that the categories and language of Chinese Communist ideology are precise and carefully used by those who purvey the ideology. Unfortunately, Chinese Communist legal terminology has not attained the same degree of precision, and it is not unusual, especially in local newspapers, for legal terms to be employed loosely or opaquely. Moreover, given the outside observer's limited access to the contemporary Chinese legal system, it would hardly be surprising if he failed to grasp the meaning assigned to certain legal terms, including those that have been invoked by previous regimes but that now have new meanings. The principal contribution of Part III is an English-Chinese glossary of the major legal and institutional terms translated in Part II. This glossary does not in any sense purport to be a dictionary. It merely indicates the English terms that have been found to suit the meanings of the Chinese terms in the particular contexts in which they appear. Although the English equivalents given are certainly not the only ones that could have been devised, they are, it is hoped, adequate to the extremely difficult task of finding linguistic analogies between the terms used by systems as different as the Anglo-American and the Chinese Communist. To the extent permitted by the Chinese text, these equivalents have been consistently employed throughout. Thus, for example, each time the Chinese term tiao-chieh wei-yuan-hui appears, it has been rendered as “mediation committee” rather than as “conciliation committee,” “reconcilement commission,” or “arbitration council”; on the other hand, the term shen-p'an appears sometimes as “adjudication” and at other times as “trial,” depending upon the particular context. Part III also contains a bibliography of the sources drawn upon in Parts I and II and a modest number of English language books and articles that are pertinent to an understanding of the criminal process in mainland China. The extracts in Part II appear without their original footnotes except where I have considered the footnotes to be of particular importance. I have presented the English translations of other students only where the original Chinese text has not been available to me. The titles or positions by which the authors of extracts are sometimes identified are those they held at the time the given extract was published. The Chinese characters in the glossary were inscribed by Mr. Wang Yeh-chien, and the glossary was typed by Mrs. Bertha Ezell. I am greatly indebted to David Finkelstein for his talented and unflagging assistance in translation.

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  Civil Procedure: Cases and Materials

  John J. Cound, Jack H. Friedenthal, and Arthur R. Miller

  We believe that a course in civil procedure should be one of the most exciting and entertaining intellectual experiences in a student's law-school career. This book has been planned and executed in that belief. Moreover, our primary purpose has been to produce a device for teaching rather than a tool for research, and several consequences have flowed from this choice. We have looked for cases in which the facts are interesting, in which the conflicting policies seem to be in equipoise, or in which the context has extrinsic fascination, rather than for cases whose opinions offer tight little monographs on various aspects of procedure. After all, a student's preparation and participation in class discussion frequently are in direct proportion to the extent to which the materials have interested and involved him. In developing this book, we also were aware that other things being equal the modern student will pay greater attention to a recent case than to an older one, even though the latter case may be hallowed by decades of citation. To be sure many of the famous landmarks will be found in these pages, but the great majority of the cases are of recent date. The notes and questions that follow nearly every principal case have been designed for the most part to encourage deeper analysis of the problems raised in the principal cases rather than to fill the student with additional detail. At the same time, we have tried to provide sufficient and selective references to secondary sources for the student who wishes to look further. We have not aimed at a “hard” book. Civil procedure is sufficiently mysterious to law students that its ability to challenge analysis survives best when presented in a clear and simple environment. The danger is not of patronizing students, but of losing them. In the textual survey in Chapter One, in the long note on “the nature of the trial process” in Chapter Ten, and in briefer introductions to other sections of the book, we have tried to tell the student where he is going, and through extensive cross-referencing and questions we have tried to force him to review where he has been. We have not concentrated on the law of any one jurisdiction, although there is substantial emphasis on the operation of the Federal Rules of Civil Procedure, which have served as a model and focal point for serious discussion and implementation of procedural reform in a large majority of the states. In general the book operates on a comparative basis, except in contexts such as jurisdiction over the subject matter in which we believe the comparative approach has more limited utility than an in depth exploration of a single system. A careful attempt has been made to strike a balance between exploration of underlying philosophical problems and analysis of day-to-day matters that arise frequently in office practice or in the courts. Our theory is that a mixture of both is necessary to give students a comprehensive understanding of procedure. How else can they learn why, even today, after so many years of study, revision, and reform, major proposals for alteration of adjective law are still being made, and, undoubtedly, will continue to be made in the years to come? In addition, considerable use has been made of historical material, not only when it is directly relevant to today's system, as in the study of the right to jury trial, but also in contexts in which it is necessary for a true grasp of the basic problems. Because courses in civil procedure vary greatly not only as to the hours allotted but also as to whether they are mandatory or optional and as to the year during which students are expected to take them, the materials in this volume are designed to provide maximum pedagogical flexibility. The cases and subjects covered have been selected primarily for a comprehensive, year- long course beginning in the first term of the law student's first year; yet they may easily be divided into two or more quite different subjects to be given either as preliminary or advanced courses. The first chapter of this casebook sets forth a basic, textual statement of a procedural system's framework, without which an understanding of any particular part of the system is difficult, if not impossible. This initial discussion defines those procedural terms necessary for comprehending legal opinions, whether they be of a procedural or substantive character. This, we believe, is an important function of a course in procedure, especially when it forms part of the first year curriculum. The textual analysis, which can be assigned for study with little or no class discussion, is followed by a series of illustrative cases designed to raise the basic problems of a procedural system, to illustrate the interplay among its various aspects, and to high- light many of the points in the earlier text. An effort has been made to select cases that can be handled with relative dispatch so that the introduction does not become a de facto study of the entire course. In general, Chapter One is intended to let the student form some idea as to the nature of the litigation “forest” before attempting to make him master of any of its “trees.” After the first chapter, the structure of the book proceeds in a chronological fashion. The authors believe that this is the most logical way to teach civil procedure because it permits the student to see the evolution and maturation of the litigation process. Furthermore, by putting personal and subject-matter jurisdiction and the materials dealing with the history of civil procedure before such subjects as pleading, joinder, and discovery, the first year student is given some “breathing time” in which to absorb enough substantive law from his torts, contracts, and property courses to enable him to grasp the significance of such matters as “pleading a cause of action,” “contributory negligence,” and “joint and several interests.” Finally, the authors have concluded that despite its conceptual difficulty, personal jurisdiction is a much more teachable and exhilarating introduction to civil procedure than is pleading. The chapter on jurisdiction includes an extensive treatment of the federal courts. An investigation of a single system in detail seems the best way to impress the student with the significance attached by courts to the concept of jurisdiction over the subject matter. The length of this material is greater than is customary in a civil procedure book, but part of it may readily be treated at the end of the course or be eliminated. We believe that without a working knowledge of such concepts as diversity of citizenship and ancillary jurisdiction, the procedural ramifications of the Erie doctrine and such indisputably procedural problems as joinder cannot be properly understood. We have concluded that to omit a plenary section on common-law pleading, the forms of action, equity, and the nineteenth century reforms (as many procedure casebooks do) would only lead to the introduction of this material in driblets by lecture during the study of modern pleading and other subjects with no substantial saving in time and probably at a cost in comprehension. At the same time we have eschewed the temptation to overcompensate for the disappearance of courses in equity; we have not attempted to cover the substantive doctrines of that discipline in a historical note. Although we believe history is invaluable to the study of modern procedure, the modern pleading chapter has been planned as a choate whole, and does not require the coverage of the earlier background chapter. The treatment of parties has been divided between Chapter Six and Chapter Fourteen. The problems of proper parties, impleader, joinder of claims, and counterclaims are considered together immediately after pleading, because they are an indispensable part of the pretrial process of clarifying the issues and readying the case for disposition. The procedures relevant to more complex litigation have been split off, to avoid a needlessly long interruption in the chronological development of the course. Moreover by delaying their consideration until the end of the course, the study of class actions and intervention is usefully illuminated by the earlier coverage of res judicata in Chapter Thirteen. The materials in this volume refer to and are augmented by a Supplement, which contains not only the federal statutes and rules governing procedure, as is traditional, but also comparative state provisions. In some cases other materials, such as notes of Advisory Committees, also are included. Thus at a glance the student is able to see the different solutions put forth for particular procedural problems and is induced to explore the reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. The decision to place comparative materials in the Supplement presented us with the difficult question of choice between materials to be kept in the text and those to be put into the Supplement. Our decision, based largely on the calculation that the least confusion would result from placing all of the material in one place, was to put virtually all statutory and rule material in the Supplement where it can be readily located through the Supplement's separate index. Whatever inconvenience may follow from the use of two books seems to us more than compensated by presenting this material in a form in which it can be studied side by side with the cases themselves. All teachers of civil procedure are well aware of how difficult it is for a student to grapple with problems in the abstract; for example in the field of pleading he may have only a vague notion of what a pleading looks like. The Supplement therefore also contains an illustrative problem, showing how a case develops in practice and samples of the documents that might actually have formed a portion of the record. It is important to note that these samples are not designed as models to be emulated. To the contrary, they often contain defects intended to induce the student to criticize them in light of knowledge he has obtained from the cases and classroom discussion. The cases and excerpts from other materials obviously have been extensively edited in order to shorten them and clarify issues for discussion. In all cases we have provided the reader with a sufficient reference to enable him to consult the original source if he is so motivated. With regard to footnotes: the same numbering appears in the casebook as appears in the original source; editors' footnotes are indicated by letters.

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  Pleading, Joinder and Discovery: Cases and Materials

  John J. Cound, Jack H. Friedenthal, and Arthur R. Miller

  This book, which covers all of the stages of litigation before trial, is based upon the authors’ Cases and Materials on Civil Procedure. Although the full-year first-year course in civil procedure has gained in popularity, many law schools find advantageous the presentation of pleading and related pretrial matters in a separate course. The pleading course is sometimes a first-year offering designed to acquaint new law students with the basic aspects of procedure while saving trials and appeals for later consideration in a more practice-oriented setting; in other schools pleading is reserved for seniors to take advantage of their more fully-developed substantive-law background. We believe that this book will fit either type of course in that its approach is suitable for first year students while its contents will challenge even seniors. The first chapter sets forth a basic, textual statement of a procedural system's framework, without which an understanding of any particular part of the system is difficult, if not impossible. This initial discussion defines those procedural terms necessary for comprehending legal opinions, whether they be of a procedural or substantive character. Although this discussion may be unnecessary in an advanced course, we believe it is an important function of any procedure course that forms part of the first-year curriculum. The textual analysis, which can be assigned for study with little or no class discussion, is followed by a number of illustrative cases designed to raise the basic problems with which the procedure before trial is concerned. An effort has been made to select cases that can be handled with relative dispatch so that the introduction does not become a de facto study of the entire course. In general, Chapter One is intended to let the student form some idea as to the nature of the litigation “forest” before attempting to make him master of any of its “trees.” A course that deals with any aspect of civil procedure must involve some knowledge of personal jurisdiction and jurisdiction over the subject matter. We have felt it necessary then to offer materials from which this knowledge can be gained, although the coverage is considerably less extensive than that in our larger book and most of the material on the jurisdiction of the federal courts that appears there has been excised. Because students using this book frequently will have derived knowledge of jurisdiction in other courses, we have been faced with the question whether these materials should be relegated to an appendix. Our decision has been to include them at that point at which we believe they are best taught if they are to be taught in the course at all; on the other hand, the chapter may be skipped entirely without disturbing the continuity of the book. We also have treated in this way another tangential area, which is essential to the understanding of many questions of procedure before trial-the problem of ascertaining the applicable law. Much of this material is presented in a textual note, because we recognize how little time can be devoted to this topic in a course largely devoted to pleading, joinder, and discovery. We have concluded that to omit a plenary section on common-law pleading, the forms of action, equity, and the nineteenth century reforms would only lead to the introduction of this material in driblets by lecture during the study of modern pleading and other subjects with no substantial saving in time and probably at a cost in comprehension. Although we believe history is invaluable to the study of modern procedure, however, the modern pleading chapter has been planned as a choate whole, and does not require the coverage of the earlier background chapter. The treatment of parties has been divided between Chapter Six and Chapter Eleven. The problems of proper parties, impleader, joinder of claims, and counterclaims are considered together immediately after pleading, because they are an indispensable part of the pretrial process of clarifying the issues and readying the case for disposition. The procedures relevant to more complex litigation have been split off, to avoid a needlessly long interruption in the chronological development of the course. Our primary purpose, as in our larger book, has been to produce a device for teaching rather than a tool for research. We have looked for cases in which the facts are interesting, in which the conflicting policies seem to be in equipoise, or in which the context has extrinsic fascination, rather than for cases whose opinions offer tight little monographs on various aspects of procedure. The notes and questions that follow nearly every principal case have been designed for the most part to encourage deeper analysis of the problems raised in the principal cases rather than to fill the student with additional detail. At the same time, we have tried to provide sufficient and selective references to secondary sources for the student who wishes to look further. We have not aimed at a “hard” book. Civil procedure is sufficiently mysterious to law students that its ability to challenge analysis survives best when presented in a clear and simple environment. The danger is not of patronizing students, but of losing them. We have not concentrated on the law of any one jurisdiction and in general, the book proceeds on a comparative basis. There is, however, substantial emphasis on the operation of the Federal Rules of Civil Procedure, which have served as a model and focal point for serious discussion and implementation of procedural reform in a large majority of the states. The materials in this volume refer to and are augmented by the Supplement prepared for our larger book, which contains not only the federal statutes and rules governing procedure, but also comparative state provisions. In some cases other materials, such as notes of Advisory Committees, also are included. Thus at a glance the student is able to see the different solutions put forth for particular procedural problems and is induced to explore the reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. The decision to place comparative materials in the Supplement presented us with the difficult question of choice between materials to be kept in the text and those to be put into the Supplement. Our decision, based largely on the calculation that the least confusion would result from placing all of the material in one place, was to put virtually all statutory and rule material in the Supplement where it can be readily located through the Supplement's separate index. Whatever inconvenience may follow from the use of two books seems to us more than compensated by presenting this material in a form in which it can be studied side by side with the cases themselves. Included in the Supplement is an illustrative problem, showing how a case develops in practice and samples of the documents that might actually have formed a portion of the record. We have hoped in this way to reduce the extent to which a student frequently finds procedural material maddeningly abstract. Although this problem was prepared to cover the entire range of litigation, it proceeds in chronological order, so that those portions of the problem relating to litigation before trial may be identified easily. It is important to note that the documents accompanying the problem are not designed as models to be emulated. To the contrary, they often contain defects intended to induce the student to criticize them in light of knowledge he has obtained from the cases and classroom discussion. The cases and excerpts from other materials obviously have been extensively edited in order to shorten them and clarify issues for discussion. In all cases we have provided the reader with a sufficient reference to enable him to consult the original source if he is so motivated. With regard to footnotes: the same numbering appears in the casebook as appears in the original source; editors' footnotes are indicated by letters.

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  New York Civil Practice

  Jack B. Weinstein, Harold L. Korn, and Arthur R. Miller

  New York Civil Practice: CPLR, 2nd Edition, more commonly known as Weinstein, Korn & Miller, is recognized by the courts and the market as the leading treatise on NY civil procedure and litigation. Weinstein, Korn & Miller makes the in-depth analysis of eminent experts accessible to civil practitioners. It provides comprehensive answers to all procedural questions, including not only a coherent statement of the current law but also an analysis of how the law is interpreted and applied and how it has evolved. Clear organization, mirroring that of the CPLR, and cross-references to applicable forms in Bender's Forms for the Civil Practice (Vols. 1-16), make it easy to find the topic of interest and complete the task at hand.