Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P11 pdf

conduct of the police, not the mental state of the suspect. Yet the mental state of the suspect may still play a role in Burbine’s second prong, which considers the suspect’s awareness of Miranda rights and the consequences of waiving them. Legal commentators have criticized Miranda and its subsequent line of decisions, stating that criminal suspects seldom truly understand the meaning or importance of the rights recited to them. Studies have indicated that the Miranda decision has had little effect on the numbers of confessions and requests for lawyers made by suspects in custody. What is more, critics of Miranda cite concerns that the police might fabricate waivers, as a suspect’swaiverofMiranda rights need not be recorded or made to a neutral party. Proponents argue that Miranda protects criminal suspects and reduces needless litigation by providing the police with concrete guidelines for permissible interrogation. Even though the idea behind Miranda rights is to protect suspects in custody from police coercion, the U.S. Supreme Court in 1991 held that coerced confessions nevertheless may be used in court if their use is harmless—in other words, if a jury would probably co nvict even without them (Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302). The police suspected that Oreste Fulminante had killed his 11-year-old stepdaughter, whose body was found in an Arizona desert two days after he had reported her missing. Before he was charged with the murder, Fulminante had received a prison sentence for an unrelated weapons-possession charge. While in prison on that charge, he confessed the murder to a fellow inmate, who actually was a paid federal informant. The informant had offered to protect Fulminante from other inmates in exchange for hearing the truth about the murder. Fulminante was subsequently indicted for the killing, and his confession was used at trial despite his objection. A jury found him guilty of murder and sentenced him to death. The U.S. Supreme Court applied the harmful error test and found that the jurors most likely would not have convicted Fulmi- nante had they not heard his coerced confession, thus its use at trial was harmful. The Court ordered the case back for a new trial, this time without use of the confession. Legal scholars have criticized the Fulminante decision for failing to follow decades of legal precedent holding that coerced confessions violate the due process rights of criminal suspects and that their use at trial necessitates automatic reversal, whether they are harmful or not. Fulminante, they argue, encourages the police to ignore the civil rights of suspects and to coerce confessions. Others argue that the decision is correct because it focuses on achieving an accurate determination of guilt or innocence regardless of whether constitutional rights are violated. Whatever its long-term effects, Fulmi- nante will not be the final word in the progression of U.S. Supreme Court cases defining the law of confessions. Recent Developments In 1999 the U.S. Court of Appeals for the Fourth Circuit fueled long-standing speculation that Miranda would be overruled, when it held that the admissibility of confessions in federal court is governed not by Miranda, but by a federal statute enacted two years after that decision. The statute, 18 U.S.C.A. Section 3501, provides that a confession is admissible if voluntarily given. Congress enacted the statute in order to overturn Miranda, the Fourth Circuit said, and Congress had the authority to do so pursuant to its authority to overrule judicially created rules of evidence that are not mandated by the U.S. Constitution. United States. v. Dickerson, 166 F.3d 667 (4th Cir. 1999). The U.S. Supreme Court reversed. In an opinion authored by Chief Justice WILLIAM REHNQUIST , the Court said that, whether or not it agreed w ith Miranda, the principles of STARE DECISIS weigh heavily against overruling it now. While the Court has overruled its precedents when subsequent cases have undermined their doctrinal underpinnings, that has not happened to the Miranda decision, which the Court said “has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Although the Court acknowledged that a few guilty defendants might go free as the result of the application of the Miranda rule, “experience suggests that the totality-of-the-circumstances test which Section 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to and for courts to apply in a consistent manner.” Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). In another decision, the Court actually increased defendants’ constitutional rights when GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 88 CONFESSION it ruled that the protections provided by its decision in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (which held that the introduction of a non- testifying codefendant’s confession incriminat- ing both himself and the other DEFENDANT in a joint tria l violated the other defendant ’sSixth Amendment right to cross-examine witnesses) were applicable to a codefendant’s confession that substituted blanks and the word deleted in place of the defendant’s proper name. The Court said that redactions that simply replace the defendant’s name with an obvious substi- tute, such as deleted, a blank space, a symbol, or other similarly obvious indications of alteration, result in statements that so closely resemble the unredacted statements in Bruton that the law must require the same result. The Court believed that juries will often react similarly to unredacted confessions and to poorly redacted confessions, as jurors often realize that a poorly redacted confession refers specifically to the defendant, even when the statement does not expressly link the defend ant to the deleted name. Additionally, the Court stressed that by encouraging the jury to speculate about the removed name, the redaction might overem- phasize the importance of the confession’s accusation once the jurors figure out the redacted reference. Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998). In Martine z v. City of Oxnard, 270 F.3d 852 (9th Cir. 2001), the U.S. Court of Appeals for the Ninth Circuit ruled that violating a defendant’s rights against coerced confessions can give rise to a civil rights action against the police officer who attempted to coerce the confession. Martinez stemmed from a 45-minute emergency-room interrogation of a narcotics suspect who had been shot five times by a police officer while being subdued during the arrest. The suspect, who was rendered blind in one eye and paralyzed below the legs by the gunshot wounds, sued the officer who had conducted the interrogation. The officer inter- posed a defense of qualified IMMUNITY, claiming that he could not be sued for injuries suffered by the defendant while the officer was simply doing his job. The district court rejected the officer’s defense and granted SUMMARY JUDGMENT to the narcotics suspect on his civil rights claim under 42 U.S.C.A § 1983. In affirming the dist rict court’s decision, the Ninth Circuit ruled that a police officer may raise the defense of qualified immunity only when he or she could have reasonably believed that his or her conduct was lawful under settled law. In this case, the record revealed that the officer had doggedly tried to exact a confession from the suspect without first reading him the Miranda warnings, and that he then had proceeded to ignore the suspect’s repeated requests for the officer to cease the interrogation until he was finished receiving medical treatment for his life-threatening inju- ries. No reasonable officer, the court concluded, could have believed that interrogating the suspect under those “extreme circumstances” comported with the Fifth Amendment’s prohi- bitions against coerced confessions, and thus the officer was not entitled to assert qualified immunity as a defense. Accordingly, the district court’s grant of summary judgment against the officer was affirmed. However, the U.S. Su- preme Court granted the officer’s petition for CERTIORARI. FURTHER READINGS Chertoff, Michael. 1995. “Chopping Miranda Down to Size.” Michigan Law Review 93. Green, J.J. 1992. “Comment: Arizona v. Fulminante: The Harmful Extension of the Harmless Error Doctrine.” Oklahoma City Univ. Law Review 17. Hourihan, Paul T. 1995. “Earl Washington’s Confession: Mental Retardation and the Law of Confessions.” Virginia Law Review 81. LaFave, Wayne R., Jerold H. Israel, and Yale Kamisar. 2003. Criminal Procedure and the Constitution. Eagan, MN: West. Stack, W. Brian. 1994. “Criminal Procedure—Confessions: Waiver of Privilege against Self-Incrimination Held Invalid Due to Police Failure to Inform Suspect of Attorney’s Attempt to Contact Him—State v. Reed.” Seton Hall Law Review 25. CROSS REFERENCES Criminal Law; Criminal Procedure; Custodial Interrogation. CONFESSION AND AVOIDANCE A form of plea that served as the formal answer to a plaintiff’s complaint or declaration. Under the old system of COMMON-LAW PLEADING ,aDEFENDANT might choose to respond to the plaintiff’s claim with a PLEA of confession and avoidance. By that, the defendant acknowl- edged the truth of the allegations in the plaintiff’s declaration, either specifically or by implication, and then asserted that there were additional facts that neutralized the legal effect of the plaintiff’s allegations. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONFESSION AND AVOIDANCE 89 CONFESSION OF JUDGMENT A procedure whereby a defendant did not enter a plea, the usual response to a plaintiff’s declaration in common-law pleading, but instead either confessed to the accuracy of the plaintiff’s claim or withdrew a plea already entered. The result of a confession of judgment was that judgment was entered for the PLAINTIFF on the confession alone without further proceed- ings being required. A confession of judgment could also be accomplished if the plaintiff offered a COGNOVIT ACTIONEM , a written confession made out earlier by the DEFENDANT. A creditor could demand that a borrower sign a COGNOVIT NOTE when the debtor first became indebted to the creditor. The cognovit note said in writing that the debtor owed a particular sum and voluntarily submitted himself or herself to the authority of the court. If the debtor later fell into ARREARS, the creditor could obtain a judgment against the debtor without even bothering to notify the debtor of the proceedings. A WARRANT OF ATTORNEY served the same purpose as a cognovit note. The unfairness of the procedure has prompted most states to enact laws making agreements for the confession of judgment void. CONFIDENTIAL COMMUNICATION A form of privileged communication passed from one individual to another, intended to be heard only by the individual addressed. A confidential communication is ordinarily between two people who are affiliated in a CONFIDENTIAL RELATION, such as an attorney and client, HUSBAND AND WIFE,orMASTER AND SERVANT. If this type of communication is made in the presence of a THIRD PARTY, whose presence is not necessary for such communication, it is not considered privileged. In certain cases, the presence of a third party might be required, as where there is a language barrier such that one of the individuals engaged in the confidential communication needs an interpreter. CROSS REFERENCES Attorney-Client Privilege; Marital Communications Privi- lege; Physician-Patien t Privilege. CONFIDENTIAL RELATION Any connection between two i ndividuals in which one of the parties has an obligation to act with extreme good faith for the benefit of the other party. Confidential relations, also known as FIDU- CIARY relations, are not confined to any specific relationships but refer to all those that are founded upon secrecy and trust. The duty of secrecy in such a relation is intended to prevent undue advantage that might stem from the unlimited confidence that one party places in the other. A confidential relation need not be a legal one, but rather may be moral, domestic, social, or personal. Kinship alone, however, is insufficient to give rise to a confidential relation. Common examples of confidential relation- ships, which give rise to confidential commu- nications, include attorney and client, HUSBAND AND WIFE , and physician and patient. CONFISCATE To expropriate private property for public use without compensating the owner under the authority of the police power of the government. To seize property. When property is confiscated it is trans- ferred from private to public use, usually for reasons such as insurrection during a time of war or becau se the private property had been used in illegal activities. A person convicted of violating the INTERNAL REVENUE CODE by carrying untaxed cigarettes may suffer the penalty of confiscation of any property used in the crime—as, for example, a truck. Confiscation differs from EMINENT DOMAIN and CONDEM NATION in that the person from The relationship between doctor and patient is confidential: The doctor has a responsibility to act in good faith for the benefit of the patient. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 90 CONFESSION OF JUDGMENT whom private property is taken is not compen- sated for its value at the time of confiscation. CONFISCATION See EXPROPRIATION. CONFLICT OF INTEREST A term used to describe the situation in which a public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit, typically pecuniary. In certain relationships, individuals or the general public place their trust and confidence in someone to act in their best interests. When an individual has the responsibility to represent another person—whether as administrator, attorney, executor, government official, or trustee—a clash between professional obliga- tions and personal interests arises if the individual tries to perform that duty while at the same time trying to achieve personal gain. The appearance of a conflict of interest is present if there is a potential for the personal interests of an individual to clash with FIDUCIARY duties, such as when a client has his or her attorney commence an action against a com- pany in which the attorney is the majority stockholder. Incompatibility of professional duties and personal interests has led Congress and many state legislatures to enact statutes defining conduct that constitutes a conflict of interest and specifying the sanctions for violations. A member of a profession who has been involved in a conflict of interest might be subject to disciplinary proceedings before the body that granted permission to practice that profession. CROSS REFERENCES Attorney Misconduct; Ethics, Legal. CONFORMED COPY A duplicate of a document that includes hand- written nota tions of items incapable of reproduc- tion, such as a signature, which mu st be inscribed upon the duplicate with the explanation that it was placed there by the person whose signature appears on the original document. Under the BEST EVIDENCE rule, a CONFORMED COPY is admissible as EVIDENCE in a lawsuit when the actual document is not available because it has been lost or destroyed. It is considered SECONDARY EVIDENCE, while the original docu- ment is PRIMARY EVIDENCE. State and FEDERAL RULES OF EVIDENCE determine the admissibility of a conformed copy in their respective judicial proceedings. CONFORMING USE When land is employed in compliance with zoning ordinances in a particular area. All real property that is privately owned is subject to certain restrictions or LAND-USE CONTROL . Land that is not used in conformity with such controls is said to be of NONCONFORM- ING USE . CONFRONTATION A fundamental right of a defendant in a criminal action to come face-to-face with an adverse witness in the court’s presence so the defendant has a fair chance to object to the testimony of the witness, and the opportunity to cross-examine him or her. The BILL OF RIGHTS (the first ten amendments of the U.S. Constitution) specifies certain rights that are inherent to all individuals, in order to protect them from the arbitrary use of govern- ment power. Among these is the right to confront one’s accusers in a criminal case, which derives from the SIXTH AMENDMENT: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” The CONFRONTATION Clause, as this part of the Sixth Amendment is generally known, was understood traditionally to mean that criminal defendants had the right to be put in the presence of their accusers in open court, face-to-face, in front of the jury. This right was intended to give defendants the opportunity to cross-examine adverse witnesses, as well as to provide the jury with an opportunity to observe the demeanor of, and to make inferences regarding the reliability of, those witnesses. The substantive meaning of this right has been the subject of great debate, especially regarding the trying of CHILD ABUSE cases involving child witnesses. Does the Confronta- tion Clause provide the right to confront witnesses in open court, or does it simply convey a right to cross-examine witnesses? GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONFRONTATION 91 Like most of the protections given criminal defendants in the C onstitution, the right of confronting one’saccusershasitsoriginsin English COMMON LAW and in the experiences of the colonies before the American Revolution. Until the sixteenth century, the right of confronting one’s accusers was nearly absent from the Anglo-American legal tradition. Then, with the introduction of the right to trial by an impartial jury and the firm establishment of the PRESUMPTION OF INNOCENCE, the right of confrontation came to be seen as an integral part of a proper defense of the rights of the accused. In the American colonies, the SALEM WITCH TRIALS in particular created an impetus for establishing the right of the accused to a face-to-face confrontation with the ac cusers—who, in those cases, were mostly children anonymously accusing their elders. Horrified by the widespread use of coerce d and anonymous accusations in these trials, and by the executions that resulted, the Massachusetts Legislature established the right to confront one’s accusers. Soon after, the colonial g over- nor disbanded the special Salem court for witch trials; few accusers were willing to face their targets in open court. The experience of the Salem witch trials made a great impression on the other colonies. By the end of the sixteenth century, most of the colonies had established in their constitutions a right of confrontation that was similar to that recognized in Massachusetts. Thus, at the time of the writing of the Constitution, the right was so firmly entrenched that its inclusion in the Bill of Rights elicited no debate. The Confrontation Clause gives criminal defendants two specific rights: the right to be present during all critical stages of trial, and the right to confront adverse witnesses. Each of these rights has certain limitations. The right to be present during critical stages of trial allows defendants to participate actively in their defense by listening to the evidence against them and consulting with their attor- neys. However, unruly, defiant, disrespectful, disorderly, and abusive defendants can be removed from the courtroom if the judge feels it is necessary, to maintain the decorum and respect of a judicial proceeding. If a DEFENDANT persists in DISORDERLY CONDUCT, yet demands to remain in the courtroom, the Sixth Amendment allows a trial court to have that defendant bound and gagged so that his or her presence does not disrupt the proceedings (Tyars v. Finner, 709 F.2d 1274 [9th Cir. 1983]). The second prong of the Confrontation Clause guarantees defendants the right to face adverse witne sses in person and to subject them to cross-examination. Through cross- examination, defendants are allowed to test the reliability and credibility of witnesses by prob- ing their recollection and exposing any under- lying prejudices, biases, or motives that may cause the witness to distort the truth or to lie. However, the right of cross-examination also has limits. Courts may restrict defendants from delving into certain areas on cross-examination. For example, defendants may be denied the right to ask questions that are irrelevant, COLLATERAL, confusing, repetitive, or prejudicial. Defendants also may be prevented from pursuing a line of questioning that is meant solely for the purpose of harassment. Under exceptional circumstances, defen- dants may be denied the right to confront their accusers face-to-face. In Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990), the U.S. Supreme Court upheld a statute that permitted a small child to testify via a one- way, closed-circuit television from a remote location outside the courtroom. In such situa- tions, the Court ruled, the trial court must make a specific finding that keeping the witness out of the presence of the defendant is necessary to protect the witness from traumatic injury. The Craig decision has been the subject of some debate. Victims’ rights advocates and some prosecutors support the additional protection of witnesses, but defense attorneys have argued that shielding child ren from confrontation is risky, given that the reliability of children ’s testimony is often in dispute. Even when a witness is permitted to testify outside the presence of the accu sed, defendants maintain the right of cross-examination. The importance of a defendant’s right to confront and cross-examine his accusers face- to-face in open court was revisited by the U.S. Supreme Court in Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999). The case began when the state of Virginia charged Benjamin Lee Lilly with capital MURDER and called his brother Mark Lilly to testify against him during the trial. When Mark invoked his PRIVILEGE AGAINST SELF-INCRIMINATION,the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 92 CONFRONTATION prosecution sought to introduce a statement that Mark had made to the police in which he had admitted being with Benjamin on the night of the murder, and had told police that he saw Benjamin kill the victim. The trial court admitted Mark’s statement into evidence over Benjamin’s objection that it violated the Confrontation Clause. In par ticular, Benjamin argued that the FIFTH AMENDMENT gave him the right to confront his brother face-to- face in open court, and that admitting his brother’s out-of-court, HEARSAY statement with- out allowing him to cross-examine Mark violated that right. The Virginia trial court overruled Benja- min’s objection , finding that the statement fell within a “firmly rooted” hearsay exception. In Virginia, the trial court said, it is well settled that declarations against interest are a settled hearsay exception, and thus admissible against a criminal defendant without the declarant being subject to cross-examination. A DECLARATION against interest is an out-of- court hearsay statement made by a declarant who implicates himself in criminal activity or other wrongdoing, the trial court explained. Because such declarations are not considered to be self-serving, the trial court continued, they are deemed inherently trustworthy. In this case, the trial court noted that Mark Lilly had admitted committing a number of crimes that would have made him eligible for long prison terms if convicted. Based in part on Mark’s statement, the jury convicted the defendant of capital murder and sentenced him to death. The defendant appealed, and the Virginia Supreme Court affirmed. Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522 (Va. 1998). Although Virginia’s high court recognized that Mark’ s statements were self-serving to the extent they shifted blame for the more serious crime of murder, from himself to his brother, it said that the self- serving nature of the statement went to the weight of the evidence, not its admi ssibility. The court also underscored the fact that prosecutors gave Mark no express promise of leniency in exchange for his statement. The U.S. Supre me Court disagreed, revers- ing the Virginia Supreme Court’s decision and remanding the case for further proceedings. Writing for a plurality of the justices, Justice JOHN PAUL STEVENS ruled that an accomplice’s statements that tend to shift or spread the blame to a criminal defendant are presumptively unreliable, when that accomplice has made himself or herself unavailable for cross-exami- nation by invoking the privilege against SELF- INCRIMINATION. The “absence of an express promise of leniency,” Stevens wrote, does not ensure reliability because “police need not tell a person who is in custody that his statements may gain him leniency in order for the suspect to surmise that speaking up, and particularly placing blame on his cohorts,” could be in his best interest. Stevens observed that while the presumptive unreliability of Mark’s statement could be rebutted on REMAND to the trial court, any rebuttal evidence would need to take into account that the statement had been made in response to the government’s leading questions. On remand, the Virginia Supreme Court decided that the statement’s presumptive unre- liability could not be rebutted, and overturned the defendant’s conviction. Lilly v. Common- wealth, 258 Va. 548, 523 S.E.2d 208 (Va. 1999). FURTHER READINGS “Confrontation.” 2009. U.S. Constitution: Sixth Amend- ment. FindLaw for Legal Professionals Web site. Available online at http://caselaw.lp.findlaw.com/data/ constitution/amendment06/08.html; website home page: http://caselaw.lp.findlaw.com (accessed August 30, 2009). Hall, Kermit L. 2002. Oxford Companion to American Law. New York & New York: Oxford Univ. Press. ———. 2005. Oxford Companion to the Supreme Court of the United States. 2d ed. New York: Oxford Univ. Press. CROSS REFERENCE Criminal Procedure. CONFUSION The combination or mixture of two things; the process of commingling. Confusion has been used synonymously with merger, meaning a union of two separate entities that eliminates clear boundaries. Confu- sion of rights, for example, is a combination of the rights of debtor and creditor in the same individual. Similarly, a confusion of titles exists when two titles to the same property combine in the same person. A confusion of debts is a method of eliminating a debt or canceling it. This may occur, for example, upon the death of a creditor when the debtor is the creditor’s heir. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONFUSION 93 CONFUSION OF GOODS A blending together of property individually owned by two or more people so as to make it impossible to distinguish who owns what. A CONFUSION OF GOODS results when the property belonging to two or more persons becomes so intermixed that it can only be identified as a large mass of goods. This might apply to such substances as oil or grain. Generally, a wrongful, willful, or fraudulent intermingling of goods by an individual with the goods of another person results in FORFEI- TURE to the other person of all rights and interest in the resulting mixture. CONGLOMERATE A corporation operating in several different and unrelated enterprises, such as the movie industry, baking, and oil refining. A conglomerate merger is one that brings together two firms with totally different product lines, economic relationships, and functions. Such a merger may violate antitrust acts inasmuch as it may have an adverse effect on competition. CONGRESS OF THE UNITED STATES The Congress of the United States is the highest lawmaking body in the United States and one of the oldest national legislatures in the world. Established under the terms of the U.S. Constitu- tion in 1789, the House of Representatives and the Senate have for over 200 years created the federal laws governing the United States. Congres s remains one of the few national assemblies that research and draft their own legislation rather than simply voting on bills created by the government in power. In addition to its legislative functions, the U.S. Congress is empowered by the Constitution to ensure that the admini stration of government is carried out according to the laws it establishes, to conduct special investigations, and to exercise other special powers in relation to the executive and the judiciary. History and Structure Between 1774 and 1789, the CONTINENTAL CONGRESS served as the federal lawmaking body for the 13 American colonies and (after it passed the DECLARATION OF INDEPENDENCE on July 4, 1776) the United States. The Continental Congress proved to be an ineffective national legislature, however, particularly after the 1781 ratification of its founding constitution, the ARTICLES OF CONFEDERATION. This congress lacked the authority to raise funds from the states and was not adept at the administration of federal government. The Framers of the Constitution, meeting in the Constitutional Convention of 1787, attempted to repair the shortcomings of the Continental Congress by creating a more effective federal legislature. The resulting Con- gress, made up of a House of Representatives and a Senate, first met with a quorum of members on April 1, 1789, in New York City, eventually reaching its full size at 65 represen- tatives and 26 senators. Article I of the Constitution sets forth the basic form and powers of Congress. As designed by the Constitution’s Framers, the House is more responsive to public sentiment, and the Senate is a more deliberate and stable body. JAMES MADISON, writing in The Federalist, no. 62, argued that members of the Senate should have a “tenure of considerable duration” and should be fewer in number to avoid the “intemperate and pernicious resolutions” often passed by “single and numerous” legislative assemblies. Accordingly, the Constitution requires that senators serve six years per term of office, with one-third of them up for reelection every two years; whereas all House members, called representatives, go up for reelection every two years. In addition, the Constitution requires that senators be at least 30 years old to take office; whereas representatives must be a minimum of 25 years old. Moreover, senators were originally elected by state legislatures and representatives rather than the general popula- tion, but this procedure ended with the passage of the SEVENTEENTH AMENDMENT in 1913. Congress has grown steadily as the nation has gained population and added states. The House reached its current size of 435 members in 1912, and the Permanent Apportionment Act of 1929 (46 Stat. 21, 26, 27) fixed its size at this number. The Senate reached 100 members after the admission of Hawaii as a state in 1959. Powers of Congress Article I, Section 8, of the Constitution defines the powers of Congress. These include the powers to assess and collect taxes; to regulate commerce, both interstate and with foreign GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 94 CONFUSION OF GOODS nations; to coin money; to establish post offices and post roads; to establish federal courts inferior to the Supre me Court; to declare war; to establish rules for the government; and to raise and maintain an army and navy. Article I, Section 8, also declares that “Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Called the NECESSARY AND PROPER CLAUSE or the implied powers clause, this part of the Constitution enables Congress to undertake activities not specifically enumerated by the Constitution but implied by its provisions. The necessary and proper clause has been used to greatly expand congressional authority (McCulloch v. Maryland, 17 U.S. [4Wheat.] 316, 4 L. Ed. 579 [1819]). Another power vested in Congress is the right to propose amendments to the Constitu- tion upon approval by two-thirds of both houses. Should two-thirds of the state legislatures demand changes in the Constitution, Congress must call a constitutional convention. Proposed amendments are valid as part of the Constitution when ratified by the legislatures or by conven- tions of three-fourths of the states. Either means of ratification may be proposed by Congress. Congress retains a number of other special powers. It may act as a judicial body to impeach and try a president or other civil officer for misconduct; in such cases, the House impeaches, or charges, the official, and the Senate conducts the trial. Congress is also empowered to create and use administrative agencies and boards, such as the National Highway Traffic Safety Adminis- tration and the NATIONAL MEDIATION BOARD,to determine facts and to enforce its legislative policies and enactments. The Constitution vests each house of Con- gresswithdistinctpowersaswell.TheHouse,for example, has sole responsibility for originating all tax bills, and the Senate has power to approve treaties. The House also chooses the president and vice president if no candidate wins a majority of electoral votes in the presidential election. Article I, Section 9 of the Constitution imposes prohibitions upon Congress. This section forbids Congress to suspend the privi- lege of HABEAS CORPUS, except in cases of rebellion; to pass ex post facto, or retroactive, laws; to impose duties on exports; or to grant titles of nobility. Apportionment Seats in the Senate are apportioned, or distribu- ted, evenly across the states, with each state receiving two. Seats in the House of Represen- tatives are apportioned between the states on the basis of population, with the most populated states receiving the most representa- tives and no state receiving less than one. The Constitution requires that a census be con- ducted every ten years in order to determine the number of seats allotted to each state. An apportionment method called equal propor- tions is used so that no state will receive less than one member. The Constitution does not mandate that states having more than one representative be divided into congressional districts, although a state legislature can make such a division. States cannot appo rtion congressional districts on a discriminatory or unreasonable basis. Investigations The Senate and the House of Rep resentatives, acting together or independently, can authorize investigations, or hearings, to obtain informa- tion for use in connection with the exercise of their constitutional powers. Information gath- ered in congressional hearings helps lawmakers draft legislation and monitor the actions of government. It also informs the public about President Woodrow Wilson addresses a joint session of the 64th Congress on February 26, 1917, with a request to arm U.S. merchant ships. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CONGRESS OF THE UNITED STATES 95 important issues confronting the nation. Noted congressional investigations include the Teapot Dome inquiry in 1923, the 1973–1974 Senate WATERGATE hearings, and the Iran-Contra inves- tigation in 1987. Congress has also examined perceived threats to the government, as in the Army-McCarthy hearin gs of 1954 in which Senator JOSEPH R. MCCARTHY (R-Wisc.) led an investigation into Communist influence in the U.S. government. How a Bill Becomes a Law B efore a federal law can exist in the United States, it must first be introduced as a bill in Congress, and then pass through a series of steps. At any of these steps it may be effectively vetoed, or nullified, if it does not attract a majority of support. As a result, only a small percentage of all bills succeed in becoming laws. In the 103d Congress (1993–95), for example, 8,544 public bills and joint resolutions (generally the same as bills) were introduced, and only 465 became laws. Introduction of bills Bills must be introduced, or sponsored, by a member of the House or Senate. Most bills are introduced simultaneously in both houses in order to speed their passage. Sponsored bills are placed in the “hop- per,” a mahogany box near the House Speaker’s podium. A bill may be cospon- sored by other members of Congress in order to earn wider political support. Bills receive special designation codes to identify their house of origin and the order in which they have been received. For example, the code H.R. 171 desig- nates the 171st House bill of that congressional term, and S. 52 indicates the fifty-second Senate bill. Ideas for bills may come from a variety of sources other than members of Congress, including the president, other government officials, interest groups, scholars, constituents, staff, and state and local officials. Although a member of Congress must sponsor a bill, anyone may draft a bill. Proposed bills are often drafted by executive agencies and special interest groups. Also, experts in the Senate and House offices of legislative counsel help members of Congress draft bills. Frequently, bills are grouped togeth- er into comprehensive bills, also called OMNIBUS bills or package bills, to increase their chances of approval. This practice has become increasingly common, and as a result, Congress has enacted fewer but lengthier laws in recent decades. Bills may be either private or public. Public bills include those authorizing spending for the federal government and those establishing the federal laws applicable to the general public, includ- ing criminal laws. Private bills deal with more specialized matters such as the claims of individuals regarding land titles and citizenship. If approved, these bills become private laws. Although most laws originate as bills, some originate as joint resolutions, desig- nated H.R.J. Res. or S.J. Res. Joint resolutions must pass through the same hurdles as bills, including required accep- tance by both houses and the president, but generally deal with more limited matters. Constitutional amendments be- gin as joint resolutions, though they require ratification by three-fourths of the states instead of presidential approval. Bills introduced in Congress must be approved by both houses in identical form during the congressional term in which they are introduced. (Each con- gressional term is two years; the 100th Congress, for example, officially began its term at noon on January 3, 1987, and ended it at noon on January 3, 1989.) Thus, a bill that is introduced during the 105th Congress must be passed before the beginning of the 106th Congress. If it is not passed during that congressional term, it must be reintroduced in the next Congress. Committee action After a bill has been introduced in the House or Senate, it is referred to an appropriate committee by the House Speaker or the presiding officer in the Senate. Committee referral can be a crucial determinant of a bill’s success. If a bill is referred to a hostile or unreceptive committee, it may fail to be reported out of the committee, or be passed. A committee assigns the bill to a subcommittee, which may hold hearings to consider the bill’s merits. The sub- committee often amends the bill, in a procedure known as markup. After the subcommittee completes its work, the committee votes to approve and report the bill with amendments; to make further amendments; or to table the bill—that is, take no more action on it. House Rules Committee House bills, unlike Senate bills, must pass through a rules committee before pro- ceeding to the House floor. The House Rules Committee establishes the limits for debate and amendment of the bill, elements that can determine the bill’s outcome. The Speaker of the House appoints all majority party members to the committee and exerts great influence over the committee and, as a result, the fate of legislation in the House. Floor action Bills that are reported out of committee—including those that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 96 CONGRESS OF THE UNITED STATES A congressional committee may conduct an appropriate investigation under the authority granted to it, but the methods used in the exercise of its investigative power must not violate the constitutional rights of those under investigation. The extent of the authority of a congressional committee must be determined at the time the particular information is sought and cannot be extended by later action of Congress. have passed through the House Rules Committee—proceed to the floor of the House and Senate. The Speaker decides when the House will debate a bill. On the day that a bill is scheduled for debate, the House first votes on the rules of debate proposed by the Rules Committee. Once these have been approved, general debate begins. The typical length of general debate on the House floor is one to two hours, but for a controversial bill, debate may last four to ten hours. Each political party receives an equal amount of time to debate the bill. After general debate, the bill pro- ceeds to the amending phase. Here, House members engage in more lively debate as they attempt to win passage of the bill or kill it through the amendment process. Successful amendments can greatly alter proposed legislation, and even unsuccessful amendments can win significant publicity for a representative. During this process, House members vote on each amendment as it comes up for consideration. Finally, after all amendments have been made, the House votes on the bill. Usually, this vote is recorded. Since 1973 the House has used an electronic voting system in which members insert a personalized card (roughly the size of a credit card) into one of more than forty voting stations on the House floor. They then press a button indicating whether their vote is Yea, Nay, or Present. Because it is a much smaller body, the Senate maintains floor procedures that are much less formal than those of the House. The Senate allows each of its members more freedom to debate bills, and it allows the minority party to make more decisions than in the House. Scheduling of bills in the Senate is determined jointly by the majority and minority party leadership, though the majority leader makes the final decisions. For most bills, the majority leader then obtains the unanimous consent of the Senate regarding the date a bill will be brought to the floor and the rules regarding its amendment and debate. Generally, senators are able to offer an unlimited number of floor amendments during debate. Debate is also theoretically unlimited; it does not end until all members are through talking. The Senate has a rule passed in 1917 called a CLOTURE rule, which limits debate to thirty hours before a final vote is taken on a bill. The cloture rule is difficult to invoke because it requires the approval of sixty senators. During floor debate, senators may engage in a practice called the filibuster, in which they speak on the floor for many hours in order to delay, defeat, or amend a bill. A senator may filibuster for as long as he or she can remain standing. Two senators may work together in a filibus- ter; when one tires, the other continues. In 1957 Senator Strom Thurmond, of South Carolina, then a Democrat, set the record for the longest solo filibuster in Senate history when he spoke for twenty- four hours and eighteen minutes in an attempt to defeat a civil rights bill. After debate is over, the Senate conducts a roll call vote to determine whether the bill passes or fails. In a roll call vote, each senator is asked to state aloud his or her vote on the bill. Conference committee If the House and Senate versions of a bill differ, the two chambers form a confer- ence committee to resolve the discrepan- cies. Roughly 10 to 15 percent of all bills—usually the most controversial ones—passed by Congress end up in a conference committee. Members of the conference committee are typically drawn from the committees that reported the bill. During the 1980s and 1990s, conference committees sometimes became quite large, involving as many as two hundred conferees when debating large budget measures. Party ratios on these committees reflect the ratios in Congress itself. Since 1975 conference meetings have been open to the public. When the conference committee is done, a majority of conferees from each house sign the compromise bill and report it to Congress. The House and Senate then vote to approve the common bill. No amendments are allowed at this point. Because members have invested much time and effort in the bill by the time it has left a conference committee, it is nearly always approved. Enactment into law Following ap- proval by both houses of Congress, a bill is presented to the president for approval. Article I, Section 7, of the Constitution outlines the procedure for presidential judgment of legislation. The president has four options: sign the bill, which makes it law; veto the bill and return it to Congress; refuse to take any action, in which case, after ten days, the bill becomes law without the president’s signature; or, if less than ten days are left in the congressional term, “pocket veto ” the bill by not signing it (because Congress has no time to take up the bill, the pocket veto kills the bill). In the case of a normal veto, the bill must be approved again by Congress, this time by a two-thirds majority in each house. Because of this supermajority requirement, vetoes are difficult to over- ride. No amendments can be made to a vetoed bill. Congress is not required to vote on a vetoed bill, and such bills are often simply referred to committee and tabled. CROSS REFERENCE Joint Resolution. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONGRESS OF THE UNITED STATES 97 . example, upon the death of a creditor when the debtor is the creditor’s heir. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONFUSION 93 CONFUSION OF GOODS A blending together of property individually owned. result, the fate of legislation in the House. Floor action Bills that are reported out of committee—including those that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 96 CONGRESS OF THE UNITED. the benefit of the patient. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 90 CONFESSION OF JUDGMENT whom private property is taken is not compen- sated for its value at the time of confiscation. CONFISCATION See