Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P36 potx

Since Miranda was decided, state and federal courts have struggled with a number of issues with regard to its application, including: when a suspect is deemed to be in custody and thus entitled to the warnings required by Miranda; and when a suspect will be deemed to have waived the right to have an attorney present during questioning. Some recent decisions by the U.S. Supreme Court have attempted to answer these difficult questions. In Stansb ury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994), the Court considered whether a police officer’s subjective and undisclosed opinion concerning whether a person who had been questioned had been a suspect was relevant in determining whether that person had been in custody and thus entitled to the Miranda warnings. In 1982 Robert Stansbury was convicted of first-degree MURDER, RAPE , KIDNAPPING, and a lewd act on a child under the age of 14. The morning after ten-year-old Robyn Jackson had disappeared from a Baldwin Park, California, playground, a witness in Pasadena, California, had observed a large man leaving a turquoise car and throwing something into a nearby flood-control channel. The witness called the police, who discovered Jackson’s body in the channel. She had been raped, strangled, and struck on the head with a blunt instrument. The police later learned that Jackson had talked to two ice-cream truck drivers, one of whom was Stansbury, shortly before she disappeared. Officers went to Stansbury’s home and asked Stansbury to go to the police station to answer some questions concerning their investigation into Jackson’s murder. Stansbury agreed and accepted a ride to the station in a police car. At the police station, Stansbury was ques- tioned about his whereabouts and activities on the day Jackson’s body was discovered. The police did not read him the Miranda warnings at the time. Stansbury told the police that he had talked to the girl, that he had returned to his trailer a few hours later, and that he had left around midnight in his roommate’s turquoise car. The car matched the description given by the witness. Stansbury also admitted that he previously had been convicted of rape, kidnap- ping, and CHILD MOLESTATION. The detective interviewing Stansbury then terminated the conversation and read Stansbury the Miranda warnings. Stansbury was later charged with first-degree murder and other crimes. At a PRETRIAL CONFERENCE, Stansbury moved to suppress all of the statements that he had made at the station, as well as the evidence that had been discovered as a result of those statements. The trial court denied his motion, ruling that Stansbury had not been in custody— and thus that he had not been entitled to the Miranda warnings—until he had mentioned the turquoise car. Before that point in the interview, the court reasoned, Stansbury had not been considered a suspect. Based on that conclusion, the trial court permitted introduction of the statements that Stansbury had made before he had mentioned the car. Stansbury was convicted on all charges and was sentenced to death for first-degree murder. On appeal, the California Supreme Court affirmed Stansbury’s conviction, rejecting the “in-custody” claim that he had raised in the trial court. The state supreme court, applying an in- custody legal standard based on whether the investigation has focused on the subject, agreed with the trial court’s conclusion that suspicion had focused on Stansbury only after he mentioned driving the turquoise car on the night of the crime. Therefore, the court held, Stansbury had not been subject to custodial interrogation before that time, and in turn Miranda warnings had not been required, and his statements were admissible. The U.S. Supreme Court reversed and remanded the case. In a PER CURIAM decision After a person has been taken into custody by law enforcement officials, he must be advised of his constitutional rights before the officals begin an interrogation. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 338 CUSTODIAL INTERROGATION (a brief, unanimous, and unsigned opinion), the Court held that “an officer’s subjective and undisclosed view concerning whether the per- son being interrogated is a suspect is irrelevant to the assessment [of] whether the person is in custody.” Instead, according to the Court, the key inquiry should be whether the individual had been placed under formal arrest, or whether the restraint placed on the individual’s freedom of movement rose to the level of a formal arrest. The Court further noted that the “initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogation officers or the person being questioned.” So long as an officer’s subjective view that an individual being questioned is a suspect is not disclosed to the individual, the officer’s view has no bearing on the in-custody issue. If the officer’s knowledge or beliefs are communicated to the individual being ques- tioned, the Court stated, that knowledge or those beliefs are relevant only to the extent that the individual “would gauge the breadth of his or her ‘freedom of action.’” But a statement from the officer that the individual is the prime suspect, in and of itself, is not “dispositive of the custody issue.” In Stansbury, the California Supreme Court had not analyzed the in-custody issue based on these principles. Thus, the U.S. Supreme Court remanded the case to the trial court to determine whether the objective facts surround- ing Stansbury’s interrogation supported the trial court’s original conclusion that Stansbury had not been in custody before he mentioned the turquoise car. The high court tackled another difficult Miranda issue in Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d (1994 ), when it considered the circumstances under which a suspect who was subject to custodial interro- gation has validly waived the right to have an attorney present during questioning. In an earlier decision, Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the Court had held that such a waiver must be “knowing and intelligent.” Furthermore, the Court had made clear in Edwards that police officers must immediately stop questioning a suspect who clearly asserts the right to have legal counsel present during the interrogation. Edwards applied only when a suspect clearly asserted the right to have counsel present; it did not provide guidance to officers when a suspect made an ambiguou s or equivocal request for counsel. A ddressing that situation, some jurisdictions had held that any mention of counsel, no matter h ow ambigu- ous, required that questioning cease. Other courts had attempted to defin e a threshold standard of clarity, under which comments that fell below the required clarity did not invoke the RIGHT TO COUNSEL.Stillother jurisdictions had ruled that questioning must cease upon any mention of counsel, but officers were permitted to ask further, narrow questions to clarify whether the suspect desired an attorney. In Davis, the U.S. Sup reme Court settled the issue, holding that officers are not required to cease questioning if a suspect makes an ambiguous request for counsel. Questioning m ay continue until the suspect makes an “unambiguous” request for an attorney. Furthermore, the Court held, police officers have no d uty to seek clarification of an ambiguous request. The case began when Robert Davis, a member of the U.S. Navy, became a suspect in the murder of another sailor at the Charleston, South Carolina, naval base. Davis was inter- viewed by the authorities and informed of his Miranda rights. He waived, orally and in writing, his right to remain silent and his right to counsel. But after talking w ith agents for 90 minutes, he stated, “Maybe I should talk to a lawyer.” One of the agents asked Davis whether he wanted an attorney, or whether he was just making a comment. Davis replied, “No, I’m not asking for a lawyer.” After a short break, the agents reminded him of his right to remain silent and then resumed the questioning. An hour later, Davis said, “I think I want a lawyer before I say anything else.” The agents then stopped the interview. At his general COURT-MARTIAL, Davis main- tained that the statements made during the interview after his ambiguous statement con- cerning the need to talk with a law yer should not be admitted. The court ruled that the ambiguous statement had not been in the form of a request fo r an attorney, and thus the statements made after it were admissible. Davis was found guilty of unpremeditated murder and sentenced to life imprisonment. His conviction was affirmed by the military appellate court. The U.S. Supreme Court also affirmed the conviction. Writing for the majority, Justice GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CUSTODIAL INTERROGATION 339 Sandra Day O’Connor noted that none of the Court’s previous decisions addressing Miranda issues required that questioning of a suspect be terminated if the suspect makes an ambigu- ous or equivocal request for counsel. To gain Miranda protection, she maintained, a suspect must “unambiguously request counsel,” and the request must “articulate [the suspect’s] desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” She further stated that requiring questioning to stop when a suspect makes ambiguous references to requesting an attorney would transform the Miranda protec- tions into “wholly irrational obstacles to legiti- mate police investigative activity.” Police offi- cers, she main tained, would be forced to end questioning even if the suspect does not want an attorney, thus hampering effective law enforce- ment. Permitting a mere reference to an attorney to end an interrogation would require police officers to “make difficult judgment calls whether the suspect in fact wants a lawyer even though he hasn’t said so, with the threat of supression if they guess wrong.” In a separate opinion, Justice DAVID H. SOUTER, joined by Justices HARRY A. BLACKMUN, JOHN PAUL STEVENS,andRUTH BADER GINSBURG, concurred in the judgment affirming Davis’s conviction. In Souter’sview,officerscould constitutionally pose questions to clarify a suspect’s ambiguous reference for counsel, as was done in Davis. Souter believed that the statements given by Davis, after the counsel issue w as clarified, indicated that Davis did not want an attorney. Nevertheless, Souter disagreed with the Court’s rulin g that the agents could entirely disregard Davis’s refer- ences to wanting one. He argued that, l ike the agents in Davis, the Court should adopt a rule barring officers from further que stioning until they have determined whether a suspect’s ambiguous statement was meant as a request for an attorney. According to Souter, a “timid or verbally inept subject” might not under- standwhatisrequiredinorderforhimor her to stop the interrogation and to consult with an attorney. If the suspect understands that a request has b een ignored, he or she m ay not object further and may see “confession (trueornot)astheonlywaytoend[ the ] interrogation.” The Future of Miranda Miranda and its progeny have long served as a whipping post for politicians, legal commenta- tors, and others who perceive the decision as “coddling criminals.” They argue that the Miranda warnings impede police officers from efficiently and effectively doing their jobs by adding additional layers of unnecessary proce- dure to the law enforcement process. Miranda critics also maintain that the police are punished, and that society is harmed, when defendants are set free, because key evidence is suppressed after being obtained in violation of the Fifth Amendment’s prohibition against un- Mirandized confessions. Moreover, Miranda critics contend that criminal suspects seldom fully understand the meaning or importance of the rights recited to them. Finally, critics cite studies indicating that the Miranda decision has had little effect in reducing the number of confessions and requests for lawyers made by suspects in custody. 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 Miranda. The statute, 18 U.S.C.A. § 3501, provides that a CONFESSION is admissible if voluntarily given, with the voluntariness of each confession being evaluated by the “totality of the circumstances” on a cases-by-case basis, without any require- ment that the DEFENDANT be Mirandized. Congress enacted the statute to overturn Miranda, the Fourth Circuit wrote, and Con- gress had the authority to do so pursuant to its authority to overrule judicially created rules of evidence that are not mandated by the Consti- tution (United States v. Dickerson, 166 F.3d 667 [4th Cir. 1999]). The U.S. Supreme Court reversed. In a 7–2 opinion authored by Chief Justice WILLIAM REHNQUIST , the Court wrote that whether or not it agreed with Miranda, the principles of STARE DECISIS weigh heavily against overruling it then. Whereas the Court has overruled other precedents when subsequent cases have under- mined 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 340 CUSTODIAL INTERROGATION culture.” Although a few guilty defendants may sometimes go free as the result of the applica- tion of the Miranda rule, the Court observed, experience shows that the totality-of-the- circumstances test set forth in Section 3501 is more difficult than Miranda for law enforce- ment officers and courts to apply in a consistent manner (Dickerson v. Un ited States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 [2000]). The Court said that a contrary conclusion is not required by the fact that it has subsequently made exceptions to the Miranda rule. No constitutional rule is immutable, much less immune from the sort of refinements Mirand a has undergone to adapt to the needs and realities of law enforcement. Moreover, the Court emphasized, these exceptions have re- duced some of the law enforcement inefficien- cies that Miranda critics were predicting would undermine the efficiency of criminal investiga- tions, as the Miranda warnings are now often provided in a rote and perfunctory manner during arrest and custodial interrogation. “If anything,” Rehnquist wrote, “subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned state- ments may not be used as evidence in the prosecution’s case in chief.” Dickerson surprised many observers, not only because the Court declined to overrule Miranda, but also because Chief Justice William Rehnquist authored the opinion upholding Miranda, even suggesting that Miranda had become so “embedded” in the nation’s juris- prudence as to be unlikely to be overturned in the foreseeable future. Most observers consider Rehnquist to be one of the Court’s more conservative members. His opinions are fre- quently joined by fellow conservatives, Justices ANTONIN SCALIA and CLARENCE THOMAS, both of whom dissented in Dickerson. On any numb er of other issues, civil libertarians have assailed the chief justice for what they regard as his narrow reading of the BILL OF RIGHTS. Dickerson both tempered that criticism and quieted speculation about the future of Miranda. FURTHER READINGS Clymer, Steven D. 2002. “Are Police Free to Disregard Miranda?” Yale Law Journal 112:3 (December). Kenney, Jack. 1998. “Custodial Interrogation, Invocation of Right to Counsel.” Res Gestae 42 (November– December). Pearce, Gene A. 2001. “Constitutional Law—Criminal Law: The United States Supreme Court Affirms the Use of Miranda Rights by Police to Determine the Admissibil- ity of Statements Made during Custodial Interro- gation.” North Dakota Law Review 77 (winter). CROSS REFERENCES Criminal Procedure; Privilege Against Self-Incrimination; Right to Counsel; Self-Incriminat ion. CUSTODY The care, possession, and control of a thing or person. The retention, inspection, guarding, maintenance, or security of a thing within the immediate care and co ntrol of the person to whom it is committed. The detention of a person by lawful authority or process. For example, in a BAILMENT,theBAILEE has custody of goods delivered to him or her in trust for the execution of a special object upon such goods. The term is flexible and may mean actual imprisonment or the me re power—legal or physical—of imprisoning or assuming manual possession. A petitioner must be “in custody” to be entitled to HABEAS CORPUS relief, which provides for release from unlawful confinement in violation of constitutional rights. Custody in this context is synonymous with restraint of liberty and does not necessarily mean actual physical imprisonment. Persons who are on PROBATION or who are released on their own recognizance are “in custody” for purposes of habeas corpus proceedings. CHILD CUSTODY, which encompasses the care, control, guardianship, and maintenance of a child, may be awarded to one of the parents in a DIVORCE or separatio n proceeding. Joint custody is an emerging concept that involves the apportionment of custody between the parents during specified periods of time. For example, a child may reside with each parent for six months each year. Jurisdiction of courts over custody disputes has been heavily litigated, especially in child- custody cases. In the past, some parents sought to obtain custody over their children by removing them from one state, then seeking to obtain custody through a decree in another state. The federal and state governments have sought to prevent this occurrence through the enactment of a series of statutes. In 1967 the COMMISSIONERS ON UNIFORM LAWS approved the Uniform Child Custody Jurisdiction Act, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CUSTODY 341 which was eventually adopted in every state. The act provides that a state court will not accept a custody case unless it has ORIGINAL JURISDICTION or unless the state with original jurisdiction relinquishes it. The Commissioners on Uniform Laws updated the law in 1997 with the approval of the Uniform Child Custody Jurisdiction and Enforcement Act, which more than 30 states have adopted. Congress has enacted similar legislation, including the Paren- tal KIDNAPPING Prevention Act (28 U.S.C.A. § 1738A [Supp. 2003]). That statute req uires that a state give full faith and credit to another state’s custody order. The jurisdiction of federal courts over custody of ALIENS has also become a significant issue with the enactment of several anti- terrorism statutes since the late 1990s. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104- 132, 110 Stat. 1214 (1996) and the Illegal Immigration Reform and Immigrant Responsi- bility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996), both of which removed much of the power from federal courts to review cases involving immigrants who are held in custody for certain crimes. Several legal commentators criticized the application of these statutes due to their limitation of the habeas corpus rights that traditionally are extended to aliens. Commen- tators have simila rly raised questions have been raised with respect to orders issued by President GEORGE W. BUSH, which limit the ability of federal courts to review cases of suspected terrorists who are held in custody. CUSTOMS DUTIES Tariffs or taxes payable on merchandise imported or exported from one country to another. Customs laws seek to equalize the charges imposed by other countries, furnish income for the federal government, and preserve the financial stability of domestic industries. Congress has the exclusive authority to determine the imposition and enforcement of such duties and federal courts have exclusive jurisdiction to resolve controversies involving customs duties. Customs Service The U.S. Customs Service has these responsibili- ties: the proper assessment and collection of customs duties, excise taxes, fees, and penalties owing on imported items; the prohibition and seizure of CONTRABAND, in cluding narcotics and illegal drugs; the processing of people, carriers, cargo, and mail into and out of the country; the administration of certain navigation laws; the detection and apprehension of individuals en- gaged in fraudulent activities who intend to circumvent customs; the protection of U.S. business and labor through the enforcement of statutes, regulations, and countervailing duty; the enforcement of COPYRIGHT, PATENT,andtrademark provisions and quotas; and the setting of requirements for imported merchandise. Goods and Merchandise Subject to Duties Federal TARIFF schedules set forth terms that prescribe those goods that are to be subject to duties. Such schedules specify the items up on which a duty is to be imposed when imported into the United States and the rates at which the items will be taxed based upon the monetary value of each item. Exemptions Any U.S. resident, including an infant, who returns from a foreign trip is permitted an exemption from being charged duty on specific items that would otherwise be subject to duty, provided the individual was out of the United States for a minimum of 48 hours. The size of the exemption depends upon the reasonable retail value of each item, which is determined by the place of purchase, not by what it would sell for in the United States. Articles must be for personal or household purposes or for use as gifts. Included within the exemption are limited amounts of alcoholic beverages, cigars, and cigarettes. Household goods—including rugs, draperies, and furniture—obtained abroad and used there for a period of one year can be imported without the imposition of a duty, provided these goods are not brought into the country for sale or for use by some other individual. Cameras, stereo equipment, and watches do not fall under the classification of household goods; therefore, a duty must be paid on such items. Household goods transported abroad from the United States are, upon their return, exempt from duty. In addition, personal articles, such as cameras and jewelry, that were originally manufactured in a foreign country can also be returned without the imposition of a duty, provided they were purchased in the United States and identified GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 342 CUSTOMS DUTIES and registered with the Customs Service prior to being brought to a foreign country. Vehicles, including automobiles, that are taken abroad for nonbusines s purposes can be sent back to the United States duty free upon proof that such vehicles were shipped from the United States. Such proof can be in the form of either a state motor vehicle certificate or customs registration certificate upon the regis- tration of the automobile prior to shipment. If an automobile is repaired while abroad, the value of the repairs must be stated and a duty must be discharged on their value. Gifts The established exemption applies to both gifts received abroad and those brought home for others. Gifts that do not exceed a value of $50 in the country of shipment can be accepted by the recipient in the United States free from any duty charges and, therefore, have no effect on the exemption. However, no one person can receive gifts exceeding $50 on any one day. If this occurs, a duty and, if applicable, a tax will be imposed on all articles. The $50 limit does not include gifts of liquor or TOBACCO, nor does it include gifts that an individual sends to himself or herself or to any person with whom he or she is traveling. The common practice is to have gifts wrapped and labeled separately so as to avoid having them included in the sum total of purchases by the customs officer. Other Purchases In the event that the total dollar value of the imported items is greater than the set exemption amount, the purchaser must complete a written declaration itemizing all articles. A duty of 10 percent on the first $1,000 in the excess amount must be paid, but the duties on goods above that amount vary, based on their wholesale, rather than on their fair retail, value. Those articles assessed at the maximum duty rates are includ ed within the exemption, whereas those assessed at lower rates are put in the excess category. Discharge of the duty on the excess items can be made with American money, a personal check, a govern- ment check, a traveler’s check, or a money order. Personal checks cannot be drawn on foreign banks; rather, they must be drawn on a national or state bank or TRUST COMPANY of the United States. In the event that a government check, traveler’s check, or money order is used, it must not be for an amount higher than $50 in excess of the duty charge. Restricted Articles Various items such as plants that shelter harmful insects are subject to restrictions because they are hazardous to the GENERAL WELFARE of the United States as a whole or to a particular segment of society. Restricted plants cannot be brought into the United States unless the Customs Service issues special permits. Livestock—including horses, goats, sheep, and zoo animals—are also restricted and require permits for their importation. Pets must pass inspection by veterinarians employed by the U.S. DEPARTMENT OF AGRICULTURE and are frequently subject to a quarantine period prior to entry into the United States. Importation of firearms and ammunition requires a permit. Weapons taken abroad to be used on a HUNTING expedition can be brought back by the individual who removed them without a permit. The owners of firearms customarily register them with the Customs Service before their departure; however, no more than three firearms and one thousand cartridges can be registered. Prohibited Articles A wide range of items cannot be brought back to the United States from a foreign country. Included in this category are plants in soil, citrus peels, fresh dairy products, and seeds from a number of plants. Narcotic drugs are strictly prohibited; however, medication containing narcotic sub- stances can be brought in provided the Customs duties are taxes paid on merchandise brought into the United States, including, for example, gifts brought home to another person. DIGITAL VISION/ PHOTODISC/GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CUSTOMS DUTIES 343 substances are properly identified and the traveler has a doctor’s prescription or a statement relating to the drug. The importation of various articles from certain countries, including Cuba and Vietnam, are prohibited without a license obtained from the Office of Foreign Assets Control of the DEPARTMENT OF THE TREASURY . Penalties Failure to declare articles that must be declared makes the items subject to seizure and FORFEITURE. An individual who fails to declare an article is held liable for a penalty equivalent to its value, which is its worth in the place where it was acquired. An individual who fails to declare an item can also be subject to a CRIMINAL ACTION. Seizure and forfeiture provisions are also applicable in the event that the value of an item is understated or misrepresented and the individual who is guilty of such understatement or MISREPRESENTATION must pay the duty on the forfeited item. FURTHER READINGS Korb, Lawrence J. 2003. A New National Security Strategy in an Age of Terrorists, Tyrants, and Weapons of Mass Destruction. New York: Council on Foreign Relations. Oldham, Charles, ed. 2002. United States Coast Guard: The Americas’ Lifesaver and Guardian of the Seas. Tampa, Fla.: Government Services Group. Title 19—Customs Duties. Legal Information Institute, U.S. Code Collection. Available online at http://www.law. cornell.edu/uscode/19/usc_sup_01_19.html; website home page: http://www.law.cornell.edu (accessed Sep- tember 1, 2009). CROSS REFERENCES Contraband; Tariff. CY PRES Abbreviated form of cy pres comme possible, French for “as near as possible.” The name of a rule employed in the construction of such instruments as trusts and wills, by which the intention of the person who executes the instru- ment is effectuated as nearly as possible when circumstances make it impossible or illegal to give literal effect to the document. Cy pres is applied in cases where the court concludes that, under the circumstances, the intent of the SETTLOR who creates a trust or the TESTATOR who makes a will will not be contra- dicted by employing a flexible approach toward the applicati on of the provisions of the docu- ment. Without cy pres, the intent of the settlor or testator will never be implemented because the document will be without any legal effect and not subject to enforcement by the court. In one case a settlor directed that his property be used as a home fo r retired clergymen, but the clergymen’s wives were prohibited from resid- ing there with them. This trust provision substantially reduced the number of applicants to the home. A court ordered the trustee, a person either appointed by the settlor or required by law to execute a trust, to ignore this provision under the doctrine of cy pres. However, a court does not have the power to alter a settlor’s dispositive provisions. For example, a trustee who is in charge of two charitable trusts cannot be authorized by a court to transfer funds from one charity to the other. A court also has the power under the cy pres doctrine to order trust funds to be applied to a charitable purpose other than the one specifi- cally named by a settlor when it was the settlor’s intention to benefit charity in general and it has become impossible, inexpedient, or impractical to accomplish his or her specific purpose. Because a CHARITABLE TRUST can be perpetual, many become obsolete due to changing social, political, economic, or other conditions. A trust established in 1790 to combat yellow fever would, for example, be of little or no practical value now, because that disease has been virtually eradicated as a result of advances in medicine. When cy pres is applied, the court reasons that the settlor would have wanted his or her general charitable purposes implemented despite the changing conditions. In one case a testator provided for two trusts: the first to facilitate the end of SLAVERY, and the second to assist runaway slaves. Shortly after the testator died, slavery was abolished, so the purposes of both trusts were completely outdated. A court reasoned that the testator intended the broad purpose of aiding African Americans, so the changes in the structure of society justified the court’s applica- tion of funds of the trusts to purposes similar to those chosen by the testator. The first trust fund was applied to the education of former slaves in the South, and the second was used to assist impoverished blacks in the city where the testator had lived and granted preference to those who had previously escaped from slavery. The cy pres doctrine can be applied only by a court, never by the trustees of a trust who must execute the terms of the trust. Trustees can, however, apply to the court for cy pres GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 344 CY PRES instructions when they believe the trust arrange- ment warrants it. A cy pres action is instituted by the trustees with the state attorney general as a party to the action, or the attorney general can initiate the suit. Once conditions are deemed suitable for the employment of cy pres, the court has broad discretion in the framing of a scheme for the application of the charitable fund to a purpose “as near as possible” to the one designated by the settlor. Some states authorize the living settlor to veto the application of cy pres to an IRREVOCABLE trust that he or she created. The doctrine of cy pres is not employed where a settlor was concerned with only one specific charitable objective and it fails, or when the settlor provides that a gift be made to another upon failure of the charitable gift. When cy pres is not applied and the trust fails without any provision for the property to be given to another, there is a RESULTING TRUST for the settlor or his successors. FURTHER READINGS “The Cy Pres Doctrine: State Law and Dissolution of Charities.” 1981. U.S. Internal Revenue Service. Avail- able online at http://www.irs.gov/pub/irs-tege/eoto pice81.pdf; website home page: http://www.irs.gov (accessed September 1, 2009). Menocal, Armando M. 1998. “Proposed Guidelines for Cy Pres Distribution.” The Judges Journal 22 (winter). Rudko, Frances Howell. 1998. “The Cy Pres Doctrine in the United States: From Extreme Reluctance to Affirmative Action.” Cleveland State Law Review 46 (summer). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CY PRES 345 v DALLAS, ALEXANDER JAMES Alexander James Dallas achieved prominence as a jurist, statesman, and author. Dallas was born June 21, 1759, in Jamaica, British West Indies. He relocated to the United States, becoming a citizen in 1783. In 1785 Dallas was admitted to the Penn- sylvania bar and began his judicial career as counselor of the Pennsylvania Supreme Court. Six years later he acted as secretary of the Commonwealth of Pennsylvania. He al so per- formed editorial duties on the first series of the U.S. Supreme Court Reports and served as U.S. district attorney from 1801 to 1814, before entering the federal government system. Dallas became secretary of the treasury in 1814 and remained in the cabinet of President JAMES MADISON for two years. He gained recognition during his tenure for his policies advocating protective tariffs, public credit, and the formation of the Second BANK OF THE UNITED STATES . His programs were responsible for restoring the United States to a strong financial position after several years of depres- sion. In addition to these duties, he served concurrently as acting secretary of war from 1815 to 1816. As an author, Dallas wrote many notewor- thy publications, including Features of Mr. Jay’s Treaty (1795); Laws of the Commonwealth of Pennsylvania, four volumes (1793 to 1801); Reports of Cases Ruled and Adjudged in the Several Courts of the United States and Pennsyl- vania, four volumes (1790 to 1807); and Treasury Reports: An Exposition of the Causes and Character of the War (1815). Dallas died January 16, 1817, in Trenton, New Jersey. D Alexander James Dallas 1759–1817 ▼▼ ▼▼ 17501750 18001800 18251825 17751775 ❖ ◆◆◆ 1759 Born, Jamaica, British West Indies ❖ 1775–83 American Revolution 1783 Became U.S. citizen 1791 Became secretary of the Commonwealth of Pennsylvania 1814–16 Served as secretary of the U.S. treasury 1801–14 Served as U.S. district attorney for the Eastern District of Pennsylvania 1816 Secured the bill establishing the Second Bank of the United States 1817 Died, Trenton, N.J. 1785 Appointed counselor of the Penn. Supreme Court ◆ 1815–16 Served as secretary of war OVER THEIR REPRESENTATIVES THE PEOPLE HAVE A COMPLETE CONTROL , AND IF ONE SET TRANSGRESS THEY CAN APPOINT ANOTHER SET , WHO CAN RESCIND AND ANNUL ALL PREVIOUS BAD LAWS . —ALEXANDER DALLAS 347 . into custody by law enforcement officials, he must be advised of his constitutional rights before the officals begin an interrogation. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 33 8 CUSTODIAL. the enactment of a series of statutes. In 1967 the COMMISSIONERS ON UNIFORM LAWS approved the Uniform Child Custody Jurisdiction Act, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CUSTODY 34 1 which. become part of our national GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 34 0 CUSTODIAL INTERROGATION culture.” Although a few guilty defendants may sometimes go free as the result of the applica- tion