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 />constitution/amendment06/08.html; website home
page: (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