為了提高大家閱讀英文法律文獻(xiàn)的水平，增加大家的美國法律知識，開設(shè)此欄目。本人水平有限，恐怕很多地方存在錯訛，提請大家注意并提出批評和修改意見。
由于本人正在學(xué)習(xí)法律英語，所以本材料內(nèi)容取材于我自己閱讀的NOLO出版社出版2000年1月出版的書籍《The Criminal Law Handbook Know Your Rights, Survive the System》第3版，作者Paul Bergman 和Sara J. Berman-Barrett，本書的最新版是2003年2月的第5版。但其編排方式多有不便，而且基本內(nèi)容變化不大，所以我還是選用了第3版。本人沒有侵犯作者版權(quán)的意思，只是合理使用，請大家在使用本材料時注意。
Section I: How Can This Book Help You?
Just about everyone is touched in some way by our criminal justice system. You, a relative or a friend may be arrested and charged with a crime. Or perhaps you've been the victim of one. Maybe you're a teacher, social worker or counselor who needs clear answers to pressing questions so you can help others understand how the criminal justice system works. This book is for all of you, and for anyone else who wants to understand a little more about such gripping modern-day dramas as the O.J. Simpson, Menendez brothers and Timothy McVeigh trials.
The book uses an easy-to-understand question-and-answer format to explain the criminal justice system, inside and outside the courtroom. When can a police officer make an arrest? Is it a good idea to talk to the police? Who decides whether to charge someone with a crime, and what crime to charge? Is self-representation ever a good idea in criminal cases? Should defendants conceal their guilt from their attorneys? What factors might convince a judge to release a jailed person on low bail—or waive bail altogether? These are among the hundreds of practical questions the book addresses.
1. Who Can Benefit From This Book?
Many people can benefit from the information in this book:
If you are accused of a crime. If you are facing criminal charges, you should become very familiar with the information in this book, even if you have a lawyer. Your case belongs to you, not to your lawyer, and you will want to be savvy enough about what's going on to intelligently participate in important decisions that are likely to affect its outcome. The more you know, the more likely it is that you will receive high quality legal services, because you will be in a position to insist that they be provided to you.
Defendants' family members and friends. If someone close to you faces criminal charges, you'll want to know what is happening and how you can be of help. Does it matter whether you are there in the courtroom when your friend or relative is arraigned? What factors should you consider if you are asked to post bail or sign a bail application for someone else? How should you respond if asked for your opinion by your friend or relative on whether he or she should plead guilty or ask for a jury trial? What types of support or counseling can you properly offer a friend or relative throughout his or her criminal case? Knowing the answers to these and many other questions will make you a better helper.
Crime victims. Until recent years, crime victims were largely shut out of the criminal justice process. Now victims often play more active roles, for example, by addressing the judge at the time a defendant is sentenced. Thus, if you are a victim, you too will want to understand how the process works and where in the process you can expect to have an impact on how the case is prosecuted.
Concerned citizens. Have you ever watched a trial on TV and wanted to know what all the mumbo-jumbo is about? Complained about the costs associated with crime? Been called for jury duty? Whatever prompts your interest, the criminal justice system belongs to you. You have a right to know how it works. The information in this book tells you what you never learned in high school civics.
本節(jié)常用法律術(shù)語：
1、 criminal justice system 刑事司法系統(tǒng)
2、 arrest vt. n逮捕
3、 charge with 控告
4、 crime n.犯罪, 犯罪行為
5、 victim n.受害人, 受害者
6、 counselor n.顧問, 法律顧問
7、 trial n 審訊, 審判
8、 courtroom n.法庭, 審判室
9、 police officer n.警官, 警員
10、 self-representation 自己辯護(hù)，自我辯護(hù)
11、 defendant n.被告
12、 attorney [簡明英漢詞典] n.<美>律師, （業(yè)務(wù)或法律事務(wù)上的）代理人
13、 judge n.法官, 審判員, 裁判員
14、 bail n.保釋, 保證金, 保證人
15、 lawyer n.律師
16、 legal adj.法律的, 法定的, 合法
17、 arraign vt.提審, 傳訊, 責(zé)難
18、 plead guilty 服罪，認(rèn)罪
19、 jury trial 陪審團審判
20、 prosecute 起訴
2. Is This Book a Step-by-Step Guide to Self-Representation in Criminal Cases?
No. The book is in no way intended as a detailed guide to self-representation. It is, however, intended to empower criminal defendants by helping them understand every phase of the criminal justice process and what types of defenses and strategies are available to them.
Except for those who are charged with very minor offenses, defendants almost always will benefit from the advice and counsel of attorneys knowledgeable about the law and the ins and outs of the court where the case will be heard. The basic reasons why self-representation is usually not advisable in criminal cases include:
· In criminal cases, defendants are up against the power and resources of the government. Individual defendants are no match for the police officers and prosecutors who work in the system every day.
· The stakes are often high in criminal cases. A conviction may entail a stiff fine, imprisonment, loss of employment and other penalties, such as deportation （of a noncitizen） and the loss of the right to vote and possess a firearm.
· Judges, prosecutors and jurors are likely to be prejudiced against self-representing defendants. Such defendants are likely to be seen as guilty ''head cases'' who are adding to their sins by trying to disrupt the judicial system.
· Laws and court practices, the knowledge of which is required for a successful outcome, often are "hidden" in appellate court rulings and unwritten policies which cannot easily be researched.
While the information in the book will no doubt assist those defendants who choose self-representation, the authors assume that those facing criminal charges for which jail or prison is a possibility are represented by an attorney, either privately retained or appointed at government expense.
本節(jié)常用法律術(shù)語：
1、 minor offenses 輕罪
2、 prosecutor n.檢察官
3、 conviction n宣告有罪
4、 fine 罰金
5、 imprisonment監(jiān)禁
6、 deportation n 遣返，驅(qū)逐出境
7、 right to vote 投票權(quán)
8、 firearm n.槍支
9、 juror n.陪審員
10、 appellate court上訴法院
11、 retain雇用，付費雇用（例如律師）
本期的問題：
1. mumbo-jumbo什么意思呢？
2. "head cases"什么意思呢？
答案：
1.繁文縟節(jié)
2.首要委托人
Comparison of Federal and State Systems 聯(lián)邦和州刑事司法系統(tǒng)比較
Most criminal prosecutions take place in state courts. The chart below highlights some of the key differences between state and federal criminal systems.
· Jurisdiction （"power" to decide cases，管轄權(quán)）. A state has power over defendants who violate the laws of that state. The federal government has power over defendants who commit criminal acts on federal property （for example, an assault in a post office） or whose criminal acts cross state lines （for example, a kidnapper transports a victim from Iowa to Missouri）. A state and the federal government can have "concurrent" power over a defendant when the same criminal activity violates both state and federal laws. In those situations, state and federal prosecutors make case-by-case decisions as to whether a defendant will be prosecuted in state or federal court.
· Police Officers（警官）. Typical state police officers are county sheriffs and city police officers. Typical federal police officers are agents of the FBI and DEA （Drug Enforcement Administration）.
· Prosecutors（檢察官）. Federal criminal prosecutions are handled by US Attorneys, who are appointed by and are ultimately responsible to the US Attorney General. State prosecutors, many of whom are elected on a countywide basis, carry a variety of titles; common ones are district attorney, state's attorney and city attorney.
· Defense Attorneys（辯護(hù)律師）. Most criminal defendants qualify for government-paid defense attorneys. Government-paid attorneys are usually employed either by an office of the Federal Public Defender or a county's Public Defender office. （For information about the differences between government-paid and privately retained defense attorneys, see Chapter 7.）
· Trial Courts（審判法院）. Most federal criminal prosecutions occur in United States District Courts. State courts carry such titles as ''superior court（最高法院）," "municipal court（市法院）," "police court（治安法院）" or ''county court（縣法院）," depending on the state and the seriousness of criminal charges.
· Judges（法官）. Federal trial judges are known as District Court Judges（聯(lián)邦地區(qū)法院法官）; they are appointed for life by the President subject to confirmation（確認(rèn)、批準(zhǔn)） by the US Senate. State court judges are typically initially appointed by governors（州長，現(xiàn)在我們各省的省長也用這個詞了） and then are subject to election every few years. State court trial judges carry such titles as Superior Court Judge, Municipal Court Judge and （in New York） Supreme Court Judge. In both State and Federal courts, "magistrates" may preside over pretrial hearings such as bail hearings, as well as less serious criminal trials.
· All-Purpose vs. Specialized Judges（全能法官與專門法官）. Federal courts use the "all-purpose judge" system. This means that the same judge almost always presides over a case from beginning to end—that is, from a defendant's first court appearance to final acquittal or sentencing. Some states also follow the all-purpose judge model. In many states, however, judges are specialized. For example, one judge may determine bail （see Chapter 5）, another judge may hear pretrial motions （see Chapter 19） and a third judge may preside over a trial （see Chapter 21）.
本節(jié)常用法律術(shù)語：
1、property [英漢法學(xué)大詞典] n.財產(chǎn) ,財產(chǎn)權(quán),物業(yè),無形資產(chǎn)，我們常說的物業(yè)管理可是翻譯成property management哦。
2、kidnapper [英漢法學(xué)大詞典] n.綁匪 ,綁架者,誘拐者,注意kidnap英文的意思是To seize and detain unlawfully and usually for ransom，或者這樣解釋The taking away of an individual against his will. The term is usually applied to instances in which ransom is demanded for the return of the kidnapped person.這里并不需要綁匪有要贖金的意思。
3、FBI and DEA 美國聯(lián)邦調(diào)查局和麻醉品管制局，關(guān)于DEA有各種譯法，關(guān)鍵是對其職能的理解出現(xiàn)了偏差，WIKIPEDIA的解釋為The Drug Enforcement Administration （DEA） is a United States Department of Justice law enforcement agency tasked with suppressing the sale of recreational drugs by enforcing the Controlled Substances Act of 1970. It shares concurrent jurisdiction with the Federal Bureau of Investigation in narcotics enforcement matters.
4、pretrial hearings [英漢法學(xué)大詞典] 審前聽證會
5、US Attorneys可不是翻譯成美國律師，而是US Attorney General美國總檢察官任免的聯(lián)邦檢察官，同樣district attorney, state's attorney and city attorney中的attorney也是檢察官的意思。
Chapter 1—Talking to the Police 與警察談話
The overbearing（傲慢的, 專橫的） police interrogation designed to wrench a confession from a quivering（顫抖的） suspect is an enduring dramatic image. Though the image is largely a relic of the past, police officers do question individuals in a variety of circumstances. For example, aside from seeking a confession, police officers may question an arrestee to uncover information about additional suspects, or officers may simply seek information from people they have no intention of arresting. This chapter examines common situations in which police officers are likely to ask questions, and describes the typical legal consequences both of talking and of remaining silent.
Prosecutors can be counted on to use your words against you. Even a seemingly innocuous or innocent explanation may appear to link you to a crime when your words are recounted by a police officer, and may return to haunt you throughout your entire case, from the charges, to the amount of bail, to the trial itself. People who have even a remote suspicion that they may be accused of a crime should never talk to police officers before first talking to a lawyer.
本節(jié)常用法律術(shù)語：
1、interrogation 審問，訊問，審訊
2、confession 交代，招供，供認(rèn)，認(rèn)罪
3、suspect 嫌疑犯
4、remaining silent 保持沉默
5、innocuous無害的,無傷大雅的, 不得罪人的
6、innocent 清白的 ,無辜的,無罪判決的人,無罪判決者
7、bail 保釋 ,保人 ,保釋金
8、trial 審理,審判
9、remote 間接的
Section I: Police Questioning of People Who Haven't Been Taken Into Custody
This section deals with police attempts to question you in situations where you have not yet been placed in custody. These commonly include:
· on-the-street, in-your-face questioning
· car stops for traffic violations
· investigatory visits to homes or offices, and
· telephone conversations.
（See Section II for police questioning after you have been taken into custody.）
1. Am I Legally Obligated to Answer a Police Officer's Questions?
No. Refusal to answer a police officer's questions is not a crime. Of course, people often do voluntarily assist the police by supplying information that might help the police make an arrest. But the Fifth Amendment to the U.S. Constitution guarantees the "right of silence." A police officer generally cannot arrest a person simply for failure to respond to questions.
本節(jié)常用法律術(shù)語：
1、Custody 拘留，羈押
2、Legally 法律上
3、Fifth Amendment 美國憲法法第五修正案
4、Constitution 憲法
5、right of silence 沉默權(quán)
本節(jié)的問題： on-the-street, in-your-face questioning翻譯成什么？
答案： 當(dāng)街當(dāng)面訊問
2. Can I Walk Away From a Police Officer Who Is Questioning Me?
Unless a police officer has ''probable cause'' to make an arrest （see Chapter 3, Question 4）, or a "reasonable suspicion" to conduct a "stop and frisk" （see Chapter 2, Section VI）, a person has the legal right to walk away from a police officer. However, at the time of the encounter, there is no real way to tell what information the officer is using as a basis for his or her actions. In fact, an officer may have information that gives him or her a valid legal basis to make an arrest or to conduct a "stop and frisk," even if the individual is, in truth, innocent of any wrongdoing. If that is the case, an officer may forcibly detain an innocent individual who starts to leave the scene of an interview. Common sense and self-protection suggest that people who intend to walk away from a police officer make sure that the officer does not intend to arrest or detain them. A good question might be, "Officer, I'm in a hurry, and I'd prefer not to talk to you right now. You won't try to stop me from leaving, right?" If the officer replies that the person is not free to leave, the person should remain at the scene and leave the question of whether the detention is correct to the courts at a later time.
3. If I Start to Answer a Police Officer's Questions, Can I Change My Mind and Stop the Interview?
Yes. People can halt police questioning at any time merely by indicating their desire not to talk further.
本節(jié)常用法律術(shù)語:
1、stop and frisk
"stop and frisk," authorized by Terry v. Ohio, U.S. Sup. Ct. 1968. For an officer to "stop and frisk" a person, the officer must have reasonable grounds to suspect that the person is involved in criminal activity. The reasonable grounds give the officer a legal basis to detain and question a person （the "stop"）. And for self-protection, the officer can at the same time carry out a limited pat-down search for weapons （the ''frisk"）.
2、innocent無辜的
本節(jié)的問題：
1、stop and frisk翻譯成什么最合適？最佳答案多給50分
2、Terry v. Ohio, U.S. Sup. Ct. 1968什么意思？
3、 pat-down search如何翻譯能夠準(zhǔn)確表述英文的意思？
答案：
1、攔阻與拍搜（臺灣譯法），攔截搜身（大陸譯法）
2、特里訴俄亥俄州案，美國最高法院1968年判例
3、拍身搜查
4. A Police Officer Told Me That If I Didn't Answer the Officer's Questions I'd Be Arrested for Loitering. Is That Legal?
In certain circumstances, it may be. Laws in effect in many states generally define loitering as "wandering about from place to place without apparent business, such that the person poses a threat to public safety." Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person's activities. If the person fails to comply, the officer can arrest the person for loitering. Therefore, the refusal to answer questions is only a problem if the officer has also observed the person to be loitering.
Case Example: Officer Icia Yu is dispatched to Upscale Meadows after a resident calls the police to complain that a woman has been walking back and forth along the streets for over an hour, with no apparent purpose. From a distance, the officer observes the woman for a few minutes, and sees her stopping occasionally to peer into residents' back yards. Believing that she may be planning a burglary, Officer Yu confronts the woman, asks for identification and asks her to explain what she is doing in the neighborhood. The woman refuses to respond.
Question: Can Officer Yu arrest her?
Answer: Under loitering laws in effect in many states, yes. Officer Yu had reasonable grounds to believe that the woman posed a danger to the community. Since she didn't identify herself or explain why she was in the neighborhood, the officer could arrest her. Had the woman responded to Officer Yu, the officer might not arrest her for loitering. However, she might be subject to arrest for a different offense, such as trespass （unlawful entry on someone else's property）.
本節(jié)常用法律術(shù)語:
1、loitering v.閑蕩, 虛度, 徘徊
2、in effect 生效
3、identification 身份證
4、dispatch 派遣
5、burglary 入室行竊
6、trespass 侵入，侵害：用明顯或隱蔽的武力或暴力對人、財產(chǎn)或他人的權(quán)利實施非法傷害，尤指錯誤地侵入另一個人的土地
The Questionable Legality（合法性） of Loitering Laws
Many people argue that police officers use loitering laws to clear neighborhoods of "undesirables." Some courts have held loitering laws to be unconstitutional （不合憲的，違憲的）on the grounds that they are enforced discriminatorily（歧視地） against poor persons and ethnic minorities（少數(shù)民族） and that they unduly restrict people's rights to travel on public streets. However, the safest place to challenge the validity （有效性、合法性）of a loitering law is in the courts, not on the streets to a police officer's face.
5. An Officer Who Pulled Me Over for a Traffic Offense（交通違章） Said That I'd Be Arrested if I Didn't Supply Identification. Is This Legal?
Yes. Traffic offenses such as speeding（超速） and unsafe lane changes are generally classified as "infractions（違章）," for which drivers are given citations in lieu of arrest. However, an officer has the right to demand personal identification—usually a driver's license and the vehicle registration. A driver's refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.
6. An Officer Pulled Me Over for Suspicion of Drunk Driving （酒后駕車）and Questioned Me About Where I'd Been and What I'd Had to Drink. Can I Be Arrested for Refusing to Answer These Questions?
No. An officer has the right to conduct a field sobriety test of a suspected drunk driver. But the driver has the right to refuse to answer questions. In such a situation, the validity of an arrest would depend solely on the person's driving pattern and performance on the field sobriety tests. （See Chapter 24 for more on drunk driving and field sobriety tests.）
本節(jié)的問題： field sobriety test 什么意思？
答案： 現(xiàn)場清醒度測試/現(xiàn)場酒精測試
7. If I Don't Have to Answer Questions, Does This Mean I Can Sue（控告） a Police Officer for Trying to Question Me?
No. Even in the complete absence of probable cause to arrest or suspicion to conduct a "stop and frisk," police officers have the same right as anyone else to approach people and try to talk to them. Of course, if the person refuses to talk, the officer must stop.
Case Example: Officer Stan Doff knocks on the front door of Dee Fensive's home. When Dee answers the door, the officer says, "I'd like to ask you a few questions about a robbery （搶劫）that took place across the street a few minutes ago. Have you noticed any suspicious （可疑的）people hanging around the neighborhood lately?" Dee indicates that She has seen nothing, does not want to talk further and closes the door. Officer Doff then leaves.
Question: Has the officer violated （侵犯）Dee's rights?
Answer: No. The officer has a right to try to question Dee. When Dee indicated that she did not want to talk, the officer ended the interview. The officer's actions are legally proper.
8. Doesn't a Police Officer Always Have to Read Me My "Miranda Rights（米蘭達(dá)權(quán)利）" Before Questioning Me?
No. A "Miranda warning]（米蘭達(dá)警告）" essentially advises people of their constitutional right to not answer questions and to have an attorney present if they do decide to talk to police officers. （See Question 13.） But the Miranda warning is required only if the person being questioned is in custody and the police want to later use the answers in court. This means that statements by a person not in custody may later be used against the person in court even though no Miranda warning was given. （See Question 19.）
Case Example: Officer Dave Bouncer is investigating a barroom（酒吧間） brawl（斗毆）. The bartender indicates that a patron named Bob Sawyer might be able to identify the instigator（挑起者、煽動者） of the brawl. When Officer Bouncer interviews Bob, Bob makes statements implicating himself in the brawl. Officer Bouncer did not read Bob his "Miranda rights."
Question: If Bob is charged with a crime concerning the brawl, will Bob's statements to Officer Bouncer be admissible as evidence（證據(jù)）?
Answer: Yes. At the time Officer Bouncer spoke to Bob, Bob was not in custody. Thus, "Miranda warnings" were not required as a condition of admissibility.
本節(jié)的問題： 1、米蘭達(dá)警告的內(nèi)容是什么？中英文回答均可。
2、警官在什么情況下無需提出米蘭達(dá)警告，而取得的證據(jù)可作為控訴的依據(jù)？
答案： 1、
· You have the right to remain silent.
· If you do say anything, what you say can be used against you in a court of law.
· You have the right to consult with a lawyer and have that lawyer present during any questioning.
· If you cannot afford a lawyer, one will be appointed for you if you so desire
2、
沒有被羈押，NOT IN CUSTODY
9. A Police Officer Wants to Question Me About a Crime I Know I Didn't Commit. Can I Harm My Own Interests by Talking?
Quite possibly. It is often perfectly sensible and socially desirable for innocent people to cooperate in a police investigation. However, they should be aware of the risks. Here are several important questions to ask yourself before agreeing to a police interview:
a. Even If I Haven't Done Anything Wrong, How Sure Am I About the Events That the Police Officer is Asking Me About?
Unfortunately, people who haven't done anything wrong are sometimes mistakenly accused of crimes. Equally unfortunately, these same innocent people may unwittingly （不知情地、無意地）add to the evidence against them if they talk to police officers before they are prepared to do so. Individuals who are unprepared to talk about certain events may become confused and answer incorrectly, especially when confronted by police officers. These individuals may then want to change what they've said to "set the record straight." But the police （or a judge or jury） may regard the change of story as itself suspicious and indicative of guilt（有罪）. Thus, even individuals who want to cooperate with police officers ought to make sure that they have a clear recollection （回憶）of the events about which the officers are asking. Individuals who are unsure of
what to do should at least ask the officer to return at a later time.
本節(jié)的問題：
set the record straight是啥意思？
答案：
讓記錄正確
Delay the Interview
People who are uncertain about whether to talk to a police officer needn't feel trapped into giving an immediate "yes" or "no." Being confronted by a police officer tends to make many people nervous and anxious, which renders（致使） them unable to give completely accurate answers. A good alternative is to delay the interview by saying something such as "This is a bad time," or ''I didn't expect this so I'm a bit muddled（混亂的） now, please come back another time." Among other things, delay provides an opportunity to consult with a lawyer, and perhaps to have the lawyer present during the interview if the person ultimately decides to talk.
b. Might the Police Learn About Any Unrelated Crimes I Have Committed as a Result of the Interview?
People may talk to police officers because they are confident that they can demonstrate that they are not involved in the crimes that the officers are investigating. However, they may unwittingly （不知情地, 無意地）disclose information implicating themselves in other criminal activity.
Case Example: While voluntarily answering a police officer's questions and denying any involvement in a burglary that took place on May 15, Sol Itary nervously mentions that he was using illegal drugs with someone else at another location.
Question: If Itary is charged with possession of illegal drugs based on other evidence, can the prosecution offer Itary's statement to the officer into evidence?
Answer: Yes. Itary voluntarily spoke to the officer, so the statement is admissible.
c. Will Previous Contacts I've Had With the Police Possibly Lead Them to Distort What I Say?
People who think that they may be police "targets" （perhaps because of past criminal records） should be especially careful about voluntarily talking to a police officer. Police officers sometimes distort people's oral statements, either because the officers are lying or because they have heard only what they want to hear. By repeating in court only part of a person's statement or changing a few words around, a police officer may make an innocent remark seem incriminating（顯示有罪的 ）.
本節(jié)的問題是翻譯下面的一句話：
Among other things, delay provides an opportunity to consult with a lawyer, and perhaps to have the lawyer present during the interview if the person ultimately decides to talk
答案：
在其他情況下，推遲會談就有機會咨詢律師，并且本人最終決意談話時，也才可能有律師在場。
BREAKING NEWS ~ Supreme Court to hear challenge to Gitmo tribunals
[JURIST] The US Supreme Court [official website] on Monday agreed to hear a challenge to the Bush administration's use of military tribunals [JURIST news archive] for foreign terror suspects. Hamdan v. Rumsfeld [PDF certiorari petition] comes on appeal from the US Court of Appeals for the DC Circuit, which held [PDF opinion] in July that Guantanamo Bay [JURIST news archive] detainees may be tried by military commissions [JURIST report], overturning a lower court decision [JURIST report] that military commissions were not competent to determine whether the detainee was a prisoner of war. The case involves Salim Ahmed Hamdan, who allegedly served as a driver for Osama bin Laden, and the lower court ruled that Hamdan had not been found by a competent tribunal to be or not to be a prisoner of war and that he was due the full protections of a prisoner of war under the Third Geneva Convention [text]. The district court further held that the military commission rules were not in keeping with those for a court-martial due a POW. The appeals court ruled that because Hamdan was a member of al Qaeda, the Geneva Conventions did not apply to him and he could not assert the unlawfulness of the military commissions on that basis. Late last month, a group of 450 law professors circulated a statement [PDF text] urging the Court to grant certiorari in the case, saying the Court must "the relationship between the President's constitutional powers as Commander-in-Chief and the existing constitutional, statutory, and international rules and tribunals that govern the conduct of war." Additional case documents are available from the lead counsel for Hamdan, including the government brief opposing certiorari [PDF], and several amicus briefs. The Hamdan case was the focus of a recent online symposium in the New York University Journal of Law and Liberty. AP has more.
號外：最高法院將審理關(guān)塔那摩軍事法庭合法性一案
美國最高法院星期一同意審理布什當(dāng)局讓軍事法院審理外國恐怖主義嫌犯是否合法一案。漢姆丹訴拉姆斯菲爾德一案源于哥倫比亞地區(qū)巡回法院上訴法院的上訴裁定，上訴法院7月份裁定關(guān)塔那摩灣的拘留者可以由特別軍事法庭審判，推翻了下級法院的判決。而下級法院的判決是特別軍事法庭不能決定拘留者是否是戰(zhàn)犯。本案涉及薩姆里·阿莫德·漢姆丹，此人聲稱只是奧薩姆·本·拉登的司機，因而下級法院判決特別軍事法庭不能決定漢姆丹是否是戰(zhàn)俘，他應(yīng)該受到第三日內(nèi)瓦公約的完全保護(hù)。地區(qū)法院進(jìn)而裁決由于是戰(zhàn)俘，特別軍事法庭規(guī)則不適用。上訴法院裁定因為漢姆丹是基地組織成員，日內(nèi)瓦公約對其不適用，他不能在此基礎(chǔ)上宣稱特別軍事法庭審判不合法。上月末，450位法學(xué)教授發(fā)表聲明，敦促最高法院調(diào)審此案，聲稱鑒于總統(tǒng)作為軍隊總司令的憲法權(quán)力和現(xiàn)有的憲法、制定法、國際規(guī)則及審理戰(zhàn)俘的特別法庭的關(guān)系，最高法院有必要審理此案。其他案件相關(guān)文件可以從漢姆丹的首席律師處獲得，包括政府反對移送的簡要聲明和幾個法庭之友的簡要聲明。漢姆丹一案是紐約大學(xué)法律與自由學(xué)報最近在網(wǎng)上舉辦的一個研討會的焦點。美聯(lián)社對此有更多報道。（翻譯：何勇剛，來源http://jurist.law.pitt.edu/paperchase/）
本期內(nèi)容插入一則號外的中英文對照翻譯，請大家就翻譯指出其錯誤和不足。
Example: A humorous example of police officer distortion occurred in the 1992 comedy film, My Cousin Vinny. In the film, a police officer questions a college student who has been arrested for killing a grocery store clerk. The stunned（使目瞪口呆；使發(fā)愣） student, who at first thought that he had been arrested for shoplifting（入店行竊） a can of tuna（金槍魚） fish, repeats in a dazed, questioning voice, "I shot the clerk?" In court, however, the police officer makes it sound as if the student confessed to the murder by testifying that the student asserted, "I shot the clerk." In real life, of course, police distortion is no laughing matter.
Recording Statements Made to Police Officers
People who want to cooperate with police officers but fear that the police will distort their statements should at least insist that the police officers tape record the conversation or prepare a written summary of it for the person to sign. The tape or summary minimizes a police officer's opportunity to distort at a later time. But there is a potential downside（不利方面） to having the statement recorded. Once the words are on tape, a defendant will have to live with（<口>承認(rèn), 忍受（不愉快的事）） them if the case goes to trial, rather than argue that the police got it wrong.
d. How Knowledgeable Am I About the Law Governing the Events About Which I'm Being Questioned?
People sometimes unwittingly provide evidence of their own guilt because they inaccurately believe that their behavior does not amount to criminal conduct. They may think they are explaining their innocence, while the police officers are using their explanation to amass evidence of a crime. For example, Moe gets into a fist fight with Curly, which results in a severe cut to Curly's head. A police officer contacts Moe, seeking his version of the fight. Thinking that he acted in self-defense, Moe fully describes his version of events. However, as the police officer interprets Moe's story, Moe used excessive force, and the officer arrests Moe for aggravated assault（加重企圖傷害罪）. Had Moe more clearly understood the law, he might not have talked to the police officer.
本節(jié)題目：
1、People sometimes unwittingly provide evidence of their own guilt because they inaccurately believe that their behavior does not amount to criminal conduct.（翻譯）
2、為了避免警察扭曲自己的意思，可以采用什么辦法？（回答問題）
答案：
因為誤以為自己的行為不構(gòu)成犯罪，人們有時無意間向警察提供了自己有罪的證據(jù)。
10. Even If I Didn't Do Anything Wrong, Can It Ever Help me to Answer a Police Officer's Questions?
Yes. Police officers may be as interested in clearing（澄清） the innocent as in convicting the guilty. People can often clear their names as well as help the police find the real perpetrators（犯人, 兇手, 作惡者） by answering a few straightforward （簡明的；易懂的）questions. For example, assume that Wally, a possible suspect, can demonstrate that "I was at dinner with Andre" at the moment a crime was committed. Wally both removes himself as a suspect and enables the police to concentrate their efforts elsewhere.
Moreover, legal rights are well and good, but the "street truth" is that people often can make life easier for themselves by cooperating with police officers—so long as they don't have a good reason not to! "Contempt of cop" has resulted in the arrest and even physical injury of more than one innocent person. When innocent people who are pulled over or questioned by police officers stand on their rights too forcefully, events can sometimes get out of control rather quickly!
Lie Detector Tests（測謊試驗）
Police officers sometimes ask suspects to take lie detector tests to "clear their names." In general, suspects should refuse to take lie detector tests. Police sometimes use the tests as tools for obtaining confessions, falsely telling suspects that they are flunking（不及格, 失敗） a test and so might as well confess. Moreover, lie detector tests are notoriously inaccurate. Innocent people often test guilty. Though lie detector test results are not usually admissible in court, even a false "guilty" result may prompt the police to make an arrest. （For more on lie detector tests, see Chapter 18, Question 36.）
本節(jié)題目： 1、Moreover, legal rights are well and good, but the "street truth" is that people often can make life easier for themselves by cooperating with police officers—so long as they don't have a good reason not to! "（翻譯）
2、本文為什么建議嫌疑犯拒絕測謊試驗。（回答問題）
答案：
1、此外，法律權(quán)利好是好，而公認(rèn)的事實是和警官合作可以少惹麻煩。除非你有充足理由不這么做
11. A Police Officer Wants to Talk to Me About a Crime That I Took Part in. Is It Ever a Good Idea to Try to Talk My Way out of It?
Usually, no. The Golden Rule of Defense is that suspects who think that they may be implicated（牽連） in a crime should keep their mouths tightly shut. Suspects all too frequently unwittingly reveal information that later can be used as evidence of guilt. The right to not incriminate oneself guaranteed by the Fifth Amendment to the U.S. Constitution is especially powerful in this situation, and a suspect should politely decline to answer questions, at least until consulting with an attorney.
12. A Police Officer Wants to Ask me About a Crime That a Friend or Relative of Mine Committed. What Do I Risk by Providing False Information?
A lot. When an individual lies to the police or otherwise intentionally assists a known criminal to avoid arrest, he or she may be charged as an "accessory after the fact（事后從犯）." Obviously, the decision as to whether to furnish information leading to the arrest of a relative or close friend is a personal one. However, a person who chooses not to do so should simply decline to answer an officer's questions rather than lie. Rarely, if ever, would an individual who simply declines to give information to a police officer qualify as an "accessory after the fact."
Case Example: Cain comes running into his brother Abel's house, and tells Abel that he, Cain, just robbed a market and that the police might be on his tail. A few minutes later, a police officer knocks on Abel's door and asks him if Cain is in the house. Abel responds, "No, he left town permanently to go back east weeks ago."
Question: Is Abel subject to criminal prosecution?
本節(jié)題目：
1、Rarely, if ever, would an individual who simply declines to give information to a police officer qualify as an "accessory after the fact."
2、Question: Is Abel subject to criminal prosecution?
答案：
1、一個人只是拒絕為警官提供情報，不構(gòu)成事后從犯，即使存在也很罕見。
2、YES
Answer: Yes, Abel might be prosecuted as an accessory after the fact. By affirmatively misleading the police, he has aided Cain to avoid arrest. To protect himself while not giving up his brother, Abel might have said, "I'm sorry, I can't talk to you about that." （Admittedly, the police might view such a response as a red flag that Cain is close at hand. Abel must rely on his own balancing of personal risk, private loyalty and public duty.）
Section II: Police Questioning of Arrestees
This section deals with police attempts to question you in situations where you are in custody. It explains the Miranda rule and when it does and does not apply.
13. What is a "Miranda Warning?"
When police officers make an arrest, they commonly interrogate （question） the arrestee. Usually they are trying to strengthen the prosecution's case by getting the arrestee to provide some evidence of guilt. An interrogation may have other purposes as well, such as developing leads to additional suspects.
As it turns out, by answering such questions, a suspect gives up two rights granted by the U.S. Constitution:
· the Fifth Amendment right to remain silent, and
· the Sixth Amendment right to have a lawyer present during the questioning.
Although people are entitled to voluntarily give up these and other rights, the courts have long recognized that voluntariness depends on knowledge and free will, and that people questioned by the police while they are in custody frequently have neither.
To remedy this situation, the U.S. Supreme Court ruled in the case of Miranda v. Arizona （1966） that information obtained by police officers through the questioning of a suspect in police custody may be admitted as evidence at trial only if the questioning was preceded by certain cautions known collectively as a "Miranda warning." Accordingly, police officers usually begin their questioning of a person in custody by first making the following statements:
· You have the right to remain silent.
· If you do say anything, what you say can be used against you in a court of law.
· You have the right to consult with a lawyer and have that lawyer present during any questioning.
· If you cannot afford a lawyer, one will be appointed for you if you so desire.
本節(jié)的問題翻譯下面的米蘭達(dá)警告：
· You have the right to remain silent.
· If you do say anything, what you say can be used against you in a court of law.
· You have the right to consult with a lawyer and have that lawyer present during any questioning.
· If you cannot afford a lawyer, one will be appointed for you if you so desire.
答案：
1、你有權(quán)保持沉默。
2、是你說的任何話，有可能在法庭上作為對你不利的證據(jù)。
3、你有權(quán)咨詢律師，詢問時有權(quán)要求律師在場。
4、如果你無錢委托律師，如果你希望的話，將在詢問前為你指定一名律師。
If a suspect is in police custody, it doesn't matter whether the interrogation takes place in a jail or at the scene of a crime, on a busy downtown street or in the middle of an open field. Other than routine automobile stops and brief on-the-street detentions, once a police officer deprives a suspect of freedom of action in any way, the suspect is in police custody and Miranda is activated. （See Question 19 for more on when a person is in custody.）
Case Example: Kelly Rozmus is arrested for assault. At the police station, Officer Mayorkas seeks to question Rozmus about the events leading up to the assault.
Question: Does Rozmus have to answer the officer's questions?
Answer: No. Rozmus has a constitutional right to remain silent, and if Officer Mayorkas fails to warn Rozmus of the Miranda rights before questioning begins, then nothing Rozmus says is later admissible in evidence.
The Miranda Case
Ernesto Miranda was arrested for kidnapping and raping a young woman in Arizona. Ten days after the rape took place, the victim picked Miranda out of a lineup and identified him as her attacker. The police took Miranda into an interrogation room and questioned him for two hours. Eventually, Miranda broke down and confessed in writing to committing the rape. The police did not physically abuse Miranda or trick him into confessing. At trial, the prosecution offered Miranda's confession into evidence, and he was convicted. On appeal, the U.S. Supreme Court overturned the conviction and granted Miranda a new trial. The Supreme Court decided that the confession should not have been admitted into evidence at Miranda's trial because the police had not advised Miranda of his right to remain silent and to consult with counsel. Miranda was convicted again after a second trial, even though the prosecution was not able to offer Miranda's confession into evidence.
14. What Happens If the Police Question Me While I'm in Custody Without First Giving Me a Miranda Warning?
If a police officer questions a suspect without giving the suspect the Miranda warning, nothing the suspect says can be offered into evidence against the suspect at trial. Moreover, under the "fruit of the poisonous tree" rule, any evidence which the police find as the result of a lead obtained during questioning which violates the Miranda rule is equally inadmissible at trial.
Case Example 1: Mal Addy is arrested for assault with a deadly weapon. Without advising Addy of his Miranda rights, the police ask Addy about the location of the knife that Addy allegedly used in the attack. Addy tells the police of its hidden location. The absence of the Miranda warning makes what Addy said to the police inadmissible at trial.
Question: Can the prosecutor introduce the knife into evidence against Addy?
Answer: No. The knife is the "fruit of a poisonous tree." The police learned of the knife solely through an improper interrogation of Addy, so the knife is inadmissible as evidence. If the police would have inevitably discovered the evidence that they initially discover because of an illegal questioning, however, the evidence may be admitted against the suspect despite the "poisonous fruit" doctrine.
Case Example 2: Assume the same facts as above, except that Addy tells the police that the knife is in the backpack Addy had on at the time of his arrest. The police would have found the knife when they inventoried the contents of the backpack during the booking process.
Question: Is the knife admissible in evidence against Addy at trial?
Answer: Yes. Since the police would inevitably have found the knife even if Addy had said nothing, the knife is not the fruit of the improper questioning.
本節(jié)的問題翻譯下列句子：
Moreover, under the "fruit of the poisonous tree" rule, any evidence which the police find as the result of a lead obtained during questioning which violates the Miranda rule is equally inadmissible at trial.
答案：
而且，依據(jù)毒樹之果原理，因違反米蘭達(dá)規(guī)則獲得的線索而得到的證據(jù)，在審判時同樣不能采用。
15. If I Answer Police Questions Even After I'm Given the Miranda Warning, Is It Ever Possible to Exclude What I Say?
Under some circumstances, yes. If the police induce a suspect to speak because of illegal behavior engaged in by the police, the suspect's statements may be excluded under the fruit of the poisonous tree doctrine. For instance, assume that the police induce a suspect to confess by confronting the suspect with objects the police seized during an illegal search. （For more on search and seizure, see Chapter 2.） If seeing the illegally seized objects induced the suspect to confess, a judge may throw out the confession as the fruit of the poisonous tree （the illegal search）, even if the police first gave the Miranda warning.
More About Poisonous Fruit
The "fruit of the poisonous tree" rule prevents police officers and prosecutors from indirectly benefiting from improper searches and interrogations. The rule provides that if police find out about evidence as the result of an illegal search or interrogation, a judge can bar a prosecutor from using the evidence at trial. （Wong Sun v. United States, U.S. Sup. Ct. 1963.） The fruit of the poisonous tree doctrine removes what would otherwise be a big incentive for police officers to conduct illegal searches and interrogations.
本節(jié)的問題翻譯下列句子：
The fruit of the poisonous tree doctrine removes what would otherwise be a big incentive for police officers to conduct illegal searches and interrogations.
答案：
毒樹之果理論排除了非法搜查和審訊獲得的證據(jù)，否則會大大激勵警官們這么做。
Defense attorneys often try to use the rule to weaken a prosecutor's case before trial. If a defense attorney can convince a judge that a search or interrogation was improper, and most of the prosecution's evidence is tied to the illegality, the defense can force the prosecution to dismiss charges or accept a plea to a lesser crime.
16. Am I Entitled to Have My Case Dismissed If the Police Questioned Me Without Advising Me of My Miranda Rights?
No. One large popular misconception about the criminal justice system is that a case has to be thrown out of court if the police fail to give the Miranda warning to people they arrest. What Miranda says is that the warning is necessary if the police interrogate a suspect in custody and want to offer something the suspect says into evidence at trial. This means that the failure to give the Miranda warning is utterly irrelevant to the case if:
the suspect is not in custody （see Question 19）
the police do not question the suspect, or
the police do question the suspect, but the prosecution does not try to use the suspect's responses as evidence.
本節(jié)的問題：
1、What Miranda says is that the warning is necessary if the police interrogate a suspect in custody and want to offer something the suspect says into evidence at trial.（翻譯句子）
2、在什么情況下，警官可以不宣講米蘭達(dá)警告。（回答問題）
答案：
1、米蘭達(dá)警告所說的是，警官詢問關(guān)押中的嫌疑犯并想將嫌疑犯的供述作為證據(jù)時才有必要有必要提出米蘭達(dá),警告。
17. After I'm Arrested, Is It Ever a Good Idea to Talk to the Police?
Not without talking to a lawyer first. Talking to the police is almost always hazardous to the health of a defense case, and defense attorneys almost universally advise their clients to remain silent until the attorney has assessed the charges and counseled the client about case strategy.
18. How Do I Assert My Right to Remain Silent If I Am Being Questioned By the Police?
Suspects do not need to use any magic words to indicate that they want to remain silent. Indeed, they don't have to use any words at all. Arrestees may invoke their Miranda rights by saying things like the following:
· "I want to talk to an attorney."
· "Please leave me alone."
· "I don't have anything to say."
· "I claim my Miranda rights."
If the police continue to question an arrestee who says anything like the above, the police have violated Miranda. As a result, nothing the arrestee says after that point is admissible in evidence.
19. If the Police Question Me Before Arresting Me, Does the Miranda Rule Apply?
Not necessarily. Miranda applies only to "custodial" questioning. A person is not in custody unless a police officer has "deprived a [person] of his freedom of action in a significant way." When it decided the Miranda case, the Supreme Court said that its ruling does not apply to "general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.'' Thus, unless a person is in custody, an officer can question the person without giving the Miranda warning, and whatever the person says is admissible in evidence.
本節(jié)的問題： 1、When it decided the Miranda case, the Supreme Court said that its ruling does not apply to "general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.（翻譯）
2、如何暗示我保留自己的米蘭達(dá)權(quán)利？（回答問題）
答案： 1、最高法院裁決米蘭達(dá)一案時說，本裁決不適用于罪案現(xiàn)場就一般事實問題的詢問或者其他實地勘查過程中對市民的詢問。
2、
· "I want to talk to an attorney."
· "Please leave me alone."
· "I don't have anything to say."
· "I claim my Miranda rights."
Case Example: Officer Roy Altie responds to a call to investigate a purse-snatching（搶包） incident. The officer learns from the victim that the culprit was a white male, about 5' 10" tall, weighing about 175 pounds and wearing a light-colored sweatshirt. About 10 minutes later, about a mile from where the purse-snatching took place, Officer Altie sees a man generally fitting the attacker's description walking alone. Officer Altie realizes that he lacks sufficient evidence to make an arrest, and approaches the man merely to question him about his activities and whereabouts during the preceding one-half hour.
Question: Does Officer Altie have to precede the questioning with the Miranda warning?
Answer: No. The victim's description was so general that it could apply to many men. Thus, Officer Altie lacked probable cause to make an arrest, and did not intend to make an arrest. Officer Altie was engaged in general on-the-scene questioning, and therefore did not have to give the Miranda warning.
Police Officers May Mischaracterize a Custodial Situation in Court
Police officers generally believe that suspects are more likely to speak with them voluntarily in the absence of a Miranda warning. Thus, police officers have an incentive not to give the warning. One way they may attempt to evade the Miranda rule is by delaying the arrest of a suspect until after they're through with the questioning. If an officer can convince a judge that the officer was engaged only in general questioning, and would have let the suspect walk away had the suspect chosen to do so, whatever the suspect says to the officer can be used against the suspect at trial despite the lack of Miranda warnings.
20. Do the Police Have to Give Me a Miranda Warning If I'm Stopped for a Traffic Violation?
No, so long as the police officer simply asks a motorist for identification（身份證明） and limits discussion to the traffic offense for which the officer stopped the motorist. Routine traffic violations are infractions（違法，犯規(guī)）, not crimes. A motorist's statement to a police officer relating to events leading up to a ticket is therefore admissible even if the officer did not give the motorist the Miranda warning. However, a Miranda warning would be required if an officer detains a motorist in order to question the motorist about crimes unrelated to the traffic stop.
本節(jié)的問題： 1、Police officers generally believe that suspects are more likely to speak with them voluntarily in the absence of a Miranda warning.
2、One way they may attempt to evade the Miranda rule is by delaying the arrest of a suspect until after they're through with the questioning.
答案：
1、警官們通常相信在缺乏米蘭達(dá)警告的情況下，嫌疑犯也可能主動坦白。
2、他們規(guī)避米蘭達(dá)規(guī)則的另一辦法是延遲逮捕，直至他們問訊完畢。
Case Example: Officer Starsky stops Hutch for running a red light. After issuing a ticket, the officer orders Hutch from the car and questions him about a burglary which had taken place nearby. Officer Starsky does not give Hutch the Miranda warning.
Question: Is what Hutch says to the officer about his whereabouts at the time of the burglary admissible in evidence?
Answer: No. Hutch was ordered out of the car and thus was not free to leave. As Hutch was in custody and Officer Starsky questioned him about a crime unrelated to the traffic offense without giving Hutch the Miranda warning, Hutch's statements are inadmissible in evidence.
21. Are Statements That I Make Voluntarily Before I'm Questioned Admissible in Evidence?
In general, yes. Miranda applies only to statements which are the product of police questioning. If an arrestee volunteers information to a police officer, the information is admissible in evidence.
Case Example: After performing a series of sobriety tests, Ina Bryate is arrested for drunk driving. As the officer is taking her toward the police vehicle, Ina says, "I couldn't possibly be drunk. I only had a few beers at the sorority party." Before Ina said this, the officer had neither given her a Miranda warning nor questioned her.
Question: Is what Ina said admissible in evidence?
Answer: Yes. Ina volunteered the remark; the officer did not elicit it with a question. Thus, the fact that Ina had not been given a Miranda warning does not bar admission of her statement into evidence.
How the Police Can Benefit From Delayed Miranda Warnings
Crafty police officers may intentionally delay giving Miranda warnings to suspects following an arrest for at least two reasons:
· If they don't question the suspect, police officers don't have to give Miranda warnings. In the absence of the warnings, some suspects will blurt out voluntary statements that the prosecution can then offer into evidence at trial.
· Even if a suspect remains silent, the prosecution can sometimes use that silence against the suspect at trial. Assume that a suspect who remained silent after arrest testifies in essence that, "I didn't do it." The prosecution may be able to attack the suspect's credibility （believability） by having the arresting officer testify to the suspect's silence following arrest. The prosecution's argument would be, "If the suspect really didn't do it, why didn't the suspect immediately say that to the arresting officer?" This tactic can only be used, however, if the defendant takes the stand.
本節(jié)的問題是翻譯句子：
1、This tactic can only be used, however, if the defendant takes the stand.
2、If the suspect really didn't do it, why didn't the suspect immediately say that to the arresting officer?
答案：
1、不過，這種策略只能在被告作證時采用。
2、要是嫌犯真的沒有犯事，為什么不馬上給警官說？
22. What Does It Mean to "Waive" My Miranda Rights?
Suspects "waive" （give up放棄） their Miranda rights by talking to police officers after having been advised that they have the right not to. To avoid disputes in court about whether Miranda warnings were given and waived, police officers often ask suspects who indicate a willingness to talk to sign waiver forms acknowledging that they've received and understood their Miranda rights, and that they want to talk to the police anyway.
23. Once I've Waived My Miranda Rights, Is It Possible to Change My Mind and Invoke My Right to Silence?
Yes. Suspects can invoke their right to silence at any time, even if they have begun talking to the police. Of course, statements made before invoking the right to silence are admissible, so deciding to remain silent after previously answering questions may be the equivalent of locking the barn door after the horse has run away. To stop police questioning, a suspect merely has to say something like, "I don't want to say anything else" or "I want to talk to a lawyer before we go any further." If the police continue to question a suspect who invokes Miranda, nothing the suspect says after indicating a desire to halt the interview is admissible in evidence.
24. Has the Miranda Rule Prevented Suspects From Giving Up Their Right to Remain Silent and to Be Represented by an Attorney During Police Questioning?
Not especially. When Miranda was decided, police and prosecutors predicted a dire effect on their ability to secure convictions. However, arrestees often ignore the Miranda warning and talk to police officers. The following psychological factors that police regularly use to their advantage explain why suspects often make "voluntary" confessions that they later regret:
本節(jié)的問題翻譯句子： 1、lock the barn door after the horse has run away
2、Has the Miranda Rule Prevented Suspects From Giving Up Their Right to Remain Silent and to Be Represented by an Attorney During Police Questioning?
答案： 1、亡羊補牢
2、在警方詢問時，米蘭達(dá)規(guī)則妨礙嫌疑犯放棄沉默權(quán)及由律師代理了嗎？
· Suspects who are in custody are psychologically vulnerable. Many suspects are intimidated by jail conditions, and talk in order to please the jailers who are suddenly in control of their lives.
· Police often lead a suspect to believe that a confession or cooperation in naming other suspects will result in leniency. Although courts generally consider this to be improper police conduct （see, e.g., People v. Vasila, 45 Cal. Rptr.2d 355 （1995））, the police will usually deny that they promised leniency, and the judge will usually believe them.
· Police use the "good cop–bad cop" routine. In this ploy, one police officer is aggressive and overbearing toward a suspect. A second officer is helpful and courteous. Suspects perceive the second officer as "being on their side," and gratefully and voluntarily talk to the second officer.
· Many suspects talk voluntarily in the belief that anything short of a full written confession isn't admissible in evidence. They are mistaken. Anything they say to the police, even if at the time it seems to be in their favor, is admissible in evidence.
· Police may make suspects feel that their situations are already hopeless. For example, police officers may tell a suspect that the suspect failed a lie detector test, that a co-defendant confessed and incriminated the suspect or that the police have a videotape of the suspect committing the crime. Even if the police have lied, the resulting confession is usually admissible in evidence.
· Taking advantage of a suspect's guilt feelings, police officers may emphasize the harm that the suspect has caused to the victim, and stress that the suspect can begin to repay the victim by owning up to the misdeed. A resulting confession turns the suspect's feeling of moral guilt into legal guilt.
· Police sometimes emphasize that a confession will speed things up. Many suspects, especially first-time offenders, want to put a criminal charge behind them as soon as possible. To them, a confession represents the shortest line between two points.
· Police officers tell suspects that ''we'll put what you say in our reports, so this is a chance to make sure that the district attorney hears your side of the story." Uselessly trying to minimize their guilt, suspects often furnish evidence that eventually helps convict them.
本節(jié)的問題翻譯句子： 1、Many suspects talk voluntarily in the belief that anything short of a full written confession isn't admissible in evidence.
2、A resulting confession turns the suspect's feeling of moral guilt into legal guilt.
答案： 1、許多嫌疑犯相信在缺乏完整的書面供詞的情況下，他們的言辭不會作為證據(jù)使用，因而主動坦白。
2、嫌疑犯的坦白導(dǎo)致了從道德上的負(fù)疚感變成了法律上的有罪的后果。
Empty Promises
Police officers' promises of leniency are usually empty. Police officers may recommend a light sentence, but at the end of the day it's prosecutors and judges who normally determine punishment on the basis of statutory requirements and political expediency.
Case Example 1: Dee Nyal is arrested and charged with burglary. At the police station, Dee waives her Miranda rights and voluntarily tells the police that she is innocent, because she was at the movies at the time the burglary took place. At trial, the prosecutor wants to offer Dee's statement to the police into evidence to show it was false, because the movie Dee said she watched was not playing the night of the burglary. Dee protests that what she said to the police shouldn't be admissible because she didn't make a confession; instead she said she wasn't guilty.
Question: Is Dee's statement to the police admissible in evidence?
Answer: Yes. Dee waived her Miranda rights, so even though she was trying to help herself, the statement is admissible.
Case Example 2: Len Scap is arrested for murder. The police give Len his Miranda warning, then tell him that he might as well confess because the police found Len's fingerprints at the crime scene and because they have an eyewitness who can easily identify him. Feeling all is lost, Len confesses to the murder. It turns out that the police lied to Len—they had neither his fingerprints nor an eyewitness.
Question: Is Len's confession admissible in evidence?
Answer: Very probably. Judges generally rule that confessions are voluntary even if they are obtained by the police through trickery. （See Frazier v. Cupp, U.S. Sup. Ct. 1969.）
本節(jié)的題目翻譯句子：
1、Police officers may recommend a light sentence, but at the end of the day it's prosecutors and judges who normally determine punishment on the basis of statutory requirements and political expediency.
2、Judges generally rule that confessions are voluntary even if they are obtained by the police through trickery
答案：
1、警官可能會建議從輕判決，但最終還得由檢察官和法官從法律和政治方面權(quán)衡作出判決。
2、法官通常會裁決，盡管證據(jù)是警官使詐所得，仍是嫌疑犯主動招供。
25. If an Officer Arrests Me and Asks Me About the Whereabouts of Any Weapons I Might Have——Before Giving Me the Miranda Warning——Can My Response Be Admitted as Evidence?
Probably. The "public safety exception" to the Miranda rule allows police officers to ask arrestees about weapons and other potential threats to public safety without giving the Miranda warning. （New York v. Quarles, U.S. Sup. Ct. 1984.） The purpose of the rule is to make it more likely that police officers will find out about weapons or other dangerous objects before those objects are used against the officers or fall into the hands of co-conspirators or other members of the public.
26. If My Boss Questions Me About Drug Use or My Landlord Asks Me About Illegal Activities in My Apartment, Can My Responses Be Used as Evidence Against Me If They Didn't First Give Me a Miranda Warning?
Yes. Miranda only applies to questioning by the police or other governmental officials.
Private Individuals May Sometimes Be Police Agents for Purposes of Miranda
For example, assume that the police arrest Rose Ettastone for embezzlement from the bank that employs her. Hoping to find out how Rose carried out the scheme, the police ask the bank manager to come down to the jail and interview Rose. Rose tells the bank manager details of the scheme which the prosecutor wants to offer into evidence. Because the manager was acting as a police agent, he would have had to advise Rose of her Miranda rights before interviewing her if the statements were to be admitted as evidence.
Recent years have seen an explosion of private security guards in places like shops, office buildings and housing projects. According to one estimate, the United States now has three times as many private security guards as police officers. Because private security guards are not governmental employees, rules such as Miranda have not been applied to them. However, courts may soon be called upon to impose some of the same restrictions on private security guards as they do on police officers.
本節(jié)的題目翻譯句子：
1、The "public safety exception" to the Miranda rule allows police officers to ask arrestees about weapons and other potential threats to public safety without giving the Miranda warning.
2、However, courts may soon be called upon to impose some of the same restrictions on private security guards as they do on police officers.
答案： 1、米蘭隊規(guī)則的例外是涉及公共安全，即使沒有米蘭隊警告也允許警官詢問武器和其他危害公共安全的物品的下落。
2、不過，法院很快就會要求對承擔(dān)警察職務(wù)的私人保安實行同樣的限制。
27. Besides Miranda, Are There Other Restrictions Placed on the Police When They Seek Information from an Arrested Person?
Yes. Confessions that are deemed to be involuntary are not allowed as evidence. Under this rule, the police are not allowed to use brutality, physical threats or other means of intimidation to coerce suspects into confessing. If the police obtain information by any of these illegal means, the information is not admissible, even if a Miranda warning is provided prior to the making of the coerced confession. In addition, under the "fruit of the poisonous tree" rule, any evidence that the police obtain as the result of the coerced confession would be equally inadmissible.
Case Example 1: Clark Kent is arrested for indecent exposure. After he is booked, the police read the Miranda rights to Clark. The police then proceed to question Clark over a 36-hour period, keeping him in solitary confinement when they are not questioning him and withholding almost all food and water. Clark finally agrees to talk to the police and confesses to the crime.
Question: Are Clark's statements admissible in evidence?
Answer: No. Clark did not freely and voluntarily waive his Miranda rights, because the interrogation methods were highly coercive.
Case Example 2: Moe Money is charged with obtaining money by fraudulent means. Following the Miranda warning, Moe voluntarily agrees to talk to the police and denies any fraudulent conduct. The police then tell Moe that they will arrest his wife and bring her to the station for questioning. Moe tells the police that his wife is pregnant but very ill, and has been instructed by her doctor to remain in bed as much as possible to protect her health and that of the baby. The police tell Moe that's his problem, they're going to arrest his wife unless he confesses and "the health of your wife and your kid is up to you."
Question: If Moe then confesses, is the confession admissible in evidence?
Answer: No. Moe's confession was involuntary. This is especially true if the police lacked probable cause to arrest Moe's wife and threatened to arrest her only to coerce Moe into talking. （See Rogers v. Richmond, U.S. Sup. Ct. 1961.）
Cops Usually Win "Swearing Contests"
Defendants' claims that they were coerced into talking often turn into swearing contests, with the police contending that everything was honest and above board. Defendants who are physically coerced by police into talking can support their claims with photos of marks and bruises. But actual police brutality is unusual, and defendants cannot usually offer independent evidence to support their claims of psychological coercion. Judges, believing that defendants have a greater motivation to lie than police officers, usually side with the police and conclude that no coercion took place.
本節(jié)的題目翻譯句子： 1、Under this rule, the police are not allowed to use brutality, physical threats or other means of intimidation to coerce suspects into confessing.
2、Judges, believing that defendants have a greater motivation to lie than police officers, usually side with the police and conclude that no coercion took place.
答案：
1、根據(jù)本規(guī)則，警察不許使用野蠻行徑、身體威脅、或其他脅迫手段強迫嫌疑犯坦白。
2、法官相信被告比警察更有撒謊的動機，因而常常站在警察這邊并得出沒有脅迫發(fā)生的結(jié)論。
28. How Do Intoxication or Mental Limitations Affect the Voluntariness of a Confession?
Very little. Defendants often ask judges to rule that their confessions were involuntary on the grounds that at the time the defendants confessed they were drunk, were high on drugs or had mental limitations. Unless the defendant was practically unconscious at the time of confessing, judges usually decide that confessions are voluntary—despite the existence of factors that strongly suggest an opposite conclusion.
Case Example 1: Sarah Bellum is arrested for armed robbery, and confesses after receiving Miranda warnings. Defense evidence shows that Sarah is mentally retarded, with a mental age of nine. In addition, she suffers from attention deficit disorder and depression.
Question: Was her confession voluntary?
Answer: Yes. Judges routinely rule that confessions by suspects with mental limitations are voluntary.
Case Example 2: Same case, except that this time Sarah's evidence is that at the time of her confession, the police had just awakened her from a deep sleep produced by her having ingested three tranquilizers a few hours earlier. The police testify that Sarah was fully awake and lucid.
Question: Was her confession voluntary?
Answer: Yes. While the drugs may have impaired Sarah's cognitive functions, she was not legally incapable of making a voluntary confession.
Case Example 3: Same case, except that this time Sarah's evidence is that she confessed to armed robbery while in an ambulance on the way to the hospital. At the time she confessed, she was in pain from injuries she suffered when she was captured, she was under the effects of tranquilizers she had ingested just prior to the robbery and she passed out a number of times during the interrogation.
Question: Was her confession voluntary?
Answer: Probably not. Sarah's physical condition was so impaired that she was legally incapable of confessing voluntarily. （See Griffin v. State, Wyoming 1988.）
本節(jié)的題目翻譯句子：
1、In addition, she suffers from attention deficit disorder and depression.
2、Sarah's physical condition was so impaired that she was legally incapable of confessing voluntarily
答案：
1、另外，她患有注意力缺損障礙和憂郁癥。
2、薩拉的身體狀況嚴(yán)重受損，法律意義上她不具備坦白的能力。
Chapter 2—Search and Seizure: When the Police Can Search for and Seize Evidence
The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests; search people and their property; and seize objects, documents and contraband （such as illegal drugs or weapons）. These limits are the bedrock of ''search and seizure law."
Search and seizure law is constantly in flux and so complex that entire books are devoted to it. This chapter answers the most basic questions that people might have about search and seizure law, but if you have more specific questions about arrest, see Chapter 3.
Other resources go into search and seizure in more detail. Readers wanting additional information might want to consult Marijuana Law, by Richard Glen Boire （Ronin Publishing Inc., 1993）; Search and Seizure, by Wayne LaFave （West Publishing Co., 4th ed., 5 Vols., 1996）; or Criminal Justice, by James A. Inciardi （Harcourt, Brace, Jovanovich, Inc., 3d ed., 1990）. （See Chapter 26 for more on legal research and using a law library.）
Section I: The Constitutional Background
This section provides an overview of the limitations on searches and seizures provided by the Fourth Amendment to the U.S. Constitution.
1. What Are the Search and Seizure Provisions of the Fourth Amendment All About?
They are about privacy. Most people instinctively understand the concept of privacy. It is the freedom to decide which details of your life shall be revealed to the public and which shall be revealed only to those you care to share them with. To honor this freedom, the Fourth Amendment protects against "unreasonable" searches and seizures by state or federal law enforcement authorities. However, the Fourth Amendment does not protect against searches initiated by nongovernmental people, such as employers, landlords and private security personnel, unless the search is made at the behest of a law enforcement authority.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
從本節(jié)開始進(jìn)入第二章搜查與逮捕，好漫長，有幾個可以堅持下去啊？
本節(jié)的題目翻譯句子：
1、These limits are the bedrock of "search and seizure law".
2、However, the Fourth Amendment does not protect against searches initiated by nongovernmental people, such as employers, landlords and private security personnel, unless the search is made at the behest of a law enforcement uthority.
答案：
1、這些限制措施是搜查與逮捕法的基礎(chǔ)。
2、不過，憲法第四修正案并不保證人們不受非政府雇員如雇主、房東和保安的搜查，除非搜查源于執(zhí)法機構(gòu)的命令。
Unfortunately for privacy itself, the Fourth Amendment does permit searches and seizures that are considered to be reasonable. In practice, this means that the police may override（不顧, 不考慮（某人的意見,決定,愿望等））your privacy concerns and conduct a search of your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel or wherever, if:
· the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant （see Section II）, or
· the search is proper without a warrant because of the particular circumstances.
2. Are All "Searches" Subject to Fourth Amendment Protection?
No. American judges have written thousands of opinions interpreting the Fourth Amendment and explaining what a "reasonable" search is. But before getting to that question, another question must be answered first. Did the search in question violate the defen-dant's privacy in the first place? Or more precisely, as framed（構(gòu)成, 設(shè)計, 制定） by the U.S. Supreme Court, did the defendant have a "legitimate expectation of privacy" in the place or thing searched? （Katz v. U.S., 1967.） If not, then no "search" occurred for the purpose of Fourth Amendment protection. If, however, a defendant did have a reasonable expectation of privacy, then a search did occur, and the search must have been a reasonable one.
Courts use a two-part test （fashioned by the U.S. Supreme Court） to determine whether, at the time of the search, the defendant had a legitimate expectation of privacy in the place or things searched.
· Did the person subjectively （actually） expect some degree of privacy?
· Is the person's expectation objectively reasonable, that is, one that society is willing to recognize?
Only if the answer to both questions is "yes" will a court go on to ask the next, ultimate question: Was the search reasonable or unreasonable?
For example, a person who uses a public restroom expects not to be spied upon （the person has a subjective expectation of privacy） and most people—including judges and juries—would consider that expectation to be reasonable （there is an objective expectation of privacy as well）. Therefore, the installation of a hidden video camera by the police in a public restroom will be considered a "search" and would be subject to the Fourth Amendment's requirement of reasonableness.
On the other hand, when the police find a weapon on the front seat of a car, it is not a "search" for Fourth Amendment purposes because it is very unlikely that the person would think that the front seat of the car is a private place （a subjective expectation of privacy is unlikely）, and even if the person did, society is not willing to extend the protections of privacy to that particular location （no objective expectation of privacy）.
翻譯練習(xí)
Only if the answer to both questions is "yes" will a court go on to ask the next, ultimate question: Was the search reasonable or unreasonable?
只有在兩個問題都回答是的情況下，法庭才會繼續(xù)問下一個即最后一個問題：搜查合不合理？
3. How Can an Illegal Search Affect My Criminal Case?
In Mapp v. Ohio （1961）, the Supreme Court established what has come to be known as the "exclusionary rule." This rule states that evidence seized in violation of the Fourth Amendment cannot be used as evidence against defendants in a criminal prosecution, state or federal. To this day, some commentators continue to criticize the Mapp case on the ground that it unfairly "lets the criminal go free because the constable has erred." But supporters of Mapp argue that excluding illegally seized evidence is necessary to deter police from conducting illegal searches. According to this deterrence argument, the police won't conduct improper searches if the resulting evidence is barred from the trial.
Case Example: Officer Joe Friday notices teenager Bunny Schwartz walking in a mall. Officer Friday demands to look into Bunny's purse. The officer finds three pairs of earrings with the price tags still attached. A mall jewelry store owner identifies the earrings as having been stolen minutes earlier, when Bunny was the only customer in the store. A judge rules that Officer Friday's search of Bunny's purse was improper.
Question: How will this ruling affect the case against Bunny?
Answer: The charges will have to be dropped. Because the search of Bunny's purse was illegal, the earrings are not admissible in evidence against her. As the prosecution has no case without the earrings, the case must be dismissed. Realizing that Bunny went free ought to deter Officer Friday from conducting illegal searches in the future, exactly what the exclusionary rule is supposed to accomplish.
4. If the Police Conduct an Illegal Search, Does the Case Against Me Have to Be Dismissed?
No. A judge will exclude evidence that the police seized or learned about as the result of an illegal search. But if a prosecutor has enough other evidence to prove the defendant guilty, the case can continue.
Case Example: Dick McCallous is charged with possession of stolen property—cleaning products stolen from a local janitorial supply business. Half of the missing janitorial products that McCallous is charged with possessing were discovered by the police at McCallous' home in the course of a warrantless search of the home by the police after they had properly arrested McCallous for possession of the other half. In response to a defense motion to exclude evidence, the judge rules that the police illegally seized the janitorial products from McCallous' home, but that the other products were seized properly.
Question: How will these rulings affect the case against McCallous?
Answer: The prosecution can go forward, limited to possession of properly seized stolen janitorial products.
本節(jié)的題目是翻譯下面的句子：
1、This rule states that evidence seized in violation of the Fourth Amendment cannot be used as evidence against defendants in a criminal prosecution, state or federal.
2、According to this deterrence argument，the police won't conduct improper searches if the resulting evidence is barred from the trial.
答案：
1、裁決確立了違反憲法第四修正案獲得的證據(jù)，不得用于州、聯(lián)邦政府對嫌疑犯的刑事指控的原則。
2、根據(jù)這一威懾理論，如果非法搜查獲得的證據(jù)不得用于審判，警察就不會進(jìn)行不適當(dāng)?shù)乃巡椤?BR>5. If a Police Officer Finds Contraband（違禁品） or Evidence of Crime in the Course of a Search, Does That Make the Search Valid Even If It Was Initially Illegal?
No. A well-established rule is that ''a search can't be justified by what it turns up." If a search is illegal to begin with, the products of that search, no matter how incriminating, are inadmissible in evidence.
6. Can Illegally Seized Evidence Be Used In Court For Any Purpose?
Yes. Cases decided after Mapp have established that the Fourth Amendment is not a complete bar to the use of illegally seized evidence. For example, a judge may consider illegally seized evidence when deciding on an appropriate sentence following conviction, and illegally seized evidence is admissible in civil cases and deportation（驅(qū)逐出境） cases. Also, in some circumstances a prosecutor can use improperly seized evidence to impeach （attack the credibility of） a witness who testifies during a court proceeding.
Case Example: Flo Kane is on trial for possessing illegal drugs. During a pretrial hearing, the trial judge had ruled that the police had illegally seized a gun from Flo's bedroom, and that the prosecutor could not admit the gun in evidence. While testifying, Flo states, "I've never owned a weapon of any kind."
Question: Following this testimony, could the prosecutor show Flo the illegally seized gun and ask her to admit that she owned it?
Answer: Yes. Once Flo denies ever owning a weapon, the prosecutor may use the illegally seized gun to attack the credibility of her testimony.
7. Do Fourth Amendment Protections Apply in Every State?
Basically, yes. The Fourth Amendment provides rights for defendants that are binding on every state. For example, no state can decide that "we're not going to have the exclusionary rule." However, many state constitutions contain language similar to that in the Fourth Amendment, and a state can validly interpret its own constitution to provide defendants with greater protections than the Fourth Amendment requires.
8. If the Police Illegally Seize Evidence, Can They Use the Illegally Seized Information to Find Other Evidence to Use Against the Defendant?
No, because of a legal rule colorfully known as the "fruit of the poisonous tree" doctrine. This doctrine makes inadmissible any evidence that police officers seize or any information that police officers obtain as a direct result of an improper search. The "tree" is the evidence that the police illegally seize in the first place; the "fruit" is the second-generation product of the illegally seized evidence. Both tree and fruit are inadmissible at trial.
翻譯句子：
1、a search can't be justified by what it turns up
2、請用中文簡述毒樹之果理論。
答案：
1、不能根據(jù)搜查結(jié)果判定非法搜查正當(dāng)。
2、無標(biāo)準(zhǔn)答案。
Case Example: Officer Wiley arrests Hy Lowe for selling phony telephone cards. A judge ruled that Officer Wiley had illegally entered Lowe's home and improperly seized a map showing the location where Lowe hid the phone cards. At trial, the prosecutor doesn't try to offer the map into evidence. The prosecutor does, however, seek to offer into evidence the phone cards that Officer Wiley located by using the map.
Question: Are the phone cards admissible in evidence?
Answer: No. Officer Wiley obtained the map through an illegal search. The phone cards are the fruit of that unlawful search, and therefore inadmissible in evidence.
9. Can I Plead Guilty But Reserve the Right to Challenge a Search and Have My Guilty Plea Set Aside If the Search Is Held to be Illegal?
In most states, by pleading guilty, a defendant waives （gives up） any claim that evidence was illegally seized. This rule can be a dilemma for defendants who unsuccessfully challenge the legality of a search at the trial court level, for these reasons:
· After a defendant's unsuccessful challenge to the admissibility of seized evidence, a guilty verdict may be an all but certain result at trial.
· To save the time and expense of a useless trial, the defendant may decide to plead guilty.
· By pleading guilty, however, the defendant loses the right to appeal the trial court's decision on the search and seizure issue.
Some states do allow defendants to plead guilty and then challenge the seizure of evidence on appeal. Self-represented defendants who plan to challenge the legality of a police officer's search on appeal must never plead guilty without knowing whether their jurisdiction permits such a procedure.
10. As a Self-Represented Defendant, What Are My Chances of Successfully Challenging a Search's Legality?
Very small, except if the search is obviously illegal. The rules are not only complex, but also hard to find. The rules regulating the legitimacy of searches and seizures are not set out neatly in statutes or regulations. Rather, arguments that a search is illegal usually have to be pieced together from a number of previous appellate court decisions involving similar facts. Moreover, in many states a special body of rules governs the procedures for challenging the legality of a search. For example, a defendant may have to challenge a search in a special proceeding before trial or lose the right to do so. （See Chapter 19, Section II.） For these reasons, when the outcome of a case turns on the legality of a search, self-represented defendants should almost always obtain legal representation. （Self-represented defendants should at least have a "legal coach" available to spot possible search and seizure issues. More on legal coaches in Chapter 7.）
翻譯、回答問題：
1、The rules regulating the legitimacy of searches and seizures are not set out neatly in statutes or regulations.
2、self-represented defendant翻譯為？
3、legal coach翻譯為？
答案：
1、確認(rèn)搜查與扣留合法性的規(guī)則在成文法或法規(guī)中并沒有明確規(guī)定。
2、自辨人
3、法律教練
Section II: Search Warrants
This section describes search warrants and explains when they are and are not necessary.
11. What Is a Search Warrant?
A search warrant is an order signed by a judge which authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M.," and direct the police to search for and seize "cash, betting slips, record books and every other means used in connection with placing bets on horses."
12. How Do Police Officers Obtain Search Warrants?
Police officers obtain warrants by providing a judge or magistrate with information that the officers have gathered. Usually, the police provide the information in the form of written statements under oath, called "affidavits," which report either their own observations or those of private citizens or police undercover informants. In many areas, a judicial officer is available 24 hours a day to issue warrants. If the magistrate believes that an affidavit establishes "probable cause" to conduct a search, he or she will issue a warrant. The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause before the magistrate signs the warrant. However, the suspect can later challenge the validity of the warrant with a pretrial motion. （See Chapter 19.） A sample affidavit for search warrant and search warrant are in the back of this chapter.
13. How Much Information Do Police Officers Need to Establish That "Probable Cause" for a Search Warrant Exists?
The Fourth Amendment doesn't define "probable cause." Its meaning remains fuzzy. What is clear is that after 200 years of court interpretations, the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer's subjective beliefs. The affidavits also have to establish more than a "suspicion" that criminal activity is afoot, but do not have to show "proof beyond a reasonable doubt."
The information in the affidavit need not be in a form that would make it admissible at trial. （For example, a judge or magistrate may consider hearsay that seems reliable.） However, the circumstances set forth in an affidavit as a whole should demonstrate the reliability of the information. （Illinois v. Gates, U.S. Sup. Ct. 1983.） In general, when deciding whether to issue a search warrant, a judicial officer will likely consider information in an affidavit reliable if it comes from any of these sources:
· a confidential police informant whose past reliability has been established or who has firsthand knowledge of illegal goings-on
· an informant who implicates herself as well as the suspect
五一長假，大家休息得好嗎？上期的節(jié)目里legal coach翻譯成法律教練，很多人的答案很富有創(chuàng)意，可能是因為中國還沒有這樣的行當(dāng)。所以大家不要把問題想得復(fù)雜了。
翻譯句子：
1、police undercover informants
2、the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer's subjective beliefs.
3、a confidential police informant whose past reliability has been established or who has firsthand knowledge of illegal goings-on
答案：
1、警方臥底線人
2、警官提供給法官的宣誓證詞必須客觀反映犯罪活動而不是單憑警官的主管揣測。
3、警方掌握的向來可靠的秘密線人或者擁有非法活動第一手資料的人。
· an informant whose information appears to be correct after at least partial verification by the police
· a victim of a crime related to the search
· a witness to the crime related to the search or
· another police officer.
Case Example 1: Hoping to obtain a warrant to search Olive Martini's backyard, a police officer submits an affidavit to a magistrate. The affidavit states that "the undersigned is informed that Olive operates an illegal still（A distillery.蒸餾室，酒廠） in her backyard."
Question: Should the magistrate issue a search warrant?
Answer: No. The affidavit is too vague, and does not identify the source of the information so that the magistrate can properly judge its reliability. "Probable cause" therefore does not exist.
Case Example 2: Same case. The affidavit states that "I am a social acquaintance of Olive Martini. On three occasions in the past two weeks, I have attended parties at Martini's house. On each occasion, I have personally observed Martini serving alcohol from a still in Martini's backyard. I have personally tasted the drink and know it to be alcoholic with an impertinent aftertaste. I had no connection to the police when I attended these parties."
Question: Should the magistrate issue a warrant authorizing the police to search Martini's backyard?
Answer: Yes. The affidavit provides detailed, firsthand information from an ordinary witness （without police connections） that indicates criminal activity. The affidavit is reliable enough to establish probable cause for issuance of a warrant.
14. What If a Police Officer Makes a Search Under a Warrant That Shouldn't Have Been Issued in the First Place?
In most situations the search will be valid. In U.S. v. Leon （1984）, the U.S. Supreme Court ruled that if the police conduct a search in good-faith reliance on the warrant, the search is valid and the evidence admissible even if the warrant was in fact invalid through no fault of the police. The Court's reasoning is that:
· it makes no sense to condemn the results of a search when police officers have done everything reasonable to comply with Fourth Amendment requirements, and
· the purpose of the rule excluding the results of an invalid search as evidence is to curb the police, not a judge, and that if a judge makes a mistake, this should not, therefore, be grounds to exclude evidence.
For example, assume that a judge decides that an affidavit submitted by a police officer establishes probable cause for the issuance of a warrant. Even if a reviewing court later disagrees and decides that the warrant shouldn't have been issued in the first place, the officer's search in good-faith reliance on the validity of the warrant will be considered valid, and whatever the search turns up will be admissible in evidence. If, however, the warrant is issued on the basis of statements in the affidavit that the police knew to be untrue or which were recklessly made without proper regard for their truth, the evidence from a search based on the warrant may later be excluded upon the proper motion being made by the defendant.
翻譯句子：
1、an impertinent aftertaste
2、the officer's search in good-faith reliance on the validity of the ,warrant will be considered valid
3、the purpose of the rule excluding the results of an invalid search as evidence is to curb the police, not a judge, and that if a judge makes a mistake, this should not, therefore, be grounds to exclude evidence
4、從本文看在美國私自釀酒違法，對嗎？
答案：
1、回味很重
2、基于對逮捕證合法性的信賴，警官所做的搜查是合法的。
3、規(guī)則的目的是通過排除非法搜查所得證據(jù)抑制警察的非法搜查，而不是法官，因此，如果法官弄錯了，非法搜查不應(yīng)成為排除證據(jù)的根據(jù)。
4、對！
Case Example 1: Officer Furlong searches a residence for evidence of illegal bookmaking pursuant to a search warrant. The officer obtained the warrant by submitting to a magistrate an affidavit containing statements known by the officer to be false.
Question: Is the search valid because it was conducted pursuant to a warrant?
Answer: No. By submitting a false affidavit, Officer Furlong did not act "in good faith." The search was thus improper, and whatever it turned up is inadmissible in evidence.
Case Example 2: Officer Cal Ebrate stops a motorist for a traffic violation. A computer check of the driver's license reveals the existence of an arrest warrant for the driver. Officer Ebrate places the driver under arrest, searches the car and finds illegal drugs. It later turns out that the computer record was wrong, and that an arrest warrant did not in fact exist.
Question: Are the illegal drugs admissible in evidence against the driver?
Answer: Yes. The officer acted in good-faith reliance on the computer record. The seizure was therefore valid even though the record was wrong. （Arizona v. Evans, U.S. Sup. Ct. 1995.）
15. If the Police Have a Warrant to Search My Backyard for Marijuana Plants, Can They Legally Search the Inside of My House as Well?
No. The police can only search the place described in a warrant, and usually can only seize whatever property the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can only seize items listed in the warrant. Should police officers come across contraband or evidence of a crime that is not listed in the warrant in the course of searching for stuff that is listed, they can lawfully seize the unlisted items.
"Well, Look What We Have Here"
The rule that police officers can seize items not listed in a search warrant in the course of searching for the stuff that is listed creates obvious disincentives for police to list all the items they hope to find. For example, perhaps a police officer suspects that a defendant carries a weapon, but can't establish probable cause to search for it. No problem. The officer can obtain a search warrant for other items, and then seize a weapon if the officer comes upon it in the course of the search. The defendant's only hope of invalidating the seizure of the weapon would be to convince a judge that the officer did not just happen to come across the weapon, but in fact searched for it.
翻譯句子：
1、illegal bookmaking
2、The officer acted in good-faith reliance on the computer record
3、Should police officers come across contraband or evidence of a crime that is not listed in the warrant in the course of searching for stuff that is listed, they can lawfully seize the unlisted items.
答案：
1、非法賭博
2、警官完全依賴計算機記錄行事。
3、如果警官在搜查過程中碰巧發(fā)現(xiàn)搜查證上沒有列明的違禁品或者犯罪證據(jù)，他們可以合法扣押這些物品。
16. The Police Had a Warrant to Search a Friend I Was Visiting, and They Searched Me as Well. Is This Legal?
No. Normally, the police can only search the person named in a warrant. Without probable cause, a police officer cannot search other persons who happen to be present at the scene of a search. However, if an officer has reason to suspect that an onlooker is also engaged in criminal activity, the officer might be able to "frisk" the onlooker for weapons. （See Section VI, below.）
17. If a Police Officer Knocks on My Door and Asks to Enter My Dwelling, Do I Have to Allow the Officer in Without First Seeing a Warrant?
Technically, no. A person can demand to see a warrant, and unless the officer has one can refuse the officer entry. However, people sometimes run into trouble when they "stand on their rights" and demand to see a warrant. A warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to conduct a warrantless search or make a warrantless arrest. People are right to ask to see a warrant. But if an officer announces an intention to go ahead without one, a person should not risk injury or a separate charge of "interfering with a police officer." A person should stand aside, let the officer proceed and allow a court to decide later whether the officer's actions were proper. At the same time, the person should make it clear that he or she does not consent to the search. If the police are not in a frenzied hurry, an individual might ask the police officer to sign a piece of paper acknowledging that "this search is conducted without the consent of . . . ." Otherwise, an individual might yell, "I do not consent to this search!" loud enough for others （potential witnesses if the matter comes before a judge） to overhear. （For more on consent searches, see Section III, below.）
"Knock and Notice" Laws
Statutes in some states require police officers searching pursuant to warrants to knock on suspects' doors and announce that they are police officers before breaking into a residence. However, such statutes are not constitutionally required; states need not require "knock and notice" in every instance. On the other hand, state laws may not authorize no-knock entries for a broad category of searches, such as searches involving drugs. （Richards v. Wisconsin, U.S. Sup. Ct. 1997; Wilson v. Arkansas, U.S. Sup. Ct. 1995.）
翻譯句子：
1、frisk啥意思？
2、Knock and Notice翻譯為？
3、"stand on their rights"翻譯為？
4、However, such statutes are not constitutionally required翻譯為？
答案：
1、拍身搜查
2、敲門告知
3、堅持自己的權(quán)利
4、不過，憲法并沒有要求制定這樣的法律。
Section III: Warrantless and Consent Searches
This section discusses when a warrantless search may be legally justified because the person in control of the property is said to have agreed to it.
18. If I Agree to a Search, Is the Search Legal Even If a Police Officer Doesn't Have a Warrant or Probable Cause to Search?
Yes. If a defendant freely and voluntarily agrees to a search, the search is valid and whatever the officers find is admissible in evidence.
For example, assume that Officer Mayer knocks on the door of Caryn-Sue's house. Officer Mayer suspects that Caryn-Sue is part of a group of suspects who are making pirated videotapes, but the officer lacks probable cause to search her house or arrest her. When Caryn-Sue answers the door, the following conversation takes place:
Officer: Good afternoon. I'm Officer Mayer. Is your name Caryn-Sue?
Caryn-Sue: Yes, it is. What can I do for you, officer?
Officer: I'm investigating the production of pirated videotapes, and I'd like to talk to you.
Caryn-Sue: Well, I'm not sure I can help you. I'm not under arrest or anything, am I?
Officer: No, but you may have information that can help the investigation. Do you mind if I come in and look around?
Caryn-Sue: I'm in the middle of a couple of things. Could you come back later?
Officer: If that's necessary. But it won't take long.
Caryn-Sue: We might as well get it over with if you can hurry. Look around all you want, there's nothing here of interest to you.
Officer Mayer enters Caryn-Sue's house, and in a corner of her living room closet notices hundreds of blank videotapes. The officer arrests Caryn-Sue for producing pirated videotapes, and seizes the blank videotapes.
Under these circumstances, a judge would undoubtedly rule that the officer legally seized the blank videotapes. Though the officer had neither a warrant nor probable cause to search Caryn-Sue's house, Officer Mayer's search was valid because Caryn-Sue agreed to let the officer search her house. The fact that the officer was politely insistent on entering the house does not overcome the fact that Caryn-Sue consented to the entry before it was made.
19. Does a Police Officer Have to Warn Me That I Have a Right to Refuse to Consent to a Search?
No. No equivalent to Miranda warnings （see Chapter 1, Section II） exists in the search and seizure area. Police officers do not have to warn people that they have a right to refuse consent to a search. （Ohio v. Robinette, U.S. Sup. Ct. 1996.）
Case Example: Jaime Costello is sitting on a park bench. Officer Abbot approaches Costello and asks to look through his backpack. Costello replies, "Sure, go ahead, I guess I can't stop you." The officer finds illegal drugs in Costello's backpack, and arrests him.
Question: Are the drugs admissible in evidence?
Answer: Yes. The search was valid, since Costello gave his consent. Officer Abbot had no duty to clear up Costello's misconception that he had no choice but to consent.
翻譯句子：
1、This section discusses when a warrantless search may be legally justified because the person in control of the property is said to have agreed to it.
2、If a defendant freely and voluntarily agrees to a search
答案：
1、本節(jié)探討在控制物業(yè)人員同意搜查的前提下，沒有搜查證而進(jìn)行的搜查在法律上是合法的。
2、如果被告在自由自愿的的情況下同意搜查。
20. If a Police Officer Tricks or Coerces Me Into Consenting to a Search, Does My Consent Make the Search Legal?
No. To constitute a valid consent to search, the consent must be given ''freely and voluntarily." If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search. Often, a defendant challenges a search on the ground that consent was not voluntary, only to have a police officer testify to a conflicting version of events that establishes a valid consent. In these conflict situations, judges tend to believe police officers unless defendants can support their claims through the testimony of other witnesses.
Case Example 1: In the example above, assume that before Caryn-Sue consents to Officer Mayer's entry into her home, Officer Mayer falsely tells her, "It will do you no good to refuse entry to me. I've got a warrant, so I'm prepared to come in whether or not you consent." Caryn-Sue replies, "If you've got a warrant, I might as well let you in. Look around all you want."
Question: Has Caryn-Sue validly consented to the search?
Answer: No. Her consent is not voluntary. It is the result of the officer's false claim of having a warrant. However, it may be Caryn-Sue's word against the officer's as to whether the officer tricked her into consenting.
Case Example 2: Undercover cop Jones, posing as an employee of the gas company, asks Casey to allow him into Casey's home to check for an alleged gas leak. Casey agrees. Jones enters and sees drugs and drug paraphernalia in the kitchen.
Question: Is the police search of Casey's home valid under the Fourth Amendment?
Answer: No, consent that is obtained by fraud is not considered voluntary, and Jones's lying and saying he was a gas man would be fraud.
Case Example 3: Same case, but this time Jones has been posing as a parent in Casey's son's school and has made friends with Casey independent of his undercover mission. Casey invites his "friend" Jones in to play cards. Once inside the home, undercover agent Jones unexpectedly sees illegal drugs. He seizes the drugs and arrests Casey.
Question: Was the police entry into Casey's home valid under the Fourth Amendment?
Answer: Yes. Casey was not tricked or coerced in any way to let Jones in. He just didn't know who his friend really was. The Constitution does not prevent the consequences of having what the courts call a "false friend."
翻譯句子：
1、undercover agent這里是啥意思？
2、The Constitution does not prevent the consequences of having what the courts call a "false friend."
3、If a Police Officer Tricks or Coerces Me Into Consenting to a Search, Does My Consent Make the Search Legal?
答案：
1、秘密警察/便衣警察
2、你有一個法庭稱之為“假朋友”的后果，憲法可不管。
3、如果警官欺騙或者脅迫我同意搜查，這種搜查合法嗎？
21. If I Agree to Open My Door to Talk to a Police Officer, and the Officer Enters Without My Permission and Searches, Is the Search Valid?
No. Merely opening the door to a police officer does not constitute consent to entry and search. Thus, whatever such a search turns up would be inadmissible in evidence. Of course, if contraband or evidence of a crime is in "plain view" from the doorway, the officer may seize it. （See Section IV, below.）
22. Can I Consent to a Police Search of My Living Room But not My Bedroom?
Technically yes. Where only limited consent is given, that limitation is supposed to be honored. But if in the course of making their limited search the police see evidence of illegal activity elsewhere, they may properly search and seize it. Also, once in a home, the police are very skilled at obtaining consent from the homeowner to expand the scope of the search.
Case Example 1: Officer Zack asks permission to search Mike's residence for marijuana plants. Mike agrees. Officer Zack proceeds with the search and goes into Mike's desk and reviews some of the documents he finds there.
Question: Is the search valid under the Fourth Amendment?
Answer: No. Searching the documents was illegal because Mike only agreed to the limited search for marijuana plants, and there were obviously no such plants in the desk or the words Officer Zack was reading.
Case Example 2: Officer Zack asks, and Mike agrees, to allow a search of Mike's home for narcotics. In the course of the search, the officer finds a closet containing an illegal weapon, which the officer seizes.
Question: Is the search valid under the Fourth Amendment?
Answer: Yes. The weapons were readily seen in a place where narcotics might be found.
23. Is a Search Valid If the Reason I Consent to It Was Because I Felt Intimidated by the Presence of the Police Officer?
Yes. Many people are intimidated by police officers, and may even perceive a request to search as a command. However, so long as an officer does not engage in threatening behavior, judges will not set aside otherwise genuine consents.
Extreme Case Example: The owner of a massage parlor agrees to allow police officers to search her business premises. At the time the owner consents, she has been handcuffed, is in the presence of seven male police officers, the officers had already physically subdued and pointed a gun at an employee, the officers had threatened to tear up the premises and the owner was of foreign descent and unfamiliar with the American criminal process.
Question: Is her consent valid?
Answer: Yes, at least such was the result in State v. Kyong Cha Kim, 779 Pacific Reporter 2d 512 （Montana 1989）. Despite the outcome of this case, it is possible that another judge in another jurisdiction might find this type of police conduct so coercive or threatening as to make the consent involuntary.
翻譯句子：
1、plain view翻譯成？
2、the owner was of foreign descent and unfamiliar with the American criminal process.
3、Despite the outcome of this case, it is possible that another judge in another jurisdiction might find this type of police conduct so coercive or threatening as to make the consent involuntary.
答案：
1、清清楚楚, 顯而易見，一覽無余
2、業(yè)主是外國血統(tǒng)，不熟悉美國刑事訴訟法。
3、盡管這個案子是這個結(jié)果，可能其他訴訟管轄地的法官會認(rèn)為警官的這種行為屬于強制和威脅的范圍，因而同意不是自愿的。
24. While I'm Out of the House, My Parent, Roommate or Spouse Who Shares the Premises with Me Agrees to a Search of the House That Turns Up Evidence That Incriminates Me. Does the Consent Make the Search Legal?
Perhaps. An adult in rightful possession of a house or apartment usually has legal authority to consent to a search of the entire premises. But if there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants （for instance, their separate bedrooms）.
A tricky twist is that the consent will be considered valid if the police reasonably believe that the consenting person has the authority to consent even if it turns out they don't. （See the example below.）
Case Example: Bob's ex-wife Jan knows where Bob hides his cocaine. She calls the police and tells them about the cocaine. She directs them to Bob's house. When they get there, she opens the door with a key （she never returned it to Bob）. She puts her purse on the entry hall table, opens the hall closet and puts on a sweater that appears to be hers. She then leads the police to the place where Bob stores his cocaine. As far as the police know, Jan lives in the apartment and has full authority to consent to the search.
Question: Even though Jan and the police enter the apartment without Bob's permission, did the search violate Bob's Fourth Amendment rights?
Answer: No. Although the police mistakenly thought that Jan had the authority to consent to the search, the mistake would be considered a reasonable one since every fact surrounding the search （including Jan's having a key and knowing her way around the apartment） pointed to that authority.
25. While I'm Out, the Landlord of the Apartment Building Where I Live Gives a Police Officer Permission to Search My Apartment. Does the Landlord's Consent Make the Search Legal?
No. The landlord is not considered to be in possession of an apartment leased to a tenant, and therefore lacks authority to consent to a search of leased premises. The same is true for hotel operators.
26. Can the Police Search My Hotel Room Without a Warrant?
The general rule is no. Again, however, an exception （such as consent or an emergency） may exist which would justify a warrantless hotel room search.
翻譯句子：
1、A tricky twist is that the consent will be considered valid if the police reasonably believe that the consenting person has the authority to consent even if it turns out they don't.
2、knowing her way around the apartment
答案：
1、一個狡猾的伎倆是，如果警察相信同意的人有權(quán)同意，而實際上他們沒有這個權(quán)利，這種同意也是合法有效的。
2、熟悉她的房間
27. If My Employer Consents to a Police Search of My Workspace, Are the Results of the Search Admissible in Evidence?
Probably. An employer can validly consent to a search of company premises. An employer's consent extends to employees' work areas, such as desks and machinery. However, police officers might need a warrant to search a clearly private area, such as an employee's clothes locker.
28. Can My Child Let the Police Search Our Home While I Am at Work?
This would primarily depend on the child's age. The younger the child, the less authority he or she would have to consent to a search. The California courts, for example, require a child to be at least 12 to consent, and even then the child must appear to be ''in charge" of the house at that time.
Section IV: Warrantless Searches and the Plain View Doctrine
This section is about warrantless searches and seizures that are considered valid because the police officer initially spotted contraband or evidence that was in the officer's plain view.
29. I Agreed to Talk to a Police Officer in My House. The Officer Saw Some Drugs on a Kitchen Counter, Seized Them and Arrested Me. Is This Legal?
Yes. Police officers do not need a warrant to seize contraband or evidence that is "in plain view" if the officer is where he or she has a right to be. An officer's seizing of an object in plain view does not violate the Fourth Amendment because the officer technically （and legally） has not conducted a search.
Case Example 1: During daylight hours, Officer Mendoza stops a car for having an expired license plate. When Officer Mendoza approaches the driver, the officer sees a packet of what appears to be illegal drugs on the front seat of the car. The officer seizes the packet and arrests the driver.
Question: Was the seizure of the drugs legal?
Answer: Yes. The drugs were in plain view. Though the officer had no probable cause to search the car at the moment the officer pulled the car over, seeing the illegal drugs on the front seat gave the officer a valid basis for seizing them.
翻譯句子：
1、clothes locker翻譯成？
2、Though the officer had no probable cause to search the car at the moment the officer pulled the car over, seeing the illegal drugs on the front seat gave the officer a valid basis for seizing them
答案：
1、衣柜
2、盡管警官讓車靠邊停下來還可能沒有理由搜查，一旦看到汽車前排的非法毒品，警察就可以合法扣留。
Case Example 2: Same case, except that the traffic stop occurs at night and Officer Mendoza sees the packet of drugs on the front seat only after shining a flashlight into the interior of the car.
Question: Is the officer's seizure of the packet still legal?
Answer: Yes. As long as police officers are standing where they have a right to be, objects that they see with the aid of a flashlight are in plain view.
Case Example 3: Officer Tanaka pulls a car over for running a red light. When the driver rolls down the window, Officer Tanaka detects a strong odor of marijuana emanating from inside the car. The officer orders the driver out of the car and conducts a search. Underneath the driver's seat, the officer finds a pouch filled with marijuana.
Question: Did the officer legally find the marijuana?
Answer: Yes. Smelling the marijuana gave Officer Tanaka probable cause to believe that the car contained illegal drugs （under what has come to be called the "plain smell" doctrine）. The officer could therefore conduct an immediate search, without having to obtain a search warrant first.
30. If a Police Officer Illegally Enters a House and Observes Evidence in Plain View, Can the Officer Seize the Evidence?
No. A police officer can seize objects in plain view only if the officer has a legal right to be in the place from which the objects can be seen or smelled. If an officer has no legal right to be where he or she is when the evidence or contraband is spotted, the "plain view" doctrine doesn't apply.
Case Example: Two police officers in a helicopter fly over the backyard of a home as they are returning from the scene of a highway collision. Aided by binoculars, one of the officers sees a large number of marijuana plants growing in a greenhouse in the backyard. The officers report what they have seen, a search warrant is obtained and the occupant of the house is arrested and charged with growing illegal drugs for sale.
Question: Was the officers' aerial search of the backyard legal?
Answer: Yes. The police officers had a right to be in public airspace, and the occupant had no reasonable expectation of privacy for what could be seen from public airspace. （Maybe this is an example of "plane view."） The outcome might be different if the police officer had spotted the plants from a space station by using advanced technology spying equipment. The homeowner might reasonably expect that the backyard would not be subjected to that type of surveillance.
"Dropsy" Cases
"Dropsy cases" are a familiar setting in which police officers are often accused of misleading courts about how they got hold of illegal drugs. In dropsy cases, police officers find drugs or other incriminating evidence through searches that might not withstand judicial scrutiny. To eliminate the Fourth Amendment problem, the officers testify that the defendants dropped the contraband on the ground just before they were arrested. Voila, the contraband was in plain view. Over the years, an amazing number of defendants have developed ''dropsy" problems!
翻譯句子：
1、Dropsy cases 翻譯成啥?
2、If an officer has no legal right to be where he or she is when the evidence or contraband is spotted, the "plain view" doctrine doesn't apply.
答案：
1、掉東西案件。
2、發(fā)現(xiàn)證據(jù)或違禁品時，警官無權(quán)在此，那么“直觀”學(xué)說不能用。
Section V: Warrantless Searches That Are Incident to Arrest
This section deals with warrantless searches that are considered valid because they were made in the course of making a valid arrest.
31. Can an Officer Legally Search Me After Arresting Me?
Yes. Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. Assuming that the officer has probable cause to make the arrest in the first place, a search of the person and the person's surroundings following the arrest is valid, and any evidence uncovered is admissible at trial.
32. If I'm Arrested on the Street or in a Shopping Mall, Can the Arresting Officer Search My Dwelling or Car?
No. To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search. The general rule is that after arrest the police may search a defendant and the area within a defendant's immediate control. （Chimel v. California, U.S. Sup. Ct. 1969.） For example, an arresting officer may search not only a suspect's clothes, but also a suspect's wallet or purse. If an arrest takes place in a kitchen, the arresting officer can probably search the kitchen, but not the rest of the house. If an arrest takes place outside a house, the arresting officer cannot search the house at all. To conduct a search broader in scope than a defendant and the area within the defendant's immediate control, an officer would have to obtain a warrant.
Case Example: Officer Montoya arrests Sarah Adams for driving under the influence of illegal drugs. Before taking Sarah to jail, Officer Montoya takes Sarah's key and enters her apartment. Inside, Officer Montoya finds a number of computers that turn out—after a check of their serial numbers—to have been stolen. Officer Montoya seizes the computers as evidence and adds possession of stolen property to the charges against Sarah.
Question: Are the computers admissible in evidence?
Answer: No. The officer should have obtained a search warrant before entering Sarah's apartment. Since Officer Montoya had no right to be inside the house in the first place, it doesn't matter that the computers were in plain view once the officer was inside.
Don't Go Back in the House
When the police arrest suspects outside their residences and have no basis for making a protective sweep, officers may try to expand the scope of a permissible search by offering to let suspects go inside to get a change of clothes, feed a pet, etc. before taking the suspect to jail. While accompanying the suspect inside the residence, officers can seize whatever may be in plain view （for instance, drugs）. Thus, suspects may wisely refuse an invitation by the arresting officers to let the suspect enter the residence, and instead rely on their friends if they need clothes or pet feeding.
翻譯句子：
1、To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search
2、a protective sweep
3、Thus, suspects may wisely refuse an invitation by the arresting officers to let the suspect enter the residence, and instead rely on their friends if they need clothes or pet feeding.
答案：
1、為證明逮捕后附帶搜查的正當(dāng)合法，逮捕和搜查之間必須存在空間上的聯(lián)系。
2、保護(hù)性搜查
3、因此，嫌疑犯最好理智地拒絕警官請自己回屋的好意，而是請朋友幫忙拿自己的衣服或代養(yǎng)寵物。
33. If I'm Arrested Outside My Place of Residence, Can the Police Go Inside to Look for Accomplices?
Sometimes. Police officers can make "protective sweeps" following an arrest. （Maryland v. Buie, U.S. Sup. Ct. 1990.） When making a protective sweep, police officers can walk through a residence and make a "cursory visual inspection" of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view.
Case Example: Police officers have warrants to arrest Fox and Mulder for armed bank robbery. Fox and Mulder live together in a house. Officers Spock and Kirk stake out the house and arrest Fox coming up the driveway. With Fox in custody, Spock goes into the house to conduct a protective sweep. Spock goes into a bedroom, lifts up a mattress and seizes a gun hidden between the mattress and the box spring. Witnesses later identify the gun as the one used in the bank robbery.
Question: Did Officer Spock lawfully seize the gun?
Answer: No. Because Fox and Mulder live together, Fox was arrested outside the house and they were suspected of committing a violent crime, Spock probably had the right to make a protective sweep to look for Mulder. However, Spock had no right to lift up the mattress, because nothing suggested that Mulder might be hiding under it. After making sure that Mulder wasn't in the house, the officers should have secured the house and gotten a search warrant.
34. If the Police Properly Arrest Me in My Home, Can They Also Search the Home?
They can to a certain extent. They may search the person arrested and the area within that person's "immediate control." Immediate control is interpreted broadly to include any place a suspect may lunge to obtain a weapon. If the alleged crime is particularly violent, or if the police have reason to believe other armed suspects may be in the residence, the police may do a "protective sweep" to search in any place such accomplices may be hiding. Also, while they are making a lawful arrest or protective sweep, the police may typically search and seize anything apparently related to criminal activity that is in "plain view."
翻譯句子：
1、cursory visual inspection
2、Immediate control is interpreted broadly to include any place a suspect may lunge to obtain a weapon
答案：
1、匆匆掃描一眼
2、直接控制從廣義上講包括嫌疑犯可以沖去拿武器的任何地方。
35. Do Guests in a Home Have the Same Privacy Rights as the Homeowner or Tenant?
The answer depends on why the guests are there. If they are there for purely social reasons or to spend the night, they are probably protected against unreasonable searches and seizures to the same extent as the homeowner or tenant. However, if the guests are there for a brief commercial transaction or illegal purpose and are not staying overnight, then they do not have the same privacy rights as social overnight guests and thus may not be able to successfully challenge a police search that took place in their host's home. （Minnesota v. Carter, U.S. Sup. Ct. 1998.）
36. Is a Search Following an Illegal Arrest Valid?
No. If an officer lacks probable cause to make an arrest, the arrest cannot validate a search. Any evidence found during a search following an improper arrest is inadmissible in evidence.
37. If an Officer Searches Me After a Valid Arrest and Finds Evidence for an Entirely Different Crime, is the Evidence Admissible?
Yes. An officer can seize whatever evidence a proper search incident to an arrest turns up. So long as the search is valid, it doesn't matter if a seized object has nothing to do with the crime for which the defendant was arrested.
Section VI: "Stop and Frisk" Searches
This section describes when a police officer may conduct a limited search of a person for the purpose of assuring the officer's safety.
38. Short of Arresting Me, is There Any Legal Basis Upon Which a Police Officer Can Stop Me on the Street and Search me?
Yes, using a procedure known as "stop and frisk," authorized by Terry v. Ohio, U.S. Sup. Ct. 1968. For an officer to "stop and frisk" a person, the officer must have reasonable grounds to suspect that the person is involved in criminal activity. The reasonable grounds give the officer a legal basis to detain and question a person （the "stop"）. And for self-protection, the officer can at the same time carry out a limited pat-down search for weapons （the ''frisk"）.
Case Example 1: Officer Crosby sees Stills and Nash talking normally on a street corner. Having a hunch that a drug transaction may be underway, the officer detains and frisks the pair. The officer finds a gun in Nash's pocket, and arrests him.
Question: Was the gun validly seized?
Answer: No. Officer Crosby had no right to detain Stills and Nash in the first place. A "hunch" doesn't authorize detention; an officer must have "articulable facts supporting a reasonable suspicion." （United States v. Hensley, U.S. Sup. Ct. 1985.） Since the initial detention was improper, the frisk incident to that detention was improper, and the fruits of the frisk are inadmissible.
Case Example 2: Officer Jacks sees Jill hiding under the steps of an apartment building. As the officer approaches, Jill runs away. Officer Jacks captures Jill and pats her down for weapons. The officer removes a hard object that turns out to be a plastic envelope containing burglar's tools.
Question: Can Officer Jacks legally seize the tools?
Answer: Yes. Officer Jacks had reasonable grounds for suspecting that Jill was engaged in criminal activity. The officer had the right to detain and pat down Jill, and remove an object that might have been a weapon.
翻譯句子：
1、privacy rights
2、hunch
3、The officer removes a hard object that turns out to be a plastic envelope containing burglar's tools.
答案：
1、隱私權(quán)
2、直覺或預(yù)感
3、警察從他身上搜出一個硬東西，結(jié)果是裝了盜竊工具的塑料包。
39. What's the Difference Between a "Search" and a "Frisk?"
A search is more extensive. An officer conducting a full search can probe extensively for any type of contraband or evidence. A frisk allows officers only to conduct a cursory pat-down and to seize weapons such as guns and knives or objects that the officer can tell from a "plain feel" are contraband. （Minnesota v. Dickerson, U.S. Sup. Ct. 1993.）
Case Example 1: Officer Mace pulls over a driver who resembles a person wanted for bank robbery. Officer Mace asks the driver to get out of the car, then frisks the driver. The officer feels a soft packet in the driver's back pocket. With the packet still in the driver's pocket, the officer pokes a finger through the packaging into the packet, rubs powder from the packet onto the finger, removes the finger and decides from the powder's appearance and smell that it is an illegal drug. The officer removes the packet and arrests the driver for possession of illegal drugs.
Question: Are the contents of the packet admissible in evidence?
Answer: No. The officer had reasonable grounds for detaining the driver, but lacked probable cause to arrest the driver and conduct a full search. Therefore, all the officer could do was frisk the driver and seize either a weapon or contraband "in plain feel." Since the soft packet could not reasonably have been mistaken for a weapon, and the officer had to manipulate the packet before deciding that it contained illegal drugs, the officer had no right to remove it from the driver's pocket.
Case Example 2: Same case, except that Officer Mace testifies that, "When I frisked the driver, I felt a packet of little pebbles that felt like rock cocaine, so I seized it."
Question: Is the rock cocaine admissible in evidence?
Answer: Yes. The officer could tell from "plain feel" that the packet contained illegal drugs, so the seizure is valid. （Note: Police officers are generally very "up" on the law of search and seizure, and know how to testify so that seizures stand up in court.）
翻譯句子：
1、Police officers are generally very "up" on the law of search and seizure, and know how to testify so that seizures stand up in court
2、With the packet still in the driver's pocket, the officer pokes a finger through the packaging into the packet, rubs powder from the packet onto the finger, removes the finger and decides from the powder's appearance and smell that it is an illegal drug.
答案：
1、警官都很熟悉搜查和扣押法，知道在法庭上如何證明扣押合法。
2、包在司機口袋里，警官用指頭戳開包裝伸進(jìn)包里弄了些粉末，從粉末的外觀和味道判斷，這是毒品。
40. Does "Stop and Frisk" Give Police Officers the Right to Regularly Detain and Hassle Me, Maybe Because of My Ethnicity?
No. No matter what a person's appearance, the type of neighborhood, or time of day, an officer can detain a person only if the officer can point to objective facts showing a reasonable basis that that particular person is engaged in suspicious behavior. Undoubtedly, however, some police officers illegally use "stop and frisk" to harass "undesirables," confident that they can later articulate enough circumstances to justify the detention. Again, for their own personal safety, people who believe that they are unfair targets of police harassment should put their claims before a judge rather than act belligerently on the street.
41. Seeing a Police Officer Walking in My Direction, I Tossed Away a Packet of Illegal Drugs. Can the Officer Pick It Up and Use It As Evidence Against Me?
Yes. The officer neither detained the defendant nor conducted a search. The officer had the right to pick up whatever the defendant tossed away and make an arrest when the object turned out to be illegal drugs.
Section VII: Searches of Car and Occupants
This section discusses when the police may stop and search the car, the driver and any passengers.
42. Can the Police Search Me or My Car Simply Because They Stopped Me and Gave Me a Traffic Ticket?
No. A stop that only results in a traffic ticket is not considered an arrest that, by itself, justifies a search. （Knowles v. Iowa, U.S. Sup. Ct. 1999.） （See Section V for more on searches incident to an arrest.）
Case Example 1: Officer Colombo pulls a car over for making an illegal left turn. Inside the car are four teenagers. The officer has no reason to believe that criminal activity has taken place. Nevertheless, believing that teenagers are especially susceptible to using drugs, Officer Colombo orders the driver and passengers out of the car and searches the car's interior. He finds two packets of illegal drugs, and places all of the car's occupants under arrest.
Question: Was the officer's search of the car valid?
Answer: No. Under these facts, Officer Colombo had no probable cause prior to the search to believe that the car contained drugs or any other evidence of criminal activity.
Case Example 2: Vy Schnell is given a ticket for speeding. After issuing the ticket, the officer orders Vy to open the trunk of the car. Inside the trunk is an unlawful weapon.
Question: Can the officer legally arrest Vy for possession of an illegal weapon?
Answer: No. Under these facts the officer lacked probable cause to believe that contraband was in the trunk. And, the simple issuance of a citation is not an arrest that would convert the search of the trunk into a "search incident to an arrest." （See Section V.）
翻譯句子：
1、undesirables翻譯成中文除了不合需要, 不受歡迎, 令人不快，還能翻譯成什么？
2、search incident to an arrest
3、The officer had the right to pick up whatever the defendant tossed away and make an arrest when the object turned out to be illegal drugs.
答案：
1、礙眼，不順眼
2、搜查附帶逮捕
3、警察有權(quán)撿起被告拋棄的東西，如果是毒品也可逮捕被告。
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