Journal of Criminal Law and Criminology Volume 51 Article 6 Issue 3 September-October Fall 1960 Book Reviews Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Book Reviews, 51 J. Crim. L. Criminology & Police Sci. 339 (1960-1961) This Book Review is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 19601 CRIMINAL LAW COMMENT jurisdiction of the United States. Waterways which The federal courts, as indicated by the decision are within the federal admiralty and maritime in Hoopengarner v. United States, have been ex- jurisdiction of the United States when outside the tending their criminal jurisdiction over crimes jurisdiction of a particular state are the following: committed on the Great Lakes and the waters (1) Arms of the seas such as Long Island Sound, connecting them. The decision in Hoopengarnrr s Chesapeake Bay, and Puget Sound,2 (2) water- signifies that the federal courts will take juris- ways which are highways of commerce such as the diction of such offenses regardless of state juris- Mississippi River,27 and (3) canals, even when diction and even if a state court has already artificially made, as long as they are navigable prosecuted the offender. When a crime is com- (even when located wholly within the sovereignty mitted on a tributary of the Great Lakes, the 28 of one state). federal court will have jurisdiction only if the state 26 The J. Duffy, 14 F. 2d 426 (D. Conn. 1926). The court does not. The problem of jurisdiction over offense occurred while the vessel was on Long Island maritime offenses is one of determining the lo- Sound. See also 1 BENmnxcr, ADmmRALr, §42 (6th ed. cation or the status of the vessel involved in the 1940). crime. Thus, the problem has shifted from a 27 Rossiter v. Chester, 1 Doug. 154 (Mich. 1845), See also 1 BENEDicT, AimixtALT, §43 & 44 (6th ed. determination of whether any court, federal or 1940).28 state, will be able to try the accused to a determi- EX park Boyer, 190 U.S. 629 (1884). The collision between the vessels occurred on the Illinois-Michigan nation of in which court the accused will be tried. canal, wholly within the Illinois River and the Missis- RicHAPD K. JANGER sippi River. The court held that the case was within the admiralty jurisdiction because the waterway was whether the jurisdiction would extend to waters wholly navigable but it expressly reserved the question within a state not having commerce. BOOK REVIEWS EVIDENCE Or GUILT-RZEsTRICTIONS UPON ITS rather than the page; the latter is also true of the DIscovE y OR CompuLsoRY DISCLOSURE. footnotes. The book is remarkably free from errors By John M. Maguire. Boston, Toronto: in printing; at page 13 the word "indispensable" is Little, Brown and Company, 1959; xi, 295 pp., misspelled; and at page 225 the word "noting" is $12.50. misspelled. Professor Magnire offers at page 3 a very con- This book is a commentary on five important vincing reason for writing his book: "So much and protective rules of evidence. Three of them involve such violent popular discussion of these protective constitutional violations: (1) self-incrimination, (2) involuntary confessions, and (3) unreasonable rules is occurring, and they are being put to so many tests and puzzling applications, that a search and seizure. Two of them involve violations technical treatise of fair comprehensiveness about of statutes, rules of court, or case law: (1) wire- them seems timely. Hence this book." The re- tapping and other communications interception; viewer has been chiefly interested in the topics of and (2) the use of confessions obtained during criminal pleading and criminal practice, but has illegal detention between arrest and bringing before been under the impression that in many states a the magistrate. As its title shows, the book deals fourth or fifth of the cases on criminal procedure with the legal restrictions upon discovery or com- involve questions of evidence. Yet in this country, pulsory disclosure of evidence of guilt. The chap- as contrasted to England, virtually no one volume ters are complete in themselves; but the author treatises have previously been written on criminal employs a plan of cross-reference whiich makes it evidence. possible to see the relations of each rule to the The author of this review is very much pleased other rules and the extent to which they overlap. that Professor Maguire has come around to the The table of contents is very detailed but unfor- view that a separate volume on criminal evidence tunately makes reference to the section number is desirable. Back in 1948 when I corresponded BOOK REVIEWS [Vol. 51 with him he was much more reluctant. He felt 1960. The reader will thus obtain a very good pic- that there was such an over-production of treatises ture of existing law and existing trends in the law. on law that few get any benefit from most of them. Possibly it may be concluded that continuity in the American law has become so confusingly vast as to law has not been given sufficient weight. However make attempts at encyclopaedic treatment sources to discuss the earlier law would make the book of obscurity rather than illumination. He could unreasonably -long. Legal historians might well see some use in brief, readable treatises that go to give more attention to the topics discussed in this the bedrock of principle and are not sunk with a book. clutter of citations. But these are definitely out of The author has maintained a nice balance be- fashion. We must have profuse information even tween protecting the rights of the individual if it chokes us. Professor Maguire felt that even a defendant and protecting the right of the public to fractional book on criminal evidence should be have the criminal law enforced without encounter- written by one steeped in the whole topic of evi- ing insuparable obstacles. He states at page 241: dence. It is surely one of the greatest virtues of the "The purpose of this book is far less to accomplish volume under review that it was written by one reformative change in the main protections legally who has given his whole career to the teaching of afforded individuals and other persons against evidence in one of the greatest law schools. From overwhelming governmen tal pressure in determina- the point of view of this reviewer, Professor tions of guilt than to explain the present form and Maguire has made the best possible use which a effect of those safeguards. Wise reform of social retired professor can make of his time. He has left restraints can occur only after clear, just, and students of evidence, criminal procedure, and con- comprehensive statement as to what they are and stitutional law permanently in his debt. how they work." The method of analysis is one calculated to make The author is not among those writers on evi- the reader understand the rules discussed. Each dence who think that the individual criminal rule is illustrated by a hypothetical fact situation, defendant is too well protected. At page 242 he followed by a series of questions. The questions concludes that "there is good cause to believe that are concerned with the justification for the rule, on the whole our scheme for protecting private the situations in which it operates, the pressures persons against overwhelming official power in the that may be used to discourage the use of the privi- proof of guilt is civilized and reasonable." Many lege, the degree to which governmental action can writers on criminal evidence seem more prosecu- restrict the application of the rule, and conduct tion minded than writers on criminal pleading and which will prevent a claimant from asserting the practice. But this is surely not true of Professor privilege. There is very helpful discussion of the Maguire. extent to which violations of the rule result not The book exhibits a number of virtues not dis- only in exclusion of evidence directly obtained by played in many modern writings on evidence. The the forbidden conduct but also in the exclusion of language is as clear as the nature of the subject evidence obtained indirectly thereby. matter permits. The cases hold what they are cited There is a discussion of the McNabb-Mallory for. When the author is uncertain about a matter, doctrine in chapter four. The whole topic is dis- the reader is made aware that he is uncertain. The cussed in only 12 pages. Those who have studied reviewer has read this book three times, and expects this subject will find little that is new. But many to turn to it often in the future. will agree with the author's conclusions as ex- LESTER B. ORFIELD pressed at page 166: "Critically viewed neither Indiana University Law School side of this dispute overwhelms the other; very likely the whole intricate matter is one for detailed Tim SELECTION OF OFFENDERS FOR PROBATION. legislative adjustment rather than for rule-of- By Max Griinhut, in cooperation with United thumb judicial treatment. Certainly no adjust- Nations Secretariat. United Nations Publica- ment can be truly satisfactory without preliminary tion, New York, 1959, (Sales No.: 59.IV.4.) systematic collection and appraisal of much in- 66 pp. $0.50 (or equivalent in other currencies). formation from many sources." This pamphlet presents valuable, up-to-date The cases cited by the author are for the most information on important aspects of probation part very recent, many in the decade from 1950 to experience in Western Europe.