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Contents

Preface xx courts, controversy, & reducing crime Is It Time to End the

War on Drugs? 22

chaP Ter 1 Media Depictions and Distortions of Criminal

Courts 22
Courts, Crime, Conclusion 23
and Controversy 2
courts, law, & media The Casey Anthony Trial 24
Courts and Crime 6 Chapter Review 25
Courts and the Criminal Justice System 6 Critical Thinking Questions 26
An Interdependent Criminal Justice System 7
A Fragmented Criminal Justice Nonsystem 7 Key Terms 26
Tensions and Conflicts 8 For Further Reading 26
An Overview of the U.S. Courts 9
Identifying the Actors in the Courthouse 10
Prosecutors 11 PARt I tHE LEgAL SYStEM
Defense Attorneys 11
Judges 12 chaP Ter 2
Defendants and Victims 12
Following the Steps of the Process 12 Law and Crime 28
Crime 13 The Basis of Law 31
Arrest 13
Initial Appearance 13 The Common Law Heritage 31
Bail 13 Judge-Made Law 32
Grand Jury 13 Precedent 32
Preliminary Hearing 14 Multiple Sources of Law 32
Arraignment 14 Constitutions 33
Discovery 14 Statutes 34
Pretrial Motions 14 Administrative Regulations 34
Plea Negotiations 14 Judge-Made Law 34
Trial 14 The Adversary System 35
Sentencing 15 Safeguards 35
Appeal 15 Presumptions and Inferences 36
Law on the Books 15 Burdens of Proof 36
Law in Action 15 The Rights of the Accused 37

case close-up Brown v. Mississippi 17 courts, law, & media Chicago (2002) 38

Courts and Controversy 19 Due Process 39

Crime Control Model 20 Bill of Rights 39
Due Process Model 21 Civil Law Overview 41
Shifting the Balance 21 Types of Civil Disputes 42

vii

Civil Remedies 42 The Constitutional Convention 63

Using Civil Remedies to Fight Crime 43 The Judiciary Act of 1789 63
1789–1891 64
courts, controversy, & reducing crime Should Asset Court of Appeals Act of 1891 64
Forfeiture Be Limited? 44 Federal Courts Today 65
Law in Controversy: The Incivility of Civil U.S. Magistrate Judges 66
Justice 44 Caseload of U.S. Magistrate Judges 67
Civil Liability of Criminal Justice Officials 45 U.S. District Courts 67
Criminal Law Overview 46 Caseload of U.S. District Courts 67
Elements of a Crime 47 Diversity Jurisdiction 69
Actus Reus: The Guilty Act 48 Federal Questions 69
Mens Rea: Criminal Intent 48 The Constitutionalization of Criminal
Union of Act and Intent 48 Procedure 70
Attendant Circumstances 48 Discrimination Laws and Civil Rights
Results 49 Cases 70
Defining Crimes 49 Prisoner Petitions 70
Criminal Defenses 49 Discrimination and Civil Rights Caseload
Defenses That Negate Mens Rea 49 in the Federal Courts 72
Defenses of Justification 51 U.S. Courts of Appeals 72
Procedural Defenses 51 Caseload of U.S. Courts of Appeals 73
Defenses of Excuse 51
U.S. Supreme Court 74
Effects of Criminal Law on the Courts 51 Granting Cert: The Rule of Four 74
Criminal Law and Inconsistencies 51 Caseload of U.S. Supreme Court 74
case close-up Unites States v. Loughner 52 Circuit Justices 75
Criminal Law and Plea Bargaining 53 Specialized Federal Courts 75
Criminal Law and Sentencing 53 Military Justice 75
Conclusion 53 Enemy Combatants 77
Chapter Review 53 courts, law, & media The Response (2010) 78
Critical Thinking Questions 54 Foreign Intelligence Surveillance Court 78
Key Terms 54 Immigration Courts 79
For Further Reading 55 case close-up Was Zacarias Moussaoui The 20th
Hijacker? 80
chaP Ter 3
Federal Judicial Administration 81
Federal Courts 56
Chief Justice 81
Judicial Conference of the United States 83
Basic Principles of Court Organization 59 Administrative Office of the U.S. Courts 83
Dual Court System 59 Federal Judicial Center 84
Jurisdiction 59 Judicial Councils 84
Geographical Jurisdiction and Venue 59 U.S. Sentencing Commission 84
Subject Matter Jurisdiction 61 Caseloads in the Federal Courts 84
Personal Jurisdiction 61 Increase the Number of Federal Judges? 85
Hierarchical Jurisdiction 61 Reduce Federal Jurisdiction? 85
courts, controversy, & tHe administration of justice Consequences of Federal Involvement in the
Should the Double Jeopardy Clause Prohibit Parallel Criminal Justice System 86
State and Federal Prosecutions? 62 Forum for Symbolic Politics 86
Differentiating Trial and Appellate Courts 62 Federal Dollars 86
History of the Federal Courts 63 Conclusion 87

Chapter Review 87 Centralized Rule Making 109

Critical Thinking Questions 89 Centralized Judicial Budgeting 109
Statewide Financing 110
Key Terms 89
Analysis 112
For Further Reading 89
Problem-Solving Courts 112
Drug Courts 112
chaP Ter 4
case close-up Ewing v. California and Three Strikes
State Courts 90
Laws 113
The Effectiveness of Drug Courts 116
History of State Courts 92 Juvenile Drug Courts 117
Colonial Courts 92 Domestic Violence Courts 117
Early American Courts 93 Mental Health Courts 118
Courts in a Modernizing Society 93
Technology Shapes the Courtrooms of
Trial Courts of Limited Jurisdiction: Lower The Future 119
Courts 94
Consequences of Court Organization 120
Cases in the Lower Courts 94
Decentralization and Choice of Courts 120
Nonfelony Criminal Cases 95
Local Control and Local Corruption 120
Traffic Offenses 95
Uneven Court Financing 120
Small Claims Civil Cases 96
Justice of the Peace Courts 96 Conclusion 121
Chapter Review 121
courts, controversy, & reducing crime Should DUI and
Distracted Driving Prosecutions Be Increased? 97 Critical Thinking Questions 122
Lower Caseloads 99 Key Terms 122
Lack of Resources 99 For Further Reading 123
Familiarity 99
Reforming JP Courts 100
Municipal Courts 100 PARt II LEgAL Ac toRS
Assembly-Line Justice and the Courtroom
Work Group 101 chaP Ter 5
Sentencing in the Lower Courts 101
Problems of the Lower Courts 102 The Dynamics of
Inadequate Financing 102
Inadequate Facilities 102 Courthouse Justice 124
Lax Court Procedures 103 The Courthouse and the People Who Work
Unbalanced Caseloads 103 There 126
Community Justice 103 The Courthouse 127
Alternative Dispute Resolution 103 The Courtroom 127
Community Courts 104 Behind the Scenes 129
Trial Courts of General Jurisdiction: Major Trial Courthouse Security and Changing
Courts 104 Technologies 131
courts, law, & media American Gangster (2007) 106 Targeted Acts of Violence in Courts 132
Security Beyond the Courthouse 133
Intermediate Courts of Appeals 106
Dynamics of Courthouse Justice 133
State High Courts of Last Resort 108
courts, law, & media Law & Order 134
Court Unification 109
Key Components 109 Assembly-Line Justice 135
Simplified Court Structure 109 Strengths of the Explanation 135
Centralized Administration 109 Weaknesses of the Explanation 135

Discretion 136 Decentralization 159

The Downside of Discretion 137 Prosecution in Federal Courts 160
The Courtroom Work Group 137 Solicitor General 160
Mutual Interdependence 138 Criminal Division of the Justice
Shared Decision Making 138 Department 161
Socialization 139 U.S. Attorneys 161
Normal Crimes 139 Prosecution in State Courts 162
Rewards and Sanctions 139 State Attorneys General 162
Variability in Courtroom Work Groups 139 Chief Prosecutor 162
courts, controversy, & gender equity Is Gender Bias a Local Prosecutor 163
Significant Problem in the Courts? 140 The Prosecutor’s Office at Work 164
Assistant District Attorneys 164
The Problem of Delay 141
Learning the Job 165
Consequences of Delay 143
Promotions and Office Structure 166
Assessing the Costs of Delay 143
Supervision 167
Law on the Books Approach to Court Delay 143 Attempts at Greater Supervision 167
Speedy-Trial Laws 144
Prosecutorial Ethics 168
Limits of Speedy-Trial Laws 144
Prosecutorial Immunity 168
case close-up Barker v. Wingo and the Right to a Speedy Ethical Duties of Prosecutors 168
Trial 145
courts, law, & media Nancy Grace 170
Law in Action Approach to Court Delay 145
Case Scheduling 146 Prosecutors and Courtroom Work Groups 170
Efforts at Coordination 146 Conflicting Goals and Contrasting Work
Variability in Courtroom Work Groups Groups 171
Revisited 146 Political Styles and Contrasting Work
Legal Ethics 146 Groups 171
Conclusion 147 The Expanding Domain of the Prosecutor 172
Improving Police–Prosecutor Relationships 172
Chapter Review 148 Community Prosecution 173
Critical Thinking Questions 148
Key Terms 149 courts, controversy, & gender equity Are Sexual Assaults
against Women Underprosecuted? 174
For Further Reading 149
Conclusion 174
chaP Ter 6 Chapter Review 175

Prosecutors 150
Critical Thinking Questions 176
Key Terms 176
Origin of the Public Prosecutor 153 For Further Reading 177
From Private to Public Prosecutions 153
Quasi-Public Prosecutions 154
Role of the Prosecutor 154 chaP Ter 7
Broad Discretion 154
Limits on Discretion During Trial 156 Defense Attorneys 178
Charging Decisions 156 The Right to Counsel 180
Overview of Focal Concerns Theory 156 Nonfelony Criminal Prosecutions 181
Stages of the Criminal Process 181
case close-up Connick v. Thompson and Prosecutorial
Misconduct 157 case close-up Gideon v. Wainwright and the Right to
Focal Concerns Theory Applied to Charging 158 Counsel 183

Ineffective Assistance of Counsel 185 Nominations to the U.S. Supreme Court 216
Self-Representation 186 Executive Appointments in the States 217
Defense Attorneys and Courtroom Work Election of Judges 217
Groups 187 Merit Selection 218
Rewards and Sanctions 187 Consequences of Judicial Selection 219
Variations in Cooperation 189 Which System Is Best? 219
An Assessment 189 Similarities in Judges’ Backgrounds 220
The Criminal Bar 190 Diversity and the Judiciary 221
Diversity and Stratification of the Legal case close-up Chisom v. Roemer and Diversity on the
Profession 190 Bench 223
Environment of Practice 190
Judging the Judges 223
Providing Indigents with Attorneys 191 Judicial Independence 224
Assigned Counsel 191 Judicial Performance 224
Contract Systems 192
courts, controversy, & tHe administration of justice Is
courts, controversy, & economic inequality Are We Spending Judicial Independence Being Undermined? 225
Too Little or Too Much on Indigent Defense? 193
Judicial Misconduct 226
Public Defender 194 State Judicial Conduct Commissions 226
Assessing the Merits of Public Defenders 194 Federal Conduct and Disability Act 228
Lawyers and Clients 196 Judicial Ethics 230
Lawyers’ Views on Their Clients 196
Defendants’ Views on Their Lawyers 197 Conclusion 231
Defense Attorney Ethics 198 Chapter Review 232
Conclusion 199 Critical Thinking Questions 232
Key Terms 233
courts, law, & media Boston Legal (ABC Television,
For Further Reading 233
2004–2008) 200

Chapter Review 201 chaP Ter 9

Critical Thinking Questions 201
Key Terms 202
Defendants, Victims,
For Further Reading 202 and Witnesses 234
Characteristics of Defendants 237
chaP Ter 8 Overwhelmingly Male 237
Judges 204 courts, controversy, & racial discrimination Can Latinos
Get Equal Justice under the Law? 238
The Position of Judge 206
Powers of the Judge 207 Mostly Underclass 238
Benefits of the Job 207 Racial Minorities Overrepresented 238
Frustrations of the Job 207 Defendants in Court 240
Judges within the Courtroom Work Group 209 Pro Se Defendants 240
The Pitfalls of Social Media for Defendants 241
courts, law, & media Judge Judy: Justice with an Attitude Courts Through the Eyes of Victims and
or Just Plain Nonsense? 210 Witnesses 242
Varying Roads to a Judgeship 210 Frustrations in Coping with the Process 243
Executive Appointments 214 Travails of Testifying 243
Nominations to the Federal Bench 215 Surprising Support for the System 243
The Role of the American Bar Association Victims and Witnesses Through the Eyes of the
and Other Interest Groups 215 Court 244

Lack of Cooperation 244 Initial Appearance 266

Witness Intimidation 246 Charging 268
Social Media and Victims 246
Characteristics of Victims 246 case close-up County of Riverside v. Mclaughlin and a
Prior Relationships between Defendants Prompt Hearing before a Magistrate 269
and Victims 246 Law on the Books: Prosecutorial Control 269
Intimate-Partner Violence 247
Intimate-Partner Violence and the Police 247 courts, controversy, & economic inequality Are White-
Collar Criminals Underprosecuted? 270
case close-up Thurman v. Torrington and Domestic Law in Action: Police Influence 270
Violence Arrests 248 Courts and Controversy: Charging
Intimate-Partner Violence in the Courts 249 Decisions 270
Aiding Victims and Witnesses 250 Bail 271
Victim/Witness Assistance Programs 250 Law on the Books: The Monetary Bail
Victim Compensation Programs 252 System 271
Victims’ Bill of Rights 252 Bail Procedures 272
Victim Impact Statements 253 Forms of Bail 272
Constitutionality of Victim Impact Evidence 253 Preventive Detention 272
Law in Action: The Context of Bail
courts, law, & media Law and Order: Special Victims Unit
(NBC, 1999–Present) 254
Setting 273
Bail Agents and Bounty Hunters 274
Victim Impact Evidence and Restorative Effects of the Bail System 274
Justice 254 Jail Conditions 275
Effects of Victim Impact Statements on Race and Ethnicity 275
Sentences 255 Failure to Appear 275
Aiding or Manipulating Victims? 255 Case Disposition 275
The Victims’ Rights Movement 256 Pretrial Release 276
Differing Goals 256 Preliminary Hearing 277
Do Victims Benefit? 256 Law on the Books: Weighing Probable
Conclusion 257 Cause 277
Chapter Review 257 Law in Action: Variations in Using the
Critical Thinking Questions 258 Preliminary Hearing 277
Key Terms 258 Grand Jury 279
Law on the Books: Shield and Sword 279
For Further Reading 259 Law in Action: Prosecutorial Domination 280
Courts and Controversy: Reform the Grand
PARt III PRocESSINg tHE Jury? 282
AccUSED Arraignment 282
Law in Action Perspective: Case Attrition 282
chaP Ter 10 Why Attrition Occurs 283
Legal Judgments 283
From Arrest and Bail Policy Priorities 284
through Arraignment 260 Personal Standards of Justice 284
The Criminal Justice Wedding Cake 284
Crime 263 Celebrated Cases 285
Measuring Crime 263 Serious Felonies 285
Arrest 265
Quality of Arrests 266 courts, law, & media Crime on the Nightly News 286

Lesser Felonies 286 Video Surveillance 314

The Lower Depths: Misdemeanors 286 Intelligence Surveillance 314
Conclusion 287 Applying the Fourth Amendment 315
Chapter Review 288 The Exclusionary Rule and the Courtroom Work
Group 318
Critical Thinking Questions 289
Pretrial Motions 318
Key Terms 290 Defense Attorney as Prime Mover 319
For Further Reading 290 The Defensive Posture of the Prosecutor 319
Trial Judges as Decision Makers 319
chaP Ter 11
courts, law, & media Minority Report (2002) 320
Disclosing and Suppressing Police Testimony 321

Evidence 292 courts, controversy, & reducing crime Should the

Exclusionary Rule Be Abolished? 322
Discovery 295
Law on the Books: Rules Requiring Law and Controversy: Costs of the Exclusionary
Disclosure 295 Rule 322
Discovery of Exculpatory Evidence 296 Conclusion 323
Discovery of Impeachment Evidence 296 Chapter Review 324
Law in Action: Informal Prosecutorial
Disclosure 297 Critical Thinking Questions 325
Law and Controversy: Requiring Reciprocal Key Terms 326
Disclosure 299 For Further Reading 326
Suppressing Evidence 300
The Exclusionary Rule 300 chaP Ter 12
Fruit of the Poisonous Tree 301
Interrogations and Confessions 302 Negotiated Justice
The Voluntariness Standard 302
The Birth of Miranda Warnings 302
and the Plea of Guilty 328

Law on the Books: Types of Plea Agreements 330

case close-up Miranda v. Arizona and Police Charge Bargaining 331
Interrogations 303 Count Bargaining 332
Interrogations and the Sixth Amendment 304 Sentence Bargaining 332
Interrogations and the Fourteenth Differentiating Plea Bargaining from
Amendment 304 “Straight-Up” Pleas 333
Applying the Law of Interrogation 305 Law in Action: Bargaining and Caseloads 333
Search and Seizure 308 Law in Action: Bargaining and Discretion 333
Search Warrants 308 Presumption of Factual Guilt 334
Applying for Search Warrants 308 Costs and Risks of Trial 334
Issuing Search Warrants 309 What to Do with the Guilty 335
The Requirement of Particularity 309
Bargaining and the Courtroom Work
Executing Search Warrants 309
Group 335
After Search Warrants Are Executed 310
Prosecutors 335
Warrant Exceptions 311
Defendants 336
Electronic Surveillance 313
Defense Attorneys 337
Eavesdropping and Consent
Judges 337
Surveillance 313
Electronically Stored Information 314 Dynamics of Bargaining 338

Decision-Making Norms 338 Venire Eligibility 361

Why Cases Go to Trial 339 Voir Dire 362
Jury Trial Penalty 339 The Accuracy of Voir Dire 363
Excusing Jurors for Cause 363
courts, law, & media American Violet (2008) 340 Excusing Jurors without Good Cause 363
Copping a Plea 340 Serving on a Jury 363
Questioning the Defendant 341
case close-up People v. Garcia (Cal. App. 2000): Should
Waiver of Rights 342
Batson Extend to Sexual Orientation? 364
Allocution 344
Competency 344 Law in Action: Choosing a Jury Biased in Your
No Contest and Alford Pleas 344 Favor 365
Acceptance and Withdrawal of Pleas 345 Educating Jurors 365
Effective Assistance of Counsel During Plea Scientific Jury Selection: Profiling Juries Using
Bargaining 345 Consultants 365
Presumptions and the Burden of Proof 366
case close-up Santobello v. New York and Honoring a
Plea Agreement 346
Starting Presumptions 366
Burdens of Proof 366
Law in Controversy: Abolishing Plea Overview of Basic Evidence 367
Bargaining 347 Differentiating Direct and Circumstantial
Are the Changes Implemented? 347 Evidence 367
Is Discretion Eliminated or Just Moved Types of Evidence 367
Elsewhere? 347 Basic Rules of Evidence 367
courts, controversy, & tHe administration of justice Who Special Rules of Evidence Governing Expert
Benefits from Plea Bargaining? 348 Witnesses 368
Do Offsetting Changes Occur? 348 Determining Reliability 369
Conclusion 349 Forensic Scientific Evidence in the Age of
Daubert 369
Chapter Review 349
The CSI Effect 370
Critical Thinking Questions 350
Objections to the Admission of Evidence 372
Key Terms 350 Challenging Forensic Evidence 372
For Further Reading 350
courts, law, & media CSI: Crime Scene Investigation
chaP Ter 13 (CBS, 2000–present) 373

Trials and Juries 352 courts, controversy, & tHe administration of justice Should
Fingerprint Evidence be Admissible? 374
History of Trial by Jury 354
English Roots 354 Steps in the Trial Process 375
Colonial Developments 355 Opening Statements 375
Prosecution’s Case-in-Chief 375
Law on the Books: The Constitution and Trial by Motion for Judgment of Acquittal 375
Jury 355 Defense’s Case-in-Chief 375
Scope of the Right to a Trial by Jury 357 The Defendant as Witness 377
Jury Size 358 Renewed Motion for Judgment of
Unanimity 359 Acquittal 377
Law on the Books: Selecting a Fair and Unbiased Rebuttal 377
Jury 360 Closing Arguments 378
Master Jury List 360 Jury Instructions 378
Summoning the Venire 360 Jury Deliberations 379

Are Juries Biased? 379 Probation 404

The Verdict 381 Fines 405
Postverdict Motions 381 Restitution 405
Law in Action: Trials as Balancing Wheels 381 Intermediate Sanctions 406
Popular Standards of Justice 381 Community Service 406
Uncertainty 382
courts, law, & media Intermediate Sanctions and Lindsay
Prejudicial Pretrial Publicity 382 Lohan 407
Limited Gag Orders 383 Intensive-Supervision Probation 407
Change of Venue 383 Home Detention with Electronic
Sequestering the Jury 383 Monitoring 408
Media in the Courtroom 384 GPS Monitoring 409
Changing Views on Cameras in the Boot Camps and Shock Incarceration 409
Courtroom 384 The Death Penalty 409
Current Broadcasting Rules 385 Eighth Amendment Standards 411
Technology beyond “Cameras” 385 Method of Decision Making 412
Misuse of Technology 385 Method of Execution 412
Media Distortion 386 Death-Qualified Juries 414
Conclusion 386
courts, controversy, & judicial administration Should a
Chapter Review 387 Moratorium on the Death Penalty Be Imposed? 415
Critical Thinking Questions 388 Narrowing Death-Eligible Cases 416
Key Terms 389 Crime Limitations 416
For Further Reading 389 Developmental Limitations 416
Lengthy Appeals 416

PARt IV SENtENcINg tHE case close-up Roper v. Simmons: Should Juveniles be

Sentenced to Death? 417
coNVIc tED
Cost Concerns 418
Conclusion 419
chaP Ter 14
Chapter Review 419
Sentencing Options 390 Critical Thinking Questions 420
Why Do We Sentence? 392 Key Terms 421
Retribution 392 For Further Reading 421
Deterrence 393
Rehabilitation 394 chaP Ter 15
Incapacitation 396
Restoration 396 Sentencing Decisions 424
Competing Sentencing Philosophies 397
The Courtroom Work Group and Sentencing
Who Should Decide the Sentence? 397 Decisions 427
Legislative Sentencing Responsibility 398 Probation Officers 427
Judicial Sentencing Responsibility 398 Prosecutors 430
Executive Sentencing Responsibility 398 Defense Attorneys 431
What Sentence Should Be Imposed? 399 Judges 431
Imprisonment 399 Normal Penalties and Sentencing Decisions 431
Overcrowding 400
Conditions of Confinement Lawsuits 401 courts, law, & media Using Mitigation Videos at
High Costs 402 Sentencing 432

Seriousness of the Offense 432 Critical Thinking Questions 458

Prior Record 434 Key Terms 458
Aggravating or Mitigating Circumstances 435
For Further Reading 459
Law in Controversy: Uncertainty and Public
Opinion 435
Differences in Sentencing Outcomes 436 Part V aPPell ate and JuVenile
Imbalance versus Discrimination 436
Courts
Sentencing Disparities 436
The Geography of Justice 436
Judges’ Backgrounds and Attitudes 437 Chap ter 16
Discrimination in Noncapital Sentencing 440
Economic Status 440 Appellate and Habeas
Sex 441
Race 442
Corpus Review 460
Age 443 Nature of the Appellate Process 462
The Effects of Intersectionality 443 The Purposes of Appeal 463
Discrimination and Capital Punishment 443 Limitations on the Right to Appellate
Offender–Victim Dyad 443 Review 463
Evidence of Discrimination since Gregg 444 Appellate Standards of Review 464
Evidence of No Discrimination since Gregg 444 Appellate Court Procedures 466
McCleskey v. Kemp Rejects Social Notice of Appeal 467
Science Evidence 445 Appellate Court Record 468
Changing Sentencing Structures 445 Appellate Briefs 468
Law in Controversy: Reducing Oral Argument 468
Judicial Discretion 445 Written Opinion 469
Law on the Books: Variations of Determinate Disposition 470
Sentencing Return 446 Reversible vs. Harmless Error 470
Structured Sentencing Schemes 446 Rising Caseloads and Expedited Appeals 470
Presumptive Sentencing in the States 446 Criminal Appeals 471
State Sentencing Guidelines 446 Law on the Books: Expanded Opportunity to
The Continuum of Voluntary to Required Appeal Criminal Convictions 471
Use 448 Law in Action: Defendants Rarely Win on
The Constitutionality of State Sentencing Appeal 471
Guidelines 448
Federal Sentencing Guidelines 449 courts, law, & media The Amanda Knox Case 473
Law in Action: Diverse Impacts 450 Postconviction Review 473
case close-up Kimbrough v. United States and Federal
Sentencing Guidelines in Crack Cocaine Cases 451 case close-up House v. Bell and Federal Court Scrutiny
of State Death Row Inmates 474
courts, controversy, & reducing crime Are “Three Strikes How Postconviction Remedies Differ from
and You’re Out” Laws Fair? 452 Appeals 474
Increasing the Severity of the Penalty 453 Judicial Expansion and Contraction of Habeas
Law on the Books: Mandatory Minimum Access for State Prisoners 475
Sentences 453 Congress Greatly Restricts Habeas Access in
Law in Action: Nullification by Discretion 454 1996 475
Law in Controversy: Negative Side Effects 456
courts, controversy, & the administration of Justice Should
Conclusion 456 Federal Courthouse Doors Be Closed to State
Chapter Review 457 Prisoners? 476

Habeas Corpus Relief for Federal Prisoners 478 Secret Proceedings 497
Wrongful Convictions 479 Absence of Jury Trials 497
How Many Wrongful Convictions Are The Organization of Juvenile Courts 497
There? 479 Juvenile Court as a Separate Court 497
Why Do Wrongful Convictions Occur? 479 Juvenile Court as Part of Family Court 497
Mistaken Eyewitness Identifications 479 Juvenile Court as a Unit of Trial Court 498
Improper Forensic Evidence 480 Law in Action: The Impact of Structure 498
False Confessions 480 Juvenile Court Jurisdiction: Subject
Unreliable Informants 481 Matter 498
Tunnel Vision and Misconduct by Justice Juvenile Delinquency 499
Professionals 481 Status Offenses 499
Inadequate Defense Representation 482 Children in Need of Supervision 499
Reducing Wrongful Convictions 482 Law in Action: One-Pot Jurisdiction 499
State Courts of Last Resort 483 Juvenile Court Jurisdiction: Age 499
Law on the Books: State High Courts and Age Limits for Original Jurisdiction over
Discretionary Dockets 483 Delinquency Matters 500
Law in Action: State High Courts as Policy Age Limits beyond Original Jurisdiction 501
Makers 483
Transfers to Adult Court 502
Law in Controversy: State High Courts and
Types of Transfers 502
Death Penalty Cases 484
Judicial Waivers 502
The U.S. Supreme Court and Criminal Justice Prosecutorial Waivers 502
Policy 484 Statutory/Legislative Waivers 502
The Warren Court (1953–1969) 485 Automatic Waivers 504
The Burger Court (1969–1986) 485 Corrective Mechanisms 504
The Rehnquist Court (1986–2005) 486 Use of Waivers 504
The Roberts Court (2005–) 486
Due Process in Juvenile Courts 506
The Supreme Court in Broad Perspective 488 Key Court Decisions 506
Conclusion 488
courts, controversy, & reducing crime Should Juveniles Be
Chapter Review 489 Tried as Adults? 507
Critical Thinking Questions 490
Key Terms 490 case close-up In re Gault and Due Process in Juvenile
Courts 508
For Further Reading 491
Important Congressional Acts 509
chaP Ter 17 Courtroom Work Group 510
Judges 510
Juvenile Courts 492 Hearing Officers 511
Prosecutors 511
Juvenile Courts 100 Years Ago 494 Defense Attorneys 511
Industrialization, Cities, and Crime 494 Probation Officers 512
The Child Savers and the Progressive
Steps of the Juvenile Court Process 512
Movement 495
Delinquency (Crime) 512
Parens Patriae 495
Summons (Arrest) 512
How Juvenile Courts Differ from Adult Intake (Initial Hearing) 514
Courts 496 Detention Hearing 515
Emphasis on Helping the Child 496 Petition 515
Informal Proceedings 496 Conference 515
Proceedings Based on Civil Law 496 Evidence: Gathering and Suppressing 516

Plea Bargaining 516 appendix a Criminal Court Landmarks 523

Adjudicatory Hearing 516
Disposition 516 appendix B Overview of the Constitution of the
Appeal 517 United States of America 528

courts, law, & media Dog Pound (2010) 518 appendix c Constitution of the United
States 532
The Future of Juvenile Courts 518
Crime Control Model: More Adult appendix d Legal Reasoning 543
Penalties 518
Due Process Model: More Youth Crime Glossary 553
Prevention 519
References 567
Conclusion 519
Chapter Review 520 Case Index 605
Critical Thinking Questions 521 Index 609
Key Terms 521
For Further Reading 521

case close-up 6 Are Sexual Assaults against Women

Underprosecuted? 174
1 Brown v. Mississippi 17
7 Are We Spending Too Little or Too Much on
2 Unites States v. Loughner 52 Indigent Defense? 193
3 Was Zacarias Moussaoui The 20th Hijacker? 80 8 Is Judicial Independence Being Undermined? 225
4 Ewing v. California and Three Strikes Laws 113 9 Can Latinos Get Equal Justice under the Law? 238
5 Barker v. Wingo and the Right to a Speedy Trial 145 10 Are White-Collar Criminals Underprosecuted? 270
6 Connick v. Thompson and Prosecutorial 11 Should the Exclusionary Rule Be Abolished? 322
Misconduct 157
12 Who Benefits from Plea Bargaining? 348
7 Gideon v. Wainwright and the Right to
13 Should Fingerprint Evidence be Admissible? 374
Counsel 183
14 Should a Moratorium on the Death Penalty Be
8 Chisom v. Roemer and Diversity on the
Imposed? 415
Bench 223
15 Are “Three Strikes and You’re Out” Laws Fair? 452
9 Thurman v. Torrington and Domestic Violence
16 Should Federal Courthouse Doors Be Closed to
Arrests 248
State Prisoners? 476
10 County of Riverside v. Mclaughlin and a Prompt
17 Should Juveniles Be Tried as Adults? 507
Hearing before a Magistrate 269
11 Miranda v. Arizona and Police Interrogations 303
12 Santobello v. New York and Honoring a Plea courts, law, & media
Agreement 346
1 The Casey Anthony Trial 24
13 People v. Garcia (Cal. App. 2000): Should Batson
2 Chicago (2002) 38
Extend to Sexual Orientation? 364
3 The Response (2010) 78
14 Roper v. Simmons: Should Juveniles be
Sentenced to Death? 417 4 American Gangster (2007) 106
15 Kimbrough v. United States and Federal Sentenc- 5 Law & Order 134
ing Guidelines in Crack Cocaine Cases 451 6 Nancy Grace 170
16 House v. Bell and Federal Court Scrutiny of State 7 Boston Legal (ABC Television, 2004–2008) 200
Death Row Inmates 474 8 Judge Judy: Justice with an Attitude or Just Plain
17 In re Gault and Due Process in Juvenile Courts 508 Nonsense? 210
9 Law and Order: Special Victims Unit
(NBC, 1999–Present) 254
courts, controversy, & reducing crime 10 Crime on the Nightly News
1 Is It Time to End the War on Drugs? 22 11 Minority Report (2002) 320
2 Should Asset Forfeiture Be Limited? 44 12 American Violet (2008) 340
3 Should the Double Jeopardy Clause Prohibit 13 CSI: Crime Scene Investigation
Parallel State and Federal Prosecutions? 62 (CBS, 2000–present) 373
4 Should DUI and Distracted Driving Prosecutions 14 Intermediate Sanctions and Lindsay Lohan 407
Be Increased? 97 15 Using Mitigation Videos at Sentencing 432
5 Is Gender Bias a Significant Problem in the 16 The Amanda Knox Case 473
Courts? 140 17 Dog Pound (2010) 518

xix

A merica’s Courts and the Criminal Justice System, the history, structure, and philosophy of courts.
Twelfth Edition, examines the history, Although these are important matters, casebooks
traditions, and philosophy underlying our often project a rather sterile image of courthouse
system of justice as it is played out in the criminal justice and omit what courts do in practice, how
court. In a complex, sometimes contradictory, and they do it, and, most important, why they do it.
often fragmented process, defendants are declared This book’s emphasis on the dynamics of
innocent or found guilty, and the guilty are fined, courthouse justice grows out of our own research.
placed on probation, or sentenced to a period of During our professional careers, we have spent
incarceration. This book is about the defendants considerable time in state and federal courts in all
caught up in the process: the three-time losers; the parts of the nation. One of us worked in a federal
scared, young, first offenders; and the business courthouse; the other has conducted years of field
executives who are before the court to answer an research, interviewing numerous judges, jurors,
indictment. But most of all, this book focuses on the prosecutors, defense attorneys, probation officers,
prosecutors, judges, defense attorneys, and jurors jailers, police officers, and defendants. We have
who are involved in the daily decisions about guilt observed these officials in action and discussed
or innocence, probation or prison. with them their problems and their views of pos-
The impact of these decisions on crime and sible solutions. By the luck of the draw, one of us
criminals is the subject of widespread controversy. has also served on juries in state and federal court,
Concern over how the courts handle criminal cases while the other has appeared in court as both a law-
has been a staple of American political rhetoric for yer and as an expert witness. Throughout this book,
decades. The nature of this public debate as well as we have tried to convey to the reader the sense of
the solutions proposed to correct the problems are being in the courthouse.
integral parts of this book. To be sure, the past few
decades have witnessed significant deep-seated
changes and readjustments in the criminal justice Central Themes
system—given all the public posturing, one would
hardly expect less. Law on the Books
This book is written for undergraduate courses
that deal with America’s criminal courts. Such The starting point of this text is to provide readers
courses (or parts of courses) are taught in vari- with a working knowledge of the major structures
ous departments: criminal justice, criminology, and basic legal concepts that underlie the criminal
administration of justice, political science, sociol- courts. In deciding guilt or innocence and deter-
ogy, psychology, and social welfare. This book mining the appropriate punishment, the courts
highlights not only the pivotal role of the criminal apply the criminal law through a complicated pro-
courts within the criminal justice system but also cess termed “criminal procedure.” The structure of
the courts’ importance and impact on society as a the courts, the nature of the criminal law they apply,
whole. and the procedures followed all have important
America’s Courts and the Criminal Justice Sys- consequences for how the courts dispense justice.
tem, Twelfth Edition, focuses on the dynamics of But to understand the legal system, one needs
the courthouse. Thus, it differs from casebooks, to know more than the formal rules. Also necessary
which use appellate court decisions to highlight is an understanding of the assumptions underlying

these rules, the history of how they evolved, and courthouse justice and to analyze the reforms that
the goals they seek to achieve. A discussion of the have been suggested for what ails the courts. Not
assumptions, history, and goals makes clear that everyone agrees on the types of changes needed.
America’s criminal justice process is not monolithic Some argue that certain reforms will produce
but consists of a number of separate and sometimes greater difficulties without solving the original
competing units. It also points out conflicts over the problems. This book examines competing perspec-
goals the criminal courts are expected to achieve. tives on the changes and reforms that are being
proposed.

Law in Action
Many books leave the false impression that an under- Key Features
standing of the formal law and major structures of
the court is all that one needs to know about the Case Close-Up
criminal courts. This kind of analysis provides only Each chapter highlights an important court deci-
a limited view of how the courts administer justice. sion that has affected our nation’s criminal justice
The law is not self-executing. It is a dynamic process system. Some, like Miranda and Gideon, are familiar
of applying abstract rules to concrete situations. names. Others are less well known. But each high-
In making decisions about charges to be filed, lights the dynamic nature of courts in the United
the amount of bail to be required, and the sentence States.
a convicted person will receive, judges, prosecu-
tors, and defense attorneys must make choices for
which the formal law provides few precise guide- Courts and Controversy
lines. Thus, the second theme of this book is law
in action, which emphasizes the dynamics of the These boxed features provide multiple perspec-
criminal court process. tives on the topics discussed in the chapter. To bet-
An examination of law in action reveals a gap ter focus on the wide-ranging debate surrounding
between how the law is supposed to operate and the criminal courts in the United States, these con-
how it is actually applied. For example, the law in troversies have been given an expanded subhead.
theory suggests that the guilt of defendants should Thus, throughout the book, these features will dis-
be decided by a jury trial. In practice, however, cuss controversies centering on judicial administra-
trials are rare. Most defendants plead guilty with- tion, crime reduction, gender equity, racial discrim-
out a trial. Asking why there is a gap between the ination, and economic inequality.
law on the books and the law in action is a big step
toward understanding the dynamics of courthouse
justice. Courts, Law, & Media
In the Tenth Edition, we added a new feature
entitled “Law and Popular Culture.” This feature
Law in Controversy highlighted movie and television portrayals (and
No treatment of the criminal courts would be com- distortions) of the justice system to focus on the con-
plete without a discussion of the problems they are trasting caricatures offered by fictional treatment.
confronting. Are the courts too slow? Are judges In the Twelfth Edition, we have retained this peda-
too soft in sentencing? Does the criminal court pro- gogical feature but have broadened it to encompass
cess discriminate against the poor? These are just news coverage. Accordingly, we retitled the fea-
a few of the questions about the operations of the ture to reflect this broader coverage of media, and
criminal courts that this book will consider. In turn, it remains as such in the Twelfth Edition. To help
many organizations, groups, and individuals have students think critically about their media-formed
probed the problems facing the criminal courts and misconceptions about the courts system, each chap-
proposed reforms. The third theme of this book is to ter of this book focuses on a media depiction of one
discuss and analyze the controversies surrounding of the chapter’s primary themes.

New to This Edition Chapter 3—This chapter now includes the most up-to-
date information and statistics on the federal judiciary
and its caseload (including coverage of federal ques-
Writing the Twelfth Edition was gratifying and
tion jurisdiction, diversity jurisdiction, discrimination
stimulating. It was gratifying to learn from peer-
and civil rights cases, and prisoner petitions). The
reviewers that numerous colleagues in the profes-
chapter now contains information on the controver-
soriate and their students have found previous edi-
sies surrounding sexual assaults in the military.
tions of the book useful. It was stimulating because
it involved closely examining recent changes in
Chapter 4—This chapter now distinguished
both scholarship and public dialogue. The Twelfth
“infractions” from misdemeanors and includes a
Edition offers a current perspective on a continu-
discussion on the movement to decriminalize mar-
ally evolving subject: the criminal court process.
ijuana use. In addition to presenting updated case-
We have added several new topics in the
load statistics for state courts, the chapter also now
Twelfth Edition. We examine several of the ways
presents additional material on specialized courts.
that the ever-increasing role technology plays in
our lives has affected the courts, ranging from elec- Chapter 5—In this chapter on the courthouse and
tronic monitoring of offenders to social media in the individuals who work there, we have included
the courtroom. We highlight advances (and corre- the latest research on court delay and informa-
sponding questions and concerns) regarding foren- tion on the professionalization of court adminis-
sic evidence in criminal cases. And, the courts’ role tration. A diagram of a typical courtroom setup is
in reducing wrongful convictions has been high- now included. We have expanded our coverage of
lighted throughout the book. Finally, we have made judicial security, the jobs of additional members of
every effort to report the most up-to-date statistics the courtroom workgroup, and controversies sur-
available and to cite current empirical research rounding the exercise of prosecutorial discretion—
throughout the Twelfth Edition. especially as it concerns racial disparities.

Chapter 6—Prosecutors are the focus of this chap-

Chapter-by-Chapter Changes ter. We include an expanded discussion of the ori-
gins of the public prosecutor, focal concerns theory,
Chapter 1—This introductory chapter takes a
and “young prosecutors’ syndrome.”
look at several different public perceptions of the
criminal courts on which this text will focus. This
Chapter 7—The chapter on the defense attorney
chapter frames the study courts using the racially
now includes expanded and up-to-date coverage
charged case in which George Zimmerman was
on defenders’ caseloads and of case law concerning
acquitted in the shooting death of Trayvon Martin.
the right to counsel, self-representation, and inef-
The Zimmerman case has been integrated through-
fective assistance of counsel, including Missouri v.
out the chapter to illustrate several of the chapter’s
Frye (2012) and Lafler v. Cooper (2012). In addition,
main points. Information on presentence reports
the chapter presents expanded coverage of nonfel-
has been added to the section “Following the Steps
ony criminal prosecution and of some high-profile
of the Process.”
defendants who represented themselves.
Chapter 2—Chapter 2 now contains updated Chapter 8—The chapter on judges presents
and expanded material on the use of civil law expanded coverage on the merit system, the selec-
to address sexual assaults. The litigation over tion and appointment of U.S. Supreme Court justices,
New York City’s “stop and frisk” practices has judicial diversity issues, concerns over judicial inde-
been added to the discussion of Section 1983 pendence, and judicial performance evaluations.
cases. Missouri v. Frye (2012) and Lafler v. Cooper
(2012) have been added to the chapter’s discus- Chapter 9—The most current research on both vic-
sion of selective incorporation via the Fourteenth tim and perpetrator demographic characteristics
Amendment. is presented in this revised chapter. The section

on interpersonal violence has been updated and how a presentence report is prepared; the role of
expanded, as has the materials on standby coun- prosecutors in sentencing, including the concept of
sel for pro se defendants and the pitfalls of social discretion displacement; and a new section on age
media for both defendants and victims. disparities in sentencing.

Chapter 10—This chapter on the processing of crimi- Chapter 16—This chapter has been updated to
nal cases explores the most current research on the pre- present the latest data on both state and federal
trial processing of criminal felony cases. The chapter appeals, as well as habeas corpus proceedings.
now includes a section on the pretrial release process.
Chapter 17—This chapter looks at new citations
Chapter 11—This chapter includes new content, and updated statistics on juvenile crime and trans-
including additional case law and expanded coverage ferring juveniles to adult court. It incorporates
of how seized property is accounted for and stored. two new tables, two new figures, and an updated
exhibit.
Chapter 12—The most up-to-date research on plea
bargaining is integrated into this chapter, including
a revised Figure 12.1 showing trial rates for typical Pedagogical Innovations
felonies. New topics include “straight-up” pleas,
more information on Alford pleas, and additional This edition contains an array of pedagogical aids
material on why the innocent plead guilty. to facilitate student learning. These include:
● Chapter learning objectives open each chapter
Chapter 13—This chapter integrates significantly and are revisited in the Chapter Review to
more social science research on jury size, jury instruc- facilitate student mastery of chapter concepts.
tions, jury deliberations, and jury nullification. The The learning objectives are also linked to the
section on cameras in the court has been updated to text’s supplements (test bank and website quiz-
reflect legal and research developments, including zes) to further advance learning.
a new pilot program to allow video in U.S. district
● End-of-chapter critical thinking questions pro-
courts; a new section on the “misuse of technology”
vide students with an opportunity to practice
in court, focusing on juror misconduct on the smart
their skills in the chapter’s key area.
phones; and media distortion of trials. Table 13 has
also been updated to reflect the changes in recent years ● An end-of-chapter list of key terms with page
on jury size and unanimity rules across the states. references serves as a helpful study tool.
● Suggestions for further reading are offered so
Chapter 14—The chapter on sentencing options students can explore chapter concepts further.
contains expanded coverage of California’s public ● Numerous exhibits and figures amplify text
safety realignment efforts; the U.S. Supreme Court coverage for easier understanding by students.
cases of Brown v. Plata (2011) and Hall v. Florida
(2014); research developments relevant to commu-
nity service and intensive supervision as criminal Supplements
sanctions; and controversies surrounding capital
To further enhance the teaching of victimology
punishment methods, including the shortage of
courses, the following supplements are available to
execution drugs and the problems surrounding
qualified adopters. Please consult your local sales
botched executions. A new table has been added on
representative for details.
capital punishment laws across the United States.
And new figures have been created presenting the
latest sentencing statistics. Online Instructor’s Manual with Test Bank
Chapter 15—This chapter presents the latest devel- The instructor’s manual contains a variety of
opments concerning state and federal sentencing. resources to aid instructors in preparing and pre-
The chapter now presents more information on senting text material in a manner that meets their

Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s).
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frequenters of the King’s Theatre, during his time of office, that will
not recollect, with feelings of interest, the delicate grace of
Spagnoletti’s playing—his obviously intense, yet not obtrusive,
enthusiasm—and his oft-repeated sidelong depressions of the head,
as if to drink in more fully, at the left ear, the delicious tones which
he enticed from his own instrument? His peculiar sensitiveness
under the impression of a false note, and his liberality of spirit, and
readiness to speak commendingly of his brethren of the bow, are
among the further traits which denoted him to those who had the
opportunity of closer observation. Spagnoletti’s original name is said
to have been Paolo Diana. I have heard an anecdote which, if it may
be depended on, exemplifies his quickness of temper. It was to the
effect that Spagnoletti, having chanced to quarrel one morning with
Ambrogetti, challenged him on the spot; and that the singer put
aside the abrupt invitation, by the phlegmatic remark that he had
not breakfasted!

CHAPTER III.

PAGANINI.

“Natura il fece, e poi ruppe la stampa.”—Ariosto.

“The glory, jest, and riddle of the world.”—Pope.

Who has not heard of Paganini—and who, that boasts of an ear, has
not heard Paganini himself? Fame, catching up the echoes of his
glory, has caused them to reverberate through her trump, and to far
furore even to the uttermost parts of the civilized world; and the
hero himself, following in her rear, has gone forth to fulfil her
proclamations, to reap his laurels, to achieve the general conquest of
ears, and to receive in gold the tribute of admiring nations! Tongues
and pens have vied with each other in celebrating his name; and
‘Ercles’ vein has been drawn upon in his behalf, till its exhausted
stream could no further go.
Nicolo Paganini came into this breathing world at Genoa. The date of
his birth, like most of the circumstances of his life, has been
variously represented; but the most probable account fixes it on the
18th of February, 1784. His parents were of humble rank, but not so
low as has been pretended in some of the “supposures hypothetical”
that have been mixed up with the history of their marvel-moving
son. To suit the humor of these fancies, the conjectured father has
been depressed to the condition of a street-porter, bearing (along
with his burdens) some name too obscure to be recorded; while the
person known as Paganini père has been asserted to possess no
other rights of paternity than what are conferred by adoption. This
story, were it a true one, would reflect no discredit on an artist who
has owed to his own genius the wide celebrity attaching to his
name. “Miserum est aliorum incumbere famæ,” says the Roman
poet; and the feeling of modern times is daily more and more
confirming the sentiment. By another version, the father of Paganini
has been styled a small trader, with a large tendency to seek his
fortune through the calculation of lottery-chances. His actual station,
as appears most likely, was originally that of a mercantile clerk; and
it is concurrently allowed that this father, putative or positive, had
music enough in his soul, or in his head, to perceive the indications
of the faculty in his infant son, and to resolve on its full
development; although the means he took for this purpose were as
little creditable to his paternal pretensions, as they were injudicious
with reference to their object. Ere yet the boy, however, had
received into his tiny hands the instrument that was destined to
make him “a miracle of man,” the world, it appears, was very near
being deprived of him altogether! It is stated that, at the age of four
years, he was attacked by the measles, attended, in his case, with
unusually aggravated symptoms. So extraordinary an influence did
the disease exercise on his nervous system, that he remained during
an entire day in the state of catalepsy, or apparent death, and had
actually been enveloped in a shroud, when a slight movement
fortunately revealed the fact of his existence, and saved him from
the horrors of a premature interment.
The musical discipline adopted by his father appears to have begun
in pretty close sequence to this shock; and the days of hard work for
poor little Paganini were made to commence, by a shameful
perversion, before he could plainly speak. As soon as he could hold a
violin, his father put one into his hands, and made him sit beside
him from morning till night, to practise it. The willing enthusiasm of
the child, as well as the tenderness of his age, might have disarmed
the severity of any ordinary preceptor; but the rigor of a stern father,
when sharpened by ambition and avarice, can forget the measure of
an infant’s powers. The slightest fault, the most pardonable
inadvertence, was harshly visited upon the Liliputian performer; and
even the privation of food was sometimes resorted to, as part of the
barbarous system to enforce precocity. A lasting influence of baneful
kind was thus wrought upon a constitution naturally delicate and
sensitive: the sickly child, incapable of attaining a healthful maturity,
was merged into the suffering man.
His mother, with equal but more tender zeal for the development of
the talent of young Paganini, succeeded in inspiring him with no
slight portion of her own enthusiasm, by persuading him that an
angel had appeared to her in a vision, and had assured her that he
should outstrip all competition as a performer on the violin. Whether
this vision was the result of a pardonable stratagem, or whether it
was really the dream of a southern imagination, it is certain that it
had the greatest effect on the mind of the infant artist, whose
instinctive and irresistible inclination for the art made him an easy
recipient of this maternal tale of encouragement. He began also to
relish the domestic plaudits which were occasionally awarded to him
for the boldness wherewith he produced new, if not legitimate,
effects, indicative of future mastery over the powers of the
instrument; for the instinct of his mind towards the extraordinary
was, even thus early, a thing clearly discernible. He speedily
outstripped his father’s slender reach of musical knowledge, as well
as that of a minor violinist named Cervetto, who, for a short time,
attempted to teach him. Giacomo Costa, director of the orchestra,
and first violin in the principal churches, at Genoa, was next charged
with his musical direction, and led him more rapidly onwards. At this
period (when he was about eight years old), he was to be seen
performing some three times a week in the churches, and at private
musical parties, upon a fiddle that looked nearly as large as himself.
At this time, too, he composed his first Violin Sonata, which, with
others of his early musical pennings, is, unfortunately, not extant. A
year later, he made what was considered his public début, in the
great theatre of Genoa, at the request of the noted singers,
Marchesi and Albertinotti, who begged of his father to allow the
youthful artist to play for their benefit, undertaking, in return, to sing
for Paganini at the first concert he should offer to the public. On
both occasions, he played a series of variations, believed to be his
own, on the French republican air, “La Carmagnole,” which were
received with a force of approbation that seemed to carry with it the
conviction of his future fame. Already, indeed, had his native genius
urged him into a new path, both as to fingering and the
management of the bow.
Stimulated by the opening prospects of solid advantage, his father
next carried him to Parma, then the residence of Alessandro Rolla, in
order to place him under the care of that celebrated composer. It so
happened on their arrival, that Rolla was confined to his room by
indisposition; and the strangers, having been shown into a
neighbouring apartment, found there, on a table, the score of a
work which the composer had just finished. At the suggestion of his
father, Paganini took up the violin which lay by the manuscript, and
performed the new concerto at sight, with so much point and
precision as to raise the sick composer from his bed, that he might
ascertain to what master’s hand he owed this agreeable surprise!
The father, having explained the object of their visit, was assured by
Rolla that he was incapable of adding any thing to his son’s
acquirements: he advised them to go to Paër, who was then the
director of the Conservatory at Parma. Paër, in his turn, directed his
visitors to his old master, Giretti, who received young Paganini as
one of his pupils, and for six months gave him regular lessons in
counterpoint. The good use which he made of this short
apprenticeship is proved by the four-and-twenty fugues which he
composed in the course of it. His rapid progress inspired Paër with
so lively an interest in his success, that he also devoted several
hours a day to his instruction, and, at the end of four months,
entrusted him with the composition of a duo, which was eminently
successful. But these advantages were interrupted by the removal of
Paër to Venice, where he had undertaken the composition of an
opera.
Thus additionally qualified for the gratification of the “auri sacra
fames” in the paternal breast, Paganini was now hawked about the
country in a professional tour (at the commencement of 1797),
through the principal cities of Lombardy; after which the father and
son returned to Genoa, where the youthful artist was again
subjected to those daily toils which had previously been forced on
him with such wanton rigor: but the bonds were not to be of much
longer endurance. In his 14th year, he was permitted, under the
protection of an elder brother, to attend the Musical Festival of St.
Martin, which is annually celebrated at Lucca, in the month of
November; and, after meeting with a very flattering reception in all
his public appearances, he extended his tour among the towns in
the neighbourhood. The extreme degree of severity and restraint,
with which his education had hitherto been conducted, was now
beginning to work its natural result. At the age of fifteen, finding
himself relieved from all effectual control by means of the
ascendancy of his talent, and capable of attaining, through the same
means, unlimited pecuniary supplies, he commenced the itinerant
system on his own account; and soon, by a reaction of mind, that is
in no degree surprising, acquired a decided partiality for a course of
life that was accompanied by freedom from the trammels of such a
father. The bonds of affection towards that persecuting parent were
only loosened, however, not severed; for, after acquiring, by his
independent exertions, a sum equal to about a thousand pounds, he
proposed to assign a portion of it towards the maintenance of his
father and mother. The cupidity of the former rejected this, and
demanded the whole. The interest of the capital was then offered,
equally in vain; and the violence of the father proceeded to the
extent (as it has been asserted) of threatening Paganini with instant
death, unless the whole of the principal were relinquished to him.
This outrage, supposing it true, appears but a concentration, as it
were, of the ill usage more diffusely applied before. To procure
peace—perhaps to save his life—Paganini gave up the greater part
of the sum.
Resuming the exercise of his emancipated powers, Paganini visited
many parts of Italy, and was flattered and rewarded in all. The
intoxication of his rapid successes, combined with his joy at the
escape from domestic fetters, seem to have led him into some
youthful excesses at this period, and to have made the roving course
of his travel rather too close a type of his moral career—
Erring here, and wandering there,
Pleas’d with transgression every where.

The increased celebrity which he afterwards acquired, or rather,

perhaps, the jealous envy by which such celebrity is commonly
pursued, has exercised a magnifying effect upon these early
aberrations, and presented them as crimes of a serious and
disgraceful nature. Whenever duly examined, they will be probably
found to shrink back into something not greatly beyond peccadillo
proportions. The feverish and unhealthy excitement besetting his
peculiar position should be taken into full account, in forming a
moral estimate of his youthful course. That the seductions of the
gaming-table for a while swayed his fancy, and checquered his
fortunes, is made clear by his own confession, which I will here
extract from the interesting “Notice Biographique” by Monsieur Fétis
(written as a pendant to the Collection of Paganini’s Compositions,
about to appear in Paris), to which pamphlet I am indebted for some
of the additional facts in the present sketch.
“I shall never forget,” says Paganini, “that I once placed myself in a
position which was to form the turning point of my whole career. The
Prince De * * * * * had long felt a desire to become the possessor of
my excellent violin, which I still retain, and which was then the only
one I had. He sent to me one day, in the endeavour to make me fix
a price for it; but, reluctant to part with my instrument, I declared
that I would only do so for 250 gold Napoleons. The Prince
remarked to me, shortly afterwards, that I was probably joking when
I asked so much, but that he was disposed to go as far as 2000
francs. I was, that very day, in much embarrassment as to funds,
owing to a considerable loss encountered at play; so that I was on
the point of resolving to give up my violin for the sum offered, when
a friend came in, with an invitation to join a party in the evening. My
whole supply amounted to thirty francs; and I had already stripped
myself of my watch, jewels, rings, pins, &c. I formed the instant
resolve to hazard my last pittance, and then, if fortune were
adverse, to sell the violin for what had been offered, and set off for
Petersburgh, without either instrument or property, there to re-
establish my circumstances. My thirty francs were presently reduced
to three,—and I fancied myself already on the road towards the
great city, when fortune, shifting like the glance of an eye, turned
my petty remainder into a gain of 160 francs. That favorable
moment rescued my fiddle, and set me on my feet. From that day, I
renounced gaming, to which a portion of my youth had been
sacrificed; and, in the conviction that a gambler is universally
despised, I abandoned for ever that fatal passion.”
The imperilled instrument above referred to, appears to have been
the same that figures in the following anecdote, as related by M.
Fétis. Whilst the youthful artist was still under the dominion of the
passion for play, that sometimes robbed him, in a single evening, of
the produce of more than one concert, and sometimes did not leave
to him even his violin, he had recourse (at Leghorn) to the kindness
of a French merchant, Monsieur Livron, a zealous musical amateur,
who very readily lent him a fine Guarnerius instrument. After the
concert for which it had been required, Paganini took it back to the
owner, who, however, declined to receive it, saying, “I shall take
good care how I profane the strings that your fingers have touched!
It is to you that my violin now belongs.” The instrument was
afterwards used by Paganini at all his concerts.
A similar incident occurred to him at Parma, though under different
circumstances. Pasini, a painter, with musical propensities, had
refused to credit the prodigious facility attributed to Paganini, in the
way of playing the crabbedest music at sight, like one who had fully
studied it. The sceptic therefore placed before him a manuscript
concerto, in which all manner of difficulties had been brought
together, and, handing to him an excellent Straduarius instrument,
exclaimed, “This is yours, if you play that at sight, like a master.” “In
that case,” observed Paganini, “you may say farewell to it at once;”
and, in fact, his fulminating execution presently threw the convinced
Pasini into an ecstasy of admiration.
To those earlier days belongs also the fact of Paganini’s transient
passion for the guitar, or rather for a certain fair Tuscan lady, who
incited him to the study of that feebler instrument—of which she
was herself a votary. Applying his acute powers to the extension of
its resources, he soon made the guitar an object of astonishment to
his fair friend; nor did he resume in earnest that peculiar symbol of
his greatness, the violin, till after a lapse of nearly three years.
Paganini tickling the guitar, may almost suggest, for analogy,
Hercules dallying with the distaff!
After declining, for the freer indulgence of his rambles, various offers
of profitable engagement on per manent grounds, he was induced to
enter, in 1805, the service of Napoleon’s sister with the exquisite
name (Elisa Bacciocchi), then Princess of Lucca and Piombino, to
whose elegant little court several distinguished artists were at that
time attracted. Paganini became concertist and director of the
orchestra there; and it was in this situation that he first attempted
the execution of those triumphs of art under diminished resources,
that have had, in the sequel, so large a share in the production of
his success with the multitude. I allude to his acquired habit,
displayed from time to time, of dispensing with the aid of two or
even three of the strings of his instrument, and working apparent
impossibilities with the remaining two or one—a habit which, owing
to his occasional abuse of it, has laid him open to a charge of
charlatanism, even from the Italians. His incredible address in these
extraordinary efforts, produced a degree of astonishment which may
probably have given rise to some of those rumours, both romantic
and ludicrous, that have been so freely associated with his name.
The explanation he has himself given of the origin of these
performances, in the following letter to a friend, seems so consistent
with his disposition at the period, that it may very readily command
the preference in point of credibility:—
“At Lucca,” he says, “I led the orchestra whenever the Reigning
Family attended the opera. I was often sent for also to the court
circle,—and once a fortnight I gave a grand concert,—but the
Princess Eliza retired always before the conclusion, declaring that her
nerves were too keenly affected by the sounds of my instrument. A
certain lady, on the contrary, whom I had long adored in secret, was
constant and assiduous in her attendance at these musical meetings.
I thought I could perceive that some secret influence attracted her
towards me. Our mutual passion insensibly increased; but, as
motives of prudence made secrecy indispensable, and forbade any
open declaration, the idea occurred to me of surprising her with a
piece of musical gallantry, which would convey to her the expression
of my feelings. Having announced my intention to produce a novelty
at Court, under a title (that of “A Love Scene”) well calculated to
excite the general curiosity, I could observe that that feeling was not
diminished on my entering the music-room, with a violin provided
with only two strings, the first and the fourth. The first was intended
to express the sentiments of a lady; the fourth, those of a despairing
lover. Between the two, I established a sort of impassioned dialogue,
in which the tenderest accents succeeded the violence of repeated
fits of jealousy. Alternately plaintive and insinuating, there was at
one moment a cry of grief or anger, and the next, of joyful
reconciliation. The whole scene was eminently successful; the lady
to whom it referred rewarded me by looks full of delighted
amiability; and the princess Eliza, after loading me with praises,
enquired if, after doing the impossible with two strings, one might
not possibly suffice me. I instantly gave my promise to make the
attempt; and, a few weeks afterwards, I produced a Sonata on the
fourth string, which I entitled “Napoleon,” and executed it on the
25th of August, before a brilliant and numerous Court. Its success
having far surpassed my expectation, I may date from that period
my predilection for the lower string; and, as my audience seemed
never to tire of the pieces I had composed for it, I have at length
arrived at that degree of facility which appears to have so much
surprised you.”
To find out sufficient scope for an entire field of melody, as the
produce of a single musical string, must have demanded great study,
as well as unremitting manual practice. Paganini extended the
capability of the string to three octaves, including the harmonic
sounds, which he developed into a most important resource. The
success of this novelty was prodigiously increased, after he had
presented it beyond the courtly circle, and made it public37.
When the Princess Eliza became Grand Duchess of Tuscany, Paganini
followed her to Florence, where he became an object of even fanatic
admiration. His talent developed itself daily in new forms; but he had
as yet very imperfectly learned to regulate its exercise. The amount
of study, however, to which he had subjected himself, after ceasing
to be the slave of his father, is a thing to excite astonishment. He
had abandoned himself, in solitude, to the research with which his
mind was occupied; and had then formed the plan of the Studies
which are known under his name, and wherein he proposed
difficulties that he himself could not surmount without immense
labour. It is a remarkable fact, also, that he suddenly interrupted his
enquiries as to the possibility of augmenting the resources of the
violin, in order to study seriously the works of Corelli, Vivaldi, Tartini,
Pugnani and Viotti, and to ascertain the successive progress of his
instrument. He afterwards familiarized himself with the works of the
Violinists of France.
In the summer of 1808, after three years passed at Lucca, Paganini,
with the consent of his patroness, visited Leghorn, which city had
been a scene of triumph to him seven years previously. How, at his
first concert on this re-appearance, a cloud was converted into
sunshine, has been pleasantly enough recorded by himself:—
“Having accidentally run a nail into my heel, I came on the stage
limping—and the public greeted me with a laugh. At the moment
when I was beginning my concerto, the tapers fell from my music-
stand, drawing a fresh burst of laughter from the audience. Again,
after the first few bars of the solo, my upper string broke—which
raised the merriment to a climax:—but I went through the piece
upon three strings—and the laughter was turned into shouts of
enthusiasm.”
Still retaining his engagement in the service of the Princess
Bacciocchi, who was now become Grand Duchess of Tuscany, and
established at Florence with her court, the great artist made
professional excursions to various Italian cities—including one to
Turin (where he was first attacked by the abdominal ailment which,
in the sequel, so much enfeebled his health, and so often
interrupted his travels, and disturbed the order of his concerts)—and
another to Ferrara, where his grotesque mode of retaliation for an
affront received in public, led to such a misunderstanding with the
townspeople, as caused some jeopardy to his life.
About the commencement of 1813, his position at the Court of the
Grand Duchess Eliza was suddenly and disagreeably abolished. On a
certain state occasion, Paganini appeared in the orchestra in the full-
blown uniform of a Captain of the Gendarmerie Royale, which, as a
general privilege, his fair patroness had authorized him to wear. He
was now requested, however, to exchange it immediately for a suit
of plain black. The sudden shock to his dignity was met by a refusal
to comply with the order, and the result of this bearding of authority
was his precipitate retreat from Florence, with (it is probable) a
resolution to decline all future offers of a “fixed position.”
In the city of Milan, where Paganini found many congenial
attractions, he passed a considerable time, at various epochs of his
life. There he first saw, and entered into friendship with, Rossini.
There, too (in March 1816), occurred, within the walls of La Scala,
his contest with Lafont, the champion of French renown in the fiddle
field. The story has been variously represented. It appears that
Lafont challenged Paganini to join him in a concert, and conceived
great hopes of beating him, when, after acceptance of the proposal,
the wary Italian was found to make a very indifferent exhibition of
power at the previous rehearsal. When the rival display came on in
earnest, however, the impression produced by Lafont, with his fine
tone, and his graceful and elegant performance, was presently
eclipsed in toto by the superlative mastery shewn in the
performance of the Genoese enchanter, who purposely followed in
the track of his competitor, to establish his superiority at all points—
outweighing him in the deliberate adagio, and outstripping him in all
the agile feats of execution, besides transcending him wholly in the
nicer arcana of the art. Of this purport, at least, is the more common
and probable account of the affair. But, if the Frenchman was thus
conspicuously beaten, it would seem that (as in the case of Falstaff)
it would “discolor too much the complexion of his greatness” to
acknowledge it: Monsieur Lafont wrote a letter of negation to a
French journal, some fourteen years after the momentous day. In
this letter he even decides himself to have obtained a partial
advantage, alluding to some particular “phrase de chant,”—and he
indulges in this passage:—“On all occasions I have taken pleasure in
rendering homage to his great talent but I have never said that he
was the first violinist in the world: I have not done such injustice to
the celebrated men, Kreutzer, Rode, Baillot, and Habeneck and I
declare now, as I have always done, that the French school is the
first in this world for the violin!”—To this self-and-country-vaunting
epistle, as translated in the Harmonicon, Lafont found a respondent
(April 7, 1830) in Signor Francesco Cianchettini, who asserts, as one
present on the occasion, that the public decision was in favour of the
Italian, and compares the vain glory of French fiddlers, in their talk
of Paganini, to the empty freedom of the gladiators of the Neronian
age, in speaking of Hercules.
Paganini’s own account of the affair exhibits a modest simplicity,
tending to confirm any previous impressions of his having been the
victor. After quoting it, however, Monsieur Fétis, who has repeatedly
heard Lafont’s relation of the circumstances, offers some remarks,
which it is but right here to subjoin:—“It is not to be denied,” says
he, “that Lafont displayed much imprudence on that occasion.
Doubtless he possessed qualities of a classic order, more pure, and
more analogous to the French taste of his time, than those of
Paganini. Doubtless he had greater volume and evenness of tone:
but, with respect to original fancy, the poetry of playing, and the
mastery over difficulties, he could place himself in no comparison
with his antagonist. In a concert at the Paris Conservatoire, the
palm, in 1816, would perhaps have been awarded to him (Lafont):
but, in presence of an Italian audience, eager for novelty, originality,
and impulsion, he must needs have succumbed. ” To continue our
narrative of Paganini’s “life, behaviour and conversation,”—the
French musical Amateur, Count de Stendhal (Monsieur Beyle) has
alluded to him descriptively at two periods. In 1814, he observes,
“Paganini, the Genoese, is, it appears to me, the first violinist in
Italy. He cultivates an exceeding softness of expression. He plays
concertos as unmeaning as those which set us gaping at Paris; but
his delicate softness is always a distinction in his favour. I love
especially to hear him execute variations on the fourth string of his
instrument.” And again, in 1817, he writes of him, as of a Genoese
who played very finely on the violin—being “equal to the French in
execution, and superior in fire and originality!”—Mathews, the author
of the “Diary of an Invalid,” offers the following remarks on him in
the year 1818:—“He is a man of eccentric character and irregular
habits. Though generally resident at Turin, he has no fixed
engagement, but, as occasion may require, makes a trading voyage
through the principal cities of Italy, and can always procure a
theatre, upon the condition of equal participation in the receipts.
Many stories are told of the means by which he has acquired his
astonishing style; such as having been imprisoned ten years, with no
other resource. His performance bears the stamp of the eccentricity
of his character. His tone, and the thrilling intonation of his double
stops, are electric. His bow moves as if it were part of himself, and
endued with life and feeling.”
In proof of the extensive sphere of his attraction, the following
anecdote, having reference to the year 1824, has been published. A
northern traveller, and passionate lover of music, M. Bergman,
reading accidentally, the evening before, in the Journal, at Leghorn,
an announcement of Paganini’s concert, instantly set out for Genoa,
a distance of 100 miles, and luckily reached the spot just half an
hour before the concert began! He came with his expectations raised
to the utmost; but, to use his own expression, the reality was as far
above his anticipations, as the heavens are above the earth. Nor
could this enthusiastic amateur rest content with once hearing
Paganini, but actually followed him to Milan, to hear him de novo. Of
the two concerts which the great artist gave at La Scala at that time,
the first consisted entirely (as far as regarded his own performance)
of exhibitions on the fourth string! and may be said to form a
remarkable antithesis to the case of the man so specially indicated
by the late Charles Mathews, as having lost his G! The public were in
ecstacies; but it was observed, with some regret, by the judicious
among Paganini’s auditors at these two concerts, that he was
neglecting the cantabile, and the nobler powers of his instrument,
for the difficult and astonishing. Yet it was to no want of sensibility in
the soul of the artist, that this deviation was to be attributed; for he
had before expressed his high admiration of Spohr, the German
violinist, so celebrated for the excellence of his cantabile, and had
given him full credit for being the greatest and most perfect singer
upon his instrument—retaining, however, the satisfactory
consciousness, as it has been supposed, of his own immeasurable
superiority in the aggregate of the qualities for which all the greatest
masters have been distinguished.
At Pavia, Paganini likewise gave two concerts, and was received with
no less enthusiasm than at Milan. The bill which set forth the pieces
to be performed was headed with the following autocratical
annunciation:—
PAGANINI.
Farà sentire il suo Violino!
(“Paganini will cause his violin to be heard!”)
In the bills of a concert he gave at Naples, in 1825, his name was
announced with the style and title of Filarmonico; and various sage
debates and conjectures were the consequence, among the idlers of
the place.
But it is needless to go thrice over the map of Italy, and detail all the
triumphs of our acoustic hero among his own countrymen. Let us
shift the scene to Germany, and the time to the year 1828, when he
was exhibiting before the people at Vienna, and exciting the
admiration and astonishment of the most distinguished professors
and connoisseurs of that critical city. His inducement to quit his
native Italy had been furnished, it appears, by Prince Metternich,
who had witnessed his performances in the preceding year at Rome,
when the Pope (soit dit en passant) had conferred on our Artist the
order of the Golden Spur, an honor which had formerly been
awarded to Gluck and Mozart.
All notion of rivalling the foreigner was at once banished from
among the Germans; and it is said that Mayseder, their violinist of
then highest fame, with an ingeniousness that did him honor,
intimated, in a letter to a London friend, that he felt he might now
lock up his violin as soon as he liked!
The successes of Paganini gave new currency to the tales of crime
and diablerie which inventive fame, “ficti pravique tenax,” had so
often circulated in connection with him. A captain of banditti—a
Carbonaro—a dungeon-détenu—a deadly duellist—a four-mistress
man—a friend of Beelzebub—a “bowl-and-dagger” administrator—
these are some of the characters that were freely assigned to him.
Over the mouth of his aged mother, in articulo mortis, he was
asserted to have placed a leathern tube, and to have caught her last
breath at the S holes of his fiddle!—He was made out, in short, the
very beau idéal of a fellow that might do the “First Murderer” in a
Melodrama. These romantic rumours, however they might assist his
success with the public, could not be passed by in silence. The
injured, yet profited, object of them, made a public manifesto of his
innocence in the leading Journals of Vienna, and appealed to the
magistrates of the various States under whose protection he had
lived, to say if he had ever offended against the laws. This was all
very well; but, what was still better, enough of the pleasing delusion
remained, in spite of all disavowals, to render Paganini the continued
pet of the public. Indeed, a general intoxication with regard to him
prevailed for some time with the Viennese public. Verses were daily
poured forth in honour of him—medals were struck—and Fashion
made profuse appropriation of his name to her various objects. Hats,
gloves, gowns, stockings, were à la Paganini:—purveyors of
refreshment fortified their dishes with his name; and if a brilliant
stroke were achieved at billiards, it was likened unto a stroke of his
bow! snuff-boxes and cigar-cases displayed his portrait—and his bust
was carved upon the walking-stick of the man of mode.
Amid the glare of the enchanter’s triumphs, it is pleasing to discover,
in a record of a concert given for the benefit of the poor, that the
cause of benevolence was not forgotten;—nor will it be uninteresting
to bestow a moment’s attention on the following little anecdote,
which certainly reveals something not unlike a heart:—
One day, while walking in the streets of Vienna, Paganini saw a poor
boy playing upon his violin, and, on entering into conversation with
him, found that he maintained his mother, and an accompaniment of
little brothers and sisters, by what he picked up as an itinerant
musician. Paganini immediately gave him all the money he had
about him; and then, taking the boy’s violin, commenced playing,
and, when he had got together a crowd, pulled off his hat, and
made a collection, which he gave to the poor boy, amid the
acclamations of the multitude.
The following fact will give some idea of the hearty love of music,
the real dilettantism, prevailing among the peasants of Germany. In
the autumn of 1829, Paganini was summoned to perform before the
Queen Dowager of Bavaria, at the Castle of Tegernsee, a
magnificent residence of the Kings of Bavaria, situated on the banks
of a lake. At the moment when the concert was about to begin, a
great bustle was heard outside. The Queen, having enquired the
cause, was told that about sixty of the neighbouring peasants,
informed of the arrival of the famous Italian violinist, were come, in
the hope of hearing some of his notes, and requested that the
windows should be opened, in order that they also might enjoy his
talent. The Queen went beyond their wishes, and, with truly royal
good nature, gave orders that they should all be admitted into the
saloon, where she had the pleasure of marking their discernment,
evidenced by the judicious manner in which they applauded the
most striking parts of the performance.
Prague, Dresden, Berlin and Warsaw were successively visited by the
triumphant ear-charmer. Great was the excitement he produced at
Berlin—but somewhat contradictory the opinions about him. “Most
assuredly,” said one journalist, “Paganini is a prodigy; and all that
the most celebrated violinists have executed heretofore is mere
child’s play, compared with the inconceivable difficulties which he
has created, in order to be the first to surmount them.” The same
writer declared that Paganini executed an air, quite sostenuto, on
one string, while, at the same time, a tremolo accompaniment upon
the next was perfectly perceptible, as well as a very lively pizzicato
upon the fourth string: that he executed runs of octaves on the
single string of G with as much promptitude, precision and firmness,
as other violinists on two. Nay, his celebrator went so far as to say
that, in order to produce this latter effect, he employed one finger
only; and further declared him able to render the four strings of the
instrument available to such a degree, as to form concatenations of
chords that could be heard together, and that produced as full and
complete harmony as that of six fingers of a pianoforte-player on the
key-board; adding, moreover, that, in moments of the most daring
vivacity, every one of his notes had all the roundness and
sonorousness of a bell! Another journalist averred that he was
incapable of producing a grand tone, but that he executed the
adagio, and impassioned cantilenas, with profound sensibility and
great perfection of style. It was the remark of another critic, that
“whoever had not heard Paganini, might consider that there existed
a lacuna in the chain of his musical sensations.”
Lipinski, a Pole, had ventured to seek, at Placentia, in 1818, a
contest with Paganini, such as Lafont had previously sought. Whilst
at Berlin, he met with a third challenge to a trial of skill. Sigismund
Von Praun, an ambitious youth, asserting claims to universal genius
—a counterfeit Crichton—attempted to dispute the palm with him,
and paraded a public defiance in the papers: but, this time, Apollo
would not compete with Marsyas Praun, who had made some
impression, a few years before, at Malta and other places, appears
to have had talents far from contemptible, although immature, but
his presumption exposed him to merited ridicule:—
Low sinks, where he would madly rise,
This most pretentious imp!
See! while with Paganin’ he vies,
Praun looketh less than shrimp!

After returning from Warsaw, Paganini visited Frankfort. It is related

that, while he was in this latter city, an actor from the Breslau
Theatre, taking advantage of his marked peculiarities of look,
manner and gesture, made successful public mimicry of him; and
that he had the good sense, himself, to attend one of these
performances, and join in the general laugh with the best grace
imaginable. He remained for a year at Frankfort; and it seemed as if
he had renounced the previously well-circulated notion of his visiting
Paris and London, when he suddenly made his appearance at
Strasbourg, and soon afterwards arrived upon the banks of the
Seine, to delight and astonish those idolators of novelty, the
inhabitants of the French metropolis.
Of the impression produced by Paganini among the Parisians, as well
as of his personal and musical characteristics, I find so graphic and
picturesque an account in a French journal (Le Globe), that I am
induced to translate, for my purpose, the chief portion of it, under
the conviction that the length of passages leading to what is so far
the reverse of “nothing” will be easily pardoned. Whether the
writer’s moral estimate of the spectacle-hunting branch of the
Parisian public be not a little overcharged with severity, is a point
which I have no pretensions to determine. That there is some
eloquence in the thoughts of the French writer, whoever he might be
(and, alas! for common sense, he is, or was, a St. Simonian), will be,
I think, admitted, even by those who would not so far admire his
composition as to “mark it for a rapture nobly writ.” Here follows his
sketch, however; and Paganini himself (in pictorial effigy) shall
attend, and give it a sort of personal confirmation.
“The Artist is about to make his appearance—silence begins to be
restored—the overture is over, without having been listened to—
somewhat less of coldness and unconcern is expressed on the faces
around—and the hands of the white-gloved are all armed with the
double opera-glass. Enter Paganini and his Violin!
“A universal clapping of hands attends his first advent on the scene.
He advances, with sundry awkward and heavy steps; he makes
obeisance, and the applause is renewed: he moves forward, with
increased oddity of gait, and the noise of hands is prolonged on all
sides.
“He makes several further salutations—he endeavours to animate his
countenance with a smile of acknowledgment, which is instantly
succeeded by a look of icy coldness.... He makes a halt, and, with
still greater eccentricity of manner, it may be, than in his reverences
and his walk, he seizes his fiddle, hugs it betwixt chin and chest, and
fixes on it a look at once of pride, penetration and gentleness. Thus
resteth he several seconds, leaving the public at leisure to examine
and make him out in his strange originality—to note with curiosity
his gaunt body, his lengthy arms and fingers, his dark hair
descending to his shoulders, the sickness and suffering denoted in
his whole frame, his sunken mouth, his long eagle nose, his wan and
hollow cheeks, his large, fine, manifest forehead, such as Gall would
have delighted to contemplate,—and, beneath the shelter and
shadow of that front, eyes that dilate, sparkle and flash at every
instant!
“Such doth Paganini show himself, formed, at every point of his
person, to catch the greatest possible quantum of applause from a
public whom it is his office to amuse. Behold him, a compound of
chill irony and electric enthusiasm,—of haughtiness, with seeming
humility,—of sickly languor, and fitful, nervous, fatal exultings,—of
wild oddity, chastened by some hidden and unconscious grace—of
frank abandonment, of charming attractiveness, of a superiority of
talent that might fix the most indifferent,—but, above all this, a very
man-fiddle—a being of extraordinary nature, created as if expressly
for the gratification of a public delighting, before all things, in the
extraordinary!
“‘Sufficient for the eyes!’ seems he now to say within himself, as he
notes in their operation the incoherent reveries and speculations of
his beholders. Promptly his looks descend from his violin to the
orchestra—he gives the signal—he raises his right hand briskly into
the air, and dashes his bow down upon the instrument!
“You anticipate the rupture of all its strings! On the contrary, the
lightest, the finest, the most delicate of sounds comes forth to win
your surprise. He continues for some moments to sport with your
pre-conceptions, to look askance at you, to irritate you; and every
whim that occurs to him, is employed to draw you out from your
supposed indifference. He teases you, he pleases you: he springs,
he runs, he wanders from tone to tone, from octave to octave;
achieves, with incredible lightness and precision, the widest
intervals; ascends and descends the chromatic and diatonic scales;
touches harmonic accompaniments in his way; extracts unknown
sounds; searches, with easy success, for difficulties and tricks of
skill; exhausts, within the space of a few bars, the whole range of
chords and sounds possible upon the instrument—discourses, sings,
bewails, ejaculates, describes! ’Tis suddenly a murmur of waves, a
whistling in the air, a warbling of birds; a something undefinably
musical, in the most acute as well as the lowest tones—an
unrestricted impulse of caprices, and contrasts, without guide or
measure! ’Tis, in a word, a perfect union of incoherence and
nameless clatter, beyond which, the world-worn and vitiated beings
around, the worshippers of singularity, can see nothing, imagine
nothing, desire nothing!
“The great Artist has, nevertheless, resources other than those of
phantasy, by which to captivate the public—and presently there
succeeds to this musical phantasmagoria a broad, stately,
harmonious (albeit somewhat too bare) simplicity. The fatigue of the
public and of the Artist now gives place to a species of joy, that
visibly blooms on every countenance. Chords that are pure sweet,
melodious, brilliant, stream from beneath the bow; and then come
accents of nature that seem to flow from the heart itself, and affect
you with a perspiring thrill of delight; and then (prodigy of
harmony!) the vague moans and unfinished plainings of a
melancholy abandonment! You sympathize, in gentle pain, with the
touching and melodious artist; you dispose yourself to follow, at his
direction, the course of (as it should seem) some mournful, fleeting,
intangible vision—when instantly a fit of violent distress, a sort of
shuddering fury, seizes him, and we are startled, chilled, tormented,
by cries which pierce the inmost recesses of our frame, and make us
tremble for the hapless being whom we behold and hear! We dare
not breathe—we are half suffocated;—fearfully the head burns, and
the heart aches.
“And yet—and yet, despite this too positive pain which the
unfortunate artist has forced both upon us and himself, he
bethinketh him mindfully that ’tis his vocation to serve for sport to
the public that does him the honor to come and listen to him. He
snatches away, therefore, your ladies with delicate nerves, and your
men of effeminacy, from the suffocation and syncope that threaten
them. Truce to the cries of agony! truce to despair! A fantastic
chaunt, a wild laugh, springs up—and then succeeds a sort of
buffoon dance, to complete the relief of these people, and restore
them to life. Encore he sings, he laughs, he dances: each face is
completely reassured, and its owner, to prove to the rest, and to his
own satisfaction, that he has not so far forgotten himself as to quit
the precincts of bon ton and eternal frigidity, smiles listlessly upon
his neighbour, strokes his cravat adjustingly, and throws a careless
glance from side to side! Amidst this returning indifference, let there
come a new passage of arduous brilliancy, some more or less
astonishing sleight of hand—and a reiterated clapping of palms
convinces the unhappy purveyor of diversion that he has but too
well served the public according to their taste!
“And now, should the rondo come, in its light and laughing gaiety—
should the hymn of love and delight succeed, ’twill be the same case
as with the cry of grief or despair. Each burst of simple gaiety must
be followed by an air in the coquettish style, an impulse from the
head, to give it stimulus. Amid the passionate harmonies of love, you
shall hear interspersed the accents of coldness, of disdain, of raillery.
After a voluptuous transport, you shall have mincings and caprices:—
for there is no gaiety, whether for him, or for the listening public, of
a natural, fresh and youthful character; there is no frank and
confiding attachment; there is no serene and grateful pleasure;
there is no sadness that pours itself out for the sake of consolation;
no joys but such as are like scentless flowers, that one picks to
pieces in sport; no passion save what is akin to delirium,
debauchery, or deadly poison! What the public must have, and the
artist, are your pizzicati, your contrasts, your satanic schooleries,
your touches of the extravagant;—’tis a dose of madness or despair,
—’tis an agony—the sensation of a man suspended over a
bottomless abyss;—’tis a violin, which is at once a flute, a bass, a
guitar, and a whole orchestra, intermixed, confounded, and getting
into harmony only by fits;—’tis a professional visage, revealing a
wounded and withered heart; ’tis a human skeleton—death, in
grotesque attire; ’tis the “talented exhibition” of a rebellious angel,
who gnashes his teeth, and howls, and jeers! And so the public,
seeing their artist hold forth to them, under convenient forms, all
possible monstrosities, seem to applaud themselves inwardly, and to
exclaim instinctively, ‘Here is our interpreter, our plaything, and our
own handywork!‘
“Of such a public, and such an artist, how saddening the sight!...
The public, made up of idlers—of beings isolated, selfish, cold,
corrupt—must be amused, forsooth! and the artist exhausts his taste
and his sentiment, and well nigh perspires blood and water, to
comply with their exactions—to amuse them!—and if he attain this
end, the public clap their hands, the manager of the theatre counts
out to him a heap of gold, and he goes away, with his ears deafened
at the noise which has surrounded him, and which, for a moment, (it
may be), has made his heart beat high;—he goes away, with a
loving grasp tightened over the coin he has so hardly won; and
inwardly exclaims, with a smile of pity, ‘The blockheads—the
barbarians! Who is there among them that can comprehend me—
that can feel my intentions?’—and then the home-returning public,
selfish to the very soul, indemnify themselves for their fingers’-end
applause, by sottish contempt, by remarks that are empty, or worse
—that are scornful, bitter, shocking, disgusting even—such as those
which may have been buzzed into one’s ears in Italy or in Paris, but
varied in a hundred ways, and aggravated at will, just as he varies
and enlarges, twists and turns, beneath his magic bow, a subject of
apparently the most simple and insignificant kind. And now the
voices most distinguishable among the ebbing crowd murmur out
the words, ‘Gambler! Libertine!’ or worse.... And the privileged public
resort again to the theatre, to admire the talent of him whom they
comprehend not; and the artist returns in like manner, to amuse
those who provoke his pity, and whom he beholds so far below him!
Thus, we have contempt on one side, compassion on the other—
applause from hands chilled with the touch of gold, on the one part,
—on the other, sounds that borrow their animation from no social
sympathy! Such are the relations between the public and the
professor—such the bonds that connect them!”

So much for the pungently descriptive, as regards this singular

being. It is less difficult, however, to exhibit effects and appearances,
than to analyze the causes or means which produce them—and it is
in this latter endeavour, accordingly, that there has been least
success attained by those who have made Paganini their theme, in
Paris, as elsewhere. That which was already obscure in relation to
him, has been forced into denser obscurity by the attempted
demonstrations of certain pompous literary showmen, who have
succeeded only in illustrating the proverb of “ignotum per ignotius.”
Mystification and generalization, the resources of ambitious
ignorance, have been copiously employed in these endeavours. Of a
less unsatisfactory character, however, are the pretensions of M.
Guhr, the able violinist, of Frankfort, who has attempted an analysis
of the means employed, and the effects produced, by Paganini. Like
most professors of a secret, the arch Italian was always studious of
maintaining the mystery so provocative of curiosity and admiration.
He assumed the air cabalistic, and, with a severe front and sullen
eye, would stimulate and foster the impression of his being “profited
in strange concealments.” M. Guhr, though he had the seeming
advantage of personal and friendly access to him, found he could
make nothing of him by the interrogatory system, and therefore
adopted the alternative of becoming a silent student of his
peculiarities, till he made certain discoveries of more or less
importance, which he shaped into five heads, to show that Paganini’s
chief points of difference from other violinists were—
1. In his manner of tuning the instrument.
2. In a management of the bow, entirely peculiar to himself.
3. In his mode of using the left hand in the passages chantans, or
passages of a singing character.
4. In the frequent employment of harmonic sounds.
5. In the art of putting the violin into double employ, so as to make
it combine with its own usual office the simultaneous effects of a
mandolin, harp, or other instrument of the kind, whereby you seem
to hear two different performers.
As to the first of these points, “his manner of tuning the instrument,”
observed M. Guhr, “is wholly original, and to me appears
incomprehensible in many respects. Sometimes he tunes the first
three strings half a tone higher, while that of G is a third lower, than
ordinary. Sometimes he changes this with a single turn of the peg,
and he invariably meets the due intonation, which remains sure and
firm. Whoever is aware how much the higher strings stretch with the
least relaxation of the G, and how much all the strings generally
lose, by a sudden change in tuning, the faculty of remaining with
certainty at one point, will join me in the lively desire that Paganini
may decide on communicating his secret in this respect. It was
surprising to find, especially on one occasion, when he played for
nearly an hour and a half in the most opposite keys—without its
being perceptible that he had changed his tuning—that none of the
strings became disturbed. In an evening concert, between the
Andante and the Polacca, his G string snapped, and that which he
substituted, though afterwards tuned to B, remained firm as a rock.
His manner of tuning his instrument contains the secret of many of
his effects, of his succession of chords, and striking vibrations, which
ordinarily appear impossible to the violinist.”
According to this statement, “curious, if true,” Paganini improved his
effects by playing on an instrument out of tune, and, with something
like a miracle of creative power, produced harmony out of discord.
Paganini must of a surety have “pegged hard,” and with a screwing
that was inscrutable, to have attained such a management of his
pegs! Was M. Guhr a misty demonstrator, or was Paganini
inexplicable? As to the G, that can bear to be pulled about in this
fashion without resenting it, we must suppose it to possess a passive
virtue, a habit of accommodation, quite beyond the custom of the
stringy tribe.38
In expatiating on the second point, M. Guhr seems content to
describe effects, rather than to labour (in vain) for the indication of a
cause—but his description is not infelicitous:—
“Paganini’s management of the bow is chiefly remarkable by the
tripping movement which he imparts to it in certain passages. His
staccato is no way similar to that ordinarily produced. He dashes his
bow on the strings, and runs over a succession of scales with
incredible rapidity, while the tones proceed from beneath his fingers,
round as pearls. The variety of his strokes with the bow is
wonderful. I had never before heard marked with so much precision,
and without the slightest disturbance of the measure, the shortest
unaccented notes, in the most hurried movements. And again, what
force he imparts in prolonged sounds! With what depth, in the
adagio, he exhales, as it were, the sighs of a lacerated heart!”
However he might sometimes err in his doctrine, M. Guhr was at
least right in his faith. The supremacy, which he assigned to the
great Genoese genius, was expressed in the language of a
handsome enthusiasm:—
“Rode, Kreutzer, Baillot, Spohr—those giants among violinists—
seemed to have exhausted all the resources of the instrument. They
had extended its mechanism, introduced the greatest imaginable
variety in the use of the bow, which was made subservient to all the
shades of expression and execution: they had succeeded, by the
magic of their sounds, which rivalled the human voice, in painting all
passions and all the movements of sentiment. In short, advancing
rapidly in the path marked out by Corelli, Tartini, and Viotti, they had
raised the violin to that rank which ensures to it the dominion of the
human soul. In their style, they are, and remain, great and
unsurpassed. But, when we hear Paganini, and compare him with
the other masters, it must be confessed that he has passed all the
barriers which custom had hitherto raised, and that he has opened a
way peculiar to himself, and which essentially separates him from
those great Artists; so much so, that whoever hears him for the first
time, is astonished and transported at hearing what is so completely
new and unexpected;—astonished by the fiend-like power with
which he rules over his instrument;—transported that, with a
mechanical facility which no difficulty resists, he at the same time
opens to the fancy a boundless space, gives to the violin the divinest
breathings of the human voice, and deeply moves the inmost
feelings of the soul.”
But we have left Paganini himself at Paris, where we must now
rejoin him and his fortunes. As for the latter, in the moneyed
meaning, they grew with a ratio of increase that would have been
more wonderful, had it not been afterwards outdone by that of his
gains in London. As it was, they were sufficient to inspire one of the
Parisian dilettanti, a nicer worker in figures, with a special access of
passion for calculating the value of notes—that is to say, of
Paganini’s musical “notes of hand.” The result, based upon a concert
given at the Opera at Paris, producing 16,500 francs, and presenting
1365 bars of the fiddling, indicated a quotient of 12 francs for each
bar, and was still more curiously distributed into proportions as
follows:—for a semibreve, 12 francs; a minim, 6 francs; a crotchet, 3
francs; a quaver, 1 franc, 50 centimes; a semiquaver, 15 sous; a
demisemiquaver, 7½ sous. This exemplary calculation did not
overlook, moreover, the cash value of each of the occurring sorts of
rests; besides working out a “contingent remainder” of 420 francs—
that residue happening to be, by the most curious coincidence,
exactly the price of such a violin as the Conservatory usually awards
by way of prize to its most successful pupils!39
The provoking impertinence of Rumour, with her thousand busy
tongues darting conjecture and accusation, drew forth, at Paris, as
at Vienna, some effort at self-defence on the part of the assailed
Artist. His letter to the Editor of the Révue Musicale may claim a
place here (in translated form), as well for its pleasantry and
ingenuity, as for the clue it affords to the origin of some of the
slanderous liberties which had and have been taken with his
character. Of this letter, it subsequently appears that the materials
were furnished by Paganini, and the diction arranged by his friend,
M. Fétis:—
Paris, 21 April, 1831.
“Sir,
“So many marks of kindness have been lavished on me by the
Parisian public,—so many plaudits have been awarded to me,—that I
am bound to give credit to that celebrity which is said to have
preceded my arrival. But, if any doubt on the subject could have
remained, it must have been dissipated by the care I see taken by
your artists to make representations of my likeness,—by the
numerous portraits of Paganini, more or less like the original, with
which the walls of your capital are covered. It is not, however, to
simple portraits, Sir, that their speculations are confined. While
walking yesterday along the Boulevard des Italiens, I saw, in a print-
shop, a lithograph representing Paganini in prison. “Well!” said I to
myself, “here have we some worthy citizen who, in imitation of Don
Bazilio, has been turning to account the calumny which has pursued
me for the last fifteen years.” While smilingly examining all the
details of this mystification with which the fancy of the artist had
furnished him, I perceived that a numerous circle had gathered
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Preface xx courts, controversy, & reducing crime Is It Time to End the

chaP Ter 1 Media Depictions and Distortions of Criminal

Courts and Controversy 19 Due Process 39

Civil Remedies 42 The Constitutional Convention 63

Chapter Review 87 Centralized Rule Making 109

Discretion 136 Decentralization 159

Chapter Review 201 chaP Ter 9

Lack of Cooperation 244 Initial Appearance 266

Lesser Felonies 286 Video Surveillance 314

Evidence 292 courts, controversy, & reducing crime Should the

Law on the Books: Types of Plea Agreements 330

Decision-Making Norms 338 Venire Eligibility 361

Are Juries Biased? 379 Probation 404

PARt IV SENtENcINg tHE case close-up Roper v. Simmons: Should Juveniles be

Seriousness of the Offense 432 Critical Thinking Questions 458

Plea Bargaining 516 appendix a Criminal Court Landmarks 523

case close-up 6 Are Sexual Assaults against Women

Chapter 6—Prosecutors are the focus of this chap-

“Natura il fece, e poi ruppe la stampa.”—Ariosto.

“The glory, jest, and riddle of the world.”—Pope.

The increased celebrity which he afterwards acquired, or rather,

After returning from Warsaw, Paganini visited Frankfort. It is related

So much for the pungently descriptive, as regards this singular

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