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

Since Miranda was decided, state and federal courts have struggled with a number of issues with regard to its application, including: when a suspect is deemed to be in custody and thus e

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Since Miranda was decided, state and federal courts have struggled with a number of issues with regard to its application, including: when a suspect is deemed to be in custody and thus entitled to the warnings required by Miranda;

and when a suspect will be deemed to have waived the right to have an attorney present during questioning Some recent decisions by the U.S Supreme Court have attempted to answer these difficult questions

In Stansbury v California, 511 U.S 318, 114

S Ct 1526, 128 L Ed 2d 293 (1994), the Court considered whether a police officer’s subjective and undisclosed opinion concerning whether a person who had been questioned had been a suspect was relevant in determining whether that person had been in custody and thus entitled to the Miranda warnings In 1982 Robert Stansbury was convicted of first-degree

MURDER, RAPE,KIDNAPPING, and a lewd act on a child under the age of 14 The morning after ten-year-old Robyn Jackson had disappeared from a Baldwin Park, California, playground, a witness in Pasadena, California, had observed a large man leaving a turquoise car and throwing something into a nearby flood-control channel

The witness called the police, who discovered Jackson’s body in the channel She had been raped, strangled, and struck on the head with a blunt instrument The police later learned that Jackson had talked to two ice-cream truck drivers, one of whom was Stansbury, shortly before she disappeared Officers went to

Stansbury’s home and asked Stansbury to go

to the police station to answer some questions concerning their investigation into Jackson’s murder Stansbury agreed and accepted a ride to the station in a police car

At the police station, Stansbury was ques-tioned about his whereabouts and activities on the day Jackson’s body was discovered The police did not read him the Miranda warnings

at the time Stansbury told the police that he had talked to the girl, that he had returned to his trailer a few hours later, and that he had left around midnight in his roommate’s turquoise car The car matched the description given by the witness Stansbury also admitted that he previously had been convicted of rape, kidnap-ping, and CHILD MOLESTATION The detective interviewing Stansbury then terminated the conversation and read Stansbury the Miranda warnings Stansbury was later charged with first-degree murder and other crimes

At a PRETRIAL CONFERENCE, Stansbury moved

to suppress all of the statements that he had made at the station, as well as the evidence that had been discovered as a result of those statements The trial court denied his motion, ruling that Stansbury had not been in custody— and thus that he had not been entitled to the Miranda warnings—until he had mentioned the turquoise car Before that point in the interview, the court reasoned, Stansbury had not been considered a suspect Based on that conclusion, the trial court permitted introduction of the statements that Stansbury had made before he had mentioned the car Stansbury was convicted

on all charges and was sentenced to death for first-degree murder

On appeal, the California Supreme Court affirmed Stansbury’s conviction, rejecting the

“in-custody” claim that he had raised in the trial court The state supreme court, applying an in-custody legal standard based on whether the investigation has focused on the subject, agreed with the trial court’s conclusion that suspicion had focused on Stansbury only after he mentioned driving the turquoise car on the night of the crime Therefore, the court held, Stansbury had not been subject to custodial interrogation before that time, and in turn Miranda warnings had not been required, and his statements were admissible

The U.S Supreme Court reversed and remanded the case In a PER CURIAM decision

After a person has

been taken into

custody by law

enforcement officials,

he must be advised of

his constitutional

rights before the

officals begin an

interrogation.

AP IMAGES

338 CUSTODIAL INTERROGATION

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(a brief, unanimous, and unsigned opinion), the

Court held that “an officer’s subjective and

undisclosed view concerning whether the

per-son being interrogated is a suspect is irrelevant

to the assessment[of] whether the person is in

custody.” Instead, according to the Court, the

key inquiry should be whether the individual

had been placed under formal arrest, or whether

the restraint placed on the individual’s freedom

of movement rose to the level of a formal arrest

The Court further noted that the “initial

determination of custody depends on the

objective circumstances of the interrogation,

not on the subjective views harbored by either

the interrogation officers or the person being

questioned.” So long as an officer’s subjective

view that an individual being questioned is a

suspect is not disclosed to the individual, the

officer’s view has no bearing on the in-custody

issue If the officer’s knowledge or beliefs are

communicated to the individual being

ques-tioned, the Court stated, that knowledge

or those beliefs are relevant only to the extent

that the individual“would gauge the breadth of

his or her‘freedom of action.’” But a statement

from the officer that the individual is the prime

suspect, in and of itself, is not“dispositive of the

custody issue.”

In Stansbury, the California Supreme Court

had not analyzed the in-custody issue based on

these principles Thus, the U.S Supreme Court

remanded the case to the trial court to

determine whether the objective facts

surround-ing Stansbury’s interrogation supported the trial

court’s original conclusion that Stansbury had

not been in custody before he mentioned the

turquoise car

The high court tackled another difficult

Miranda issue in Davis v United States, 512 U.S

452, 114 S Ct 2350, 129 L Ed 2d (1994), when

it considered the circumstances under which a

suspect who was subject to custodial

interro-gation has validly waived the right to have an

attorney present during questioning In an

earlier decision, Edwards v Arizona, 451 U.S

477, 101 S Ct 1880, 68 L Ed 2d 378 (1981),

the Court had held that such a waiver must be

“knowing and intelligent.” Furthermore, the

Court had made clear in Edwards that police

officers must immediately stop questioning a

suspect who clearly asserts the right to have

legal counsel present during the interrogation

Edwards applied only when a suspect

clearly asserted the right to have counsel

present; it did not provide guidance to officers when a suspect made an ambiguous or equivocal request for counsel Addressing that situation, some jurisdictions had held that any mention of counsel, no matter how ambigu-ous, required that questioning cease Other courts had attempted to define a threshold standard of clarity, under which comments that fell below the required clarity did not invoke the RIGHT TO COUNSEL Still other jurisdictions had ruled that questioning must cease upon any mention of counsel, but officers were permitted to ask further, narrow questions to clarify whether the suspect desired

an attorney In Davis, the U.S Supreme Court settled the issue, holding that officers are not required to cease questioning if a suspect makes an ambiguous request for counsel

Questioning may continue until the suspect makes an “unambiguous” request for an attorney Furthermore, the Court held, police officers have no duty to seek clarification of an ambiguous request

The case began when Robert Davis, a member of the U.S Navy, became a suspect in the murder of another sailor at the Charleston, South Carolina, naval base Davis was inter-viewed by the authorities and informed of his Miranda rights He waived, orally and in writing, his right to remain silent and his right

to counsel But after talking with agents for 90 minutes, he stated, “Maybe I should talk to a lawyer.” One of the agents asked Davis whether

he wanted an attorney, or whether he was just making a comment Davis replied,“No, I’m not asking for a lawyer.” After a short break, the agents reminded him of his right to remain silent and then resumed the questioning An hour later, Davis said, “I think I want a lawyer before I say anything else.” The agents then stopped the interview

At his general COURT-MARTIAL, Davis main-tained that the statements made during the interview after his ambiguous statement con-cerning the need to talk with a lawyer should not be admitted The court ruled that the ambiguous statement had not been in the form

of a request for an attorney, and thus the statements made after it were admissible Davis was found guilty of unpremeditated murder and sentenced to life imprisonment His conviction was affirmed by the military appellate court

The U.S Supreme Court also affirmed the conviction Writing for the majority, Justice

CUSTODIAL INTERROGATION 339

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Sandra Day O’Connor noted that none of the Court’s previous decisions addressing Miranda issues required that questioning of a suspect

be terminated if the suspect makes an ambigu-ous or equivocal request for counsel To gain Miranda protection, she maintained, a suspect must“unambiguously request counsel,” and the request must“articulate [the suspect’s] desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” She further stated that requiring questioning to stop when a suspect makes ambiguous references to requesting an attorney would transform the Miranda protec-tions into“wholly irrational obstacles to legiti-mate police investigative activity.” Police offi-cers, she maintained, would be forced to end questioning even if the suspect does not want an attorney, thus hampering effective law enforce-ment Permitting a mere reference to an attorney to end an interrogation would require police officers to“make difficult judgment calls whether the suspect in fact wants a lawyer even though he hasn’t said so, with the threat of supression if they guess wrong.”

In a separate opinion, Justice DAVID H

SOUTER, joined by Justices HARRY A BLACKMUN,

JOHN PAUL STEVENS, and RUTH BADER GINSBURG, concurred in the judgment affirming Davis’s conviction In Souter’s view, officers could constitutionally pose questions to clarify a suspect’s ambiguous reference for counsel, as was done in Davis Souter believed that the statements given by Davis, after the counsel issue was clarified, indicated that Davis did not want an attorney Nevertheless, Souter disagreed with the Court’s ruling that the agents could entirely disregard Davis’s refer-ences to wanting one He argued that, like the agents in Davis, the Court should adopt

a rule barring officers from further questioning until they have determined whether a suspect’s ambiguous statement was meant as a request for an attorney According to Souter, a“timid

or verbally inept subject” might not under-stand what is required in order for him or her to stop the interrogation and to consult with an attorney If the suspect understands that a request has been ignored, he or she may not object further and may see “confession (true or not) as the only way to end [the]

interrogation.”

The Future of Miranda

Miranda and its progeny have long served as a whipping post for politicians, legal commenta-tors, and others who perceive the decision as

“coddling criminals.” They argue that the Miranda warnings impede police officers from efficiently and effectively doing their jobs by adding additional layers of unnecessary proce-dure to the law enforcement process Miranda critics also maintain that the police are punished, and that society is harmed, when defendants are set free, because key evidence is suppressed after being obtained in violation of the Fifth Amendment’s prohibition against un-Mirandized confessions Moreover, Miranda critics contend that criminal suspects seldom fully understand the meaning or importance of the rights recited to them Finally, critics cite studies indicating that the Miranda decision has had little effect in reducing the number of confessions and requests for lawyers made by suspects in custody

In 1999 the U.S Court of Appeals for the Fourth Circuit fueled long-standing speculation that Miranda would be overruled when it held that the admissibility of confessions in federal court is governed not by Miranda, but by a federal statute enacted two years after Miranda The statute, 18 U.S.C.A § 3501, provides that a

CONFESSION is admissible if voluntarily given, with the voluntariness of each confession being evaluated by the“totality of the circumstances”

on a cases-by-case basis, without any require-ment that the DEFENDANT be Mirandized Congress enacted the statute to overturn Miranda, the Fourth Circuit wrote, and Con-gress had the authority to do so pursuant to its authority to overrule judicially created rules of evidence that are not mandated by the Consti-tution (United States v Dickerson, 166 F.3d 667 [4th Cir 1999])

The U.S Supreme Court reversed In a 7–2 opinion authored by Chief Justice WILLIAM REHNQUIST, the Court wrote that whether or not it agreed with Miranda, the principles of

STARE DECISIS weigh heavily against overruling it then Whereas the Court has overruled other precedents when subsequent cases have under-mined their doctrinal underpinnings, that has not happened to the Miranda decision, which the Court said “has become embedded in routine police practice to the point where the warnings have become part of our national

340 CUSTODIAL INTERROGATION

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culture.” Although a few guilty defendants may

sometimes go free as the result of the

applica-tion of the Miranda rule, the Court observed,

experience shows that the

totality-of-the-circumstances test set forth in Section 3501 is

more difficult than Miranda for law

enforce-ment officers and courts to apply in a consistent

manner (Dickerson v United States, 530 U.S

428, 120 S Ct 2326, 147 L Ed 2d 405 [2000])

The Court said that a contrary conclusion is

not required by the fact that it has subsequently

made exceptions to the Miranda rule No

constitutional rule is immutable, much less

immune from the sort of refinements Miranda

has undergone to adapt to the needs and

realities of law enforcement Moreover, the

Court emphasized, these exceptions have

re-duced some of the law enforcement

inefficien-cies that Miranda critics were predicting would

undermine the efficiency of criminal

investiga-tions, as the Miranda warnings are now often

provided in a rote and perfunctory manner

during arrest and custodial interrogation “If

anything,” Rehnquist wrote, “subsequent cases

have reduced the impact of the Miranda rule on

legitimate law enforcement while reaffirming

the decision’s core ruling that unwarned

state-ments may not be used as evidence in the

prosecution’s case in chief.”

Dickerson surprised many observers, not

only because the Court declined to overrule

Miranda, but also because Chief Justice William

Rehnquist authored the opinion upholding

Miranda, even suggesting that Miranda had

become so “embedded” in the nation’s

juris-prudence as to be unlikely to be overturned in

the foreseeable future Most observers consider

Rehnquist to be one of the Court’s more

conservative members His opinions are

fre-quently joined by fellow conservatives, Justices

ANTONIN SCALIA and CLARENCE THOMAS, both of

whom dissented in Dickerson On any number

of other issues, civil libertarians have assailed

the chief justice for what they regard as his

narrow reading of theBILL OF RIGHTS Dickerson

both tempered that criticism and quieted

speculation about the future of Miranda

FURTHER READINGS

Clymer, Steven D 2002 “Are Police Free to Disregard

Miranda?” Yale Law Journal 112:3 (December).

Kenney, Jack 1998 “Custodial Interrogation, Invocation

of Right to Counsel.” Res Gestae 42 (November–

December).

Pearce, Gene A 2001 “Constitutional Law—Criminal Law:

The United States Supreme Court Affirms the Use of Miranda Rights by Police to Determine the Admissibil-ity of Statements Made during Custodial Interro-gation ” North Dakota Law Review 77 (winter).

CROSS REFERENCES Criminal Procedure; Privilege Against Self-Incrimination;

Right to Counsel; Self-Incrimination.

CUSTODY The care, possession, and control of a thing or person The retention, inspection, guarding, maintenance, or security of a thing within the immediate care and control of the person to whom

it is committed The detention of a person by lawful authority or process

For example, in a BAILMENT, the BAILEE has custody of goods delivered to him or her in trust for the execution of a special object upon such goods

The term is flexible and may mean actual imprisonment or the mere power—legal or physical—of imprisoning or assuming manual possession A petitioner must be“in custody” to

be entitled to HABEAS CORPUS relief, which provides for release from unlawful confinement

in violation of constitutional rights Custody in this context is synonymous with restraint of liberty and does not necessarily mean actual physical imprisonment Persons who are on

PROBATION or who are released on their own recognizance are “in custody” for purposes of habeas corpus proceedings

CHILD CUSTODY, which encompasses the care, control, guardianship, and maintenance of a child, may be awarded to one of the parents in a

DIVORCEor separation proceeding Joint custody

is an emerging concept that involves the apportionment of custody between the parents during specified periods of time For example, a child may reside with each parent for six months each year

Jurisdiction of courts over custody disputes has been heavily litigated, especially in child-custody cases In the past, some parents sought

to obtain custody over their children by removing them from one state, then seeking

to obtain custody through a decree in another state The federal and state governments have sought to prevent this occurrence through the enactment of a series of statutes In 1967 the COMMISSIONERS ON UNIFORM LAWS approved the Uniform Child Custody Jurisdiction Act,

CUSTODY 341

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which was eventually adopted in every state.

The act provides that a state court will not accept a custody case unless it has ORIGINAL JURISDICTION or unless the state with original jurisdiction relinquishes it The Commissioners

on Uniform Laws updated the law in 1997 with the approval of the Uniform Child Custody Jurisdiction and Enforcement Act, which more than 30 states have adopted Congress has enacted similar legislation, including the Paren-tal KIDNAPPING Prevention Act (28 U.S.C.A § 1738A[Supp 2003]) That statute requires that

a state give full faith and credit to another state’s custody order

The jurisdiction of federal courts over custody of ALIENShas also become a significant issue with the enactment of several anti-terrorism statutes since the late 1990s In

1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, Pub L No

104-132, 110 Stat 1214 (1996) and the Illegal Immigration Reform and Immigrant Responsi-bility Act, Pub L No 104-208, 110 Stat 3009 (1996), both of which removed much of the power from federal courts to review cases involving immigrants who are held in custody for certain crimes Several legal commentators criticized the application of these statutes due to their limitation of the habeas corpus rights that traditionally are extended to aliens Commen-tators have similarly raised questions have been raised with respect to orders issued by President

GEORGE W.BUSH, which limit the ability of federal courts to review cases of suspected terrorists who are held in custody

CUSTOMS DUTIES Tariffs or taxes payable on merchandise imported

or exported from one country to another

Customs laws seek to equalize the charges imposed by other countries, furnish income for the federal government, and preserve the financial stability of domestic industries

Congress has the exclusive authority to determine the imposition and enforcement of such duties and federal courts have exclusive jurisdiction to resolve controversies involving customs duties

Customs Service

The U.S Customs Service has these responsibili-ties: the proper assessment and collection of customs duties, excise taxes, fees, and penalties

owing on imported items; the prohibition and seizure of CONTRABAND, including narcotics and illegal drugs; the processing of people, carriers, cargo, and mail into and out of the country; the administration of certain navigation laws; the detection and apprehension of individuals en-gaged in fraudulent activities who intend to circumvent customs; the protection of U.S business and labor through the enforcement of statutes, regulations, and countervailing duty; the enforcement ofCOPYRIGHT,PATENT, and trademark provisions and quotas; and the setting of requirements for imported merchandise

Goods and Merchandise Subject to Duties

Federal TARIFF schedules set forth terms that prescribe those goods that are to be subject to duties Such schedules specify the items upon which a duty is to be imposed when imported into the United States and the rates at which the items will be taxed based upon the monetary value of each item

Exemptions Any U.S resident, including an infant, who returns from a foreign trip is permitted an exemption from being charged duty on specific items that would otherwise be subject to duty, provided the individual was out

of the United States for a minimum of 48 hours The size of the exemption depends upon the reasonable retail value of each item, which is determined by the place of purchase, not by what it would sell for in the United States Articles must be for personal or household purposes or for use as gifts Included within the exemption are limited amounts of alcoholic beverages, cigars, and cigarettes

Household goods—including rugs, draperies, and furniture—obtained abroad and used there for a period of one year can be imported without the imposition of a duty, provided these goods are not brought into the country for sale or for use by some other individual Cameras, stereo equipment, and watches do not fall under the classification of household goods; therefore, a duty must be paid on such items Household goods transported abroad from the United States are, upon their return, exempt from duty In addition, personal articles, such as cameras and jewelry, that were originally manufactured in a foreign country can also be returned without the imposition of a duty, provided they were purchased in the United States and identified

342 CUSTOMS DUTIES

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and registered with the Customs Service prior to

being brought to a foreign country

Vehicles, including automobiles, that are

taken abroad for nonbusiness purposes can be

sent back to the United States duty free upon

proof that such vehicles were shipped from the

United States Such proof can be in the form

of either a state motor vehicle certificate or

customs registration certificate upon the

regis-tration of the automobile prior to shipment If

an automobile is repaired while abroad, the

value of the repairs must be stated and a duty

must be discharged on their value

Gifts The established exemption applies to

both gifts received abroad and those brought

home for others Gifts that do not exceed a

value of $50 in the country of shipment can be

accepted by the recipient in the United States

free from any duty charges and, therefore, have

no effect on the exemption However, no one

person can receive gifts exceeding $50 on any

one day If this occurs, a duty and, if applicable,

a tax will be imposed on all articles The $50

limit does not include gifts of liquor orTOBACCO,

nor does it include gifts that an individual sends

to himself or herself or to any person with

whom he or she is traveling The common

practice is to have gifts wrapped and labeled

separately so as to avoid having them included

in the sum total of purchases by the customs

officer

Other Purchases In the event that the total

dollar value of the imported items is greater

than the set exemption amount, the purchaser

must complete a written declaration itemizing

all articles A duty of 10 percent on the first

$1,000 in the excess amount must be paid, but

the duties on goods above that amount vary,

based on their wholesale, rather than on their

fair retail, value Those articles assessed at the

maximum duty rates are included within the

exemption, whereas those assessed at lower

rates are put in the excess category Discharge of

the duty on the excess items can be made with

American money, a personal check, a

govern-ment check, a traveler’s check, or a money

order Personal checks cannot be drawn on

foreign banks; rather, they must be drawn on a

national or state bank orTRUST COMPANYof the

United States In the event that a government

check, traveler’s check, or money order is used,

it must not be for an amount higher than $50 in

excess of the duty charge

Restricted Articles Various items such as plants that shelter harmful insects are subject

to restrictions because they are hazardous to the

GENERAL WELFAREof the United States as a whole

or to a particular segment of society Restricted plants cannot be brought into the United States unless the Customs Service issues special permits Livestock—including horses, goats, sheep, and zoo animals—are also restricted and require permits for their importation Pets must pass inspection by veterinarians employed

by the U.S DEPARTMENT OF AGRICULTURE and are frequently subject to a quarantine period prior

to entry into the United States

Importation of firearms and ammunition requires a permit Weapons taken abroad to be used on a HUNTING expedition can be brought back by the individual who removed them without a permit The owners of firearms customarily register them with the Customs Service before their departure; however, no more than three firearms and one thousand cartridges can be registered

Prohibited Articles A wide range of items cannot be brought back to the United States from a foreign country Included in this category are plants in soil, citrus peels, fresh dairy products, and seeds from a number of plants Narcotic drugs are strictly prohibited;

however, medication containing narcotic sub-stances can be brought in provided the

Customs duties are taxes paid on merchandise brought into the United States, including, for example, gifts brought home to another person.

DIGITAL VISION/ PHOTODISC/GETTY IMAGES CUSTOMS DUTIES 343

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substances are properly identified and the traveler has a doctor’s prescription or a statement relating to the drug The importation

of various articles from certain countries, including Cuba and Vietnam, are prohibited without a license obtained from the Office of Foreign Assets Control of theDEPARTMENT OF THE TREASURY

Penalties Failure to declare articles that must

be declared makes the items subject to seizure and FORFEITURE An individual who fails to declare an article is held liable for a penalty equivalent to its value, which is its worth in the place where it was acquired An individual who fails to declare an item can also be subject to a

CRIMINAL ACTION Seizure and forfeiture provisions are also applicable in the event that the value of an item

is understated or misrepresented and the individual who is guilty of such understatement

or MISREPRESENTATIONmust pay the duty on the forfeited item

FURTHER READINGS Korb, Lawrence J 2003 A New National Security Strategy in

an Age of Terrorists, Tyrants, and Weapons of Mass Destruction New York: Council on Foreign Relations.

Oldham, Charles, ed 2002 United States Coast Guard: The Americas’ Lifesaver and Guardian of the Seas Tampa, Fla.: Government Services Group.

Title 19—Customs Duties Legal Information Institute, U.S.

Code Collection Available online at http://www.law.

cornell.edu/uscode/19/usc_sup_01_19.html; website home page: http://www.law.cornell.edu (accessed Sep-tember 1, 2009).

CROSS REFERENCES Contraband; Tariff.

CY PRES Abbreviated form of cy pres comme possible, French for “as near as possible.” The name of a rule employed in the construction of such instruments as trusts and wills, by which the intention of the person who executes the instru-ment is effectuated as nearly as possible when circumstances make it impossible or illegal to give literal effect to the document

Cy pres is applied in cases where the court concludes that, under the circumstances, the intent of theSETTLOR who creates a trust or the

TESTATOR who makes a will will not be contra-dicted by employing a flexible approach toward the application of the provisions of the docu-ment Without cy pres, the intent of the settlor

or testator will never be implemented because the document will be without any legal effect and not subject to enforcement by the court In one case a settlor directed that his property be used as a home for retired clergymen, but the clergymen’s wives were prohibited from resid-ing there with them This trust provision substantially reduced the number of applicants

to the home A court ordered the trustee, a person either appointed by the settlor or required by law to execute a trust, to ignore this provision under the doctrine of cy pres However, a court does not have the power to alter a settlor’s dispositive provisions For example, a trustee who is in charge of two charitable trusts cannot be authorized by a court

to transfer funds from one charity to the other

A court also has the power under the cy pres doctrine to order trust funds to be applied to a charitable purpose other than the one specifi-cally named by a settlor when it was the settlor’s intention to benefit charity in general and it has become impossible, inexpedient, or impractical

to accomplish his or her specific purpose Because a CHARITABLE TRUST can be perpetual, many become obsolete due to changing social, political, economic, or other conditions A trust established in 1790 to combat yellow fever would, for example, be of little or no practical value now, because that disease has been virtually eradicated as a result of advances in medicine When cy pres is applied, the court reasons that the settlor would have wanted his or her general charitable purposes implemented despite the changing conditions In one case a testator provided for two trusts: the first to facilitate the end ofSLAVERY, and the second to assist runaway slaves Shortly after the testator died, slavery was abolished, so the purposes of both trusts were completely outdated A court reasoned that the testator intended the broad purpose of aiding African Americans, so the changes in the structure of society justified the court’s applica-tion of funds of the trusts to purposes similar to those chosen by the testator The first trust fund was applied to the education of former slaves in the South, and the second was used to assist impoverished blacks in the city where the testator had lived and granted preference to those who had previously escaped from slavery

The cy pres doctrine can be applied only by a court, never by the trustees of a trust who must execute the terms of the trust Trustees can, however, apply to the court for cy pres

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instructions when they believe the trust

arrange-ment warrants it A cy pres action is instituted by

the trustees with the state attorney general as a

party to the action, or the attorney general can

initiate the suit Once conditions are deemed

suitable for the employment of cy pres, the court

has broad discretion in the framing of a scheme

for the application of the charitable fund to a

purpose “as near as possible” to the one

designated by the settlor Some states authorize

the living settlor to veto the application of cy pres

to anIRREVOCABLEtrust that he or she created

The doctrine of cy pres is not employed

where a settlor was concerned with only one

specific charitable objective and it fails, or when

the settlor provides that a gift be made to

another upon failure of the charitable gift

When cy pres is not applied and the trust fails without any provision for the property to be given to another, there is a RESULTING TRUSTfor the settlor or his successors

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