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(3) CONTINUED INTERROGATION.-For a period of three hours commencing with the completion of the reasonable use of the telephone provided by paragraph (2) of this subsection, or, if no telephoning, commencing upon completion of the warning provided in paragraph (1) of this subsection, the arrested person may be interrogated by officers of the District of Columbia government, notwithstanding the fact that neither retained or appoined counsel nor any relative or friend of the arrested person has appeared to consult with the accused. Such continued interrogation shall be supervised by a master of examination who shall order the termination of the interrogation at any time that he finds that the methods of interrogation used are reasonably calculated to elicit an involuntary response or that the arrested person does not comprehend the rights contained in the warning provided in subsection (a) of this section. At any time during the continued interrogation, the master of examination shall be authorized to suspend the interrogation in order to repeat the aforesaid warning. If retained or appointed counsel (or a friend or relative if no counsel has yet appeared) arrives at the offices of installation of the District of Columbia government where the interrogation is in process, such person shall have immediate access to the arrested person. Upon the arrival of any such friend or relative (if no counsel has yet appeared) the interrogation may continue for the balance of the three-hour period, but the arrested person shall be permitted to have any one such relative or friend present. After the arrival of counsel, retained or appointed, or the expiration of the three-hour period herein provided, whichever may first occur, there shall be no further interrogation without counsel being present. If during said three-hour period, it becomes reasonable to take the arrested person before a committing officer, the interrogation must cease and the hearing provided for in sub
section (b) of this section held. (d) ADMISSIBILITY OF STATEMENTS.—Voluntary statements, including incriminating statements made by a person arrested by a District law enforcement officer, shall not be excluded from evidence in a trial involving such person so long as the provisions of this section are complied with. The master of examination shall make a report as to all interrogations supervised and deposit same with the court. In any case where there is an issue as to the voluntariness of any confession or other statement, said master of examination shall testify, or if he is dead, disabled, or otherwise not reasonably able to appear, then his report shall be admitted into evidence on the question of voluntariness. Master of examination shall employ any manual or mechanical means to keep a record of interrogation conducted in his presence.
Sec. 5. PENALTIES.—— The use of coercion, threats, or promises of leniency by a District law enforcement officer for the purpose of eliciting a confession shall constitute a misdemeanor and shall be punishable by a fine not to exceed $1,000.
Mr. WHITENER. We are delighted to have you with us, Mr. Taft, and are pleased to hear your statement relating to your bill. STATEMENT OF HON. ROBERT TAFT, JR., REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OHIO
Mr. Tart. Thank you very much, Mr. Chairman, members of the committee. First of all, may I say I appreciate greatly the opportunity to appear here and present this to the committee on H.R. 7808.
It is a somewhat different approach from many other suggestions that have been made to do something about the crime problem. I might say that it's a companion bill with a similar bill that has been referred to judiciary which will apply to all Federal law enforcement, not merely in the District of Columbia.
I have a prepared statement which has been submitted, which I will at least summarize and read it in part.
Mr. WHITENER. We'll make your prepared statement a part of the record at this point.
(The prepared statement of Mr. Robert Taft, Jr., follows:)
TESTIMONY OF ROBERT TAFT, JR., MEMBER OF CONGRESS, FIRST DISTRICT, OH10
Crime and the problems of crime are intertwined with many other pressing needs, but the figures merit facing crime head-on. In the last five years the national figures ow a 49 increase with crime up 11% in the last year alone. In towns under 10,000 there was an increase of 14%, in suburbs of 13%; for those under age 18 the rate was up 9%. It will not be enough to lay bare sociological causes and explanations for crime, Only 25% of serious crimes are now solved by law enforcement officers; only 20% of offenses against property are solved; only 35% of robberies are solved.
In this vein, I have suggested two approaches that are by no means exclusive. One is favored tax treatment for law enforcement personnel to attract more to the profession, and even more, to give public recognition, awareness, and sense of participation in their effort.
There have been a number of other proposals that make general or specific attacks on the problem such as the “Safe Streets" bill, "Revenue Sharing", the Javits “Police Communications” bill and the Griffin "Information Center” bill. Some or all of these should be shifted and the best of them enacted.
A further equally pressing approach I would like to develop in detail today would establish workable and understandable procedural rules in connection with some phases of interrogation and law enforcement. If we fail to act on this area we will further undermine the growing loss of respect for procedures of law in enactment as well as execution.
I have introduced two bills dealing with this problem of initial questioning in connection with a crime and later interrogation of the criminally accused. The first of these bills, H.R. 7384, would regulate all criminal interrogation by federal law enforcement officers. This bill has been referred to the Judiciary Committee. The second bill, H.R. 7808, is similar in many respects and deals with criminal interrogation by law enforcement officers of the District of Columbia. It is this second proposal which is the subject of my remarks today.
Both pieces of legislation are addressed to the problems in law enforcement raised by the case of Miranda vs. Arizona, 384 US 436 (1966). We may find differences in the President's Commission and elsewhere as to what possible deterrent results can be achieved best. Even Chairman Katzenbach has agreed that such decisions "bave made police work more difficult." In proposing a legislative approach to these problems, it is not my intention to throw down any gauntlet to the Supreme Court. Instead, I propose to establish clearer standards than the rules laid down in Miranda—yet ones which I believe will better protect the rights of the criminally accused, while reducing the possible deleterious effects that some interpretations of Miranda are having on effective law enforcement and the morale of our law enforcement officers.
My concern with the need for a comprehensive interrogation law stems from the conviction that the rules or lack of them set out in Miranda are inadequate to protect either society or the criminally accused. It is a matter of common belief that police investigations are presently hampered by the vague rules of Miranda, and there are those who believe that, out of frustration, they might have the eventual effect of outlawing the use of all confessions unless Congress and the States act to rectify the situation.
It is also true that Miranda does not even accomplish its major goal which is to assure that the ordinary criminally accused (not the Mafia, or the wealthy criminal) is interrogated in an atmosphere free from coercion. Miranda, in practice, does not help these people, because it continues to permit the waiver of all rights, both as to stops and questioning as well as when held in custody in private, without the assistance of any neutral or friendly third person.
It was in light of these considerations that H.R. 7384 and H.R. 7808 for the District of Columbia, were prepared.
I will summarize briefly the salient provisions of the bills.
In the first phase of criminal investigation, the District of Columbia law enforcement officer is granted express authority to request information from any person in connection with the prevention or investigation of a crime. This request need not be preceded by any explanation or warning, but any refusal to cooperate may not be used later against the individual. If the officer has "reasonable cause" to believe there has been a crime and that the person has knowledge which may be of material aid, he may direct that person to remain in his presence for a period of not more than twenty minutes.
The same would be true in any situation where the officer observed a person in circumstances which “suggest" that the person has committed or is about to commit a crime. While the officer is given the power to impose the temporary minimal restraint without the "mechanical" warning provided in Miranda, there are strict limits on the purposes for which this “stop” may be used. It can only be used: (1) to identify the person by readily available information; (2) to request his cooperation in the investigation of a crime: or (3) to ascertain bis explanation for his presence of conduct by readily available information.
Thus, if an officer observes a man running down a dark alley behind a series of stores, he can be stopped and asked to explain his presence without going through the warnings set up by Miranda. If any voluntary, but incriminating, statements are elicited during this period, they would be admissible.
In carving out this specific area for on-the-street police investigation, I have proposed to limit it to a twenty minute period to minimize possibilities of abuse. In most cases this period should be sufficient to enable the officer to find out quickly what is needed so that he may respond to the situation.
Thereafter, however, the officer must decide if he is going to make an arrest. If not, the individual must be informed he is free to go. If arrested, the officer must give the arrested person a statement of his rights, including the right to remain silent, the fact that the accused has a right to communicate with counsel, relatives or friends, and that anything he says can be used against him at trial. The arrested person must then be transported immediately and directly to the police station if any further interrogation is desired. During the trip, interrogation may continue without the presence of counsel, but any statement, to be admissable later, must be wholly voluntary.
The second phase of the proposed bill comes into effect upon reaching the police station. Thereafter, any further interrogation must take place before a court appointed official known as a Master of Examination.
This official is an officer of the court and not a part of the law enforcement agency involved. He is charged with recording or transcribing interrogation, with supervising and limiting the questions and the manner in which the interrogation continues, and with carrying out the responsibility for securing counsel for the arrested person and seeing to it that his family is put into communication with him.
However, because of the sweeping powers and rights given the Master of Examination, powers which insure that a person's privilege against self-incrimination will not be dispelled by a “compelling atmosphere” interrogation before the Master can continue for only three hours without the presence or specific waiver of an attorney. If the attorney, or any friend or relation is available. they may be present during the interrogation. Furthermore, if the arrested person desires to assert his right to remain silent pending the arrival of the attorney or a relative or friend, the Master of Examination will insure the free exercise of such right. However, a mere indication that the accused desires not to be ques. tioned will not terminate interrogation as it would under Bliranda. And, if the arrested person is willing to talk, his statements would be admissible even though previously or simultaneously he has asked for and will receive the sertices of an attorney at the earliest availability.
The final provision of my proposal is a very explicit provision making it a misdemeanor for a police officer to use coercion, threats, or promises of leniency to elicit a confession. This provides a safeguard against police abuse that does not exist today.
I firmly believe that my proposal satisfies the Fifth Amendment command that no person shall be compelled in any criminal case to be a witness against himself and the Sixth Amendment guarantee of effective assistance of counsel.
We have taken a comprehensive approach to the problems of out of court statements and provided appropriate safeguards for each of the situations.
It is proper for the Congress, as a co-ordinate equal of the Supreme Court, to make rational distinctions in determining the requirements of the Fifth Amendment, and the Miranda decision is replete with recognition of this fact. For example, the Miranda decision held that, for purposes of preventing a compulsive atmosphere, the safeguards must apply when one is deprived of his freedom of action "in any significant way." I can foresee that the application of this test creates many problems and have thus attempted to provide some specificity. My proposal provides that the twenty-minute stop for preliminary exploratory questioning is not custody nor such a significant restriction of liberty as to require a warning or the presence of neutral observers or attorneys. However, once the investigation shifts from a general exploration of what has happened to a
focusing in on a particular individual, the interrogation changes from noncustodial to custodial and the accused is guaranteed his warning rights. This point is reached when questioning goes beyond the limited objects permitted during a “stop”.
On the other hand, we have provided that once a person is arrested and taken into police custody, substantial safeguards—which include the introduction of elements of neutrality-must be provided. This removes the need for the absolute right to an attorney. As is pointed out in the Harvard Law Review in November, 1966 (80 Harvard Law Review 125, 207 "The Supreme Court, 1965 Term"):
"If appraisal of right to counsel and the right itself, are necessary only to insure that the subject fully understands his right to remain silent, they may be replaced by some equally effective way of delivering the admonition-perhaps by a magistrate. Even if the right to counsel during interrogation is granted to protect against abuses not easily proven, it would be unnecesary if the accused could be protected by a sound recording or a neutral observer."
The Supreme Court in Miranda stated clearly that the Constitution did not "require adherence to any particular solution", and the decision was not intended to create a "constitutional strait jacket” to handicap efforts at reform.
There are, naturally, some minimal technical differences in the proposals I have made from the literal rules laid down in Miranda to govern post-custody interrogation. The most significant difference is that under my proposal the mere indication by an accused that he does not wish to answer or that he wishes to have an attorney present does not necessarily require a halt to further interrogation if the Master believes it proper to proceed.
While the Supreme Court in Miranda did expound exact conditions for calling a halt to interrogation where an accused indicates a desire to remain silent or retain counsel, I do not think that my proposed legislative reversal of such rules would be unconstitutional.
For one thing, these particular requirements of cessation of questioning were not necessary to reach the decisions on the facts in Miranda and its related
Hence, these supposed conflicts are based on no more than dictum which the Court may follow or not as it sees fit. While I do not criticize the Court for its desire to provide rules in this troublesome area, its approach is severely limited.
The Court would recognize that while it fashioned rules to prohibit prolonged questioning in a police dominated atmosphere, under my proposal such questioning would be limited to a specified period (of which the accused would be informed before it commenced) in a judicially controlled atmosphere of neutrality. The Court would be faced with a situation where the accused would be guaranteed the right immediately to contact family, friends or an attorney and such persons would have immediate access to the accused. The Court would see that instead of the so-called manipulated coercive atmosphere with which it was concerned, there would be a controlled atmosphere, under the Master's supervision guaranteed to prevent psychological coercion, The Court would also find a new criminal sanction in addition to the exclusionary rule to enforce the voluntariness of all proceedings.
In other words, the very premises and assumptions upon which the Court acted when it enunciated its Miranda rules would have been removed. I think the Court might then recognize society's interest in being able to continue questioning without the fear that a request by the accused to stop the questioning or for the presence of counsel might throw out an otherwise voluntary confession.
In making this proposal, I am relying upon the Court itself when it said in Miranda:
"It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore, we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as is presently conducted. Our decision in no way creates a constitutional strait jacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are 'at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed,"
This legislation is an attempt to provide effective safeguards for our people without unduly diminishing the effectiveness of our law enforcement agencies. It involves the traditional American approach of balancing important interests to advance the public good.
Mr. Taft. Thank you very much. I feel that crime, and problems of crime are of course interrelated with the needs of the Nation in many other areas, but I do think there is a certain degree of priority that we should be giving to this situation. As I point out in my statement in the last 5 years we've seen a 49-percent increase in crime. Last year it's gone up 11 percent alone. Nor has this been limited to the large cities and metropolitan areas, it's gone up in the suburbs by 13 percent for towns under 10,000, an increase of 14 percent for those under age 18, unfortunately there's also been a considerable increase.
I don't think it will be enough, as the President's Commission rather seems to feel, to lay bare the sociological causes and explanations for crime and to attempt merely to attract those causes. I think we have to also look for the area of enforcement and my bill is directed in that direction, not trying to run down the other approaches in any wav, or discount them but to do something about the enforcement problem. Only 25 percent of our serious crimes are now solved by law enforcement officers; only 20 percent of offenses against property are solved; only 35 percent of robberies are solved.
In this vein, I have suggested a couple of approaches other than this one; this one is to give a tax exclusion to police officers, there's been other suggestions too. But today I'd particularly like to develop what I think is another area which could be of great assistance, which would be the establishment of workable and understandable procedural rules in connection with some phases of interrogation and law enforcement. As I say, introduce two bills in this area, I might also say that this bill H.R. 7808, which you have before you, is in a sense a model bill. It is drafted in a way as was the other bill for law enforcement, in which the States if they find that the courts have made a ruling that this is within the Constitution, might themselves adopt similar codes, hopefully almost identical codes of interrogation.
The legislation that I'm proposing is directed principally at the problems of law enforcement raised by the case of Miranda v. Arizona, as I'm sure that the committee is familiar. The Miranda rules in general imply that there is a right of the accused, the right of an accused to be warned in a certain pattern or formula that the court is set up and if he is not so warned, any evidence or confession that comes from him might be ruled out by the courts, indeed in some circumstances have to be ruled out by the court.
The Miranda warning requires a warning of a right to remain silent and anything that the accused may say may be used against him. There's a right to an attorney, either attained or appointed and there's a further injunction while it's only by way of dictum in the Miranda case, if the accused person to be interrogated in any way indicates that he wishes to discontinue the interrogration, the interrogation must be discontinued.
I'd like to refer particularly to the problems that have been created by this. I refer to the Senate hearings and particularly the Congressional Record, Senate page 3051, of this 90th Congress wherein a series of letters have been introduced, addressed to Chairman Mc