was an open arrest, but he was believed to be involved in the rape of this woman. He fitted the description she had given the police. She was not available to identify him as soon as he was brought in because she was at the hospital. According to the opinion, he was held 2 or 3 hours and interrogated. The interrogation, as well as the efforts by the victim to identify him resulted in his release. The case arose as a suit for false arrest and the court said this-Judge Clark speaking for the Court of Appeals: Furthermore, Maj. Harvey G. Callahan, Superintendent of Police, testified before the court that the established policy of the Police Department was to avoid creating a record in regard to juveniles who have not previously had any contact with the law and that in dealing with juveniles in custody an investigation was made to determine the possibility of avoiding the making of a record and thus releasing the child. This admirable policy was followed in the instant case, two of the appellees testified that appellant was not taken to the Receiving Home, as appellant contends he should have been, because there he would have been booked as arrested on suspicion of rape and detained there overnight until his parents could have secured his release the following morning. We do not consider this detention by the police officers unlawful. Now, of course, it is perfectly obvious that this boy was a juvenile, but it would be my comment on that point that juveniles are certainly entitled, if anything, to greater protection than adults. I think the whole philosophy of the law is to take care of juveniles in any way we can. Now if it was not unlawful for the police to interrogate this boy prior to booking him, I think the same practice is proper insofar as adults are concerned-of course, within reason. I would not contend that there should be incommunicado detention for any indefinite or protracted period, but I feel in this case there was probable cause to justify the arrest and that the practice of holding this boy until it could be determined whether he was the subject of positive identification by the victim was a good and sound policy, and I would certainly echo what Judge Clark said in characterizing the policy as admirableof course, within limits. I wanted to make that comment because I feel that this more recent case on the point should be brought to the attention of the subcommittee in view of the testimony of one of the previous witnesses. Senator LANGER. Mr. Gasch, have you read the speech Senator Wayne Morse gave in opposition to the pending bill? Mr. GASCH. No, sir; I can't say I have, sir. Senator LANGER. Would you mind getting that for him and mailing the speech Senator Morse gave last week? Mr. SLAYMAN. I would be happy to do so. Senator LANGER. I would like very much to have you write a letter to the committee after you have read Senator Wayne Morse's speech. Mr. GASCH. I would be very happy to, Senator. Senator LANGER. Thank you very much. Do you have some questions? Mr. SLAYMAN. Yes, Mr. Chairman. Could we include in the record this memorandum that Mr. Gasch has brought along and the citations of the cases? Senator LANGER. They will be included, and also the cases he has filed with us. That will be a part of the record. (The documents read as follows:) 652-57 Grand larceny and unauthorized use of vehicle. Norma J. Phillips. Robbery.... 692-57 Luther Damron, Assault on police officer. .do.. Oral admissions of Ogelsby within 30 minutes of arrest and arrival at police precinct. Defendant identified both victims, within about 50 minutes after arrest, as being the persons whom he had robbed. The victims could not identify defendant. Both defendants made inculpatory admissions within onehalf hour of their arrest. The point of admissibility was raised and ruled on favorably. After arrest (as a fugitive) in Rutland, Vt., defendant was questioned after arraignment and waiver of hearing. She signed a confession. The trial court admitted the confession. A written confession was not employed in the case in chief because of the Mallory case. Oral admissions were offered and received in evidence. The defendant denied the making of the oral statement. The Government then offered the written confession in rebuttal. It was received. Confession obtained 2 hours after arrest was not used because of Mallory. Confession obtained 2 hours after arrest was not employed in trial because of Mallory. Written confessions were not used because of Mallory, but certain oral admissions just after arrest were offered and admitted. Written statements were offered but excluded because of Mallory; however, oral admissions made just after the arrest were received. The written confession was received in evidence because it was made shortly after the arrest. James Wilson and Manslaughter... Written confession made at 10 James A. Hicks. The admissions were excluded by the trial court. Verdict of not guilty as to both defendants. The identification admissions were excluded. Absent other evidence, the court granted judgment of acquittal. The trial court ruled that the admissions were not admissible in the case in chief but could be used in rebuttal. The Government did not use them. The defendants were convicted. Mistrial ordered for other reasons. Conviction. Do. Do. Do. Convictions. Do. Conviction. Do. Defendant was arrested 10 p. m. The 2 defendants were delivered Mistrial. Conviction. Judgment of Conviction. Conviction of manslaughter. (The following correspondence was subsequently exchanged between Mr. Slayman and Mr. Gasch:) OLIVER GASCH, Esq., UNITED STATES SENATE, United States Attorney for the District of Columbia, June 6, 1958. DEAR OLIVER: I am checking all of our various Senate Constitutional Rights Subcommittee hearings and appendix material for the printer in connection with our study of Confessions and Police Detention, and I do not find any note that this matter was taken care of as follows: You will recall a question put to you by Senator Langer, acting chairman of the Senate Constitutional Rights Subcommittee during the hearings in which you testified on March 11, 1958; the pertinent remarks follow (middle of page 112 of the transcript of our hearings, vol. 2, March 11, 1958, while you were testifying): "Senator LANGER. Mr. Gasch, have you read the speech Senator Wayne Morse gave in opposition to the pending bill? "Mr. GASCH. No, sir, I can't say I have, sir. "Senator LANGER. Would you mind getting that for him and mailing the speech Senator Morse gave last week? "Mr. SLAYMAN. I would be happy to do so. "Senator LANGER. I would like very much to have you write a letter to the committee after you have read Senator Wayne Morse's speech. "Mr. GASCH. I would be very happy to, Senator. "Senator LANGER. Thank you very much." If you have already taken care of this, Oliver, I am sorry to be bothering you about it again; but I would appreciate receiving for the subcommittee a carbon copy of whatever comments you have made. Enclosed, for your use, are tear sheets from the Congressional Record containing the speech by Senator Morse to which Senator Langer was referring (pp. 2199-2201, daily edition, Congressional Record, February 21, 1958). The remarks, you will note on page 2200, bottom of column 1 and top of column 2, contain the text of Senator Morse's bill, S. 3325. I gathered from my conversation with Senator Langer that he wanted your comments on Senator Morse's remarks as well as Senator Morse's bill itself. In passing, it might be noted that Senator Langer himself discussed the subject in these pages of the Congressional Record. With kind regards, I am, Sincerely yours, CHARLES H. SLAYMAN, Jr., Chief Counsel and Staff Director. CHARLES H. SLAYMAN, Jr., Esq., Chief Counsel and Staff Director, THE UNITED STATES ATTORNEY, District of Columbia, June 20, 1958. United States Senate, Committee on the Judiciary, Subcommittee on Constitutional Rights, Washington, D. C. DEAR CHARLIE: You request my comments on S. 3325, a bill introduced by Senator Wayne Morse to insure greater protection for the constitutional rights of accused persons. In line with my testimony, I consider the key sentence in the Supreme Court's Mallory decision, the one which reads: "The requirement of rule 5 (a) is part of the procedure devised by Congress for safeguarding individual rights without hampering effective and intelligent law enforcement." I feel that we must maintain the balance between the rights of an accused person and the right of the community to effective and intelligent law enforcement. Senator Morse's bill imposes a sanction upon any confession or admission made by a suspect, unless prior to interrogation he is informed (a) of the nature of the offense, (b) that he does not have to make a statement, (c) that he has the right to have legal counsel present at all times while he is being questioned or is making any statement, and (d) that any statement made by him may be used in evidence against him in a criminal prosecution. The sanction imposed is that unless there is compliance with these procedural steps no statement including a confession of guilt shall be admissible in court. This bill extends further the safeguarding of individual rights. I would agree with (b) and (d). I do have reservations about (a) and (c) for the following reasons: Subparagraph (a) requires that the individual be advised of the nature of the charge. With this I agree however, if it means when read in conjunction with the sanction contained in section 3501 that an arrested person cannot be questioned about "other offenses" unless he is also charged with those other offenses and so advised, I am inclined to believe that such a provision might well have a hampering effect on effective and intelligent law enforcement. Reference is made to the case of Eugene Bailey in this jurisdiction in which the Supreme Court denied certiorari (355 U. S. 919) last winter. Bailey, after fatally shooting his wife, went to the police station voluntarily and said in substance: "I just shot my wife; here is my gun." Under S. 3325 such a statement would not be admissible. Obviously the police could not have advised Eugene Bailey of "the charge" against him. They did not even know of the murder of his wife. Subparagraph (c) precludes the use of a confession or admission in evidence unless the arrested person is advised that he has a right to have counsel present at all times when he is being questioned or making any statement. |