Of course, each one of those things I have mentioned have manifest weaknesses in them, that I recognize; but I believe that legislation which removes the words "secret interrogation" removes all the difficulty and all the dispute. The rest of the dicta that has flowed from McNabb to Mallory would disappear.

Senator LANGER. Thank you very much. We are obliged to you for coming.

Mr. SLAYMAN. Mr. Chairman, we have some statements for the record. I do not see the last witness who asked to be heard, but we have statements to be put in the record.

Senator LANGER. Very well, they may be put in the record. (Statements referred to follow :)

STATEMENT OF THE NATIONAL BAR ASSOCIATION IN OPPOSITION TO S. R. 2970

It is our impression that this proposed legislation is designed to modify the law relative to the effect of a failure to arraign an arrested person promptly and without unnecessary delay after the arrest. The Supreme Court in its recent Mallory decision (Mallory v. United States, 354 U. S. 449;1 L. Ed. (2d) 1479) undertook to treat of the effect of an unreasonable delay in arraigning a suspect when it appeared that there was no valid reason for delay and where during the delay the suspect was subjected to lengthy interrogation and to a lie-detector test. The Supreme Court in the Mallory opinion stated simply:

"The case calls for the proper application of rule 5 (a) of the Federal Rules of Criminal Procedure, promulgated in 1946 (327 U. S. 821). That rule provides: "(a) Appearance before the commissioner.-An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer a complaint shall be filed forthwith.'

The Court then discussed the statutory and judicial antecedents used as guides in the application of rule 5 (a) inclusive McNabb v. United States (318 U. S. 332). In the Mallory opinion we are told that in McNabb "In order to adequately enforce the congressional requirement of prompt arraignment, it was deemed necessary to render inadmissible incriminating statements elicited from defendants during a period of unlawful detention."

It is believed that the many bills introduced in this session of Congress aimed at the emasculation of the law as set forth in Mallory have been so introduced without consideration of the real and basic holding in Mallory and in disregard of the true purpose of that decision.

The Mallory decision recognizes the intent of rule 5 (a) of the Federal Rules of Criminal Procedure which requires the prompt arraignment of the suspect: "It aims to avoid all the evil implication of secret interrogation of persons accused of crime." Further it protects the innocent and law-abiding citizen from being held for unreasonable length of time who has been arrested without probable cause in the first instance but merely upon bare suspicion and who, in many instances, has been arrested merely for the purpose of seeking information concerning the crime being investigated and for the purpose of of obtaining leads as to other possible suspects.

If the Congress was right in requiring that the arrested citizens be promptly arraigned, and if rule 5 (a) of the Federal Rules of Criminal Procedure is a rule good for citizens in general, then there should be some method of enforcing the rule. No civil or criminal sanctions can be invoked against the peace officer or official who willfully and deliberately violates the law as set forth in rule 5 (a). The Supreme Court, therefore, by the promulgation of a rule of evidence, seeks to enforce rule 5 (a) by the assessment of a penalty against the Government in instances where this law has been violated. That penalty is simply the refusal to admit into evidence statements or confessions obtained during the period of unlawful detention without regard to coercion or lack of coercion.

All that the Supreme Court is saying in this regard is this: Rule 5 (a) provides for the arraignment of arrested citizens without unnecessary delay. This

is the law. Unfortunately there is no means of enforcing this rule. Because unnecessary delays invite and encourage extensive, unwarranted, and secret interrogation of arrested citizens and possibly employment of third-degree methods of obtaining information and confessions, we have devised a rule of evidence that will not only discourage the violation of the law contained in rule 5 (a) by police officers but will, indeed, effectively remove the reason for such unnecessary delay (i. e., the desire to delay arraignment while a confession is extracted). This rule of evidence is quite simple and most effective: if officers fail to cause the suspect to be promptly arraigned, statements or confessions obtained during the period of unnecessary delay may not be used in evidence against the suspect. The rule is enforced through the penalty.

In Mallory the Supreme Court says this to the peace officer:

(1) You must not arrest a citizen without probable cause for his arrest in the first instance;

(2) If you have arrested a citizen upon what you believe to be probable cause, take him promptly before a committing magistrate, judge, or commissioner who under our system of jurisprudence, will judicially determine if there is in fact probable cause. If you are correct in your original assumption, the citizen will be held and bail bond fixed. If you are not correct, the citizen will be released. (3) If you have arrested a citizen without probable cause, you have no right to hold him for the purpose of questioning concerning your suspicions and if, by chance, you are correct in your suspicions and after a long delay before arraignment the defendant confesses his guilt you will have thwarted your own purpose, for you will then be unable to use the confession in evidence against the defendant upon his trial for the offense.

The effect of that directive by the Supreme Court to the peace officer, once he understands it and as soon as his superiors cease complaining that they are hampered in law enforcement by Mallory, will be to compel him to employ more efficient methods of crime detection. The peace officer will realize that where a crime has been committed and he has suspicions concerning possibly a dozen persons but no probable cause to charge any single 1 of the dozen with having committed the crime, he can no longer arrest all 12 of the citizens without probable cause and for the purpose of questioning them at length and by that method derive his probable cause against 1 of them (or, possibly with the result that the whole 12 have been arrested in vain), but he must seek to discover some individual together with sufficient evidence of his guilt to constitute probable cause before making any arrest.

Many persons have erroneously interpreted Mallory to hold that a confession or statement obtained during a long delay before arraignment is presumed to be involuntary. Nothing could be further from the truth. Under Mallory whether or not a confession or statement is involuntary or coerced is not germane to the issue. Mallory does not say that such statements or confessions are presumed to be involuntary. That decision merely holds that as a rule of evidence and as a means of enforcing the prompt arraignment requirement of rule 5 (a) of the Federal Rules of Criminal Procedure, a confession obtained during the period of unnecessary delay before arraignment is inadmissible. The question as to whether or not such statement or confession is voluntary or not is closed and of no importance. Such statement or confession is not admissible as a rule of evidence whether involuntary or voluntary.

In order to enforce the 4th and 5th amendments to the Constitution, the Supreme Court formulated the Federal exclusionary rule in Weeks v. United States (232 U. S. 383 (1914)). The purpose of that rule is: "To remove the temptation to ignore constitutional restraints on search and seizure, evidence obtained in violation thereof is made inadmissible against accused in Federal courts." Although the rule as set forth in the Weeks case was, at the time of its promulgation, contrary to the law in effect in most of the States and although the Supreme Court has itself said that the Weeks doctrine is not a command of the fourth amendment but is a judicially created rule of evidence which Congress could overrule, Congress has not overruled the Weeks doctrine during the now 44 years that it has governed the law of search and seizure in Federal courts. During these 44 years the enforcement of Federal criminal law has not been hampered thereby. And today, as at all times since 1914, we must look to the courts to determine what is a reasonable search and what is an unreasonable search under amendments 4 and 5. No one can deny that the courts have done a most effective job in this regard.

If the United States has for the past 44 years relied upon the judicially created rule of evidence that was first set forth in the Weeks case for the en

forcement of the rights of citizens under the fourth and fifth amendments without legislation to circumscribe, define, modify, or emasculate its provisions, without any hampering of law enforcement and without any general failure to bring criminals to justice, it seems to me, that since the provisions of the fourth amendment have been enforced for 44 years by the rule rending inadmissible evidence seized in violation of the fourth amendment, certainly rule 5 (a) of the Federal Rules of Criminal Procedure could be enforced by this very similar judicially created rule of evidence as set forth in the Mallory decision. This could be accomplished without legislation to circumscribe, define, modify, or emasculate its provisions. I sincerely believe that this will not result in any hampering of law enforcement officials who desire to proceed in a lawful fashion, nor will it result in an inability of the police to bring criminals to justice as heretofore.

Mallory was decided June 24, 1957. In the same 8 months since the law as set forth in that decision has been in effect, there has been nothing in the records of the police department in the District of Columbia to indicate that policemen have been hindered in their job of causing the legal arrests and convictions of criminals. Perhaps the job of the policeman has been made not as easy as it was before, but on the other hand, it is perhaps also true that great numbers of citizens have been spared the inconvenience, humiliation, and chagrin of having been unlawfully arrested and having been unlawfully detained for varying lengths of time while being interrogated extensively concerning crimes that they did not commit.

The majority of the persons complaining of the Mallory decision are policemen. The policemen do not admit it, but what they really desire is a right to arrest citizens without probable cause and without penalty of any sort. If we interpret the fourth amendment to mean that a citizen may not be arrested without probable cause, why should we accede to the demands of policemen, who for all intent and purposes really seek to violate the constitutional command? The legislation sought will implement the desire of policemen to arrest without probable cause. Prior to the Mallory decision in the District of Columbia a very large percentage of all arrests were arrests made on the so-called charge of investigation. Since there is no such crime and no such charge known to the law, naturally all of these arrests for investigation were illegal arrests. In other words, many policemen follow the policy of arresting first and investigating later. Seems to me, it should be the other way around. Now, because to some limited extent Mallory compels policemen to investigate first and arrest later upon the basis of the investigation, the policemen complain that they are hindered in the performance of their duty. This is not so. Officers can do their duty just as effectively under Mallory as before. There can be no doubt, however, that they must work a bit harder and perhaps even a few more officers might be needed. Certainly this price is not too high for the preservation of the rights and liberties of the individual that have been the heritage of Americans through the years. The citizen who is arrested and charged with investigation will have his reputation damaged to the same extent as the citizen who is arrested, charged, and promptly brought before a judge, committing magistrate, or commissioner for arraignment and preliminary hearing. He would be discharged if there be no probable cause for his arrest. In this regard it is interesting to note that the form 57 that job applicants for almost all types of Federal employment must execute, contains the following question:

33. Have you ever been arrested, charged, or held by Federal, State, or other law-enforcement authorities for any violation of any Federal law, State law, county or municipal law, regulation or ordinance?

"Do not include anything that happened before your 16th birthday. Do not include traffic violations for which a fine of $25 or less was imposed. All other charges must be included even if they were dismissed."

The Federal job applicant must explain all arrests. He must explain even if the charges were dismissed. This is probably true in job applications for most responsible jobs in private concerns as well. The reputations of a far greater number of innocent citizens would be preserved by the enforcement of Mallory because that decision certainly will deter and curb arrests without probable cause. Officers will not be very prone to frequently arraign persons without probable cause when they come to know that arraignments without probable cause will result only in the release of the persons arrested and a loss of time by both officer and citizen.

Some policemen have complained because, they say, a commisisoner or committing magistrate is not always available. In the District of Columbia there

are 15 judges in the United States District Court for the District of Columbia exclusive of 3 retired judges who serve part time. In the municipal court for the District of Columbia there are 16 judges exclusive of 1 retired judge who serves 3 months per year. All 35 of these judges may issue warrants, arraign, commit, discharge, or fix bail for persons brought before them charged with offenses against the United Statse. In addition to the 35 judges there is a United States commissioner who is also empowered to perform these duties. There should, therefore, be no lack of a judicial officer for the purpose of arraignments in the District of Columbia at any time.

Many years ago Congress recognized the fact that in some instances arrested persons were being detained in the District of Columbia for unreasonable lengths of time without formal charge. Congress enacted what is now title 16, section 805, District of Columbia Code, which provides as follows:

Any

16-805 (24: 205). Right to true copy of commitment-Forfeiture. person committed or detained, or any person in his behalf, may demand a true copy of the warrant of commitment, or detainer, and any officer or other person detaining him who shall refuse or neglect to deliver to him a true copy of the warrant of commitment or detainer, if any there be, within 6 hours after the demand, shall forfeit to the party so detained the sum of $500 (Mar. 3, 1901, 31 Stat. 1372, ch. 854, 1147)."

While on its face this statute merely provides for the obtention of a true copy of the warrant of commitment or detainer, its real purpose was to effect the release within 6 hours of persons detained without formal charge. In the District of Columbia there has come to be known among criminal lawyers what is called a 6-hour writ. When a client has been arrested on the so-called charge of investigation and is being held without being charged with any crime, the lawyer will serve upon the officer in charge of the precinct where the client is detained a formal demand for a true copy of the warrant of commitment or detainer pursuant to the aforesaid statute. Under this practice the police officers must then charge the client with some offense formally or release the client. The police officers release or charge prisoners after such demand because of the forfeiture provision. This might be a somewhat effective method of preventing long unlawful detentions but for the fact that in practice there is required a formal demand in writing which cannot be affected by the prisoner himself and for the further reason that the arrested person seldom knows of this statutory provision and, certainly he is not told of its existence. The result is that the remedial feature of the statute is available only to those persons who have friends or relatives able to employ an attorney. This statute contemplates no penalty against an officer who holds an arrested subject for several days without charge and without arraignment provided that within 6 hours after receipt of the formal demand, he either formally charges the prisoner or releases him. Moreover, in event of a formal charge being placed against the suspect after service of the formal demand or 6-hour writ, there is nothing to compel the officer to arraign the prisoner. True enough, in the practice in the District of Columbia, if the charge is placed against the suspect during the nighttime hours, the chief of the detective bureau or some police official is empowered to fix the amount of bail bond. This is a judicial function. But aside from all of these matters, the important thing to be considered is that Congress recognized a need for some method of compelling the release of unlawfully detained persons. Because of these reasons it is plain that this provision is woefully inadequate. This statute is in effect only in the District of Columbia and has no application in the States.

We say that the method of enforcement of rule 5 (a) of the Federal Rules of Criminal Procedure set forth in the Mallory decision is the most effective method, a method that has been tried in the enforcement of the provisions of the 4th amendment and has proved to be most effective during the past 44 years. We say that Congress should not permit itself to be stampeded into hasty enaction of legislation designed to nullify the effect of that decision without sufficient time to properly ascertain and evaluate the effect of that decision upon law enforcement generally and the protection of the rights of citizens specifically. Further, it must be considered that Mallory has now been in effect for more than 8 months without appreciable effect upon law enforcement. We, therefore, urge that no legislation be enacted to modify the law as set forth in the Mallory decision.

Hon. THOMAS C. HENNINGS, Jr.,

PRISONERS RELIEF SOCIETY, Washingon, D. C., March 6, 1958.

Chairman, Subcommittee on Constitutional Rights, United States Senate Committee on the Judiciary, Washington, D. C.

DEAR SENATOR HENNINGS: I wish to submit the following statement for attachment to the record of your forthcoming hearings on the subject of confessions and police detention.

I am the president of the Prisoners Relief Society, a subsidiary Prisoners Aid Society, and have been active in the work of this organization for 44 years. The organization, a nonprofit charitable society incorporated in 1914 under the laws of West Virginia, has for its objective obtaining jobs for persons released from confinement and rehabilitation of exconvicts who are afflicted with alcoholism or drug addiction. The work of this organization is carried on a nationwide basis, although the majority of my work in the past 44 years has been in the District of Columbia. In the course of my work I have come into contact with thousands of exconvicts in the District of Columbia and elsewhere. I have made numerous visits to jails and penitentiaries and have numerous acquaintances with directors and wardens of such institutions. It is my belief that in the course of 44 years in this work that I have acquired sufficient judgment to sift fact from fancy in the stories and complaints which have come to me from prisoners and exconvicts.

Based upon my long experience and association in the field of prisoner rehabilitation, and my wide and varied contacts with persons convicted of crime in the District of Columbia and elsewhere, I feel prepared to state a considered opinion that a significant and unduly large number of persons convicted here in this city are the innocent and unwitting victims of brutality, coercion, intimidation, and third-degree tactics on the part of the Metropolitan Police, the Federal Bureau of Investigation, and the postal inspectors. I have felt this fact to be true for a long time, but as a private citizen, I have also felt helpless to do anything about it. I congratulate the Subcommittee on Constitutional Rights for its zeal in investigating the subject of police activity in obaining confessions, and wish it success in its endeavors.

I think that much of the pressure upon the police force to use such methods in their investigations is generated by the press and elements of the public who clamor most fiercely for apprehension and conviction of criminals. I have no personal grievance against the police department, and have assisted them often in their investigations. But I feel that in their ardor to close a case, and thereby escape public criticism, they are often careless in their regard for finding the proper defendant. Ex-convicts are particularly liable to be picked up and interrogated on the flimsiest suspicion or on no evidence at all, and placed under pressure to make incriminating statements. Such methods should be eliminated from police practice.

In 1957, in Washington, 114 paroled convicts were picked up from their place of employment for police lineup. Third-degree methods caused every one of them to lose their jobs, reduced them to a helpless condition. On this account, it is very hard to find employment for this element. It is a death blow. Makes the police crime breeders.

I am fully in accord with the Supreme Court decision in the Mallory case. I think that it stands as a real deterrent to unethical and improper police practices and should not be altered by Congress. The decision is not a loophole for the guilty, but a safeguard for ignorant, uneducated persons who are the chief victims of police oppression.

Very truly yours,

Senator LANGER. That will be all for today.

ELLICOTT E. DUDDING.

(Whereupon at 1: 35 p. m., the subcommittee adjourned.)