he never will tell his story, and justice will be defeated. And the defeat of justice to a certain extent is built into the Constitution of the United States. This is the price that we pay for a constitutional

government.

I would like to point out to you a tendency in modern legislation, Mr. Chairman, and I shall not be long and detain you unduly, I hope. It seems to me that there is a tendency in our time to have recourse more and more to criminal process for the enforcement of what might be called economic crimes. I have been impressed, for example, in studying the privilege against self-incrimination, which we have heard a great deal about in recent years, of course, that the two greatleading cases in the 1890's, Councilman v. Hitchcock (142 U. S. 547 (1892)) and Brown v. Walker (161 U. S. 591 (1896)), had nothing to do with old-fashioned crimes of violence. Both dealt with unfair rebates under the Interstate Commerce Act. I think this is a rather significant thing. The intervention of government, quite necessary to a larger extent in our economic lives-by food and drug legislation, for one example, by all sorts of legislation for the regulation of this great, complex economic machine we live in-results in more and more criminal sanctions.

It is all very well for us, reading the Mallory record-and I read it on the train last night coming down here, it is a short recordit is all very well for us, filled with horror at a dreadful crime such as is there described, to think of this problem purely in terms of rape and murder and other similar crimes of violence. But in judging the effect of police procedures, one must keep in mind what seems to me to be an increasing trend to spread the field of criminal sanctions into areas which our grandfathers never thought of.

This means that the impact of police procedures is not alone on the gangster and the rapist and the man who burns down his barn for the insurance; it is on the businessman who may make a mistake in his procedures and may find himself in bad trouble, and he may find himself in a situation where our sympathy for his constitutional rights may be quite different from that that we give to a rapist or to a gangster murderer.

It seems to me, Mr. Chairman, that the exclusion of evidence is the only practicable sanction which has any effect in this field. I am impressed by what I think is known in the Federal field as the Weeks doctrine (Weeks v. U. S. 232 U. S. 383 (1914)) in search and seizure. I think it has been demonstrated that the only way to effectually prevent improper searches and seizures is to make them unprofitable by excluding their fruits. I suspect that the same thing is the justification of the McNabb rule.

Every now and then, I read a learned opinion of some judge when testimony is admitted, in which he says, "Of course, if this testimony is excluded and the defendant goes free, the penalty will rest upon society. The penalty will not rest upon the officer who is the wrongdoer and who violated the rules." But, Mr. Chairman, in a long and active life as a lawyer, I do not recollect, in my own experience any, and in the books more than 2 or 3 or 4, instances where a police officer ever was punished or was subject to civil liability for misconduct of the sort we are considering this morning. And I can recollect none, Mr. Chairman, where this happened for a guilty man. And in this

field the problem of protecting the innocent man is all wrapped up in the problem of protecting the guilty man.

Senator HENNINGS. For example, Professor Sutherland, we who have been engaged in the prosecution of felons know very well that referring to the fact that the defendant has not taken the stand is reversible error. Now, there may be great temptation for a prosecutor in an especially aggravating case to say, "Why, here is this man who is able to tell us all about this if he would, but he sits here mute, and he says nothing." But again, any prosecutor worth his salt or with any sense of ethics or propriety or morality, as the representative of the State or the Government, knows that if he says, "This man has not taken the stand," that is reversible error, and he has gone outside of the field of his own profession in so doing, has he not? He has violated the canon.

Professor SUTHERLAND. In the Federal courts, that is certainly so. Senator HENNINGS. I think it is true in the State courts, too.

Mr. SUTHERLAND. I am thinking of the great California case of Adamson v. California (332 U. S. 46 (1947)) where the prosecutor made almost exactly the same summation as you just described, and he might just as well have cut the defendant's throat from ear to ear. Senator HENNINGS. And in some States there is a rule that the prosecution may not interrogate a defendant beyond the bounds and confines of direct examination by his own counsel--that you cannot go far afield, that you may not undertake to interrogate him on matters beyond that area. And that again is reversible error.

Those things are known to men who have prosecuted. It is one of the first things you learn. And whether you have learned it in law school or not, you certainly learn it when you walk into a criminal courtroom as a prosecutor. Whatever you do, you never advert to the fact that the defendant has not taken the stand.

Now, by the same token, police know that a good many things are improper, and we have to have not only the rules, but we must stay within the confines and boundaries as set forth in the Constitution of the United States in many of these things. Or we know the penalty. And as you very well said it, the fruits, as I believe you referred to in search and seizure, are denying those rules.

Mr. SUTHERLAND. Yes, sir; that is exactly it. I am fully aware, Mr. Chairman, that there is no perfect solution to the problem which this subcommittee is considering this morning. This is a situation in which it seems to me the Government and the American people must accept the least disadvantageous solution of an inevitable and undesirable situation. Nobody wants to let criminals loose on society. And yet it seems to me no one wants to surrender our constitutional rights. We get used to them. We accept them as always being here. And yet if they were gone, Mr. Chairman, we would sadly miss them. And constitutional rights are inconvenient in many ways to what might be called efficient government. You can run an efficient, quick, easy police system a great deal better without the Constitution of the United States, but the purpose of the Constitution of the United States goes to a great deal more than quick and easy police work. There are other and it seems to me more underlying values which our ancestors in 1787-89 understood just as well as we do today. Much the same problems, Mr. Chairman, faced them as face us. Much the

same pressure, Mr. Chairman, was present in 1787, I am sure, to bring about the swift and uncomplicated punishment of the guilty because the guilty don't deserve, as theory runs, the protection of the privileges with which we surround the innocent and the worthy citizen. But I think the reasons why those immensely wise people who formulated our Bill of Rights in 1789, which took effect in 1791-the reason why they put in the privileges of the fifth and sixth amendments to apply to everybody, the scoundrel and the decent man alike— the reason why they did that was their wisdom; it was because they knew that was the only way you could make the system work.

I was greatly shocked by Judge Holtzoff's testimony. I revere Judge Holtzoff. He has been one of the most helpful public servants, both before he went on the bench and since he has gone on the bench, that this country has ever been fortunate enough to have. And under no circumstances should I be taken to mean any disrespect to Judge Holtzoff when I say that I think that in one respect he was wrong. And that is when he speaks of mere procedure.

Mr. Chairman, he spoke, if my memory and notes do not fail me, at one point of the McNabb rule as being mere procedure. I remember a remark by Mr. Justice Brandeis that in the development of our liberty insistence upon procedural regularity has been a large factorhe spoke in 1921, dissenting in Burdeau v. McDowell (256 U. S. 405 at 477). Nowhere is there any more critical problem than the one before this committee.

I have nearly done, sir, and I will take your time with only two more remarks.

Senator HENNINGS. We don't want you to rush at all, Professor Sutherland. We are benefiting greatly by what you are telling us here. Take all the time that you have at your disposal.

Mr. SUTHERLAND. Sir, I refer again to Mr. Justice Jackson, and to a criminal case here in the District of Columbia, in which he wrote an opinion in 1948. It was a search and seizure case, McDonald v. United States (335 U. S. 451), not one of these detention cases we are considering today. And yet the considerations in that are so much like those bearing on us today that I make bold to remind you of what Mr. Justice Jackson said. The McDonald case, too, involves procedure.

It was a case where a search of a house for policy slips was held invalid because the officers who made the search—and I am sure they were good men, seeking to do their best-could have gone and obtained a warrant, but they preferred to crawl in a window and make the arrest on the spot, without that formality.

Mr. Justice Douglas wrote:

We are not dealing with formalities. The presence of a search warrant— and I would substitute, in today's discussion, an arraignment before a magistrate

serves a high function. Absent some grave emergency, the 14th amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals, nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. Power is a heady thing. History shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home.

If we are to strike the balance which is characteristic of our constitutional system we must have the reflection and wisdom of the judge as well as the necessary and proper zeal of the executive-and the policeman is a branch of the executive arm. I am glad that we have the able and zealous police that we have. But zeal is something that has to be tempered, and you temper it with the reflective second thought of the magistrate.

Judge Holtzoff, this morning, brought that point out very clearly in a different connection. He said a policeman is a different kind of a fellow from a judge. He said the judge is the fellow who reflects and thinks about a case. The policeman is a brave and determined man who acts on the instant, thinking that he faces an emergency in which he must act. Power is a heady thing, as Mr. Justice Jackson said, Mr. Chairman, and the judge is needed to correct it.

We have had 15 years of experience since the McNabb decision came down. And the greatest teacher that we have sits on no rostrum in the classroom. The greatest teacher we have is experience. I know there have been some sad crimes in the District of Columbia and elsewhere in this country within the Federal cognizance in the past 15 years. But by and large in those past 15 years this country has been in good shape. By and large we have preserved the rights of our citizens, and yet we have kept reasonably good order.

I have spent some time in the District of Columbia on duty with the Army, since McNabb was decided, and I walked the streets, and my wife and children went their ways, without fear and in peace. I think that McNabb has not, as a matter of observed practice, spoiled the administration of justice in the District of Columbia. And for that reason, Mr. Chairman, I hope that the Congress will not pass measures directed toward a modification of the exclusionary rule of McNabb and Mallory, or fixing a definite time for free detention by the police.

I think the latter plan, sir, the definition of a 12-hour period, perhaps extended by a night, would merely place a premium on a zealous officer who would see the end of the 12 hours coming and say, "If I don't get this fellow to come through and talk within the 12 hours, he is going to walk free on the streets and I am disgraced as a diligent and helpful policeman."

So, Mr. Chairman, for what my preference is worth, I prefer to let the law stand as it is, and to let the judge, applying his general principles to the specific case in the light of all the circumstances, decide whether the confession is admissible or whether it is not.

I am very much obliged to you, Mr. Chairman, for letting me come and express myself this morning.

Senator HENNINGS. We are very grateful to you, Professor Sutherland, for a splendid presentation of your views, and the reflection which it is evident you have given this matter.

Mr. SUTHERLAND. Thank you, sir.

Senator HENNINGS. That a distinguished professor of constitutional law from one of the great universities of the country should come here to us has added greatly to the value of our inquiry.

Mr. SUTHERLAND. Thank you very much, Mr. Chairman.
Senator HENNINGS. Thank you very much.

The next witness is Mr. Myron Ehrlich, of Washington, D. C., who is a practicing attorney, chairman of the committee on criminal rules and procedure of the District of Columbia Bar Association.

Mr. Ehrlich, we welcome you here this morning and appreciate very much your taking the time to come to us.

Mr. EHRLICH. Thank you for inviting me, sir.
Senator HENNINGS. You may proceed.

STATEMENT OF MYRON EHRLICH, WASHINGTON, D. C., CHAIRMAN OF THE COMMITTEE ON CRIMINAL RULES AND PROCEDURE, DISTRICT OF COLUMBIA BAR ASSOCIATION

Mr. EHRLICH. Senator, I do not have a prepared statement, I am sorry to say, but I am happy to be here to testify. With all due deference to Judge Holtzoff, I sincerely disagree with most everything he said and most everything he has in his prepared statement.

I agree with just about everything Professor Sutherland said. And as a matter of fact, many of the things he said I was about to say.

Senator HENNINGS. How long have you been engaged in the practice of law, Mr. Ehrlich?

Mr. ERLICH. I have practiced law here for more than 32 years. Senator HENNINGS. And that has been largely confined, has it not, to the defense of those charged with crime?

Mr. EHRLICH. Much of it has.

Senator HENNINGS. Felonies?

Mr. EHRLICH. Yes, sir. But much of it also has been in the field of suing in civil cases for the purpose of making some fees.

Senator, I don't want to sound trite in what I am about to say, but I think that sometimes we ought to get back to fundamentals. I believe that a proper consideration of this subject necessarily means that we ought to keep in mind 3 or 4 bits of history.

One, of course, is the history of the new rules which you have described, certainly to some extent, when you opened this session. Another is a history of the Bill of Rights. Another is the fact that every act of this Congress that created a law-enforcement agency cautioned and sanctioned and directed and required the arresting officer to do something with the prisoner whom he has arrested. Most people seem to have forgotten this background.

There has not been an act of Congress that I know anything aboutand I include the act creating the Federal Bureau of Investigationwhich has failed to require the officer making an arrest to take the arrested person before a committing magistrate for a hearing, commitment, or taking bail for trial.

Now, the language used in some of those acts may have been a bit different from the language used in rule 5 of the Federal Rules of Criminal Procedure. But the substance was the same.

I also think that most of us who talk about the Mallory case forget the practical problems. And as long as you have suggested that maybe I represent a great many people, I want to say that I have represented hundreds of people who were charged with criminal offenses, and I believe I know something about the practical problems of trying a case and the practical problems of police work.

The proposal of Judge Holtzoff and others who believe like he does is not new. They were advocated way back in 1760, 1770, 1780,