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Now prior to our Mallory decision, we had a rule in this jurisdiction which we called the Pierce and Allen rule from the cases in which it was first set forth. (Pierce v. U. S. (C. C. A., D. C.) 197 F. 2d 189 (1952), certiorari denied, 344 U. S. 846; Allen v. U. S. (C. C. A., D. C.) 202 F. 2d 329 (1952) certiorari denied, 344 U. S. 869). The effect of that rule was to exclude from evidence a confession which was produced by extended delay, even though there might not be any other circumstances indicating that the confession was coerced or involuntary. I feel that rule was a proper rule and did protect the rights of the individual.

Mr. SLAYMAN. When did that rule develop? What year?

Mr. GASCH. Well, the most recent expansion of it, sir, was in the Rettig case (Rettig v. U. S. (C. C. A., D. C.) 239 F. 2d 701 (1956)), which was specifically overruled in the Watson case, because the Court felt it was the latter part of August, last year-that the Mallory decision required a more strict interpretation for the admission of confessions.

Now, the rule developed in the past 10 years, and both of those cases were in the past 10 years-Pierce and Allen were in the past 10 years.

Now, in conclusion, it would be my suggestion that effective and intelligent law enforcement has in some instances been hampered by this doctrine, and I would respectfully urge the subcommittee to consider some of the legislation that has been introduced. Of course, as the Senator knows, a bill was introduced by Representative Keating. I believe the identical bill was introduced in the Senate by Senator Eastland. That legislation, in effect, would do nothing more than establish or reestablish voluntariness as the principal criteria for the admission or rejection of confessions.

Just yesterday, I understand from the papers this morning, Congressman Willis and Congressman Cramer have jointly introduced comparable legislation, adding to it, however, the warning provision.

Now, as I previously testified, I feel strongly there is justification for such a warning provision, and I would feel, speaking again only from my experience as United States attorney in the District of Columbia, that there is justification for the type of legislation that has been introduced, particularly this most recent bill by Mr. Willis and Mr. Cramer, and therefore I support it, sir.

Now I think that fairly well summarizes my prepared statement that I made, sir. I would like to say, however, I notice from the papers that some of the witnesses who testified here last Friday made reference to police practice of booking for investigation certain persons who had been arrested, and I believe reference was made to the Bennett case. The Bennett case was undoubtedly the case counse had in mind in making that statement. That case is in 70 Appeals and that case says that investigation is not a charge and, further, it indicates that persons who are arrested should be charged.

Now, I wanted to respectfully bring to the attention of the committee the case of Harper v. Strange (81 U. S. App., p. 349 (C. C. A., D. C.) 158 F. 2d 408 (1946)). That was a very interesting case. Í had a part in the trial of it when I was in the city attorney's office prior to going over to the district attorney's office.

In that case, a young colored boy about 6 feet tall, weighing about 140 pounds, dark skinned, had been arrested but not charged. Ther

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 admirable— of 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:)

[graphic]

Defendant

Appeal

Criminal

Court of appeals cases involving the Mallory rule

Violation

Status

No.

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Affirmed, June 13, 1957. Supplemental memo denied, Nov. 1, 1957.

Reversed. Opinion followed on
Oct. 24, 1957.

Affirmed, Feb. 20, 1958.
Affirmed, Dec. 26, 1957..
Affirmed, Oct. 3, 1957.
Reversed, Feb. 7, 1958.
Reversed, Aug. 19, 1957.

Problem

Exculpatory statement placed in evidence solely to show
sanity. Court held this violated Mallory principle.
Mallory does not apply to statements made en route to
police headquarters.

(1) Exculpatory statements made immediately upon ar-
rest, not violation of Mallory; (2) delay solely for the
purpose of reducing oral statements to writing is not im-
proper.

Statements made by a service-man to military police who
were investigating a prior entry of an unregistered auto-
mobile onto the military reservation.

(1) Statements not questioned on appeal until after appeal
decided on other issues raised; (2) after shooting, defend-
ant immediately ran to police precinct and spontaneously
volunteered confession; (3) defense counsel elicited fact
of subsequent similar confession to an examining psy-
chiatrist.
Statements made during brief periods of interrogation
which interspersed by long intervals of no interrogation,
and attempted verification of successive statements as to
alibi, accident, partial confession; and finally reducing
oral confession to writing.

(1) Not raised in trial; (2) statements were exculpatory.
(1) Not raised in trial court.

(1) No objection in trial court; (2) viewed as entirety,
situation favorable to defendant.

Mallory raised and abandoned in trial court as to exculpatory statements.

Statement made after intermittent questioning of several hours, followed by reenactment and recovery of evidence.

[blocks in formation]

Grand larceny and unauthorized use of vehicle.

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692-57

police officer.

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 judg ment 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.

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a. m. was excluded because arrest occurred at 2 a. m. The oral statement made just after arrest was admitted. Oral admission made shortly after arrest was admitted in evidence.

Do.

1037-57

Thomas McCoy.. Forging and

uttering and possession of.

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District court cases involving the Mallory rule-Continued

Criminal case No.

Defendant

Charge

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Problem

Defendant was arrested 10 p. m.
for a narcotic offense. At 8
a. m. the following morning
he was recognized as a rob-
bery offender. At 1 a. mi..
defendant was identified as
the robber at which time the
defendant admitted the rob-
bery in the presence of com-
plainant. The 11 a. m. ad-
mission was admitted in evi-
dence. The court thereafter
reversed himself and declared
a mistrial.
Defendant was arrested at 3:55
p. m. but was so drunk he
could not be questioned. At
9:56 a. m. the following day
after he had become sober he
was questioned and he made
inculpatory statement. The
court admitted the testimony.
Defendent's incriminatory re-
marks the morning following
arrest when he was
fronted by complaining wit-
ness were excluded because of
Mallory rule.

con

The 2 defendants were delivered

to the police by ar med services police officers at 3 p. m. Brennan admitted the offense within 5 minutes. After first denying guilt, Heideman admitted the offense after 30 to 45 minutes of questioning. The trial court admitted the evidence of admissions. Defendant was arrested at 2:30 a. m. and made certain inculpatory admissions at the time of arrest. Later his admissions were reduced to writing. At 10:30 to 11 a. m. he signed the confession. The trial court excluded the confession but admitted the oral statements.

Result

Mistrial.

Conviction.

Judgment of
acquittal.

Conviction.

Conviction of manslaughter.

(The following correspondence was subsequently exchanged between Mr. Slayman and Mr. Gasch:)

OLIVER GASCH, Esq.,

UNITED STATES SENATE,
COMMITTEE ON THE JUDICIARY,
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS,

United States Attorney for the District of Columbia,
United States Court House, Washington, D. C.

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?

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