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witnesses without involving evils of incommunicado, then we should reformulate rules of procedure. However, simply overruling the Mallory case will not add to police power. In view of this, I just simply cannot understand the statement of the Chief.

I would like to emphasize in that connection that our civil liberties interest is not antagonistic to those professionally concerned with law enforcement. I think it is unfortunate that during the recent public debate, particularly in Washington, D. C., on the effect of the Mallory decision the charge has been made that those who favor the decision are insensitive to certain police problems. Let me say this again, that this emphatically is not so. Persons like myself, professionally concerned with civil liberties, as well as millions of others, are deeply aware that order is one side of the coin of freedom. We are aware that the proper functioning of a government based on law, not men, which assures freedom, requires effective police enforcement. The policemen and the defenders of liberty do not reflect antagonistic interest.

In this connection I would like to quote from one of the most brilliant investigative officials, Mr. J. Edgar Hoover:

Law enforcement arises from law, its sacred responsibility is to uphold the basic laws of the land and to give meaning to the democratic traditions of America. In a government where men, not law, are all-powerful, law enforcement, as we understand it, does not exist-there is no need for it. Law enforcement is a protecting arm of civil liberties. Civil liberties cannot exist without law enforcement; law enforcement without civil liberties is a hallow mockery. They are parts of the same whole-one without the other becomes a dead letter.

The Supreme Court, responsible for the Federal judiciary maintaining fastidious regard for the highest principles of judicial administration, has refused to accept practices which would mean less than the maintenance of these principles, even though the rights involved might continue to exist in theory.

Accordingly the Court has long excluded evidence obtained in violation of the right against unreasonable searches and seizure. It has insisted that where a person cannot afford counsel, the court appoint counsel so that his right to counsel would not be diluted.

The rule of McNabb and Mallory cases applies this principle of judicial administration to prevent practices which can defeat basic constitutional guaranties of accused persons.

I would like to cite the language of Mr. Justice Frankfurter in the Court's opinion in McNabb v. United States, decided by the Supreme Court on March 1, 1943:

The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard-not only in assuring protection for the innocent but also securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the third degree which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime.

Then Justice Frankfurter went on to say:

Since such unwarranted detention led to tempting utilization of intensive interrogation, easily gliding into the evil of the third degree, the Court held

that police detention of defendants beyond the time when a committing magistrate was readily accessible constituted willful disobedience of law. In order adequately to 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.

Mr. Justice Reed, in his dissent in Upshaw v. United States, posed the question involved in the McNabb-Mallory rule:

is the likelihood that police officials will use coercion for the extraction of an involuntary confession so strong as to justify the exclusion by this Court of all confessions to the police obtained after their failure to conform to the requirement of prompt production of the accused before a magistrate?

Many opponents of the McNabb-Mallory rule, as Mr. Justice Reed, think not, and accordingly have supported legislative change.

Since the McNabb decision was handed down on March 1, 1943, Congress has considered on a number of occasions proposals providing that statements or confessions or other evidence shall not be inadmissible solely because of delay in taking an arrested person before a commissioner or other judicial officer. Such is the proposal embodied in Senator Eastland's bill, S. 2970.

The ACLU has been opposed to such a proposal for the following

reasons:

1. It would nullify the statutory requirement of prompt arraignment by destroying its only effective sanction.

2. Citing Nardone v. United States (309 U. S. 338 (1939)), it would only

invite the very method outlawed by Congress as inconsistent with ethical standards and destructive of personal liberty.

3. It assumes that after a suspect is arraigned, it is impossible for the police to question him legitimately for the purpose of obtaining a voluntary confession. This assumption is untrue. The only effect, and the decisive one, of arraignment is to prevent the suspect from being held incommunicado, isolated from his friends and family, deprived of his constitutional right to request admission to bail pending trial-all vital civil liberties.

I might say at this point that I am perfectly well aware that the chairman has spoken most eloquently on the possible abuses of arrest in our democratic society in the past.

Many of the police feel that they should be able to detain suspects long enough to check immediately available facts, and track down leads in order to obtain evidence with which to establish probable cause of commission of a crime.

I would like to say at this point, at the risk of sounding repetitive, that we heard much about this claim this morning. I think it might be well at this point to actually read rule 4 of the Federal Rules of Criminal Procedure, which represent a congressional enactment involving constitutional principal:

If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. Upon the request of the attorney for the Government, a summons instead of a warrant shall issue. More than one warrant or summons may not issue on the same complaint.

The important point in rule 4, which is the law, is that probable cause comes before detention. The main point I would like to emphasize, that I alluded to in discussing Chief Scott's testimony, is that

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if law-enforcement officials-the police and the prosecutors-feel the need of establishing, beyond possibility of any challenge, the legitimacy of procedures for questioning suspects not involving the evil of incommunicado, let the claim for such need be the subject of congressional scrutiny.

If such needs seems justified, then careful rules could be worked out, and incorporated in the Federal Rules of Criminal Procedure, for the interrogation of prisoners while in the custody of police officers. Coupled with such a procedure, we could enact a law similar to S. 3325, proposed by Senator Morse, providing that statements and confessions would not be acceptable in court without proof that the subject had been informed of his rights. We might very well give serious attention to the English rules promulgated in 1912 by the Court of King's Bench, at the request of civil authorities. They are usually referred to as the judges' rules to govern the conduct of the police in interrogating suspects and prisoners.

I would like to submit for the record a copy of these rules. I think they are too lengthy for reading during my testimony.

Senator LANGER. They will be made part of the record. (The rules read as follows:)

RULES PROMULGATED BY THE COURT OF KING'S BENCH IN 1912 To GOVERN THE CONDUCT OF THE POLICE IN INTERROGATING SUSPECTS AND PRISONERS

1. When a police officer is endeavoring to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks that useful information can be obtained.

2. Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions, as the case may be.

3. Persons in custody should not be questioned without the usual caution being first administered.

4. If the prisoner wishes to volunteer any statement, the usual caution should be administered. It is desirable that the last two words of such caution should be omitted, and that the caution should end with the words "be given in evidence."

5. The caution to be administered to a prisoner, when he is formally charged, should therefore be in the following words: "Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence." Care should be taken to avoid any suggestion that his answers can only be used in evidence against him, as this may prevent an innocent person making a statement which might assist to clear him of the charge.

6. A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely by reason of no caution having been given, but in such a case he should be cautioned as soon as possible.

7. A prisoner making a voluntary statement must not be cross-examined, and no questions should be put to him about it except for the purpose of removing ambiguity in what he has actually said. For instance, if he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and day of the month which do not agree, or has not made it clear to what individual or what place he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point.

8. When two or more persons are charged with the same offense, and statements are taken separately from the persons charged, the police should not read these statements to the other persons charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply, the usual caution should be administered.

9. Any statement made in accordance with the above rules should, whenever possible, be taken down in writing, and signed by the person making it after it has been read to him, and he has been invited to make any correction he may wish.

Mr. FERMAN. I would like to stress again my personal resentment at the statement made by Chief Scott in alluding to the fact that all people afraid of remedial legislation have been screaming about the Constitution, and so forth. The point I want to make is those people who have supported the Mallory case have made the claim that if the police could establish the need for questioning suspects, without the evil of incommunicado, then let's formulate rules and that is the approach of the problem most considerate to the interest of law enforcement. I don't think an approach to the problem is involved in overruling the Mallory case, which, in turn, involves overruling the right of the Supreme Court of the United States to act as a guardian in maintaining procedures in our Federal proceedings.

Many of the police officials who disagree with the McNabb-Mallory rule, and support a repeal of the judicial penalty, claim that the Mallory case and others leave them confused as to what they may or may not do in the arrest and questioning of suspects. They further claim they should have the right to detain suspects long enough to check immediately available facts and thereby trace down leads. And they claim that it is impractical to require them to delay arrest until evidence sufficient to show "probable cause" is gathered.

It must be made clear that such repeal would make no change in the law involving arrest, detention and arraignment. The police would not gain any new power they would not have under the 15-year-old McNabb-Mallory rule. The rule only involves admissibility of evidence at trial. It simply provides that if the police fail to comply with the present procedures for detention and preliminary hearing, evidence obtained from the defendant during the period of illegal detention is not admissible at the trial.

Such repeal of the rule of complete exclusion of evidence obtained during illegal detention would result in the courts making a case-bycase examination of detention and questioning to determine whether elements of coercion were present. Accordingly, it would seem to the ACLU that such a result would leave the police with much less a sense of predictability in investigating for effective enforcement than they have now.

Again, I urge for this committee's consideration that repeal of the Mallory rule is not a problem of establishing legitimacy of police procedures for questioning suspects.

And I would like to further point out that a most fundamental consideration underlying the problem before us which the Court alluded to in McNabb:

Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinteredness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic.

Thank you, Mr. Chairman.

Senator LANGER. Thank you very much.

You know the Government has an unlimited amount of money, an unlimited number of detectives. They can spend a fortune to

convict a man, while the fellow who hasn't any money and is arrested, he is up against it. If he has got money, he doesn't get reimbursed for what he has to spend; isn't that true?

Mr. FERMAN. That expresses well the rationale underlying our tradition of due process.

Senator LANGER. Call your next witness.

Mr. SLAYMAN. James E. Hogan, professor of criminal law, Georgetown University Law Center.

Senator LANGER. That is a great university.

Mr. HOGAN. Thank you very much.

STATEMENT OF JAMES E. HOGAN, PROFESSOR OF CRIMINAL LAW, GEORGETOWN UNIVERSITY LAW CENTER

Mr. HOGAN. My name is James Hogan. I am, as pointed out, professor of criminal law, and also professor of evidence at Georgetown, and these decisions, Mallory and McNabb, of course, are red hot topics in those fields right now.

In addition, in the last year I have done a considerable amount of research in the broad field of illegally obtained evidence. I just completed an article on wiretapping with another member of the faculty, and I hope to have one come out on the Mallory ruling within a few months.

Senator LANGER. Send us a copy, please.

Mr. HOGAN. I would be glad to.

I have had the benefit, as I testify, of the testimony of Judge Holtzoff, United States Attorney Gasch, Chief Murray, and Chief Detective Scott, and I think that they have done a very admirable job in presenting before this committee the case against Mallory and the case against McNabb, and I feel that there is a great deal that can be said against those decisions, but I feel something else. I noted that throughout their testimony there ran one central theme; there was one point that they were at great pains to prove before the committee, and that is that under those decisions they are hampered in the effective enforcement of law.

Well, Senator, I think that those of us or many of those of us who defend these decisions are ready to concede that Mallory and McNabb do in a way hamper the effective enforcement of law. I think they are unquestionably handicapped and I think that they will understandably recoil in individual cases where guilty men go free. But the point I make is this: that the fact that Mallory and McNabb do handicap the police does not in and of itself mean that these decisions

are wrong.

Now at first glance it seems that all there is before this committee is the question of the wisdom of legislation which will annul Mallory and McNabb, the wisdom of legislation canceling out a judicially formulated rule of evidence. But I believe that there is something more fundamental being debated here before this committee, and that is the question of whether we are going to have, in substance as well as in form, the accusatorial system of administering the criminal law. As I am sure you are familiar, there are basically two ways of administering criminal law. You can have the inquisitorial system and you can have the accusatorial system. When I use the term "inquisi

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