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of that case were not raised on the floor of either the House or the Senate.

I would like to contrast that with the Savidge case in England about 30 years ago, I think about 1928, which illustrates the point that I am trying to make.

In the Savidge case, a policeman in London arrested a middle-aged man and a young woman sitting on a park bench for indecency. He brought them immediately before the committing magistrate, who dismissed the case for lack of evidence and suggested in no uncertain terms that the policeman should be prosecuted for perjury.

A few days later, on Thursday, during the question period in the House of Commons, the Home Secretary appeared for his weekly grilling. He was asked what was being done about this case, and was he aware of it.

The Home Secretary stated, no, he was not aware of the situation, but he would look into it.

In order to look into the case, and decide whether the policeman could be prosecuted for perjury, Scotland Yard determined it was necessary to find out something about the character of the young

woman.

Therefore, a police car went down to the shop in which she was employed as a salesgirl and asked if she would mind coming down to Scotland Yard for questioning.

She did not mind and was taken in the police car to Scotland Yard, and they questioned her and talked with her about the case. She was subsequently brought back to her home, not in a private car but in a police car.

The following week the Home Secretary was asked whether he was aware that a young British lady had been taken from her place of employment and interrogated without counsel, without warning of her rights by Scotland Yard, and what was being done about it.

The Home Secretary said he did not know but he would investigate. The result of this was the appointment of a royal commission under the authority of Parliament to investigate police methods in Great Britain.

I think that we are on very shaky ground if we entrust our liberties and/or protection, merely to the courts of law. A prominent attorney made the statement here last Friday that ours is a Government of laws and not of men, and he cited the Mallory case as a vindication of that proposition.

I would suggest that Mallory stands for the opposite of that proposition. There is no law which says that the court shall exclude evidence which was obtained by illegal means; there is no law which says that the policeman, the Government, shall be penalized by the release of persons who are obviously guilty because a confession is obtained during a time period which the Supreme Court has determined to be unreasonable because not immediate.

I would suggest that to accept this particular view is to make ours not a Government by laws, but a Government by nine men, and I may say I have been a very strong advocate of the judiciary and of the Supreme Court, but I do think that in this case the Court has gone too far.

My suggestion is, first, to find out what we need, and really study the problems involved here of the evil or supposed evil which is meant to be prevented, find out how many people were brought into this situation, how long they were held-and I do not know of any statistics on this subject-and more particularly here in the District of Columbia where, as has been pointed out, we have a peculiar problem because of a double jurisdiction.

Mr. SLAYMAN. Do you think we should have that information before legislation is reported out?

Father SNEE. I think definitely we should, because one of the purposes of an investigation is to study the evil which is sought to be remedied by legislation. I am not sure that it should be carried on by a congressional committee or could, without undue interference with other duties-I was thinking of something in the line of a Presidential Commission, which would study this problem thoroughly as far as the Federal system is concerned.

Secondly, experience has shown that the ordinary remedies for illegal arrest and illegal detention are largely insufficient and that is because the Congress and the public are not sufficiently concerned with it.

President Wilson, in a book which he wrote, in a passage which has been frequently misquoted, once spoke of the duty of a representative body to look diligently into every affair of government, and he said that the informing function of Congress should be preferred, even to its legislative function-this has been, as I say, misquoted for purposes with which I have not always agreed-but, and I think it applies here, where he talks about supervision by Congress over the actions of the executive, airing to the public what has been done by the executive, and more specifically by the police; this keeps the police on their executive toes and keeps public opinion informed and arouses it if there are abuses.

Finally, I would suggest that we adopt something like the English practice. Mr. Ferman referred to the judges' rules. The judges' rules in England give to the judge the right to exclude evidence illegally obtained, if he thinks it is proper, and where required in the proper administration of justice he has discretion.

The rule of Mallory takes away discretion from the trial judge, where it belongs, and imposes upon him an ironclad rule, and this despite the fact that McNabb, admittedly a very confused opinion, does speak in terms of discretion of the trial judge.

It seems to me when you have a case which is not merely a detention beyond the proper limits, but involves the due-process element, that a trial judge might very well be given discretion to exclude the confession on those grounds, somewhat in line with the opinion of Rochin v. California (342 U. S. 165 (1952)). However, I do not think he should be told he must exclude it.

As I say, I have spoken in terms of a broad policy. I am afraid when I see this country trusting too much to the courts as the sole guardian of American liberty--and I would like to cite on this point a quotation from Judge Learned Hand, who admittedly is a great man, a great judge, and an outstanding liberal, to the effect that our liberties are not safe if they are entrusted only to the judiciary, but they must have the support of the society itself, and I think the effect of the

Mallory decision will be for us to pass the burden to the courts.
Learned Hand expressed it far better than I could when he said:

Judge

This much I think I do know-that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

Thank you, Senator.

Senator LANGER. Call the next witness.

Mr. SLAYMAN. Mr. Scullen.

STATEMENT OF JAMES R. SCULLEN, PRACTICING ATTORNEY, FORMER POLICE OFFICER, WASHINGTON, D. C.

Mr. SCULLEN. Mr. Chairman, my name is James R. Scullen, and I have, as the record already shows, been a police officer in the District of Columbia for 7 years, and I have been for the past 7 years a defense attorney, principally in the field of criminal law.

I have heard a great many statements here with respect to the law this morning, as I did when I appeared in the House committee.

I do not intend to belabor this committee with a résumé or synopsis of the law from McNabb to Mallory, although I have been exposed to a number of cases that have been handed down since McNabb.

I rather am going to try to restrict my observations here to my own experience as a police officer within the District of Columbia, and my own experience as a defense attorney in the District of Columbia.

The Mallory case has raised a great controversy because of the fact that it is supposed to hamper law enforcement in the District of Columbia and possibly in the Federal judiciary itself.

It has been said by the police officers who have testified prior to me, that Mallory creates a haven for the criminal.

Implicit in what the police officers have already stated is the fact that they want Mallory remedied so that they may be able to investigate a case after the arrest of individuals, and they claim in a fair and impartial manner, seeking only to evince the truth.

The question is whether or not the police machinery should be entrusted to the function of questioning persons in secret interrogation without benefit of counsel, without benefit of friends, and at the sole discretion of the police.

And I answer that question negatively, that is, from my experience as a police officer, I do not believe that the police should be the custodians of that discretion for the simple reason that I have observed over those 7 years numerous cases where the rights of accused were violated.

In some instances it was in a harmless, relatively harmless manner, in other instances in a more grave manner, the net result of it being that confessions were very often elicited where they would not have been elicited had the accused or the arrested person been allowed to remain silent.

It has been suggested that the new legislation carries with it the admonition to the police that they will advise accused persons that they need not make a statement, and that they need not answer any questions; and if they do, it may or will be liable to be used in any subsequent court proceeding.

The plain fact of the matter is that this is done today and has been done since my time back in 1941, but the plain fact also remains that the admonitory statement is a meaningless statement when an accused or an arrested person is confronted by 3 or 4 police officers who have only one thing in mind, to elicit from this individual who they suspect of having committed a crime certain incriminatory statements. Consequently that person, if he hears the admonitory statement at all, chooses rather to cooperate with the police than be subjected to even harsher treatment.

As I said before, and I wish to qualify my statement with respect to this experience: I do not state that the police administration under Chief Murray and Deputy Chief Scott encourages or has utilized techniques which elicited confessions or statements of an incriminatory nature from accused persons.

My remarks are not intended, by inference, to be directed against any present administration. They are directed against the police machinery that has been described by the Supreme Court as a part of the "awful machinery of the criminal law."

I think that the police and their philosophy with respect to Mallory can best be shown when we observe what Deputy Chief Scott said this morning that the people who are against remedial legislation seek to punish the police, or they have a selfish interest, or they want to reduce the police to guards and process servers, and he regrets that there has been a trend toward this liberal attitude by the court; but the trend will boomerang, and he cited Judge Holtzoff as a sterling exemplar of a judge who was unafraid to tell the truth.

The fact of the matter is that the United States Court of Appeals for the District of Columbia Circuit has had occasion to direct criticisms at Judge Holtzoff for favoring the prosecution.

That brings me to the second phase of my experience, as a defense attorney. I note that it is very difficult for a defendant, in my opinion, to go into the courts and go through the processes, the awful processes of the criminal law, and receive a 100-percent fair and impartial trial in most instances.

It has been my experience that certain of the judges exposed to the constant crime seemingly lend aid to the prosecution. This is brought on by a great number of factors which are too numerous to go into, but one would be the numerous amounts of crimes that the judges have to handle, both in the municipal court of the District of Columbia and in the United States district courts. There are those who advocate leaving admissibility of a confession to the discretion of the judges. Those people who urge this view do so on an unrealistic basis, because most of them have never had the experience of objecting to such a confession, objecting to the admission of certain evidence, only to have it summarily overruled by the various judges who may perfunctorily go through the motions of complying with procedure outside the hearing of the jury.

It was also said by Mr. Hart, Law Enforcement Council chief here, that the juries can best determine the admissibility of certain evidence. That the jury cannot so determine this issue is evident because they have not had police experience, they do not know what goes on behind the closed walls of police headquarters and police precincts, and no testimony adduced in trials will be designed to illuminate them.

I think that if we try to examine how Mallory came about, all we need to do is go back to McNabb and the Carignan cases, and find out what prompted Justice Douglas and Justice Frankfurter to point out the evils of secret interrogation. That is all that rule 5 (a) directs itself against. It does not direct itself against police asking questions of an accused during the time he is being transported from the time of his arrest to the time of his arraignment, anything he might voluntarily offer at that time is perfectly admissible and can be used.

The danger in modifying Mallory is inherent in the statements made by Mr. Hart. He says he interprets Mallory as excluding anything that was said by the accused from the time he was arrested, until the time he was arraigned.

There is nothing in Mallory that says anything of that kind.
Mr. SLAYMAN. Do you believe Mitchell is still the law?

Mr. SCULLEN. Yes, I do, very much so.

And I think that if one reviews all of the cases from McNabb, Upshaw, Carignan, and Watson to the Mallory case, one must find that there is no restriction against the police obtaining confessions from the time they arrest to the time they arraign; and the only time that the confession or inculpatory statements are inadmissible is when the police hold a person they have arrested, to extract information from him; that is, illegally detain the accused, and then take him to arraignment. That is what the judge meant (236 F. 2d 708, dissent by Judge Bazelon), in Green v. United States ((CCA-DC) 236 F. 2d 708 (1956), reversed on other grounds 355 U. S. 184 (1957)), when he said that rule 5 requires arraignment without unnecessary delay, that is, reasonable time within which the prisoner should be brought before the committing magistrate; this must be determined in the light of all the facts and the circumstances of the case.

Reasonableness of the delay in arraignment is therefore a functional consideration which embraces not only the circumstances occasioning the delay and also the evidence transpiring in the course of it, it aims to avoid all the evil implications of secret interrogation of persons accused of crime, and that is all the cases from McNabb to Mallory hold. What happens when one reviews the cases?

One can see a sharp conflict of philosophy that is summed up in these two divergent views: the first view expressed by the majority in McNabb with Justice Frankfurter and Justice Douglas speaking in those earlier cases, when they stated that the Court tried to rid the Federal system of secret interrogation by the police; and, on the other hand, the minority view expressed by Justice Reed, who said that the judicial approach to the problem must be in a spirit of cooperation with the law-enforcement authorities and starting with that sharp conflict of philosophy in the application of the criminal law in rule 5, you have, in at least the United States Court of Appeals for the District of Columbia, an equally sharp division of philosophy between the cases that have been decided, for example, by Judge Bazelon in his numerous adherences to the literal application of the McNabb rule, from the time it was handed down, his decisions follow the rule literally, as it comes out in Mallory.

And, on the other hand, you find an adaptation of Justice Reed's philosophy enunciated by Judge Wilbur K. Miller, who has been on the other side of the fence consistently, all the way down; and, of

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