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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.)

APPENDIX

The following materials, numbered as exhibits 1 through 36, have been received by the subcommittee for insertion in the record. They are as follows: 1. Memorandum on legislative history of rule 5 (a), Federal Rules of Criminal Procedure, prepared by J. Delmas Escoe and Walter H. Maloney, Jr., assistant counsel, Senate Subcommittee on Constitutional Rights.

2. Memorandum on Action of Supreme Court Advisory Committee on rule 5 of the Federal Rules of Criminal Procedure, prepared by J. Delmas Escoe and Walter H. Maloney, Jr., assistant counsel, Senate Subcommittee on Constitutional Rights.

3. Article, "Mallory Decision Reflects Sound Policy," by United States Senator Thomas C. Hennings, Jr., reprinted from November 25, 1957, issue of Amicus Curiae, published by the George Washington University Law School.

4. Sections on "Due Process of Law" and "Detention of Suspects" from book, The Right of the People, by William O. Douglas, Doubleday & Co., Inc., Garden City, N. Y., 1958 (p. 152 to 157, inclusive).

5. Report to the Council on Law Enforcement on the meaning and application of the McNabb rule, prepared by the junior bar section of the Bar Association of the District of Columbia.

6. Compilation of Federal district court cases throughout the United States in which the question of admissibility under the Mallory ruling was raised, prepared by the Department of Justice.

7. Letters from United States Attorneys in United States territorial possessions concerning application of the Mallory ruling.

8. Rule 5 of the Federal Rules of Criminal Procedure, containing Notes on Decisions and Supplementary Index to Notes, from United States Code Annotated, published by the West Publishing Co.

9. Opinion in McNabb v. United States (318 U. S. 332 (1943)). 10. Opinion in United States v. Mitchell (322 U. S. 65 (1944)). 11. Opinion in Upshaw v. United States (335 U. S. 410 (1948)). 12. Opinion in United States v. Carignan (342 U. S. 36 (1951)). 13. Opinion in Mallory v. United States (354 U. S. 449 (1957)).

14. Opinions based on Mallory ruling by the United States Court of Appeals for the District of Columbia Circuit:

(a) Clarence E. Watson, Jr. v. United States.

(b) Porter L. Lawson v. United States.

(c) Russell E. Carter v. United States.

(d) Joe G. Metoyer v. United States.
(e) Aaron Perry v. United States.

(f) Robert Starr, Jr. v. United States.

(g) Albert E. Blackshear v. United States.
(h) Milton Leo Mallory v. United States.
(i) John E. Trilling v. United States.

(j) James S. Gilliam v. United States.

(k) Charles S. Porter v. United States.

15. Opinion by United States District Judge Alexander Holtzoff in United States v. Paul J. Heideman and Daniel R. Brennan.

16. Extract of opinion by United States District Judge Edward M. Curran in United States v. Charles Turner.

17. Bills introduced in Senate:

(a) S. 2432 introduced by Senator Butler on July 1, 1957.

(b) S. 2970 introduced by Senator Eastland on January 13, 1958.
(c) S. 3325 introduced by Senator Morse on February 21, 1958.
(d) S. 3355 introduced by Senator Butler on February 25, 1958.

18. Bills introduced in House:

(a) H. R. 8600 introduced by Representative Keating on July 9, 1957.

183

(b) H. R. 11477 introduced by Representative Willis on March 18, 1958. 19. Speech by Senator Wayne Morse on Constitutional Rights of Accused Persons from February 21, 1958, edition of Congressional Record (pp. 2199– 2201).

20. Memorandum on H. R. 8600 and S. 2432 relating to detention and questioning of persons by police, prepared by Charles Horskey and Charles Reich, lawyers.

21. Letter from John D. O'Reilly, Jr., professor of law, Boston College Law School, Brighton, Mass.

22. Symposium: Are the Courts Handcuffing the Police? (Northwestern University Law Review, March-April 1957, pp. 1–89).

23. Article, The Confession Dilemma in the United States Supreme Court, by Fred E. Inbau (43 Illinois Law Review (1948), pp. 442-464).

24. Report of concluding session of criminal law section, American Bar Association, 79th annual meeting, Dallas, Tex., August 29, 1956, on subject, Are the Courts Handcuffing the Police?

25. Article, Criminal Law: Evidence: Admissibility of Confessions Made Before Arraignment (vol. 2: Oklahoma Law Review, August 1949, pp. 337–351). 26. Opinion in Watts v. Indiana (338 U. S. 49 (1949)).

27. Article, The Privilege Against Self Incrimination: Does It Exist in the Police Station? (vol. 5: Stanford Law Review, 1952-53, pp. 459-479).

28. Article, The Third Degree-Its Historical Background, The Present Law and Recommendations (vol. 43: Kentucky Law Journal, 1955, pp. 392–406). 29. Memorandum on article 31 of the Uniform Code of Military Justice, prepared by Walter H. Maloney, Jr., assistant counsel, Senate Subcommittee on Constitutional Rights.

30. Memorandum on list of cases decided by the Court of Military Appeals in which article 31 of the Uniform Code of Military Justice has been construed, prepared by Walter H. Maloney, Jr., assistant counsel, Senate Subcommittee on Constitutional Rights.

31. Confessions and Arraignment, a compilation of State statutes relating to arraignment and State rules of evidence governing the admissibility of confessions made while under arrest and prior to arraignment, compiled by the junior bar section of the Bar Association of the District of Columbia, December 1957.

32. Time of Arraignment, State statutory provisions relating to the time a person may be held in custody before being brought before a committing magistrate, compiled by the junior bar section of the Bar Association of the District of Columbia, January 1958.

33. Bibliography for use in connection with the Mallory case, prepared by the American Law Division of the Library of Congress.

34. Memorandum of Law Review and Periodical Bibliography on Confessions and Police Detention, prepared by Sue McCandless, research assistant, Senate Subcommittee on Constitutional Rights.

35. Resolution, Federation of Citizens Associations of the District of Columbia. 36. Statement, Yale Kamisar, associate professor of law, University of Minnesota, Minneapolis, Minn.

(The materials referred to follow :)

EXHIBIT 1

MEMORANDUM

FEBRUARY 11, 1958.

To: Charles H. Slayman, Jr., chief counsel, Senate Constitutional Rights Subcommittee.

From: J. Delmas Escoe and Walter H. Maloney, Jr., assistant counsel.
Subject: Legislative history of rule 5 (a), Federal Rules of Criminal Procedure.

Prior to the adoption of the Federal Rules of Criminal Procedure, on March 21, 1946, several separate statutes governed the requirement that a Federal officer making an arrest bring his prisoner to a committing magistrate. These statutes are set forth as follows:

(1) Act of March 1, 1879 (20 Stat. 327, ch. 125, sec. 9):

"When any marshal or deputy marshal of the United States within the district for which he is appointed shall find any person or persons in the act of operating an illicit distillery, it shall be lawful for such marshal or deputy marshal to arrest such person or persons, and to take him or them forthwith before some judicial officer named in section 1014 of the Revised Statutes, who may reside

in the county of arrest, or if none, in that nearest to the place of arrest, to be dealt with according to the provisions of sections 1014, 1015, and 1016 of the said Revised Statutes." [Emphasis added.]

(2) Act of June 18, 1934 (48 Stat. 1008):

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the Director, Assistant Director, agents, and inspectors of the Division of Investigation of the Department of Justice are empowered to serve warrants and subpenas issued under the authority of the United States; to make seizures under warrant for violation of the laws of the United States; to make arrests without warrant for felonies which have been committed and which are cognizable under the laws of the United States, in cases where the person making the arrest has reasonable grounds to believe that the person so arrested is guilty of such felony and where there is a likelihood of the person escaping before a warrant can be obtained for his arrest, but the person arrested shall be immediately taken before a committing officer. Such members of the Division of Investigation of the Department of Justice are authorized and empowered to carry firearms." [Emphasis added.]

(3) Act of July 3, 1918 (ch. 128, sec. 5; 16 U. S. C. 706), relating to arrests by Interior employees in national parks and others regarding game laws:

"Any employee of the Department of the Interior authorized by the Secretary of the Interior to enforce the provisions of section 703-711 (relating to the migratory game laws) shall have power, without warrant, to arrest any person committing a violation of said sections in his presence or view and to take such person immediately for examination or trial before an officer or court of competent jurisdiction." [Emphasis added.]

(4) Title 10, United States Code, section 16, relating to national parks, includes a requirement for bringing an arrested person before a United States commissioner, but contains no time specified.

Title 4, section 140, District of Columbia Code (Rev. Stat. D. C. 397) :

"The several members of the police force (of the District of Columbia) shall have power and authority to immediately arrest, without warrant, and take into custody, any person who shall commit, or threaten to commit, in the presence of such member, or within his view, any breach of the peace or offense directly prohibited by Act of Congress, or by any law or ordinance in force in the District, but such member of the police force shall immediately, and without delay, upon such arrest, convey in person such offender before the proper court, that he may be dealt with according to law." [Emphasis added.]

According to the act of June 29, 1940 (18 U. S. C. 3771), the Supreme Court has the authority to promulgate rules of pleading, practice, and procedure with respect to criminal cases in Federal courts:

"The Supreme Court of the United States shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure, with respect to any or all proceedings prior to and including verdict, or finding of guilty or not guilty by the court if a jury has been waived, or plea of guilty, in criminal cases and proceedings to punish for criminal contempt of court in the United States district courts, in the district courts for the Territory of Alaska, the district of the Canal Zone and the Virgin Islands, in the Supreme Court of Hawaii and Puerto Rico, and in proceedings before United States commissioners. Such rules shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session thereof but not later than the first day of May, and until the expiration of ninety days after they have been thus reported. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.

"Nothing in this title, anything therein to the contrary notwithstanding, shall in any way limit, supersede, or repeal any such rules heretofore prescribed by the Supreme Court."

Pursuant to these rules, the Supreme Court, through the Attorney General, forwarded the Federal Rules of Criminal Procedure to Congress on January 3, 1945. They entered into effect on March 21, 1946, superseding all previous rules. As can be seen, the standard in rule 5 (a) of arraignment "without unnecessary delay" is broader and more liberal in its allowances to the police than the standards of "immediately," "forthwith," and "immediately, and without delay," which are contained in its legislative predecessors.

After the Supreme Court promulgation became effective, the 80th Congress enacted all of title 18 of the United States Code into positive law as title 18 (Public Law 272, 80th Cong., act of June 25, 1948, ch. 645; 62 Stat. 683). While this enactment did not specifically include the Federal Rules of Criminal Pro

cedure, it contains numerous specific references to specific provisions of the Federal rules, including a reference in section 3060 of title 18 to Federal rule 5 as the provision governing arraignments. Thus Congress gave implied sanction to Federal rule 5, and by the rules of statutory construction, it can be argued that there was also implied sanction to previous constructions of rule 5.

The actual records, located in the library of the Supreme Court, of the Advisory Committee recommendations were made secret in 1952 by order of Chief Justice Vinson. However, published notes of the Advisory Committee are printed in the United States Code.

EXHIBIT 2
MEMORANDUM

FEBRUARY 12, 1958.

To: Charles H. Slayman, Jr., chief counsel, Senate Constitutional Rights Subcommittee.

From: J. Delmas Escoe and Walter H. Maloney, Jr., assistant counsel.
Subject: Action of Supreme Court Advisory Committee on rule 5 of the Federal
Rules of Criminal Procedure.

By order of February 3, 1941 (and subsequent orders) the Supreme Court appointed the following persons as members of an Advisory Committee to assist it in the preparation of rules of pleading, practice, and procedure in criminal cases in the district courts of the United States:

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The preliminary draft of the Federal Rules of Criminal Procedure was published in May 1943, and circulated to members of the bench and bar for criticism and suggestions. This draft contained the following provision, entitled "Rule 5 (b)":

"Exclusion of Statement Secured in Violation of Rule. No statement made by a defendant in response to interrogation by an officer or agent of the Government shall be admissible in evidence against him if the interrogation occurs while the defendant is held in custody in violation of this rule."

The explanatory note to this provision, made by the Advisory Committee is as follows:

"Note to subdivision (b). The extent to which the proposed rule states the present law, in view of the recent decisions of the Supreme Court in the case of McNabb v. United States (318 U. S. 332 (1943)), and in the similar case of Anderson v. United States (318 U. S. 350 (1943)), may best be observed by considering the facts and the law as set forth in McNabb v. United States. The McNabbs were convicted of second-degree murder in the killing of an officer of the Alcohol Tax Unit. The convictions were based essentially on statements of the three convicted defendants which were admitted in evidence over the objection that the statements were illegally secured by fellow officers of the deceased. The circumstances under which the statements were secured and the legal effects of those circumstances are stated in the opinion of the Court by Mr. Justice Frankfurter, as follows:

"Freeman and Raymond McNabb were arrested in the middle of the night at their home. Instead of being brought before a United States commissioner or a judicial officer, as the law requires, in order to determine the sufficiency of the justification for their detention, they were put in a barren cell and kept there for fourteen hours. For two days they were subjected to unremitting questioning by numerous officers. Benjamin's confession was secured by detaining him unlawfully and questioning him continuously for five or six hours. The McNabbs had to submit to all this without the aid of friends or the benefit of counsel. *** "Congress has not explicitly forbidden the use of evidence so procured. But to permit such evidence to be made the basis of a conviction in the Federal courts

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