would stultify the policy which Congress has enacted into law. [The opinion cites 18 U. S. C. 593, 595, and 5 U. S. C. 300a.] "In holding that the petitioners' admissions were improperly received in evidence against them, and that having been based on this evidence their convictions cannot stand, we confine ourselves to our limited function as the court of ultimate review of the standards formulated and applied by Federal courts in the trial of criminal cases. We are not concerned with law-enforcement practices except insofar as the courts themselves become instruments of law enforcement. We hold only that a decent regard for the duty of courts as agencies of justice and custodians of liberty forbids that men should be convicted upon evidence secured under the circumstances revealed here. * * * "Reversed. "The considerations advanced in support of the proposed rule are in substance those set forth in the opinion of the court in McNabb v. United States, although the proposed rule was adopted before the decision of that case. The proposed Subdivision (b) is designed to implement the statutory duty of the arresting officer, as stated in Subdivision (a), that is, to take the person arrested before a committing officer without unnecessary delay, by eliminating interrogation of the person by the officer or by other officers as a cause of failure to take the person before the committing officer without unnecessary delay. It is to be noted that the proposed rule does not exclude voluntary statements made in response to interrogation by officers unless at the time the statement is made the detention is unlawful under Subdivision (a); interrogation during the permissible period of detention is not prohibited. Even if the detention is unlawful, moreover, voluntary statements made otherwise than in answer to interrogation by Government agents are not rendered inadmissible. "The voluntary character of the confession, as the test of determining its admissibility, is supported by Mr. Justice Reed in the dissenting opinion in McNabb v. United States, supra. It is there stated: "Involuntary confessions are not constitutionally admissible because violative of the provision of self-incrimination in the Bill of Rights. Now the Court leaves undecided whether the present confessions are voluntary or involuntary and declares that the confessions must be excluded because in addition to questioning the petitioners, the arresting officers failed promptly to take them before a committing magistrate. The Court finds a basis for the declaration of this new rule of evidence in its supervisory authority over the administration of criminal justice. I question whether this offers to the trial courts and the peace officers a rule of admissibility as clear as the test of the voluntary character of the confession *** "The simplest, clearest, and apparently the most effective exclusionary rule against police interrogation seems to be the rule established by the law of Scotland. In Scotland, 'Interrogations of arrested persons by the police are forbidden and confessions and admissions obtained in this way are inadmissible in evidence ***. "Police authorities are not permitted to examine him (the prisoner) without the protection of a magistrate"." Keedy, Criminal Prcoedure in Scotland ((1913) 16, 17, 18), quoted in the American Law Institute Code of Criminal Procedure ((1931), Commentary to sec. 39 at 269). See also H. M. Advocate v. Aitken (1926, J. C. 83); and Renton and Brown Criminal Procedure According to the Law of Scotland ((2d. ed. 1928) 28, 29, 33-35). The criminal procedure of Scotland, however, aids the police in their investigations by the private and cooperative manner in which the preliminary examination is conducted before the magistrate, by making admissible later at the trial either the defendant's answers to questions put to him by the magistrate or the fact that the defendant refused to answer certain questions asked him by the magistrate, and by requiring the defendant to give notice before trial of his special defenses, such as insanity, alibi, or self-defense, so that the police may investigate them preparatory to trial. See American Law Institute Code of Criminal Procedure (1931), Commentary to Section 39 at 269-270, and Renton and Brown, op. cit. supra at 65, 18.. "In England judges have formulated and approved rules regulating the questioning by police of a person in custody. See Rex v. Voisin (L. R. (1918) 1 K. B. 531, 539; and 6 Police Journal (1933) 353-356). See also Report of the Royal Commission on Police Powers and Procedure ((1929) 61), in which it was recommended that questioning by police of persons in custody or on bail should not be permitted. These recommendations are discussed by 'Solicitor,' in an essay entitled 'The Right to a Fair Trial,' in Penal Reform in England, 28412-58- 13 edited by Radzinowicz and Turner ((1940) 80-83). The writer says, "These recommendations have, for practical purposes, been completely ignored, and it is probable that there is now more questioning of persons in custody than there was 10 years ago. It is notorious that, contrary to the Judges' Rules, a great deal of direct questioning of persons in custody goes on.' Op. cit. supra at 81. The difficulties of the British police in overcoming lack of legal authority for some of their activities, particularly in the questioning of witnesses, are discussed also by Jackson, The Machinery of Justice in England ((1940) 1413, as follows: 'It is doubtful whether the police could do their work efficiently if they did not develop practices for which there is no legal authority. *** If the police are to respect the law it will be necessary to redefine and probably enlarge their powers.' See National Commission on Law Observance and Enforcement, Report on Criminal Procedure ((1931) 21), for the same observation and recommendation with respect to the police in the United States. "The Judges' Rules assumed their present form in 1918. In an interpretation of the rules in 1930 the Judges said: "Rule 3 [Persons in custody should not be questioned without the usual caution being first administered] was never intended to encourage or authorize the questioning or cross-examination of a person in custody after he has been cautioned, on the subject of the crime for which he is in custody, and *** it has been the practice for the Judge not to allow any answer to a question so improperly put to be given in evidence, but in some cases it may be proper and necessary to put questions to a person in custody after the caution has been administered. *** Rule 7 *** prohibits any question upon a voluntary statement except such as is necessary to clear up ambiguity. "From A Barrister,' Prisoners' Statements (6 Police Journal (1933) 342, 355). The Judges' Rules are 'a memorandum of advice technically not binding upon any one but particularly of great authority,' says another English legal writer, who concludes, 'In the last analysis the only safeguards are seen to be careful training of the investigating officer in a tradition of fair behavior, and watchful judicial control, in public trials.' Questioning and Accused Person (92 Justice of the Peace and Local Government Review (1928) 743, 758, 759). See McNabb v. United States, supra, note 9, for reference to the two articles just quoted and other consideration of the Judges' Rules." The second preliminary draft, published in February 1944, omits Rule 5 (b). As Judge Holtzoff stated in his opinion in United States v. Heideman and Brennan (Criminal Case 1123-57, D. C.): "This discussion would not be complete without reference to the second aspect of the problem, namely, what is the consequence of an unnecessary delay in bringing a prisoner before a committing magistrate. The Federal Rules of Criminal Procedure are silent on this point. In fact, the Advisory Committee of the Supreme Court in formulating the rules had before it a proposal to the effect that failure to comply with the rule should render inadmissible any statement made by the defendant during the period of undue detention. The Committee rejected this proposal on the ground that such a penalty for a violation of the rule would be too drastic and would be visited not on the delinquent officer, but on the public. We are dealing therefore, here not with one of the Rules of Criminal Procedure, but with a rule of evidence derived from case law." When the final draft of the rules was sent to the Attorney General on December 26, 1944, two justices objected. Justice Black dissented from the publication of the rules, without giving any reasons. Justice Frankfurter dissented from the rules, not because of disagreement with their content but for several other reasons. He felt that the Supreme Court was not the appropriate agency for the formulation of rules for United States district courts. He feared that such a promulgation would possibly serve to prejudge later cases which might arise, in which the rules were in controversy. He stated that their formulation was just one more burden heaped upon an overworked court. However, he stated stated that "*** experience proves that justice profits if the responsibility for such rulemaking be vested in a small, standing rulemaking body rather than be left to legislation generated by particular controversies." The Supreme Court promulgated the rules by order of February 8, 1946, effective March 21, 1946. The actual records of discussion concerning any particular rule were made secret. However, the published letters accompanying the drafts stated that there was some dissent as to some of the rules by some of the Committee members, without mentioning any particular rule. EXHIBIT 3 (The following article is reprinted from the November 25, 1957, issue of Amicus Curiae, published by the Student Bar Association of the George Washington University Law School, which has courteously granted permission to the Senate Constitutional Rights Subcommittee to reprint this material as part of these hearings :) MALLORY DECISION REFLECTS SOUND POLICY (By United States Senator Thomas C. Hennings, Jr., of Missouri) Mallory v. United States (354 U. S. 449, decided June 24, 1957), is an up-to-date statement, unanimously expressed, to the effect that the United States Supreme Court does not intent to tolerate unnecessary delays by Federal law enforcement officers in formally charging individual persons with specific crimes. The decision is a judicial interpretation of rule 5 (a) of the Federal Rules of Criminal Procedure. Rule 5 (a) reads: "(a) Appearance before the Commissioner: An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith." The Supreme Court emphasized the importance of “without unnecessary delay" in the requirement that the officer "*** shall take the arrested person without unnecessary delay before the nearest available commissioner ***** Mallory was convicted in a Federal district court for the District of Columbia, for the crime of rape; he was sentenced to death after a trial in which there was admitted in evidence a confession. Mallory had been arrested early in the afternoon and detained at police headquarters within the vicinity of numerous committing magistrates. No immediate attempt was made to have him arraigned. To the contrary, he was questioned extensively. About 9:30 in the evening, after Mallory had confessed, the first attempt was made to take him before a committing magistrate. Because of circumstances then existing, the arraignment was not accomplished until the following morning. Therefore, Mallory's confession was obtained before he had been advised of and accorded the protections provided him by law. The Court held that this was a violation of rule 5 (a) of the Federal Rules of Criminal Procedure, and reversed the conviction. This case is important to all of us who are interested in the security and protection of the many individual rights guaranteed to us in our national Constitution; it represents continuing action by the highest Court of our land to see that these rights are adequately safeguarded and that convictions for criminal offenses in violation of these rights shall not be permitted to stand. Rule 5 (a), as the Court pointed out, has both statutory and judicial antecedents for guidance in applying it. The requirement that arraignment be "without unnecessary delay" is, the Court says, "a compendious restatement, without substantive change, of several prior specific Federal statutory provisions." The Court spelled out the important reasons of policy behind this body of legislation in the famous case of McNabb v. United States (318 U. S. 332 at 343–344): “The purpose of this impressively pervasive requirement of criminal procedure is plain *** 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 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 in 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." In Upshaw v. United States (335 U. S. 410), which was decided after the Federal Rules of Criminal Procedure had been adopted, the Court made it clear that the standard of "without unnecessary delay" provided for in rule 5 (a) did not imply any relaxation of the McNabb doctrine. The scope of the Federal Rules of Criminal Procedure is found in the very first rule where it is stated that these rules are to govern the procedure in the Federal courts of the United States and before United States commissioners in all criminal proceedings, with only a few exceptions. Further, these rules are intended to provide for “the just determination of every criminal proceeding." They are to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. The rules provide a definition for a complaint, warrant, and summons upon complaint, and proceedings before the commissioner, where in rule 5 (c) a defendant is provided with a preliminary examination unless he waives it. Arrests by the police are not to be upon mere suspicion, under these rules, but only on "probable cause"; the Court in Mallory says that it is not the function of the police to arrest at large and to use an interrogating process at police headquarters in order to determine whom they should charge at a later time before a committing magistrate, the police must arrest on "probable cause" and not on mere suspicion. The reasoning behind rule 5 (a) and the judicial decisions in Mallory, Upshaw, and McNabb, is relatively simple. First of all, the fifth amendment provision providing a privilege against self-incrimination should be viewed in a practical light and not merely as an academic theory. A confession obtained as a result of third-degree police activities or the psychological coercion caused by long questioning and unnecessary delays prior to arraignment destroy the very foundation upon which any confession should be admitted-that is, for a confession to be valid and admissible against an individual in a criminal prosecution, it must actually be voluntary because to permit otherwise would be to violate the provision against self-incrimination. But there are other considerations which gravitate against the use of torture to obtain confession, whether the torture be actual physical violence or the equally reprehensible fear and the threats used especially in the world today by totalitarian police forces. These considerations are twofold: (1) torture offends our sense of dignity as civilized human beings and respect for the worth of the individual; (2) history has demonstrated time and time again that torture seldom produces the truth and very often produces wild flights of fantasy. It might seem, then, that Mallory and rule 5 (a) would be generously applauded in American society as representative of our high standard for treatment of persons who are suspected of criminal activity. But, sadly, it has to be noted that the Mallory decision was severely attacked, both by spokesmen for law enforcement officers and by representatives of the people in the Congress of the United States. In fact, bills were introduced in Congress in the last session, shortly after announcement of the Mallory decision, which had the avowed intention of modifying the rule of "unnecessary delay prior to arraignment." One type of legislative proposal would authorize the police to detain a suspected person for an expressed period of time—“12 hours"-prior to arraignment. Another type of statutory amendment would not permit a confession to be thrown out as invalid under the requirements that the person be arraigned without unnecessary delay. Whether either of these types of proposals can be defeated in the coming session of Congress will depend on the good sense of our national legislators and their recognition of the necessity for preserving our sacred constitutional rights, which-in criminal proceedings are designed to protect the guilty, the suspected, the involved, as well as the purely innocent. EXHIBIT 4 (The following excerpt is from the book, The Right of the People, by William O. Douglas, published in 1958 by Doubleday & Co., Inc., Garden City, N. Y. Doubleday & Co., owner of the copyright, has courteously granted permission to the Senate Constitutional Rights Subcommittee to reprint the following material as part of these hearings :) 3. Due process of law.-I have been speaking so far of civil liberties in trials or proceedings before Federal courts or Federal agencies. When we turn to State courts or State agencies, we have a somewhat different problem. The 14th amendment, which is applicable to the States, forbids the taking of life, liberty, or property without "due process of law." It has long been argued that "due process of law," as used in the 14th amendment, includes the guaranty of civil liberties contained in the Bill of Rights, that is, the first eight amendments. That argument has been consistently rejected by the Court, though usually by a divided vote. Some guaranties; for example, those contained in the 1st amendment, have been held to be protected by "due process of law" as used in the 14th amendment. But other guaranties of the Bill of Rights, including the one concerning self-incrimination, have been held to be not so protected. What then does "due process," as used in the 14th amendment, include? It includes those guaranties that are "implicit in the concept of ordered liberty." Palko v. Connecticut (302 U. S. 319, 325). It outlaws practices "repugnant to the conscience of mankind." (Id., p. 323.) That is a highly subjective test, turning on the reactions of a majority of the Court to particular practices. The capricious result that sometimes obtain when judges write their own reactions into "due process" are illustrated by Irvine v. California (347 U. S. 128). This was a State prosecution in which evidence against the defendant was obtained in flagrant violation of his rights of privacy. First the police made a key to his house. Then they bored a hole in the roof of the house. Using the key, they entered the house, installed a microphone, and ran wires through the hole in the roof to a nearby garage, where the police listened in relays. For a while the microphone was placed in the bedroom where the suspect and his wife slept. Later it was moved into the bedroom closet. When the police had all the evidence they needed, they used the key to enter the home to arrest the suspect. Though they had no search warrant, they ransacked the house. A divided Court, speaking through Mr. Justice Jackson, upheld the conviction. This method of obtaining evidence was held not to violate "due process," though a more dramatic invasion of privacy is difficult to imagine. When we turn to the other police practices violative of the dignity of man, "due process" remains an uncertain, evanescent concept. When police officers use force to put a stomach pump into a prisoner and use the evidence obtained to convict him, "due process" is violated. To the Court this is "conduct that shocks the conscience” (Rochin v. California, 342 U. S. 165, 172). Yet blood taken from an unconscious man and used in a State trial to convict him of drunken driving was held to be properly admissible. That method of tampering with the body of an unconscious person accused of crime was held not violative of "due process" (Breithaupt v. Abram, 352 U. S. 432). On the other hand, all are agreed that confessions exacted from prisoners by force violate "due process" and therefore cannot be used in State prosecutions. These inquisitional practices that wring confessions from an accused have been outlawed by the Supreme Court as evidence in State prosecutions, whether force was used to extract them or whether subtler methods were employed. We reject the rack, the thumbscrew, and the wheel, because they affront the dignity of man. Torture may be a shortcut for getting at the truth. But it is not a civilized practice. As Beccaria, the 18th century Italian legal philosopher, wrote, torture is an "infamous test of truth." A devilish way Hitler used to extract confessions was to drill on a live tooth while the victim was strapped in a dentist's chair. That is one of the most horrible practices the ingenuity of man has devised. But Hitler had no monopoly on it. In the 1930's some American police stations used the same technique. The Wickersham Commission reported in 1931 that the third degree was widespread in this country. Prolonged detention, holding people incommunicado, the use of threats, protracted questioning, and various forms of physical brutality, ranging from beating to torture, were the methods used. Disclosure and denunciation of the third degree do not mean, however, that the practice ends. There is convincing evidence that the third degree still flourishes in the police stations of the Nation. The methods may not be as crude as before. But the recurring appearance of the problem in the flow of cases suggests that the practice has gone underground, so to speak, taking on new forms. 4. Detention of suspects.-The prolonged detention of suspects has been a time-honored practice of the police; and it has been used as a method of exacting confessions from them. One who is held incommunicado without benefit of family, friends, or counsel to aid him and to advise him is easy prey for the police. He can be questioned for hours or days on end by relays of officers. He may even be beaten or tortured. |