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When the police hold a man incommunicado the opportunities for coercion are great. Proof of it is always difficult. There is the word of the accused against the word of the police. The judge-or the jury-that has to decide where the truth lies often has a difficult, if not impossible, task.

One solution is to exclude from the trial any statement made by the accused to the police during his detention. That is the course India, following the British precedent, has adopted in her Code of Criminal Procedure. The rule governing the Federal courts in the United States is different. Congress has long provided that people arrested are to be taken before a magistrate for a hearing, for commitment, or for bail. That mandate is now embodied in the Federal Rules of Criminal Procedure which directs Federal officers to take a suspect who is arrested before a magistrate "without unnecessary delay." The policy behind that rule is to prevent the secret interrogation of people accused of crime.

In McNabb v. United States (318 U. S. 332), the Court held that disregard by Federal officers of that rule concerning detention of a suspect renders inadmissible any statement taken from him during the period of his unlawful detention. The rule of the McNabb case is designed to insure that the police will not illegally hold a suspect incommunicado in the hopes of extracting a confession from him. The officers who do illegally detain an accused are denied the fruits of their acts.

The requirement of the Federal Rules of Criminal Procedure, that the accused be committed "without unreasonable delay," permits the police to hold a man long enough to perform necessary police functions, such as photographing and fingerprinting him. The purpose of an arrest should not be to interrogate the suspect or to secure evidence against him. Its aim should be to bring him before a judicial officer (who determines whether he should be held) and to insure that he will respond to the criminal charge. As Mr. Justice Frankfurter, writing for the Court in Mallory v. United States (354 U. S. 449), said, any delay in arraignment "must not be of a nature to give opportunity for the extraction of a confession."

The rule of the McNabb case does not impose a constitutional requirement. The States are free to admit or exclude confessions obtained while the accused was illegally detained by the police, absent proof of coercion.

While the McNabb rule is the ideal, it is, I fear, not greatly respected in practice. Detention of suspects for secret interrogations continues both at the Federal and at the State level.

Real reforms must come from within the police system. That requires an educational program that pounds into the consciousness of our people the sanctity of the dignity of man. It also requires a press that is alert to the infringement of the rights of privacy.

The problem is one of education, whether we speak of coerced confessions, wiretapping, or other invasions of privacy. Courts can make their pronouncements and control individual cases. But the use of totalitarian methods will persist unless there is a lively educational program that teaches the dignity of

man.

We are told about crime and the need for law enforcement. We often think more in terms of detection and punishment than in the means employed. There is no organized group, no articulate minority that keeps alive the need for protecting the accused. People whose homes are searched are the lowly, not the high. It is the unknown person who is tortured by the police. The prominent and the powerful people among us do not suffer the main invasions of privacy that take place. As Justice Black said in Chambers v. Florida (309 U. S. 227, 238), “* ** they who have suffered most from secret and dictatorial proceedings have almost always been the poor, the ignorant, the numerically weak, the friendless, and the powerless." If they are to be protected, the public opinion of the community, as well as the courts, must be enlightened. The means are all-important in a civilized society. It may seem unimportant that a miserable person is forced to confess to a crime. But in the sweep of history, a nation that accepts that practice as normal, a country that engages in wiretapping, a people that exalts the ends over the means have no claim to a position of moral leadership among the nations.

EXHIBIT 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)

FOREWORD

The McNabb rule (announced in McNabb v. United States, 318 U. S. 332 (1943)) is a Federal rule of evidence concerned with the admissibility of statements obtained from persons in Federal custody prior to their being taken before a committing officer for arraignment. This report is confined to an analysis of the McNabb doctrine as construed by the Federal courts, and to a summary of the treatment of the same problem in the various States and in England. The discussion in the report is limited to what is disclosed by reported cases and other primary sources.

The fundamental questions of policy raised by the McNabb doctrine are whether it constitutes a proper and necessary method of protecting persons charged with crime against violation of their right to the prompt arraignment required by law, and whether the statutes requiring such prompt arraignment are desirable limitations on law enforcement practices. This report is not intended to State any position on these questions, but is confined to an analysis of what the McNabb rule is. No attempt has been made to evaluate the impact of the McNabb rule on law enforcement practices or to assess the validity of the policy considerations behind the rule.

There is one other limitation on this report which is necessitated by its timing. The Supreme Court has granted certiorari in, and now has pending before it, two cases in which the scope and the meaning of the McNabb rule are at issue. The Supreme Court's resolution of these cases, and the opinions written in connection with them, will of course determine the future application of the rule and may repudiate or substantially affect the interpretations of the McNabb doctrine made in past decisions. The pendency of these two cases necessarily makes all statements made in this report concerning the McNabb rule tentative.

Both the cases in which the Supreme Court has granted certiorari arose in the District of Columbia. The first case is Mallory v. United States, decided by the United States Court of Appeals for the District of Columbia on June 28, 1956 (No. 12,915), No. 521 in the Supreme Court of the United States (October term, 1956). This case presents a question broad enough to permit a restatement by the Court of the precise scope of the McNabb doctrine, and it must be assumed that the Supreme Court's decision in Mallory will either endorse or reject the limitations which have been placed on the McNabb rule by lower Federal courts. The question presented in the Mallory case, as stated in the brief of the United States in opposition to the petition for certiorari, is as follows:

"1. Whether petitioner's confession of rape, orally made after 61⁄2 hours' detention (during which three suspects were being investigated, and petitioner was initially questioned less than 45 minutes and later questioned an hour and a half pursuant to a polygraph examination) and reduced to writing soon thereafter, was inadmissible in evidence under the McNabb rule."

The other case in which the Supreme Court has granted certiorari is Green v. United States, decided by the United States Court of Appeals for the District of Columbia on June 28, 1956 (No. 12,809), No. 589 in the Supreme Court of the United States (October term, 1956). This case presents other substantial questions in addition to the question presented under the McNabb decision. One of the other questions presented is whether Green's conviction in a second trial on a charge of murder in the first degree unconstitutionally put him twice in jeopardy of conviction for the same offense. If this question is decided favorably to Green, the Court may not reach the McNabb question. If it is not decided favorably to Green, however, the Court will be faced with the following question under the McNabb rule relating to the effect of the hospitalization of a prisoner during a period prior to his commitment (petition for certiorari, p. 2): "Where petitioner had been questioned in custody for 22 days before being advised of his rights and before his detention had been sanctioned by a commit

ting magistrate, whether the majority of the court below properly held that the evil implications of secret interrogation thus raised were refuted by the fact that petitioner was injured and in need of hospitalization?"

This committee takes no position as to the merits of the questions presented in either the Mallory or the Green case.

SUMMARY AND CONCLUSIONS

The subsequent sections of this report will discuss first, the Supreme Court cases, including the issues raised by the pending Mallory and Green cases; secondly, the interpretations of the McNabb rule adopted by the lower Federal courts; third, the treatment accorded by State courts to confessions made in custody prior to commitment; and fourth, the English practice. Before turning to the detailed discussion of the cases, however, it will be useful to put that discussion in context by a statement, in summary form, of the general significance and the limits of the McNabb doctrine.

1. The McNabb rule itself is not a constitutional doctrine. It is a rule of evidence established by the Supreme Court in the exercise of its supervisory authority over the administration of criminal justice in the Federal courts. The facts in the McNabb case itself, and in other cases involving application of the McNabb rule, raise constitutional questions as well because protracted secret questioning by the police may, at least under some circumstances, also constitute a violation of due process. When the McNabb doctrine is applied, however, the constitutional questions need not be reached, and they were not reached by the Court in the McNabb case.

2. The rule of evidence established by the McNabb case is concerned solely with the exclusion of evidence in criminal trials in Federal courts and with inculpatory evidence obtained from prisoners illegally detained by Federal officers, either acting as such or in cooperation with State police authorities. It is not concerned with the conduct of State or local officials or the military. 3. As applied thus far, the McNabb rule is limited to situations where the arresting officers have violated statutes requiring that any person charged with a crime must be promptly taken before a committing officer for a hearing in order that he may be informed of his legal rights.

4. The McNabb rule does not apply to statements made before there has been any unlawful detention of the accused. Thus, a confession is not inadmissible merely because the accused made it while in police custody. In addition, the rule does not apply retroactively. A confession made at a time when there has not yet been any unnecessary or unreasonable delay in taking an accused person before a committing magistrate is not made inadmissible by the fact that the accused is subsequently detained long enough without a hearing to make the subsequent police custody illegal.

5. The McNabb rule does not deter proper questioning of a prisoner following the time when he is taken before the proper officers. Whatever limitations exist thereafter are constitutional in origin. Thus, the Supreme Court has upheld the admissibility of a confession made by a prisoner to one crime after his arraignment on a charge of committing another crime.

6. Like any other personal right, it would seem that the right of an accused person to be taken promptly before the proper officer can be waived. The McNabb rule accordingly does not appear to require the police to refuse to accept a confession or a statement made voluntarily under circumstances which show that the person under arrest knowingly and intelligently waived his rights to the proceeding specified in rule (b) of the Federal Rules of Criminal Procedure. This means that the McNabb rule does not necessarily require the exclusion of statements made by persons voluntarily cooperating with the police prior to arraignment even though made at a time when police custody might otherwise be illegal. It should be noted, however, that the strong presumption against waiver governing search and seizure cases may also be equally applicable to cases involving the right to be taken promptly before a committing magistrate.

7. On the other hand, the McNabb rule does not require that the statements be shown to be involuntary. Rather, the rule may operate to exclude statements or confessions made during a period of illegal detention regardless of coercion, intimidation, trickery, or the like.

The basis for these conclusions is disclosed in the analysis which follows, particularly the analysis of the Supreme Court decisions and of the decisions of other Federal courts.

THE SUPREME COURT DECISIONS

In the McNabb case, the Supreme Court reversed several convictions on charges of the murder of a revenue agent. The agent had been killed in the course of a raid on an illegal still which the McNabbs ran. Each of the defendants had been questioned at length by a number of Federal officers while in custody. The record did not disclose that the prisoners had been taken before any committing magistrate until after they had been questioned under aggravating circumstances for substantial periods of time. The precise question which the McNabb case decided was that the statements made in response to questioning under these conditions were inadmissible.

The opinion of the Supreme Court states that the Court did not reach the question whether the confessions were obtained in violation of the fifth amendment. The Court held the confessions inadmissible under a rule of evidence formulated by the Court in the exercise of its supervisory authority over the administration of criminal justice in the Federal courts (318 U. S. at 341). The Court pointed out that the arresting officers had assumed functions which Congress had explicitly denied them because they had failed to comply with the statutory command (now set forth in rule 5 (a) of the Federal Rules of Criminal Procedure) that any person arrested shall be promptly taken before a committing officer. The Court then characterized the purpose of such statutes as follows (318 U. S. at 343-344):

"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. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection. A statute carrying such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application."

Following this passage, the Court summed up the circumstances under which the defendants had been questioned. The Court did not state whether any one of the circumstances disclosed by the record, beyond the illegal detention itself, would in itself be necessary or sufficient to require exclusion of the confessions, but rather referred all of the following factors (318 U. S. at 344-345):

"The circumstances in which the statements admitted in evidence against the petitioners were secured reveal a plain disregard of the duty enjoined by Congress upon Federal law officers. 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 14 hours. For 2 days they were subjected to unremitting questioning by numerous officers. Benjamin's confession was secured by detaining him unlawfully and questioning him continuously for 5 or 6 hours. The McNabbs had to submit to all this without aid of friends or the benefit of counsel. The record leaves no room for doubt that the questioning of the petitioners took place while they were in the custody of the arresting officers and before any order of commitment was made. Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law. 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 would stultify the policy which Congress has enacted into law."

This summary of the circumstances under which the prisoners were questioned prior to commitment made the precise holding of the Court unclear. On the one hand, the atmosphere of coercion may have been described simply to illustrate the type of police conduct which Congress intended to avoid by requiring prompt arraignment. Certainly, the Court considered that the illegal detention alone deprived the prisoners of the two basic rights granted them by the statute the right to have a committing magistrate determine whether there was sufficienct evidence against them to warrant their detention, and the right to be

informed of their rights to be silent and to be represented by counsel. On this view of the decision, the confessions would presumably have been inadmissible whether other aggravating circumstances existed in the particular case or not, so long as the confessions occurred during the period of illegal detention. On the other hand, the language detailing the methods used by the Federal officers in this specific case could be considered essential to the result of the case. On that view, the confessions would not have been inadmissible had there been no reason to criticize the particular circumstances under which the questioning took place. Thus, the Court stated that the mere fact that a confession is made while in the custody of the police does not render it inadmissible (318 U. S. at 346), and that it was holding "only that a decent regard for the duty of the courts as agencies of justice and custodians of liberty forbids that men should be convicted upon evidence secured under the circumstances revealed here" (318 U. S. at 347). The lone dissent by Mr. Justice Reed, however, stressed the fact that, whatever else it held, the McNabb case excluded from evidence confessions which must be assumed to have been voluntary (318 U. S. at 349).

On the same day, the Court also reversed six convictions on charges of conspiracy to damage the property of a corporation in which the United States was a stockholder (Anderson v. United States, 318 U. S. 350 (1943)). While the Anderson decision does not contain any precise statement of the McNabb rule, the Court's application of the rule to the facts in the case suggests that the Court considered McNabb to be an automatic rule of exclusion. The Court said that in order to determine whether the confessions were properly admitted in evidence, it was necessary to particularize the circumstances under which each confession was made (318 U. S. at 353). It then proceeded to do In this case, however, the Court did not refer to any demonstrated atmosphere of coercion, but rather relied solely on time factors. Thus, as to one defendant, the opinion shows only an arrest on Sunday night and a confession after 2 hours of questioning on Monday morning. Two other defendants had been questioned only for about an hour, and one of them had confessed in the morning after an arrest made on the previous afternoon. With no more discussion of the facts than this, the Court held that these confessions, as well as three others, were inadmissible under the McNabb case.

So.

The Anderson case decided one other point which was not involved in the McNabb case. The prisoners in the Anderson case had been arrested and held by State officers rather than Federal officers. Their detention was conceded to be in violation of a Tennessee statute providing that no person could be committed to prison until he had been examined before a magistrate. The Court held that the fact that action by State rather than Federal officials was involved was not decisive because the Federal officials had a "working arrangement" with the State officials, so that "the fact that the Federal officers themselves were not formally guilty of illegal conduct does not affect the admissibility of the evidence which they secured improperly through collaboration with State officers" (318 U. S. at 356).

When read together with the Anderson case, a fair construction of the McNabb decision at the time it was announced is that it made inadmissible any confessions obtained during a period of illegal detention, regardless of the existence of aggravating circumstances such as those presented by the particular facts disclosed by the McNabb record. If correct at that time, however, this interpretation of McNabb was made doubtful by the Court's decision in the following year in United States v. Mitchell (322 U. S. 65 (1944)). In the Mitchell case the defendant had admitted guilt within a few minutes of his arrival at the police station (322 U. S. at 69), so that the confession admitted into evidence had not been made during a period of illegal detention. The Supreme Court held that the confession was properly admitted under these circumstances despite the fact that Mitchell's subsequent detention (for 8 days after the confession) had been unlawful. The Court said (322 U. S. at 70-71):

*** [T]he illegality of Mitchell's detention does not retroactively change the circumstances under which he made the disclosures. These, we have seen, were not elicited through illegality. Their admission, therefore, would not be used by the Government of the fruits of wrongdoings by its officers. Being relevant, they could be excluded only as a punitive measure against unrelated wrongdoing by the police. Our duty in shaping rules of evidence relates to the propriety of admitting evidence. This power is not to be used as an indirect mode of disciplining misconduct."

This holding is consistent with the construction of the McNabb case stated above. Since Mitchell's confession was not obtained during the period of

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