According to the court, in the Rogers case "there can be no doubt that the admissions were made during a period of illegal detention" (291 P. 2d at 932). The confession was obtained 90 hours after arrest and prior to arraignment. Section 825 of the Penal Code provides that "the defendant must in all cases be taken before the magistrate without unnecessary delay, and in any event, within 2 days after his arrest, excluding Sundays and holidays * * *." Furthermore, section 145 of the code makes an officer who "willfully delays" to take an arrestee before a magistrate guilty of a misdemeanor. Nevertheless, the court ruled (291 P. 2d at 933): "Since the McNabb case, the State courts that have had occasion to reevaluate their test of admissibility as it applies to a confession made during illegal detention continue to treat delay in arraignment as only one of the factors to be considered in determining whether the statement was voluntarily made. Apparently none of the States followed the rule excluding illegally obtained evidence have adopted the rule of the McNabb case; and we are not disposed to adopt it." The "basic distinction" between evidence seized in violation of the search and seizure provision of the Federal and State constitutions and voluntary statements made during a period of illegal detention, according to the court, is that "the voluntary admission is not a necessary product of the illegal detention; the evidence obtained by an illegal search * **is" (ibid.). Since the record was devoid of any evidence that the illegal detention "produced" the admissions, their inclusion was sustained (291 P. 2d at 934). The implication is that if there had been such a showing the evidence might well have been excluded. Colorado In Cahill v. People (111 Colo. 29; 137 P. 2d 673 (1943)), the court ignored the McNabb case in ruling: "The fact that defendant was in custody at the time he made the statement, in itself, does not render the evidence incompetent ***. Nor is evidence of a confession 'rendered inadmissible merely by the fact that it was obtained during an undue delay between arrest and the time when accused was brought before the court *** or that he was not represented by counsel ***' (22 C. J. S., Criminal Law, p. 1431, sec. 817)" (137 P. 2d at 677). In Downey v. People (121 Colo. 307; 215 P. 2d 892 (1950)), the defendant confessed after 5 to 6 days of interrogation, all, apparently, prior to his arraignment. Again, without mentioning McNabb, the court held the confession admissible. Considering only the issue of due process, the court said (215 P. 2d at 897): "We cannot believe that the Supreme Court of the United States * * * intended to lay down a hard and fast rule that no confession obtained from a suspected criminal, following his arrest and prior to arraignment, can be received in evidence against him." Connecticut The rule in this jurisdiction is that "the fact of illegal detention at the time a confession is made does not render it inadmissible unless that fact is causally connected with the securing of the confession," State v. Buteau (136 Conn. 113; 68 A. 2d 681, 685 (1949); cert. denied, 339 U. S. 903 (1950); reaffirming State v. Zukauskas, 132 Conn. 450; 45 A. 2d 289 (1945)). There is language in the Zukauskas case which indicates that the Connecticut court then viewed "causal relation" as an element of the Federal rule (45 A. 2d at 289), but in the Buteau case the court refused to change the "causation" requirement in light of the Upshaw case, commenting that the dissenting justices in Upshaw "confirm us in believing that our rule is the wiser and sounder" (68 A. 2d at 685). See also Krooner v. State (137 Conn. 58; 75 A. 2d 51, 53 (1950)), distinguishing the McNabb case as one where confessions were obtained "under circumstances which amounted to coercion." Delaware There seems to be no Delaware case in point. Rickards v. State (6 Terry 573; 77 A. 2d 199 (1950)) touches upon what is now title 11, section 621, of the Delaware Code, providing that persons arrested without a warrant "shall be forthwith and without any immediate incarceration" taken before a committing magistrate, but goes off on the ground of unreasonable search and seizure. Florida In Louette v. State (152 Fla. 495; 12 So. 2d 168 (1943)), the court, without mentioning McNabb, stated that any confession voluntarily made is admissible (12 So. 2d at 173). The court reaffirmed earlier decisions as to the admissibility of confessions obtained while in police custody and without any advisement of one's rights (ibid.), but did not explicitly pass on the admissibility of confessions obtained during illegal police custody. In Finley v. State (153 Fla. 394; 14 So. 2d 844 (1943)), dealing with the admissibility of an oral confession, the court ruled that "we are not bound by and do not elect to follow" the McNabb doctrine (14 So. 2d at 845). In rejecting the contention that certain confessions made by appellant were erroneously admitted in evidence because, inter alia, "he had not been carried before a magistrate and warned of his legal rights," the court noted in Rollins v. State (41 So. 2d 885 (1949)): "It is not amiss to point out that we have refused to apply the doctrine of the McNabb case in this State (Finley v. State (41 So. 2d at 886)). Georgia In Bryant v. State (197 Ga. 641; 30 S. E. 2d 259, 263 (1944)), the Supreme Court of Georgia held that its pre-McNabb State law on admitting confessions, which turned solely on their voluntary or involuntary character, "has not been affected" by the McNabb case, which is "not binding upon us." Idaho In State v. Behler (65 Idaho 464; 146 P. 2d 338 (1944)), the court did not dispose of McNabb as not binding on State courts, but as a doctrine which applies only when third degree methods are employed by the police (146 P. 2d at 340). In sustaining the inclusion of the confession, the court noted that "in the instant case, appellant was not given the 'third degree,' nor were any practices indulged in which even hint of third degree methods * * *" (ibid.). Earlier in the opinion the court had ruled that the police had taken the defendant before the magistrate "without unnecessary delay," in compliance with section 19-515 of the code (ibid.). Since, as the court noted, the McNabb case "pointed out 'the mere fact that a confession was made while in the custody of the police does not render it inadmissible'" (ibid.), the Idaho court had no occasion to reach the real McNabb question-the effect of illegal police detention. EXHIBIT 6 DEPARTMENT OF JUSTICE, CHARLES H. SLAYMAN, Jr., Esq., Chief Counsel and Staff Director, Subcommittee on Constitutional Rights, Committee on the Judiciary, United States Senate, Washington, D. C. DEAR MR. SLAYMAN: All but one of the United States attorneys in continental United States have now submitted to us the information requested in your letters to them of February 20, 1958, as to cases involving the applicability of Mallory v. United States (354 U. S. 449). The single exception is the United States attorney for the district of Nevada, and we assume that the reason we have not heard from him is that he has had no such cases. We have condensed and compiled this information in the form of the enclosed table and are pleased to submit it to you. The United States attorney for the District of Columbia, in whose jurisdiction by far the greatest number of cases involving the admissibility of confessions has arisen, has himself tabulated the information for his district and a copy of his report is enclosed.1 As requested in your letter of February 19, 1958, I also enclose a list of reported cases in which questions regarding the admissibility of confessions were raised. This list covers the period from July 1, 1956. Sincerely, MALCOLM ANDERSON, Assistant Attorney General, 1 EDITOR'S NOTE.-The District of Columbia report is included as a part of Mr. Gasch's statement and may be found on p. 114. Comments 1 None None Has had no case wherein Mallory was seriously urged. In U. S. v. Calvin C. Thorpe, confession was introduced in evidence but defendant pleaded guilty before trial was completed. Anticipates inability to prosecute if unable to question suspects in cases where no eyewitnesses. Suggests rule to allow holding suspect on suspicion for reasonable time in serious cases. In U. S. v. Adrian Emile Lambert (Cr. No. 14,233), defense counsel without citing Mallory decision, objected to introduction in evidence of a confesion or, admission obtained from defendant before preliminary hearing. Government argued that admission or confession was made to a detective who had defendant in custody and that, as soon as case was made against him by United States, he was taken before a United States commissioner. Has had many cases involving admissions against interest, but Mallory problem not raised. Has had 123 cases involving confessions. All of defendants who confessed were convicted, 118 on their own pleas of guilty and 5 after trial, but Mallory decision was not raised in any case. Realizes many cases will be affected. Feels remedial legislation is essential No unusual situations with regard to admission or exclusion of confessions. Has had 2 situations where Mallory rule could have been issue, but defendants pleaded guilty before trial. In each instance, there was sufficient evidence to prove crime without recourse to defendant's statement. Anticipates difficulty because of size of district and scarcity of commissioners, and there are no "other nearby officers"; suggests rule making "voluntariness" the test for admission and that accused be taken before commissioner within period of time reasonable under circumstances. Possibility of considerable difficulty in future. Thinks rigid adherence to Mallory doctrine Thinks Mallory decision hampers investigation and expects defense to raise point in future In Horne v. U. S. ((C. A. 5) 246 F. 2d 83, cert. den. 355 U. S. 878), court held McNabb does Arizona (Tucson)... Arkansas, eastern district (Little Rock). None None Arkansas, western district (Fort Smith). None None California, northern district (San Francisco). None Delaware (Wilmington). Florida, northern district (Tallahassee). None Florida, southern district (Miami). None None None In U. S. v. Culverhouse et al. (Cr. No. 7425), while court was critical of officers for not ar- In U. S. v. Holbrook, prosecution for 1st-degree murder, a confession made subsequent to Has had cases involving confessions, but because agents have been definitely instructed in No occasion to offer confession taken after arrest and prior to arraignment but has processed Has had numerous cases wherein defendants gave statements admitting guilt but such Kentucky, western district (Louisville). None 1 None Confessions admitted in U. S. v. Alex Scott, Jr. (No. 26,288), and U. S. v. G. Scheuber (No In U. S. v. Lawrence Edward Brittingham, Jr. (Cr. 24,159) (a nonjury case), the court de- In U. S. v. Chester Dillon Young (Cr. 24,065), a jury case, the court raised the question as It was shown that the statement was obtained after arrest and it was admitted. convicted by jury and sentenced to 6 months. Case has not been appealed. In a pending case a pretrial motion to suppress a statement made to a Government agent United States attorney recalls no case tried in his district within the past 4 or 5 years in Able so far to work up cases without relying on confessions. Only 1 case, now on appeal, involving admissibility of confession and that by coconspira- Thinks it possible Mallory decision will hinder both investigation and prosecution. Recom- Only 2 cases tried involving confessions or admissions against interest and they were ob- No records maintained which would indicate cases in which confessions were admitted or Confessions admitted in evidence in about 50 percent of cases tried. Confession in about Michigan, eastern district (Detroit). None None Michigan, western district (Grand Rapids). None None None None None None Minnesota (St. Paul). Mississippi northern district (Oxford). None None None Mississippi, southern district (Jackson). None 1 New York, eastern district (Brooklyn). None 1 No report. |