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arraignment of the first spy arrested would jeopardize the entire investigation and cause the other conspirators to flee and would further jeopardize the Nation's security. Expediency rather than immediacy should be a determining factor in deciding how soon in the public interest an individual taken into custody should be arraigned.'

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Thus far we have been presenting the practical needs of the national enforcement officers. The District of Columbia police are not in quite the same situation. The evidence submitted to your Committee indicates that the Washington police deal largely with run-of-the-mill crimes, such as occur in any large city in the United States. They do not appear to be frequently confronted with desperate predatory gangs, as is the Federal Bureau of Investigation. Instead, their difficulties come from the rapid flow of population into Washington during the last decade, especially since war began, which has multiplied the opportunities for crime and the difficulties of detection. Their need to use prolonged detention seems less than the need of the national enforcement officers, because the crimes are less baffling and do not so often involve confederates who will escape if warned by the prompt production of a prisoner in court. However, the officials of the metropolitan police department who appeared before your Committee feel strongly that the District of Columbia Code does not allow them enough time to make an adequate investigation. They say that before they can get started with their investigation of the facts, the law obliges them to take the suspect before a magistrate, and then he is turned over to the custody of the United States marshal and they lose control over him. Thus Major Edward J. Kelly, the superintendent of police, testified:"

"I say that we should be granted reasonable time for the police and investigating officers to conduct a proper investigation, so that all cases where a crime has been committed should be brought to a proper conclusion without any doubt whatsoever. It is drastically hard enough in these critical days, with the added population we now have in the District of Columbia and the many, many other

'Hearings, pages 5-7.

handicaps occurring on account of the national emergency.
. . I do not mean that a person should be held forever,
but should be allowed to stay in the custody of the police for
a reasonable time until the investigation is concluded.
The minute that he is removed from our custody, we cannot
proceed satisfactorily any further in our investigation.'

Great respect is due to these views of the national and metropolitan enforcement officers that they cannot suppress crime efficiently without exercising the power to detain a suspect beyond the statutory time-limit. Yet, even on the score of efficiency, there is something to be said against prolonged imprisonment in violation of Acts of Congress.

In the first place, lawless enforcement of law is liable to create resentment against law and government, which brings about more crimes and increases the difficult work of the police. As the National Commission on Law Observance and Enforcement (commonly called the Wickersham Commission) said at the outset of its Report on Lawless Enforcement of Law:3

"Respect for law, which is the fundamental prerequisite of law observance, hardly can be expected of people in general if the officers charged with enforcement of the law do not set the example of obedience to its precepts."

Secondly, the habit of lawlessness on the part of the police tends to lower the dignity of their employment and their sense of that dignity. Their fight against lawless men, if waged by forbidden means, is degraded almost to the level of a struggle between two law-breaking groups. Once the police officers assume the power to disobey such rules of law as seem to them inconsistent with the safety of the public, there is no telling how much this power will be used. The whole machinery of justice becomes loose at the joints and begins to rattle. Law enforcement ceases to be impersonal. The choice of which statutes the police are to obey and which they are to disobey will depend on personal factors such as the qualities of the head of the depart

'Wickersham Report No. 11 (1931) page 1. This is in volume 4 of the clothbound edition of the complete Reports of the Commission.

ment and his immediate subordinates, the regulations the police establish for themselves, and the extent to which an energetic policeman may see fit to disregard even these regulations in order to get a dangerous criminal. The administration of justice tends to be a war where all rules are off except that the enemy must be defeated.

Finally, the Acts of Congress directing speedy committal of a suspect operate, in some measure, to promote police efficiency. There is danger that the contrary practice of prolonged detention will accustom police and prosecutors to proving their case out of the prisoner's mouth, and thus tend to make them less zealous in the search for objective evidence. Wigmore remarks:^

". . . any system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources."

The same point is stressed by the majority opinion in the McNabb

case:

"... this procedural requirement . . . 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 allows easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection."

So far as efficient enforcement is concerned, the police can make a persuasive reply to the three points just set forth. They can prove that they do in fact use brains in their investigations and they do get results. After all efficiency is their regular job and they ought to know more about it than anybody else. The question whether prolonged detention helps or hinders an adequate investigation of a serious crime is a matter of judgment, and the police are the experts. Certainly their judgment that prolonged detention in appropriate cases promotes efficiency

48 Wigmore, Treatise on Evidence (3d ed., 1940) § 2251.

ought to carry great weight. There is much force to what the enforcing officers say about their two practical needs-for an adequate opportunity for investigation after arrest and for avoiding warnings to confederates. Even though we believe that H.R. 3690 is not the right way to attain those purposes, we hope that some other way can be found to prevent the statutory timelimit on unauthorized police detention from interfering with efficient and proper methods of suppressing crime.

The rule in the McNabb case operates as a sharp check upon these practices of the law-enforcing officers. If it stimulates them to obey the prompt production statutes, then the interrogation is cut short before they have obtained the desired information. If, on the other hand, the officers disobey the Acts of Congress and prolong the questioning until they are satisfied, they will find themselves unable to use the confessions at the trial. Whichever happens, the officers regard the McNabb rule as an interference with their difficult and dangerous task of suppressing crime. This is the main argument brought forward by the supporters of the bill before your Committee. They urge you to give the law-enforcing officers a free hand to use the methods which they consider most likely to succeed.

Yet efficiency in the pursuit of the guilty is not the sole test of criminal procedure. The long tradition of the common law has built up institutions and devices which plainly hamper efficiency to some extent. These are designed to protect the innocent against powerful government officials, and also to insure that all prisoners, whether innocent or guilty, shall be treated in ways that fit in with the kind of society we want. For example, no matter how efficient a Gestapo or a GPU might be, we do not like that sort of thing in the United States. It is particularly important to remember that criminal procedure is not framed just to reach obviously guilty men; it must take care of the innocent and the doubtful cases too. Before trial we cannot have one rule for innocent prisoners and another rule for guilty prisoners, because we do not know which are which until the verdict of conviction is given. That is the task entrusted by our law to the jury. Their function of sifting the innocent from the guilty must not be usurped by the police, no matter how able and devoted

they may be. The law presumes that all prisoners are innocent until they are proved guilty and requires them all to be handled before trial by methods which are suited to innocent men. The only qualification is, that when there is considerable reason to think that a man may be guilty, then he may be put in custody by carefully planned methods, so as to make sure that he will be on hand to let a jury decide whether he is guilty or not. In short, we have always recognized that efficiency must give way somewhat for the sake of liberty and decency.

It is natural that men engaged in law enforcement, often at the risk of their lives, should stress efficiency. Their absorption in their work creates an understandable desire to accomplish that work without hindrance from legal barriers. Still, Congress does not sit solely to carry out the wishes of government officials. Efficiency has to be somewhat offset by other purposes, and Congress on behalf of the people is charged with the protection of these other purposes.

The Relation of Prompt Production to Personal Liberty and Other Individual Rights

Among the deep-seated traditions of Anglo-American law is hatred of prolonged imprisonment of a citizen by the uncontrolled will of executive officers. Consequently, the law has insisted for many centuries that imprisonment must be authorized by a judicial officer (except for the brief emergency of arrest without a warrant). This tradition is embodied in the various Acts of Congress already described which require speedy production of the prisoner before a magistrate, usually a United States commissioner, who though not exactly judge is a court officer and hence independent of the Executive Department. These statutes have their roots in the indignation of our English ancestors against the Stuart kings who threw their opponents into jail for long periods without any charge of crime, just to keep them from stirring up trouble and frighten others into not defying the royal will, or sometimes to obtain desired information from such prisoners while they were in helpless isolation. To stop such practices, the rule of law grew up that the im

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