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The last point is quite important. Let me say by way of a generality, subject to all the limitations of a generality, that confessions forced out of an arrested person are usually the technique of a lazy police department and a slovenly district attorney. Under our system of criminal justice, we have a right to have a police department so efficient and a district attorney so able that it is not necessary to browbeat a confession out of an accused.

I am familiar with the point of view on the other side of the question, namely, that to catch crooks it is sometimes necessary to use techniques which are not particularly acceptable in the drawing room or around the tea table. But I repudiate that concept. In my judgment, we can never afford, in the United States, on the ground of enforcement expediency, to endanger and risk the individual rights of a citizen so sorely won in the history of our Republic.

All I seek to do in my bill is to guarantee to free men and women in the United States that they will be given the basic protections which I think are essential if due process is to be carried out in the administration of criminal justice. Now, Mr. President, I desire to turn to another subject.

The PRESIDING OFFICER. The Senator from Oregon has the floor.

EXHIBIT 20

COVINGTON & BURLING, Washington, D. C., March 22, 1958.

Hon. THOMAS C. HENNINGS, Jr.,

United States Senate,

Washington, D. C.

DEAR SENATOR HENNINGS: Because Mr. Charles Reich and I have had a considerable interest in the matter of confessions and police detention on which your subcommittee has recently held hearings, I am taking the liberty of forwarding to you with this letter a copy of a memorandum on H. R. 8600 and S. 2432 which we have prepared and which we have distributed to a number of persons in the Department of Justice, on Capitol Hill, and elsewhere. I would appreciate it very much if it could be made a part of the record of your hearings.

Very truly yours,

C. A. HORSKY.

MEMORANDUM ON H. R. 8600 AND S. 2432, RELATING TO DETENTION AND
QUESTIONING OF PERSONS BY POLICE

(By Charles Horsky and Charles Reich)

Now pending before the Congress are two bills relating to the detention and questioning of persons by the police. The first, H. R. 8600,' provides: "Statements or confessions or other evidence shall not be inadmissible solely because of delay in taking an arrested persons before a commissioner or other judicial officer."

This bill would apply to Federal criminal proceedings throughout the United States. The second bill, S. 2432,' applies only to the District of Columbia: "That any person who is taken into custody by any law-enforcement officer of the District of Columbia as a suspect in the commission of any crime in the District of Columbia shall, except as provided in section 2, be arraigned within twelve hours from the time at which he was so taken into custody. Any person who is not arraigned within the time prescribed in this section shall be released from custody.

"SEC. 2. If, after diligent search, the law-enforcement officers of the District of Columbia having custody of any person, are unable to find an officer before whom arraignment may be had within the time prescribed in the first section, such officers may maintain custody of such person until such time as arraignment is possible."

These bills, the precise effect of which will be discussed below, were introduced to deal with a single problem--whether persons may be convicted of crime by the use of confessions obtained as a result of secret questioning during a period of unlawful police detention. The bills attempt to resolve law-enforce

1 Introduced by Mr. Keating of New York. Introduced by Mr. Butler of Maryland.

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ment problems supposed to have been raised by a rule adopted 15 years ago by the Supreme Court and most recently applied in Mallory v. United States (354 U. S. 449). In their present form, however, it is doubtful whether these bills provide satisfactory solutions to any law-enforcement problems; moreover, they raise questions of the gravest nature regarding the protection of the constitutional rights of accused persons.

I. BACKGROUND OF THE BILLS

No statute regulates or limits police questioning of suspects. But under rule 4 of the Federal Rules of Criminal Procedure a suspect may be arrested only if there is probable cause to believe he committed a crime. It is illegal to arrest a citizen solely for questioning or on suspicion, and rule 5 limits detention by the police following arrest. It provides that when any person is arrested he must be taken "without unnecessary delay" before a United States commissioner, who informs him of the charge against him, of his right to retain counsel, to refuse to answer any questions, and to have a preliminary examination. The suspect must be afforded an opportunity to consult counsel. If the commissioner determines that the evidence at the preliminary hearing gives probable cause to believe that the arrested person committed an offense, he is held for trial; otherwise, he is discharged from custody. If held, he may then be admitted to bail.

In the past, the police have not always complied with the requirements of rule 5. Instead, they have delayed bringing suspects before a commissioner, using this period for interrogation. Sometimes such interrogations, conducted before the accused has been advised of his rights or has an opportunity to consult counsel, produce confessions or damaging admissions.'

Ordinarily, the detention and questioning of suspects are not the concern of the courts. But where a suspect is convicted of crime, it is the duty of the courts to pass upon the evidence used to convict him. In a small minority of cases, accused persons have been convicted by the use of evidence obtained from them as a result of secret police questioning during a period of illegal detention. It then becomes the duty of the courts to decide whether such evidence is properly admissible.

This question first came before the Supreme Court in 1943 in McNabb v. United States (318 U. S. 332). The Court there held that the evidence illegally obtained by the police could not be used to secure a conviction. The Court made plain that it was ruling on a question of evidence, not attempting to regulate criminal procedure:

***We are not concerned with law-enforcement practices except insofar as 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 * **" (318 U. S. at 347).

The McNabb rule has been consistently followed by the Supreme Court. Its latest application was in Mallory v. United States. This decision, although it represented no new principle, attracted wide public attention, and thereby provided the impetus for the bills under discussion.

The Mallory case grew out of an alleged rape. Young Mallory lived, along with his older half-brother and grown nephews, in the house where the rape occurred. The victim could make no positive identification, but thought that the features of her masked assailant resembled those of Mallory and his two grown nephews. When the police arrested him, they told him that his brother had identified him as the assailant. At least four policemen began to question him. Mallory strenuously denied his guilt. After some hours he was induced to take a lie-detector test and after almost an hour and a half of steady interrogation with the machine he agreed to sign a statement that he had committed the crime. He was not brought before a United States commissioner until the next morning. Mallory was 19 years old and of such low mentality that his trial was delayed for a year because of doubt about his ability to understand the nature of the proceedings against him. At his trial, the confession thus obtained formed the principal evidence against him. He was convicted of rape and sentenced to death.

3 Upshaw v. United States, 335 U. S. 410, 414.

4 Examples of recent cases where this has happened are: Rettig v. United States, 239 F. 2d 916 (D. C. Cir. 1956); United States v. Klapholz, 230 F. 2d 494 (2d Cir. 1956); United States v. Skeeters, 122 F. Supp. 52 (D. C. S. D. Calif. 1954).

On appeal the Supreme Court held that the police violated the law because they failed to take Mallory before a commissioner without unnecessary delay. The Court held further that the confession obtained by interrogation during this period of illegal detention-before the boy had been informed of his right to consult counsei and of his right to remain silent-could not be used to convict him.

The effect of the Mallory decision has been widely misunderstood. The purpose of this memorandum is to point out the relationship between the McNabbMallory rule and the fundamental constitutional rights which it is designed to safeguard, and to consider the pending bills in light of the arguments advanced to support them.

II. PURPOSE OF THE M'NABB-MALLORY RULE

The statutes and rules governing Federal criminal procedure are deeply rooted in the Constitution, which guarantees certain fundamental rights to all persons arrested and accused of crime. The fourth amendment prohibits unreasonable searches and seizures of person or property. The sixth amendment requires that an accused person be informed of the nature of the charges against him and be given an opportunity to have counsel for his defense at every stage of the proceedings. The fifth amendment forbids imprisonment of persons except in accordance with law. It provides the right to remain silent in the face of police questioning. It also guarantees that no person shall be convicted on the basis of his own confession unless it was voluntary and not obtained by pressure or promises. The eighth amendment affords a right to bail, within certain limits. And article I guarantees the right to test wrongful imprisonment by habeas corpus.

Today few would dispute that these rights, hard-won by our ancestors, form a cherished part of the American democratic heritage. But they must be safeguarded in practice as well as in theory. Throughout its history the Supreme Court has refused to countenance practices which lead to a practical denial of these rights, even though the rights might continue to exist in theory. Hence the Court has long excluded evidence obtained in violation of the fourth amendment. And it has held that, where a defendant cannot afford a lawyer, a Federal court must appoint one for him to preserve the defendant's constitutional right to counsel, which would otherwise be denied due to his inability to pay." The McNabb-Mallory rule is an application of the same principle. It is designed to prevent practices which as a practical matter are likely to nullify the basic constitutional rights of accused persons.

If a suspect can be held illegally by the police without being brought before a commissioner, and thereafter convicted on the basis of admissions made during that time, he may effectively be deprived of some of his most important constitutional rights.

In the first place, the requirement that an accused person be informed of the charges against him is nullified if damaging admissions can be obtained from him before he knows of the charges. Without knowing the charges even a suspect who is both innocent and honest is in danger of making careless or contradictory statements which may make it difficult or impossible for him later to prove his innocence. And a person in custody for what he believes to be a minor offense might be little concerned about his own defense, whereas if he knew a serious crime was charged he would refuse to talk until he had fully collected the facts in his own mind. The purpose of this constitutional right is to make it possible for an accused person to defend himself effectively. It is difficult to conceive of any reason for cutting off this right at any stage of the proceedings, if it is worth preserving at all.

In the second place, a person who is required to submit to interrogation before he has had an opportunity to talk to a lawyer, or even knows that he has that right, has been deprived of counsel when he needs that help most. By the time a lawyer enters the case it may already be too late if the accused, however innocent, has already involved himself in unnecessary contradictions and confusion which make it appear that he is guilty. Experienced and educated persons do not voluntarily submit to interrogation about crime without the assistance of counsel, even though they are innocent of any wrongdoing. Surely, uneducated, inexperienced persons should not be deprived of the right

5 E. g., Weeks v. United States, 232 U. S. 383.

• Johnson v. Zerbst, 304 U. S. 458; Johnson v. United States, 352 U. S. 565.

to such assistance, for they need it most. The Constitution guarantees an accused the right to counsel at every stage of the proceedings against him.' In the third place, an accused person may not know until too late that he need not answer any questions at all. He may believe that he can be punished for failing to answer official questions. He may, although innocent, make statements that raise suspicions and destroy his credibility to such an extent that he cannot later rehabilitate himself. In such circumstances, failure to inform a prisoner of his constitutional right to silence may be equivalent to denying him the right. The right is a hollow one if a suspect first hears about it after he has made statements that can be and are used as evidence against him.

Other constitutional rights such as bail and habeas corpus may in like manner be denied by illegal detention.

Perhaps the most important reason for the McNabb-Mallory rule is that it is the only effective way devised so far to make certain that no conviction rests upon a confession obtained by police coercion. Under the Constitution, no defendant should be convicted with the aid of admissions made because of intimidation or promises. But when such confessions are obtained during a period of illegal detention by the police, before the defendant has talked to counsel or been advised of his rights, the atmosphere is fraught with coercion. Young or ignorant persons held in custody without a friend to help them may easily be frightened into making admissions-truthful or untruthful. Yet such pressure is usually difficult to prove because the defendant has no witnesses while the police have many. The McNabb-Mallory rule bars all such admissions from evidence, thereby insuring that police violation of rule 5 will not lead to a denial of constitutional rights as well.

Mallory's own case demonstrates the practical validity of the Court's decision. The boy was told that his brother had identified him as the assailant. A similar situation occurred in Bram v. United States (168 U. S. 532 (1897)). The captain of a vessel, his wife, and the second mate were all murdered while at sea. The ship stopped at Halifax, and Bram, the first mate, was arrested and brought into a detective's office for questioning. He was ordered to strip off his clothing and was then told that Brown, a seaman, had said he saw Bram do the killing. In confusion Bram said the seaman couldn't have seen him from his station. This admission, meant as a denial, was allowed in evidence against Bram, and he was found guilty. The Supreme Court held that Bram's constitutional rights were violated. Under the circumstances, telling Bram that he had been identified as the murderer put him in fear, and his statement was inadmissible because made under the influence of fear. The Court quoted this statement from one of the old lawbooks:

"The human mind under the pressure of calamity is easily seduced and is liable, in the alarm of danger, to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail. A confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope, or by impressions of fear, however slightly the emotions may be implanted (vide O. B. 1786, p. 387), is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction" (168 U. S. 547).

It is a rare case where what happened during questioning can be proved by the defendant. In all too many cases, subtle ways of putting a defendant in fear are likely to go undetected. The McNabb-Mallory rule is designed to foreclose the possibility that a confession obtained by means that are unconstitutional but undetected, during a period when the police are themselves violating the law, will be used to convict an accused person.

III. THE TESTIMONY OF LAW-ENFORCEMENT OFFICIALS DOES NOT SUPPORT BILLS OF THE TYPE NOW PENDING

In July and August of last year, hearings were held on the Mallory bills before the Special Subcommittee To Study Supreme Court Decisions of the House Committee on the Judiciary. The subcommittee heard testimony from Oliver Gasch, the United States Attorney for the District of Columbia; Robert V. Murray, Chief of the District of Columbia Police; William H. Parker, Los Angeles chief of police; Warren Olney, Assistant Attorney General, and other law-enforcement officials. The testimony before the subcommittee indicated.

7 Johnson v. Zerbst, 304 U. S. 458; Johnson v. United States, 352 U. S. 565.

that police officers and prosecutors are concerned about a number of law-enforcement problems said to arise from existing statutes governing the arrest and detention of persons accused of crime.

In the first place, the police say that much uncertainty has resulted from recent Supreme Court decisions so that they are unable to tell what they may or may not do with respect to arrest and questioning of suspects. A bill is needed, they contend, to clear up current confusion.

Secondly, law-enforcement officials stress the value of extended questioning of suspects at the station house. As a matter of practice, the police believe that they should be able to hold suspects long enough to check the immediately available facts and thereby trace down leads. They contend that it is impractical to require them to delay arrest until evidence sufficient to show "probable cause" is gathered.

Third, the police testified that a requirement that an arrested person be taken before a commissioner before the police have completed interrogating and investigating him would make it necessary to book many innocent persons. This would give them criminal arrest records, whereas a relatively short period of investigation could establish their innocence without the necessity of a recorded arrest. Thus questioning during a period of detention is regarded as a protection in sifting out the guilty from the innocent.

Finally, it was suggested at the hearings that those most likely to benefit from the Mallory decision were professional criminals who know all the ins and outs of court rulings and are quick to take advantage of procedural technicalities.

It would be difficult to deny that the police, in their efforts to enforce the law, face a serious problem in the Federal arrest and arraignment procedure, but the bills now pending would not aid the police in dealing with the practical difficulties which they described to the subcommittee.

To begin with, these bills would not remove uncertainty from the law. With the repeal of the McNabb-Mallory rule of complete exclusion of evidence obtained during illegal detention, the courts would be required to resume a case-by-case examination of detention and questioning to determine whether elements of coercion were present. Since the circumstances may be such that prolonged detention is found coercive, e. g., Watts v. Indiana (338 U. S. 49), the police would never be certain whether information elicited by questioning could be admitted in evidence at a trial.

Nor would either bill solve the other practical problems facing the police. H. R. 8600 makes no change whatsoever in the law governing arrest, detention and arraignment. It gives the police no rights or power that they would not have under the 15-year-old McNabb-Mallory rule. That rule deals only with the admissibility of evidence at trial. It leaves the police with as much power as they previously had to question suspects at any time. The rule simply provides that if the police fail to comply with the present procedures for detention and preliminary hearing, evidence obtained from the defendant during the period of illegal detention is not admissible at the trial. H. R. 8600, which would simply overturn the McNabb-Mallory rule, does not add to police powers any more than those decisions limited them.

S. 2432 would be different in effect. It would keep the McNabb-Mallory exclusionary rule but fix a time limit for bringing an arrested person before a commissioner. In place of the flexible "necessary" period of detention now permitted prior to the preliminary hearing, it would provide a rigid 12-hour period after which detention would be regarded as illegal. Depending on the circumstances in particular cases, this 12-hour period might be longer or shorter than the permissible period under the McNabb-Mallory decision. The subcommittee hearings left no doubt that in many instances such a rule would defeat the efforts of the police to solve crimes.

In summary, the bills pending in Congress do not offer adequate or desirable solutions to the problems that now beset law-enforcement officials. Instead, they undermine long-established rights of citizens. H. R. 8600, by preventing the courts from excluding statements obtained by the police in violation of existing detention provisions, tacitly sanctions such illegal police conduct. Its text is an invitation to police officers to violate rule 5 of the Federal Rules of Criminal Procedure with impunity. If this rule is unreasonable, Congress should change

it. But it is bad for the country and bad for the police if Congress encourages the police to violate any law that is still on the books, for this undermines our whole system of law. No bill should be passed that would lead to such a result, and it should not be forgotten that one of the purposes of the McNabb and Mallory decisions is to protect the integrity of our system of criminal procedure

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